-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, ITCZ0DDHx/3RdQRnVd2VUN2Yg6ndPWL2INKqvSnHqWJtdAG5ORVk/PZABYKsoJbh M30JXlb2JzWG/TgkJPZLuA== 0000092122-96-000070.txt : 19960502 0000092122-96-000070.hdr.sgml : 19960502 ACCESSION NUMBER: 0000092122-96-000070 CONFORMED SUBMISSION TYPE: U5S PUBLIC DOCUMENT COUNT: 17 CONFORMED PERIOD OF REPORT: 19951231 FILED AS OF DATE: 19960501 SROS: NYSE 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: U5S SEC ACT: 1935 Act SEC FILE NUMBER: 001-03526 FILM NUMBER: 96554411 BUSINESS ADDRESS: STREET 1: 64 PERIMETER CENTER EAST CITY: ATLANTA STATE: GA ZIP: 30346 BUSINESS PHONE: 770-393-06 MAIL ADDRESS: STREET 1: 64 PERIMETER CENTER EAST CITY: ATLANTA STATE: GA ZIP: 30346 U5S 1 1995 FORM U5S SECURITIES AND EXCHANGE COMMISSION Washington, D. C. 20549 ---------------- FORM U5S ANNUAL REPORT For the Fiscal Year Ended December 31, 1995 Filed pursuant to the Public Utility Holding Company Act of 1935 by THE SOUTHERN COMPANY 270 PEACHTREE STREET, N. W. ATLANTA, GEORGIA 30303 THE SOUTHERN COMPANY FORM U5S 1995 TABLE OF CONTENTS ITEM PAGE NUMBER 1. System Companies and Investments Therein as of December 31, 1995 1 2. Acquisitions or Sales of Utility Assets 4 3 Issue, Sale, Pledge, Guarantee or Assumptions of System Securities 4 4. Acquisition, Redemption or Retirement of System Securities 4 5. Investments in Securities of Nonsystem Companies 7 6. Officers and Directors 8 7. Contributions and Public Relations 36 8. Service, Sales and Construction Contracts 38 9. Wholesale Generators and Foreign Utility Companies 39 10. Financial Statements and Exhibits A i ITEMS ITEM 1. SYSTEM COMPANIES AND INVESTMENTS THEREIN AS OF DECEMBER 31, 1995.
Name of Company Number of Percentage Issuer (Add abbreviation Common of Voting Book Owner's used herein) Shares Owned Power Value Book Value In Thousands THE SOUTHERN COMPANY (SOUTHERN) None None n/a n/a ALABAMA POWER COMPANY (ALABAMA) 5,608,955 100 $2,690,374 $2,690,374 Southern Electric Generating Company (SEGCO) (a) 164,000 50 27,232 27,232 Alabama Property Company 1,000 100 7,592 7,592 GEORGIA POWER COMPANY (GEORGIA) 7,761,500 100 4,299,012 4,299,012 SEGCO (a) 164,000 50 27,232 27,232 Piedmont-Forrest Corporation (PIEDMONT) 100,000 100 9,110 9,110 11,755 (b) 11,755 Georgia Power LP Holdings Corp. (GEORGIA POWER HOLDINGS) 500 100 - - Georgia Power Capital, L.P. (GEORGIA CAPITAL) n/a n/a 3,388 3,388 GULF POWER COMPANY (GULF) 992,717 100 436,242 436,242 ENERGIA DE NUEVO LEON, S. A. DE C. V. 358 33 1/3 - - MISSISSIPPI POWER COMPANY (MISSISSIPPI) 1,121,000 100 374,884 374,884 MOBILE ENERGY SERVICES HOLDINGS, INC. (MESH) 1,000 100 40,766 40,766 MOBILE ENERGY SERVICES COMPANY, LLC (MESCO) (c) n/a 99 66,772 66,772 SAVANNAH ELECTRIC AND POWER COMPANY (SAVANNAH) 10,844,635 100 167,812 167,812 1
ITEM 1. SYSTEM COMPANIES AND INVESTMENTS THEREIN AS OF DECEMBER 31, 1995. (Continued)
Name of Company Number of Percentage Issuer (Add abbreviation Common of Voting Book Owner's used herein) Shares Owned Power Value Book Value In Thousands SEI HOLDINGS, INC. (SEIH) 1,000 100 $806,507 $806,507 Asociados de Electricidad 11,999 (d) (e) (e) SEI y Asociados de Argentina S. A. 9,600 (d) (e) (e) Hidroelectrica Alicura, S. A. 171,690,000 (d) (e) (e) SEI NEWCO 1, INC. 1,000 100 1,000 1,000 SEI NEWCO 2, INC. 1,000 100 1,000 1,000 SEI HOLDINGS III, INC. (SEIH-III) 1,000 100 118,712 118,712 (merged with SEI Newco 2, Inc. on 12/31/95) SEI Chile, S. A. 999 (d) (e) (e) Inversiones SEI Chile Limitada n/a (d) (e) (e) Empresa Electrica del Norte Grande, S. A. (Edelnor) 158,643,607 (d) (e) (e) Sitranor S. A. (f) n/a (d) (e) (e) Electrica SEI Chile Limitada n/a (d) (e) (e) Energia Del Pacifico S. A. (g) 1,000 (d) (e) (e) SEI HOLDINGS VIII, INC. (SEIH-VIII) 1,000 100 22 22 (merged with SEI Newco 2, Inc. on 12/31/95) SEI Beteiligungs GmbH 1 (d) (e) (e) SEI HOLDINGS X, INC. (SEIH-X) 1,000 100 - - (merged with SEI Newco 2, Inc. on 12/31/95) Southern Electric Brasil Participacoes Ltda. 999 (d) (e) (e) SEI HOLDINGS XI, INC. (SEIH-XI) 1,000 100 1 1 (merged with SEI Newco 2, Inc. on 12/31/95) Southern Electric Brasil Participacoes Ltda. 1 (d) (e) (e) SOUTHERN ELECTRIC BAHAMAS HOLDINGS, LTD. (SEBH) 1,000 100 26,629 26,629 Southern Electric Bahamas, Ltd. 5,000 (d) (e) (e) Freeport Power Company Limited 910,809 (d) (e) (e) SOUTHERN ELECTRIC INTERNATIONAL- EUROPE, INC. 1,000 100 - - Tesro Holding, B. V. 55 (d) (e) (e) SEI Bahamas Argentina II, Inc. 5,000 (d) (e) (e) Southern Investments UK Holdings Limited (h) n/a (d) (e) (e) Southern Investments UK plc (i) None - - - South Western Electricity plc (j) 113,989,525 (d) (e) (e) 2
ITEM 1. SYSTEM COMPANIES AND INVESTMENTS THEREIN AS OF DECEMBER 31, 1995. (Continued)
Name of Company Number of Percentage Issuer (Add abbreviation Common of Voting Book Owner's used herein) Shares Owned Power Value Book Value In Thousands SOUTHERN ELECTRIC INTERNATIONAL TRINIDAD, INC. 1,000 100 32,866 32,866 The Power Generation Company of Trinidad and Tobago Limited 188,370,000 (d) (e) (e) SOUTHERN ELECTRIC, INC. 1,000 100 18 18 SEI Bahamas Argentina I, Inc. 5,000 (d) (e) (e) SEI Inversora, S. A. 7,800 (d) (e) (e) SOUTHERN ELECTRIC WHOLESALE GENERATORS, INC. (SEWG) 500 100 - - SEI Birchwood, Inc. 1,000 (d) (e) (e) Birchwood Power Partners, L. P. SEI Hawaiian Cogenerators, Inc. 1,000 (d) (e) (e) Kalaeloa Partners, L. P. Southern Energy Marketing, Inc. (k) 1,000 (d) (e) (e) SOUTHERN COMPANY SERVICES, INC. (SCS) 14,500 100 875 875 SOUTHERN COMMUNICATIONS SERVICES, INC. (Southern Communications) 500 100 99,448 99,448 SOUTHERN ELECTRIC INTER- NATIONAL, INC. (SEI) 1,000 100 113 113 SEI Operadora de Argentina, S. A. 11,999 (d) (e) (e) Southern Electric International- Asia, Inc. (l) 1,000 (d) (e) (e) Southern Electric International, GmbH (m) 500 (d) (e) (e) SOUTHERN ELECTRIC RAILROAD COMPANY (SERC) 5,000 100 5 5 SOUTHERN NUCLEAR OPERATING COMPANY, INC. (SOUTHERN NUCLEAR) 1,000 100 1,624 1,624 5,000 (n) 5,000 THE SOUTHERN DEVELOPMENT AND INVESTMENT GROUP, INC. (Southern 500 100 4,359 4,359 Development) See Notes below. See also Item 5. 3
Notes to Item 1: (a) SEGCO is 50% owned by ALABAMA and 50% owned by GEORGIA. The amounts shown reflect the respective ownership interests of each company. (b) Promissory note due on demand; interest rate, based on GEORGIA's embedded cost of capital, was 10.04% at January 1, 1996. (c) Date of incorporation was 7/25/95 in the state of Alabama. (d) This information is contained in Item 9, Part I(a). (e) This information is contained in Item 9, Part I(b). (f) Date of incorporation was 11/28/94 in the country of Chile. A corporation to hold transmission assets of Edelnor. (g) Date of incorporation was 8/25/95 in the country of Chile. A natural gas corporation. (h) Date of incorporation was 6/23/95 in the countries of England and Wales. A United Kingdom holding company through which SOUTHERN owns South Western Electricity plc. (i) Date of incorporation was 6/23/95 in the countries of England and Wales. A United Kingdom corporation through which SOUTHERN owns South Western Electricity plc. (j) Date of incorporation was 4/1/89 in the countries of England and Wales. SOUTHERN acquired this regional United Kingdom diversified utility company in September 1995. (k) Date of incorporation was 4/6/95 in the state of Delaware. A corporation formed to conduct wholesale power marketing activities. (l) Date of incorporation was 1/11/95 in the state of Delaware. A corporation to be used for business development in Asia. (m) Date of incorporation was 10/13/94 in the country of Austria. A corporation to be used for business development in Europe. (n) Unsecured notes payable due on or before December 31, 2000 at an end-of-year interest rate of 5.82%.
ITEM 2. ACQUISITION OR SALES OF UTILITY ASSETS. NONE. ITEM 3. ISSUE, SALE, PLEDGE, GUARANTEE OR ASSUMPTION OF SYSTEM SECURITIES. NONE. ITEM 4. ACQUISITION, REDEMPTION, OR RETIREMENT OF SYSTEM SECURITIES.
Calendar Year 1995 Name of Company Indicate Name of Issuer and Acquiring, Redeeming Number of Shares or Principal Amount Commission Title of Issue or Retiring Securities Acquired Redeemed Retired Consideration Authorization (See Note) ALABAMA: Pollution Control Revenue Bonds 9 3/8% Series D due 2015 ALABAMA None $50,000,000 $50,000,000 $50,000,000 9 1/4% Series E due 2015 ALABAMA None $81,500,000 $81,500,000 $81,500,000 4
ITEM 4. ACQUISITION, REDEMPTION, OR RETIREMENT OF SYSTEM SECURITIES. Calendar Year 1995 Name of Company Indicate Name of Issuer and Acquiring, Redeeming Number of Shares or Principal Amount Commission Title of Issue or Retiring Securities Acquired Redeemed Retired Consideration Authorization (See Note) GEORGIA: First Mortgage Bonds Variable Rate Series due 2032 GEORGIA None $100,000,000 $100,000,000 $100,000,000 9.23% Series due 2019 GEORGIA $20,856,000 $15,301,000 $36,157,000 $36,313,420 8 3/4% Series due 2022 GEORGIA $15,500,000 $84,500,000 $100,000,000 $100,116,250 8 5/8% Series due 2022 GEORGIA $4,000,000 $35,632,000 $39,632,000 $39,662,000 Variable Rate Series due 2032 GEORGIA None $100,000,000 $100,000,000 $100,000,000 5 1/8% Series due 1995 GEORGIA None $130,000,000 $130,000,000 $130,000,000 Pollution Control Revenue Bonds 6 3/8% Series due 2008 GEORGIA None $10,000 $10,000 $10,000 6 3/8% Series due 2008 GEORGIA None $10,000 $10,000 $10,000 6 3/8% Series due 2008 GEORGIA None $50,000 $50,000 $50,000 6.40% Series due 2007 GEORGIA None $10,000 $10,000 $10,000 6.40% Series due 2007 GEORGIA None $10,000 $10,000 $10,000 6 3/4% Series due 2006 GEORGIA None $10,000 $10,000 $10,000 6 3/4% Series due 2006 GEORGIA None $10,000 $10,000 $10,000 10 1/8% Series due 2015 GEORGIA None $148,535,000 $148,535,000 $151,505,700 10 1/2% Series due 2015 GEORGIA None $156,580,000 $156,580,000 $159,711,600 10.60% Series due 2015 GEORGIA None $57,000,000 $57,000,000 $58,140,000 10.60% Series due 2015 GEORGIA None $43,000,000 $43,000,000 $43,860,000 10 1/2% Series due 2015 GEORGIA None $99,585,000 $99,585,000 $101,576,700 Preferred Stock $4.60 Series GEORGIA $100 None $100 $54 GULF: First Mortgage Bonds 9% Series due 2008 GULF None $1,750,000 $1,750,000 $1,750,000 Pollution Control Revenue Bonds 6% Series due 2006 GULF None $125,000 $125,000 $125,000 Cumulative Preferred Stock Subject to Mandatory Redemption 11.36% Series GULF None 10,000 10,000 $1,000,000 5
ITEM 4. ACQUISITION, REDEMPTION, OR RETIREMENT OF SYSTEM SECURITIES.
Calendar Year 1995 Name of Company Indicate Name of Issuer and Acquiring, Redeeming Number of Shares or Principal Amount Commission Title of Issue or Retiring Securities Acquired Redeemed Retired Consideration Authorization (See Note) MISSISSIPPI: First Mortgage Bonds 9 1/4% Series due 2021 MISSISSIPPI None $1,625,000 None $1,675,055 Pollution Control Bonds 5.80% Series due 2007 MISSISSIPPI None $10,000 None $10,000 SAVANNAH: First Mortgage Bonds 9 1/4% Series due 2019 SAVANNAH None $28,950,000 $28,950,000 $30,732,810 9 3/8% Series due 2021 SAVANNAH None $300,000 $300,000 $300,000 Note to Item 4: All transactions exempt pursuant to Rule 42(b)(2), (4) or (5) or authorized in File No. 70-8095 or in the respective proceedings relating to the issuance and sale of preferred stock. 6
ITEM 5. INVESTMENTS IN SECURITIES OF NONSYSTEM COMPANIES.
Number of Shares or Carrying Principal Value Name of Owner Name of Issuer Amount Owned to Owner - ------------- -------------- ------------ -------- ALABAMA (sixteen items) (1) 189,522 shares $50,015 ALABAMA (four items) (2) $544,000 $544,000 GEORGIA (one item) (3) $1,500,000 $1,500,000 Southern Development (one item) (4) 130,381 shares $1 Notes to Item 5: (1) Securities representing bankruptcy distributions applicable to obligations of customers incurred in the ordinary course of business and $50,000 invested in a Minority Enterprise Small Business Investment Company located in Birmingham, Alabama. (2) Debt securities issued by instrumentalities of political subdivisions within ALABAMA's service area to build promotional industrial buildings that will assist in advancing business and industrial development. (3) Investment made in a private venture capital fund for the purpose of assisting early-stage and high technology companies located principally in the Southeast, with a focus on Georgia-based firms. (See File No. 70-8085.) (4) Represents Southern Development's investment in Integrated Communication Systems, Inc. (ICS). ICS is engaged in providing two-way communications over local telephone lines for a wide range of energy-related services in the residential and small commercial markets.
7 ITEM 6. OFFICERS AND DIRECTORS. PART I. The following are the abbreviations to be used for principal business address and positions. Principal Business Address Code 270 Peachtree Street Atlanta, GA 30303 (a) 600 North 18th Street Birmingham, AL 35291 (b) 333 Piedmont Avenue, N.E. Atlanta, GA 30308 (c) 500 Bayfront Parkway Pensacola, FL 32501 (d) 900 Ashwood Parkway Suite 500 Atlanta, GA 30338 (e) 2992 West Beach Boulevard Gulfport, MS 39501 (f) 600 East Bay Street Savannah, GA 31401 (g) Suipacha 1111 Piso 18 1368 Buenos Aires, Argentina (h) LN Alem 712 - Piso 7 (1001) Buenos Aires, Argentina (i) Apoquindo 3721 Office 114 Santiago, Chile (j) Avda Grecia 750 Antofagasta, Chile (k) 800 Park Avenue, Aztec West Almondsbury, Bristol BS12 4SE (l) 64 Perimeter Center East Atlanta, GA 30346 (m) 42 Inverness Center Parkway Birmingham, AL 35242 (n) 40 Inverness Center Parkway Birmingham, AL 35242 (o) Position Code Director D President P Chief Executive Officer CEO Chief Financial Officer CFO Chief Accounting Officer CAO Chief Information Officer CIO Chief Production Officer CPO Senior Executive Vice President SEVP Executive Vice President EVP Senior Vice President SVP Financial Vice President FVP Vice President VP Controller/Comptroller C Counsel L Secretary S Treasurer T General Manager GM Managing Director MD SOUTHERN Name and Principal Address (a) Position John C. Adams D 755 Lee Street P. O. Box 272 Alexander City, AL 35011-0272 A. D. Correll D 133 Peachtree Street, N.E. Atlanta, GA 30303 A. W. Dahlberg D,P,CEO Paul J. DeNicola (m) D,EVP Jack Edwards D P. O. Box 123 Mobile, AL 36601 H. Allen Franklin (c) D,EVP Bruce S. Gordon D 1310 N. Court House Road Arlington, VA 22201 L. G. Hardman III D P. O. Box 149 Commerce, GA 30529 Elmer B. Harris (b) D,EVP William A. Parker, Jr. D 1380 West Paces Ferry Road, N.W. Suite 260 Atlanta, GA 30327 William J. Rushton, III D P. O. Box 2606 Birmingham, AL 35202 Dr. Gloria M. Shatto D 610 Mount Berry Station Mount Berry, GA 30149 Gerald J. St. Pe' D P. O. Box 149 8 ITEM 6. OFFICERS AND DIRECTORS. PART I. (Continued) SOUTHERN (continued) Name and Principal Address (a) Position Pascagoula, MS 39568 Herbert Stockham D P. O. Box 13018 Birmingham, AL 35213 W. L. Westbrook FVP,CFO,T David M. Ratcliffe SVP David R. Altman VP Thomas G. Boren (e) VP Bill M. Guthrie (b) VP C. Alan Martin VP John G. Richardson VP 1130 Connecticut Avenue, NW Washington, DC 20036 Dr. W. Robert Woodall, Jr. VP W. Dean Hudson (m) C Tommy Chisholm S ALABAMA Name and Principal Address (b) Position Whit Armstrong D P. O. Box 900 Enterprise, AL 36331 Philip E. Austin D 401 Queen City Avenue Tuscaloosa, AL 35401 Margaret A. Carpenter D 1452 Carter Hill Road Montgomery, AL 36106 A. W. Dahlberg (a) D Peter V. Gregerson, Sr. D 644 Walnut Street Gadsden, AL 35901 Bill M. Guthrie (b) D,EVP,CPO Elmer B. Harris D,P,CEO Carl E. Jones, Jr. D P. O. Box 2527 Mobile, AL 36622 Wallace D. Malone, Jr. D P. O. Box 2554 Birmingham, AL 35290 William V. Muse D Auburn University 107 Samford Hall Auburn, AL 36849 John T. Porter D 1101 Martin L. King, Jr. Dr. S.W. Birmingham, AL 35211 Gerald H. Powell D P. O. Drawer 909 Jacksonville, AL 36265 Robert D. Powers D 202 East Broad Street Eufaula, AL 36027 John W. Rouse D P. O. Box 55305 Birmingham, AL 35255 William J. Rushton, III D P. O. Box 2606 Birmingham, AL 35202 James H. Sanford D 1001 McQueen Smith Road South Prattville, AL 36066 John C. Webb, IV D 125 W. Washington Street Demopolis, AL 36732 John W. Woods D P. O. Box 11007 Birmingham, AL 35288 Banks H. Farris EVP William B. Hutchins, III EVP,CFO Charles D. McCrary EVP Robert A. Buettner SVP,L Michael D. Garrett SVP Earl B. Parsons, Jr. SVP Christopher C. Womack SVP Art P. Beattie VP,S,T A. J. Connor VP James M. Corbitt VP W. Roy Crow VP Andy J. Dearman VP John E. Dorsett VP Thomas A. Fanning VP,CIO Robert Holmes, Jr. VP Robin A. Hurst VP J. Bruce Jones VP C. Alan Martin (a) VP Donald W. Reese VP Michael L. Scott VP Julian H. Smith, Jr. VP W. Ronald Smith VP Susan N. Story VP Anthony J. Topazi VP Terry H. Waters VP David L. Whitson VP,C,CAO Phillip Wiedmeyer VP ALABAMA PROPERTY COMPANY Name and Principal Address (b) Position Elmer B. Harris D,P William B. Hutchins, III D,VP Susan N. Story D,VP David L. Whitson C Art P. Beattie S,T 9 ITEM 6. OFFICERS AND DIRECTORS PART I. (Continued) GEORGIA Name and Principal Address (c) Position Bennett A. Brown D P. O. Box 4899 Atlanta, GA 30302-4899 A. W. Dahlberg (a) D William A. Fickling, Jr. D P. O. Box 1976 Macon, GA 31202-1976 H. Allen Franklin D,P,CEO L. G. Hardman III D P. O. Box 149 Commerce, GA 30529 Warren Y. Jobe D,EVP,T, CFO James R. Lientz, Jr. D P. O. Box 4899 Atlanta, GA 30302-4899 William A. Parker, Jr. D 1380 West Paces Ferry Road, N.W. Suite 260 Atlanta, GA 30327 G. Joseph Prendergast D 191 Peachtree Street, N.E. Atlanta, GA 30303-1757 Herman J. Russell D 504 Fair Street, S.W. Atlanta, GA 30313 Dr. Gloria M. Shatto D 610 Mount Berry Station Mount Berry, GA 30149-0610 William Jerry Vereen D P. O. Box 460 Moultrie, GA 31776-0460 Carl Ware D P. O. Box Drawer 1734 Atlanta, GA 30301 Thomas R. Williams D 191 Peachtree Street, NE, 21st Floor Atlanta, GA 30303 William C. Archer, III EVP Bill M. Guthrie (b) EVP William G. Hairston, III (o) EVP Gene R. Hodges EVP William P. Bowers SVP Wayne T. Dahlke SVP James K. Davis SVP Robert H. Haubein, Jr. SVP Fred D. Williams SVP J. D. Woodard (o) SVP Judy M. Anderson VP,S J. Thomas Beckham, Jr. (o) VP Robert L. Boyer VP M. A. Brown VP J. L. Conn VP Fred W. DeMent, Jr. VP Thomas A. Fanning VP,CIO J. W. George VP Leonard J. Haynes VP Craig S. Lesser VP J. B. Manley VP J. L. Martin, Jr. VP Charles K. McCoy (o) VP J. A. Parramore, Jr. VP Cliff Thrasher VP,C,CAO James A. Wilson VP Dr. W. Robert Woodall, Jr. (a) VP PIEDMONT Name and Principal Address (c) Position H. Allen Franklin D,P Warren Y. Jobe D,EVP,T J. Alex Parramore D,VP W. G. Jones, Jr. VP Judy M. Anderson S Georgia Power L. P. Holdings Corp. Name and Principal Address (c) Position Warren Y. Jobe D,P,T Judy M. Anderson VP,S Charles O. Rawlins (m) VP SEGCO Name and Principal Address (b) Position Robert L. Boyer (c) D H. Allen Franklin (c) D,VP Bill M. Guthrie D,VP Elmer B. Harris D,P Robert H. Haubein, Jr. (c) D William B. Hutchins, III D,VP Warren Y. Jobe (c) D Charles D. McCrary D Earl B. Parsons, Jr. D David L. Whitson C Art P. Beattie S,T 10 ITEM 6. OFFICERS AND DIRECTORS PART I. (Continued) GULF Name and Principal Address (d) Position Dr. Reed Bell, Sr. D 5177 N. 9th Avenue, Suite 1 Pensacola, FL 32504 Travis J. Bowden D,P,CEO Paul J. DeNicola (m) D Fred C. Donovan D P. O. Box 13370 Pensacola, FL 32591 W. Deck Hull, Jr. D P. O. Box 2180 Panama City, FL 32402 C. Walter Ruckel D P. O. Box 187 Valparaiso, FL 32580 Joseph K. Tannehill D 10 Arthur Drive Lynn Haven, FL 32444 F. M. Fisher, Jr. VP Bill M. Guthrie (b) VP,CPO J. E. Hodges, Jr. VP G. Edison Holland, Jr. VP,L C. Alan Martin (a) VP Arlan E. Scarbrough VP,CFO Ronnie R. Labrato C Warren E. Tate S,T ENERGIA de NUEVO LEON, S.A. DE C.V. Name and Principal Address (e) Position Marcelo Canales Clarion D Lazaro Cardenas 2400 Despacho PD-11 PB Edificia Losoles, Garza Garcia 66220 N. L. Mexico William R. Easter D Jean M. Fauvd D Lazaro Cardenas 2400 Despacho PD-11 PB Edificia Losoles, Garza Garcia 66220 N. L. Mexico Ismael Garza T. D Lazaro Cardenas 2400 Despacho PD-11 PB Edificia Losoles, Garza Garcia 66220 N. L. Mexico Arturo G. Garza Zermeno D Lazaro Cardenas 2400 Despacho PD-11 PB Edificia Losoles, Garza Garcia 66220 N. L. Mexico Andres Gonzalez Sandoval D,S Lazaro Cardenas 2400 Despacho PD-11 PB Edificia Losoles, Garza Garcia 66220 N. L. Mexico Tanenguy Le Marechal D Lazaro Cardenas 2400 Despacho PD-11 PB Edificia Losoles, Garza Garcia 66220 N. L. Mexico Raul Rangel Hinojosa D Lazaro Cardenas 2400 Despacho PD-11 PB Edificia Losoles, Garza Garcia 66220 N. L. Mexico Santiago C. Reyes Retana D Lazaro Cardenas 2400 Despacho PD-11 PB Edificia Losoles, Garza Garcia 66220 N. L. Mexico W. Clay Smith (m) D MISSISSIPPI Name and Principal Address (f) Position Paul J. DeNicola (m) D Edwin E. Downer D 7642 Poplar Springs Drive Meridian, MS 39305 Dwight H. Evans D,P,CEO Robert S. Gaddis D P. O. Box 168 Laurel, MS 39440 Walter H. Hurt, III D P. O. Box 9 Inverness, MS 38753 Aubrey K. Lucas D P. O. Box 5001 Southern Station Hattiesburg, MS 39406 George A. Schloegel D Hancock Bank P. O. Box 4019 Gulfport, MS 39502 Philip J. Terrell D 701 West North Street Pass Christian, MS 39571 N. Eugene Warr D 2600 Beach Boulevard Biloxi, MS 39531 H. Ed Blakeslee VP Bill M. Guthrie (b) VP,CPO Frederick D. Kuester VP C. Alan Martin (a) VP Don E. Mason VP Michael W. Southern VP,CFO, S,T Frances V. Turnage C 11 ITEM 6. OFFICERS AND DIRECTORS PART I. (Continued) MOBILE ENERGY SERVICES HOLDINGS, INC. Name and Principal Address (e) Position Kerry E. Adams (n) D Thomas G. Boren D,P,CEO S. Marce Fuller D,VP Raymond D. Hill D,VP, CFO J. Bruce Jones D Thomas J. Madden, III D Mark R. Ogle VP Dean G. Koch VP James A. Ward VP,C Tommy Chisholm (a) S MOBILE ENERGY SERVICES COMPANY, LLC Name and Principal Address (e) Position Thomas G. Boren P,CEO Raymond D. Hill VP,CFO Dean G. Koch VP,GM Christopher Kysar VP S. Marce Fuller VP Mark R. Ogle VP James A. Ward VP,C Tommy Chisholm (a) S SAVANNAH Name and Principal Address (g) Position Helen Quattlebaum Artley D 9 Avenue of the Pines Savannah, GA 31406 Paul J. DeNicola (m) D Brian R. Foster D P. O. Box 9586 Savannah, GA 31412 Arthur M. Gignilliat, Jr. D,P,CEO Walter D. Gnann D P. O. Box 334 Springfield, GA 31329 Robert B. Miller, III D P. O. Box 8003 Savannah, GA 31412 Arnold M. Tenenbaum D P. O. Box 2567 Savannah, GA 31498 Frederick F. Williams, Jr. D 8 Rockwell Avenue South Savannah, GA 31419 W. Miles Greer VP Bill M. Guthrie (b) VP,CPO C. Alan Martin (a) VP Larry M. Porter VP Kirby R. Willis VP,T,CFO Lavonne Calandra S Nancy Frankenhauser C SEIH Name and Principal Address (e) Position Kerry E. Adams (n) D Thomas G. Boren D,P Travis J. Bowden (d) D Paul J. DeNicola (m) D H. Allen Franklin (c) D W. L. Westbrook (a) D Raymond D. Hill VP,T,CFO Ronald E. Leggett VP Richard J. Pershing VP Charles W. Whitney (l) VP Tommy Chisholm (a) S James A. Ward C Asociados De Electricidad, S.A. Name and Principal Address (h) Position Felicia L. Bellows (i) D,VP Mariano F. Grondona (i) D,S J. William Holden, III (e) D,P S. Marce Fuller (e) D Jose Martinez de Hoz D SEI y Asociados de Argentina, S.A. Name and Principal Address (h) Position Juan Carlos Apostolo D Felicia L. Bellows (i) D,VP Thomas G. Boren (e) D Peter J. Davenport D Mariano F. Grondona D,S Raymond D. Hill (e) D J. William Holden, III (e) D,P W. L. Westbrook (a) D Felipe Maria Castro Cranwell D Roberto Guillermo Haas D Ronald E. Leggett (e) D Jose Martinez de Hoz D Ricardo Urbano Sirl D James A. Ward (e) D 12 ITEM 6. OFFICERS AND DIRECTORS PART I. (Continued) Hidroelectrica Alicura, S.A. Name and Principal Address (i) Position Felicia L. Bellows D,VP Matias Bourdieu D Peter J. Davenport D Alfredo H. Estevez D Mariano F. Grondona D,S Roberto Guillermo Haas D J. William Holden, III (e) D Jose Alberto Michaux D Juan Carlos Apostolo D Thomas G. Boren (e) D Raymond D. Hill (e) D Ronald E. Leggett (e) D Daniel Enrique Micheloud D Gonzalo Nunez D Alfredo Ricardo Pujante D W. L. Westbrook (a) D SEIH-III Name and Principal Address (e) Position Thomas G. Boren D,P A. W. Dahlberg (a) D W. L. Westbrook (a) D Raymond D. Hill VP,CFO James A. Ward T Tommy Chisholm (a) S SEI Chile, S.A. Name and Principal Address (j) Position Felicia L. Bellows (i) D Edgardo Boeninger Kausel D Jorge Granic Latorre D Pastor Sanjurjo (k) D,GM Carlos Larrain Pena D Eduardo Zuniga Pacheco D Empresa Electrica del Norte Grande, S.A. Name and Principal Address (k) Position Kerry E. Adams (n) D Raul Castro Letelier D Edmundo Dupre Echeverria D,VP Patricio Leighton Gonzalez D,P Pastor Sanjurjo D W. L. Westbrook (a) D Jose I. Zaldivar Peralta L Sergio Balbontin Cavada GM Sitranor S. A. Name and Principal Address (k) Position Ricardo Campano D Mario Espinoza D. D Luis Hormazibal D Carlos Larrain Pena D Oscar Moscoso Fabres D Pastor Sanjurjo D Eduardo Zuniga Pacheco D Arturo Bulnes Concha D Christopher Darnell D Jaime de los Hoyes D Jorge Granic Latorre D Hector Saldivar D Francisco Sibias D Carlos Urgua D Energia del Pacifico S. A. Name and Principal Address (k) Position Jorge Granic Latorre D Carlos Larrain Pena D Pastor Sanjurjo D Southern Electric International - Europe, Inc. Name and Principal Address (e) Position James A. Ward D,VP,T Thomas G. Boren P Tommy Chisholm (a) S SEI Bahamas Argentina II, Inc. Name and Principal Address Position James A. Ward (e) D,P Tommy Chisholm (a) S,T Southern Investments UK Holdings Limited Name and Principal Address (e) Position Thomas G. Boren D Raymond D. Hill D Richard J. Pershing D James A. Ward D Charles W. Whitney (l) D 13 ITEM 6. OFFICERS AND DIRECTORS PART I. (Continued) Southern Investments UK plc Name and Principal Address (e) Position Thomas G. Boren D Raymond D. Hill D Richard J. Pershing D James A. Ward D Charles W. Whitney (l) D Southern Western Electricity plc Name and Principal Address (l) Position John O. Gough D Carson B. Harreld D Alan W. Harrelson D Anthony P. Hichens D Anthony E. Isaac D Gale E. Klappa D,CEO C. Philip Saunders D Charles W. Whitney D Robin D. Edmounds S SEIH-VIII Name and Principal Address (e) Position Thomas G. Boren P Tommy Chisholm (a) S,T SEI Beteiligungs GmbH Name and Principal Address (e) Position James A. Ward D,MD Norbert Pacho MD Southern Electric International Trinidad, Inc. Name and Principal Address (e) Position Thomas G. Boren D,P Tommy Chisholm (a) S,T The Power Generation Company of Trinidad and Tobago Limited Name and Principal Address Position Ronald Chan D Scotia Centre Cr. Park and Richmond Streets Port of Spain, Trinidad, W.I. Ronald E. Leggett (e) D John MacKay D 6 St. Kitts Avenue Federation Park, Trinidad, W. I. Judith Morris D 63 Frederick Street Port of Spain, Trinidad, W.I. Jacqueline Quamina D Eric Williams Plaza Independence Square Port of Spain, Trinidad, W.I. Chandrabhan Sharma D University of the West Indies St. Augustine, Trinidad, W.I. Terry W. Timm D 200 Westlake Park Boulevard P. O. Box 3092 Houston, TX 77253-3092 W. L. Westbrook (a) D Thomas M. Black (e) D Henry T. E. Coolidge, Jr. D,GM 6A Queens Park West, First Floor Port of Spain, Trinidad, W.I. Angela Hamel-Smith D 87 Sandown Road Goodwood Park, Carenage Trinidad, W.I. Christine Joseph D 63 Frederick Street Port of Spain, Trinidad, W. I. Gerald J. Peereboom D P. O. Box 714 Port of Spain, Trinidad, W.I. Nicole Richards D Eric Williams Plaza Independence Square Port of Spain, Trinidad, W.I. Dennis Singh D 63 Frederick Street Port of Spain, Trinidad, W.I. James A. Ward (e) D June Ahye S 63 Frederick Street Port of Spain, Trinidad, W.I. SEIH-X Name and Principal Address (e) Position Thomas G. Boren P Tommy Chisholm (a) S,T 14 ITEM 6. OFFICERS AND DIRECTORS PART I. (Continued) SEIH-XI Name and Principal Address (e) Position Thomas G. Boren P Tommy Chisholm (a) S,T SCS Name and Principal Address (m) Position A. W. Dahlberg (a) D Paul J. DeNicola D,P,CEO H. Allen Franklin (c) D Elmer B. Harris (b) D Bill M. Guthrie (b) SEVP, CPO Kerry E. Adams (n) EVP David M. Ratcliffe (a) EVP W. L. Westbrook (a) EVP,T Thomas A. Fanning SVP William K. Newman (b) SVP Fred D. Williams SVP David R. Altman (a) VP Robert S. Beason VP I. Otis Berkhan VP Tommy Chisholm (a) VP,S,L A. J. Connor (b) VP Douglas E. Dutton (n) VP J. Kevin Fletcher VP Dr. C. H. Goodman (b) VP J. R. Harris (e) VP W. Dean Hudson VP,C C. Alan Martin (a) VP J. Mike McClure VP John G. Richardson VP 1130 Connecticut Avenue, NW Washington, DC 20036 Jerry L. Stewart (b) VP Dr. W. Robert Woodall, Jr. (a) VP Charles O. Rawlins T Southern Communications Name and Principal Address (m) Position Robert S. Beason D Wayne T. Dahlke (c) D Robert G. Dawson D,P,CEO Paul J. DeNicola D Dwight H. Evans (f) D Thomas A. Fanning D John E. Hodges, Jr. (d) D William B. Hutchins, III (b) D David M. Ratcliffe (a) D W. L. Westbrook (a) D Tommy Chisholm (a) S R. Craig Elder T SEBH Name and Principal Address (e) Position Kerry E. Adams (n) D Thomas G. Boren D,P Robert G. Dawson (m) VP Raymond D. Hill VP,T, CFO Ronald E. Leggett VP James A. Ward C Tommy Chisholm (a) S Southern Electric Bahamas Ltd. Name and Principal Address (e) Position Kerry E. Adams (n) D Thomas G. Boren D,P Robert G. Dawson (m) VP Raymond D. Hill VP, T, CFO Ronald E. Leggett VP Tommy Chisholm (a) S James A. Ward C Freeport Power Company Limited Name and Principal Address Position Thomas G. Boren (e) D Larry R. Brantley P,CEO P. O. Box F-888 Freeport, Grand Bahama Island, Bahamas Jack A. Hayward D P. O. Box F-888 Freeport, Grand Bahama Island, Bahamas Albert J. Miller D P. O. Box F-888 Freeport, Grand Bahama Island, Bahamas Richard J. Pershing (e) D Richard T. Pittenger (e) D Edward P. St. George D P. O. Box F-888 Freeport, Grand Bahama Island, Bahamas Raymond D. Hill (e) VP,CFO 15 ITEM 6. OFFICERS AND DIRECTORS. PART I. (Continued) Freeport Power Company Limited (continued) Name and Principal Address Position Ian O. Barry VP,T P. O. Box F-888 Freeport, Grand Bahama Island, Bahamas Ronald E. Leggett (e) VP Willie A. M. Moss VP,S P. O. Box F-888 Freeport, Grand Bahama Island, Bahamas Southern Electric, Inc. Name and Principal Address (e) Position James A. Ward D Thomas G. Boren P Tommy Chisholm (a) S,T SEI Bahamas Argentina I, Inc. Name and Principal Address Position James A. Ward (e) D,P Tommy Chisholm (a) S,T SEI Inversora, S.A. Name and Principal Address (h) Position Alan Arntsen (i) D,P Mariano F. Grondona D James A. Ward (e) D,VP Manuel Benito D SEI Name and Principal Address (e) Position Kerry E. Adams (n) D Thomas G. Boren D,P,CEO Travis J. Bowden (d) D A. W. Dahlberg (a) D Paul J. DeNicola (m) D,VP H. Allen Franklin (c) D W. L. Westbrook (a) D,VP Raymond D. Hill SVP,CFO Richard J. Pershing SVP Tommy Chisholm (a) VP,S S. Marce Fuller VP David T. Gallaspy VP J. R. Harris VP J. William Holden, III VP Ronald E. Leggett VP Mark S. Lynch VP William A. Maner, III VP Charles W. Whitney (l) VP James A. Ward C Karl E. Olsoni T SEI Operadora de Argentina, S.A. Name and Principal Address (h) Position Mariano F. Grondona D,S J. William Holden, III (e) D,P Ronald E. Leggett (e) D Felicia L. Bellows (i) D Randall E. Harrison (e) D Jose Martinez de Hoz D Southern Electric International - Asia, Inc Name and Principal Address (e) Position Thomas G. Boren D,P Raymond D. Hill VP,CFO Tommy Chisholm (a) S Southern Electric International GmbH Name and Principal Address (e) Position Thomas G. Boren GM Tommy Chisholm (a) GM William A. Franks GM Raymond D. Hill GM Richard J. Pershing GM James A. Ward GM Charles W. Whitney GM SERC Name and Principal Address (n) Position Bill M. Guthrie (b) D,P Kenneth H. Harrell VP Earl B. Parsons, Jr. (b) VP Larry M. Porter (g) VP Tommy Chisholm (a) S,T 16 ITEM 6. OFFICERS AND DIRECTORS PART I. (Continued) SOUTHERN NUCLEAR Name and Principal Address (o) Position A. W. Dahlberg (a) D Paul J. DeNicola (m) D H. Allen Franklin (c) D William G. Hairston, III D,P,CEO Elmer B. Harris (b) D James H. Miller, III EVP,L Jackie D. Woodard EVP James W. Averett VP J. Thomas Beckham, Jr. VP Louis B. Long VP C. Alan Martin (a) VP Charles K. McCoy VP John O. Meier VP,S D. N. Morey, III VP Robert M. Gilbert , Jr. C,T,CAO Southern Development Name and Principal Address (m) Position William P. Bowers (c) D Paul J. DeNicola D Dwight H. Evans (f) D Thomas A. Fanning D J. Kevin Fletcher D,P Thomas R. Kellogg D,VP,GM Michael L. Scott (c) D W. L. Westbrook (a) D Tommy Chisholm (a) S Alan L. Leverett T SEWG Name and Principal Address (e) Position Kerry E. Adams (n) D Thomas G. Boren D,P Travis J. Bowden (d) D Paul J. DeNicola (m) D H. Allen Franklin (c) D W. L. Westbrook (a) D Raymond D. Hill VP,T,CFO Ronald E. Leggett VP Richard J. Pershing VP Tommy Chisholm (a) S James A. Ward C Southern Energy Marketing, Inc. Name and Principal Address (e) Position Thomas G. Boren D,P S. Marce Fuller D,EVP Raymond D. Hill D,VP,CFO James A. Ward D,VP,T,C W. L. Westbrook (a) D John J. Robinson VP C. Philip Saunders (l) VP Tommy Chisholm (a) S Inversores de Electricidad, S.A. Name and Principal Address (i) Position Alan Arntsen (i) D,P SEI Birchwood, Inc. Name and Principal Address (e) Position Kerry E. Adams (n) D Thomas G. Boren D,P S. Marce Fuller D,VP W. L. Westbrook (a) D Thomas E. Dorsey VP Raymond D. Hill VP,CFO Mark S. Lynch VP Karl E. Olsoni VP,T James A. Ward VP,C Tommy Chisholm (a) S SEI Hawaiian Cogenerators, Inc. Name and Principal Address (e) Position Kerry E. Adams (n) D,VP Thomas G. Boren D,P W. L. Westbrook (a) D Raymond D. Hill VP,CFO Tommy Chisholm (a) S James A. Ward T 17 ITEM 6. OFFICERS AND DIRECTORS. Part II. Financial Connections.
Name of Officer Name and Location Position Held in Applicable or Director of Financial Institution Financial Institution Exemption Rule Rule No. 70 Subdivision John C. Adams Aliant Bank, Alexander City, AL Director (a) Aliant National Corporation, Alexander City, AL Director (a) Whit Armstrong The Citizens Bank Chief Executive (c) Enterprise, AL Officer, Chairman of the Board of Directors and President Enterprise Capital Corporation Chairman of the Board of Enterprise, AL Directors, President (c) Travis J. Bowden AmSouth Bank of Florida,Clearwater, FL Director (c) A. D. Correll SunTrust Bank of Georgia, Atlanta, GA Director (a) SunTrust Bank of Atlanta, Atlanta, GA Director (a) W. Roy Crow Barbour County Bank, Eufaula, AL Director (f) A. W. Dahlberg SunTrust Bank of Georgia Director (a);(c) Atlanta, GA SunTrust Bank, Atlanta, GA Director (a);(c) Brian R. Foster NationsBank, Atlanta, GA Executive Vice (c) President NationsBank, Savannah, GA President and Chief Executive Officer (Savannah (c) operations) H. Allen Franklin SouthTrust Bank, Birmingham, AL Director (a);(c) Robert S. Gaddis Trustmark National Bank, President (c);(g) Laurel, MS L. G. Hardman, III First Commerce Bancorp, Inc. Chairman of the Board Commerce, GA of Directors and Chief Executive Officer (a);(c);(g) First National Bank of Commerce, Chairman of the Commerce, GA Board of Directors (c);(g) Elmer B. Harris AmSouth Bancorporation, Director (a);(c);(e);(f) Birmingham, AL AmSouth Bank, N.A., Birmingham, AL Director (a);(c);(e);(f) John E. Hodges, Jr. Barnett Bank of West Florida, Pensacola, FL Director (f) W. D. Hull, Jr. SunTrust Bank/West Florida, Vice Chairman of the Panama City, FL Board of Directors (c) Carl E. Jones First Alabama Bank, Mobile, AL Chairman and Chief Executive Officer (c) Regions Financial Corporation, Mobile, AL Regional President (c) James R. Lientz, Jr. NationsBank of Georgia, N.A., Atlanta, GA Director, President (c) Wallace D. Malone SouthTrust Corporation, Birmingham, AL Chairman of the Board of Directors and Chief Executive Officer (c) William V. Muse Alabama National Bancorporation, Director Shoal Creek, AL John T. Porter Citizens Federal Bank, Birmingham, AL Director (c) 18
ITEM 6. OFFICERS AND DIRECTORS. Part II. Financial Connections. (Continued) Name of Officer Name and Location Position Held in Applicable or Director of Financial Institution Financial Institution Exemption Rule Rule No. 70 Subdivision G. Joseph Prendergast Wachovia Bank of Georgia, Atlanta, GA Chairman of the Board of Directors (c) Wachovia Bank of South Carolina Chairman of the Board of Directors (d) Wachovia Bank of North Carolina Director (d) Wachovia Corporation, Atlanta, GA Executive Vice President (d) C. Walter Ruckel Vanguard Bank and Trust, Valparaiso, FL Chairman of the Board of Directors (c) Herman J. Russell Citizens Trust Bank, Atlanta, GA Chairman of the Board of Directors (c) Citizens Bancshares Corp. Atlanta, GA Chairman of the Board of Directors (c) Wachovia Corporation of Georgia, Director (c) Atlanta, GA George A. Schloegel Hancock Bank, Gulfport, MS Director and President (c) Hancock Holding Company, Gulfport, MS Vice Chairman of the Board of Directors (c) Hancock Bank of Louisiana, Baton Rouge Louisiana Director (d) First National Bank of Denham Springs Denham Springs, LA Director (d) William R. Smith SouthTrust Bank of Calhoun County, N.A. Anniston, AL Director (f) Gerald St. Pe' Merchants & Marine Bank, Pascagoula, MS Director (a) Herbert Stockham SouthTrust Bank, Birmingham, AL Director (a);(c) SouthTrust Corporation, Director (c) Birmingham, AL Arnold Tenenbaum First Union National Bank of Georgia, Director (c) Atlanta, GA First Union National Bank of Savannah, Director (c) Savannah, GA John W. Woods AmSouth Bancorporation, Chairman of the (c) Birmingham, AL Board of Directors AmSouth Bank of Alabama, Chief Executive (c) Birmingham, AL Officer of both institutions and President of AmSouth Bank 19
ITEM 6. EXECUTIVE COMPENSATION. PART III. (a) Summary Compensation Tables. The following tables set forth information concerning any Chief Executive Officer and the four most highly compensated executive officers for SCS, SEI, Southern Communications, Southern Development and SOUTHERN NUCLEAR serving as of December 31, 1995, as defined by the Securities and Exchange Commission. ALABAMA, GEORGIA, GULF, MISSISSIPPI and SAVANNAH are incorporated by reference to page numbers III-13 through III-18 in the SOUTHERN system's combined Form 10-K for the year ended December 31, 1995. Incorporated by reference to "Summary Compensation Table" under ELECTION OF DIRECTORS in SOUTHERN's definitive Proxy Statement relating to the 1996 annual meeting of stockholders.
Key terms used in this Item will have the following meanings:- ESP......................................... Employee Savings Plan ESOP........................................ Employee Stock Ownership Plan SBP......................................... Supplemental Benefit Plan ERISA....................................... Employee Retirement Income Security Act
SCS SUMMARY COMPENSATION TABLE ANNUAL COMPENSATION LONG-TERM COMPENSATION Number of Securities Long- Name Underlying Term and Other Annual Stock Incentive All Other Principal Compensation Options Payouts Compensation Position Year Salary($) Bonus($) ($)1 (Shares) ($)2 ($)3 - ------------------------------------------------------------------------------------------------------------------------- A. W. Dahlberg 1995 722,489 120,415 6,577 52,203 866,493 40,755 Director 1994 600,026 120,415 6,579 43,062 306,459 32,630 1993 477,967 96,331 17,707 30,644 225,406 44,547 Paul J. DeNicola 1995 384,845 50,464 3,037 26,297 479,747 21,573 President, Chief 1994 361,618 74,294 3,540 26,569 188,858 21,381 Executive Officer, 1993 313,970 63,641 6,832 7,498 132,986 24,436 Director Bill M. Guthrie 1995 326,877 49,939 1,533 17,518 275,400 17,810 Senior Executive 1994 308,837 58,140 384 16,781 87,085 16,646 Vice President 1993 275,185 32,967 14,117 6,524 64,959 32,890 See footnotes on the next page. 20
SCS SUMMARY COMPENSATION TABLE (Continued) ANNUAL COMPENSATION LONG-TERM COMPENSATION Number of Securities Long- Name Underlying Term and Other Annual Stock Incentive All Other Principal Compensation Options Payouts Compensation Position Year Salary($) Bonus($) ($)1 (Shares) ($)2 ($)3 - ------------------------------------------------------------------------------------------------------------------------ David M. Ratcliffe 1995 281,615 68,7854 - 15,524 233,237 13,718 Executive Vice 1994 240,291 61,989 2,581 13,137 100,336 13,349 President 1993 226,373 45,917 8,722 8,114 75,378 17,887 W. L. Westbrook 1995 242,606 29,339 1,841 13,002 191,358 13,401 Executive Vice 1994 228,514 37,799 2,359 9,341 81,504 13,101 President 1993 219,354 27,793 16,864 3,919 69,484 30,153 1 Tax reimbursements by SCS on certain personal benefits. 2 Payouts made in 1994, 1995 and 1996 for the four-year performance periods ending December 31, 1993, 1994 and 1995. 3 SCS contributions to the ESP, ESOP, non-pension related accruals under the SBP (ERISA excess plan under which accruals are made to offset Internal Revenue Code imposed limitations under the ESP and ESOP), for the following: ESP ESOP SBP A. W. Dahlberg $7,781 $1,151 $31,823 Paul J. DeNicola 6,750 1,151 13,672 Bill M. Guthrie 6,750 1,151 9,909 David M. Ratcliffe 6,188 1,151 6,379 W. L. Westbrook 6,750 1,151 5,500 4 Also included for Mr. Ratcliffe is a one-time lump-sum payment of $25,000 given in connection with his appointment to his current position. 21
SEI SUMMARY COMPENSATION TABLE ANNUAL COMPENSATION LONG-TERM COMPENSATION Number of Securities Long- Name Underlying Term and Other Annual Stock Incentive All Other Principal Compensation Options Payouts Compensation Position Year Salary($) Bonus($) ($)5 (Shares) ($)6 ($)7 - ------------------------------------------------------------------------------------------------------------------------ Thomas G. Boren 1995 248,333 298,497 (8) 12,579 13,295 - 10,215 President, 1994 233,566 150,000 7,628 12,715 - 11,990 Director 1993 196,106 100,698 21,389 3,559 - 23,984 Richard J. Pershing 1995 162,500 165,000 2,974 - - 8,287 Senior Vice President 1994 148,178 75,000 347 - - 7,793 1993 138,068 52,150 13,718 - - 25,491 Raymond D. Hill 1995 162,500 165,000 1,641 - - 8,252 Senior Vice President 1994 146,667 75,000 105 - - 5,986 1993 169,525 (9) 48,750 13,034 - - 18,000 Charles W. Whitney 1995 197,227 94,500 448 - - 8,376 Vice President 1994 141,778 23,293 1,450 - 19,271 7,252 1993 - - - - - - S. Marce Fuller 1995 184,267 67,500 1,844 - - 6,768 Vice President 1994 109,869 62,500 2 - - 5,588 1993 - - - - - - 5 Tax reimbursement by SEI on certain personal benefits. 6 Employees of SEI are not yet eligible for these payouts. In 1994, Mr. Whitney was an employee of GEORGIA making him eligible for this payout. 7 SEI contributions to the ESP, ESOP, non-pension related accruals under the SBP (ERISA excess plan under which accruals are made to offset Internal Revenue Code imposes limitations under the ESP and ESOP), for the following: ESP ESOP SBP Thomas G. Boren $7,650 $1,151 $1,414 Richard J. Pershing 6,750 1,151 386 Raymond D. Hill 6,750 1,151 351 Charles W. Whitney 7,030 1,151 195 S. Marce Fuller 5,925 843 - 8 Includes a one-time award of $48,497 under the key contributor program in recognition of exemplary performance in 1995. The key contributor program permits an eligible employee's supervisor to make a "spot" award apart from any other compensation plan to recognize a significant contribution made by the employee. 9 Mr. Hill's 1993 salary includes additional compensation for relocation costs. 22
Southern Communications and Southern Development SUMMARY COMPENSATION TABLE ANNUAL COMPENSATION LONG-TERM COMPENSATION Number of Securities Long- Name Underlying Term and Other Annual Stock Incentive All Other Principal Compensation Options Payouts Compensation Position Year Salary($) Bonus($) ($)10 (Shares) ($)11 ($)12 - ------------------------------------------------------------------------------------------------------------------------ Southern Communications Robert G. Dawson 1995 498,671(13) 65,000 277 - - 9,430 President, Chief 1994 286,221 50,000 - - - 8,148 Executive Officer, 1993 154,668 14,996 4,539 2,390 25,661 15,043 Director Southern Development J. Kevin Fletcher 1995 113,762 19,506 107 4,023 68,215 5,933 President, 1994 - - - - - - Director 1993 - - - - - - Tommy L. Kellogg 1995 90,233 29,028 - 2,574 24,614 4,532 Vice President and 1994 - - - - - - General Manager 1993 - - - - - - 10 Tax reimbursement by Southern Development and Southern Communications on certain personal benefits. 11 Payouts made in 1994, 1995 and 1996 for the four-year performance periods ending December 31, 1993, 1994 and 1995. 12 Southern Communications' and Southern Development's contributions to the ESP, ESOP, non-pension related accruals under the SBP (ERISA excess plan under which accruals are made to offset Internal Revenue Code imposed limitations under the ESP and ESOP), for the following: ESP ESOP SBP Robert G. Dawson $6,750 $1,151 $1,529 J. Kevin Fletcher 5,117 816 - Tommy R. Kellogg 3,908 624 - 13 Mr. Dawson's gross wages include miscellaneous payments due to his assignment in Buenos Aires, Argentina. Mr. Dawson served as vice president of SEI's Latin American and Caribbean Assets from March 1994 until October 1995. 23
SOUTHERN NUCLEAR SUMMARY COMPENSATION TABLE ANNUAL COMPENSATION LONG-TERM COMPENSATION Number of Securities Long- Name Underlying Term and Other Annual Stock Incentive All Other Principal Compensation Options Payouts Compensation Position Year Salary($) Bonus($) ($)14 (Shares) ($)15 ($)16 - ---------------------------------------------------------------------------------------------------------------------- W. G. Hairston, III 1995 296,988 47,489 6,020 15,785 289,170 16,442 President and Chief 1994 287,831 44,521 3,225 15,725 88,162 14,593 Executive Officer 1993 234,454 53,202 15,925 11,728 54,126 30,475 Jack D. Woodard 1995 202,085 37,116 1,235 8,969 141,834 10,215 Executive Vice 1994 190,128 33,489 1,168 7,653 36,698 10,046 President 1993 164,282 30,900 12,715 3,181 24,252 26,707 James H. Miller, III 1995 201,216 30,094 1,946 8,941 141,834 4,500 Executive Vice 1994 121,846 29,549 888 7,629 - - President 1993 - - - - - - Charles K. McCoy 1995 161,974 22,587 716 7,159 94,553 8,549 Vice President 1994 150,139 21,012 1,398 - 23,635 8,004 1993 146,159 18,806 13,827 - 20,149 25,760 J. Thomas Beckham, Jr. 1995 161,990 17,671 813 7,159 94,553 8,579 Vice President 1994 150,139 20,262 308 - 23,635 8,137 1993 146,796 18,134 13,402 - 20,149 25,852 14 Tax reimbursement by SOUTHERN NUCLEAR on certain personal benefits. 15 Payouts made in 1994, 1995 and 1996 for the four-year performance periods ending December 31, 1993, 1994 and 1995, respectively. 16 SOUTHERN NUCLEAR contributions to the ESP, ESOP, non-pension related accruals under the SBP (ERISA excess plan under which accruals are made to offset Internal Revenue Code imposed limitations under the ESP and ESOP), for the following: ESP ESOP SBP William G. Hairston, III $6,750 $1,151 $8,541 Jack D. Woodard 6,750 1,151 2,314 James H. Miller, III 4,500 - - Charles K. McCoy 6,469 1,151 929 J. Thomas Beckham, Jr. 6,735 1,151 693 24
STOCK OPTION GRANTS IN 1995 Stock Option Grants. The following table sets forth all stock option grants to the named executive officers of each operating subsidiary during the year ending December 31, 1995. ALABAMA, GEORGIA, GULF, MISSISSIPPI and SAVANNAH are incorporated by reference to page numbers III-19 and III-20 in the SOUTHERN system's combined Form 10-K for the year ended December 31, 1995. Stock Option Grants in 1995 for SOUTHERN is incorporated by reference to "Stock Option Grants" under ELECTION OF DIRECTORS in SOUTHERN's definitive Proxy Statement relating to 1996 annual meeting of stockholders.
Individual Grants Grant Date Value Number of Securities % of Total Underlying Options Exercise Share Granted to or Options Employees in Base Price Expiration Grant Date Name Granted17 Fiscal Year18 ($/Sh)17 Date17 Present Value($)19 ------------------------------------------------------------------------------------------------------------ SCS A. W. Dahlberg 52,203 4.5 21.6250 07/17/2005 148,779 Paul J. DeNicola 26,927 2.3 21.6250 07/17/2005 76,742 Bill M. Guthrie 17,518 1.5 21.6250 06/01/2000 45,021 David M. Ratcliffe 15,524 1.3 21.6250 07/17/2005 44,243 W. L. Westbrook 13,002 1.1 21.6250 07/17/2005 37,056 SEI Thomas G. Boren 13,295 1.1 21.6250 07/17/2005 37,891 Richard J. Pershing - - - - - Raymond D. Hill 4,221 0.4 21.6250 07/17/2005 12,030 Charles W. Whitney - - - - - S. Marce Fuller - - - - - Southern Communications Robert G. Dawson - - - - - See footnotes on the next page. 25
STOCK OPTION GRANTS IN 1995 Individual Grants Grant Date Value Number of Securities % of Total Underlying Options Exercise Share Granted to or Options Employees in Base Price Expiration Grant Date Name Granted17 Fiscal Year18 ($/Sh)17 Date17 Present Value($)19 ------------------------------------------------------------------------------------------------------------ Southern Development J. Kevin Fletcher 4,023 0.3 21.6250 07/17/2005 11,466 Tommy R. Kellogg 2,574 0.2 21.6250 07/17/2005 7,336 SOUTHERN NUCLEAR William G. Hairston, III 15,785 1.4 21.6250 07/17/2005 44,987 Jack D. Woodard 8,969 0.8 21.6250 07/17/2005 25,562 James H. Miller, III 8,941 0.8 21.6250 07/17/2005 25,482 Charles K. McCoy 7,159 0.6 21.6250 07/17/2005 20,403 J. Thomas Beckham, Jr. 7,159 0.6 21.6250 07/17/2005 20,403 17 Grants were made on July 17, 1995, and vest 25% per year on the anniversary date of the grant. Grants fully vest upon termination incident to death, disability, or retirement. The exercise price is the average of the high and low fair market value of SOUTHERN's common stock on the date granted. In accordance with the terms of the Executive Stock Plan, Mr. Guthrie's unexercised options expire on June 1, 2000, three years after his normal date of retirement. 18 A total of 1,161,174 stock options were granted in 1995 to key executives participating in SOUTHERN's Executive Stock Plan. 19 Based on the Black-Scholes option valuation model. The actual value, if any, an executive officer may realize ultimately depends on the market value of SOUTHERN's common stock at a future date. There is no assurance that the value realized will be at or near the value estimated by the Black-Scholes model. Assumptions used to calculate this value: price volatility - 16.323%; risk-free rate of return -6.28%; dividend yield - 5.64%; and time to exercise - ten years. 26
AGGREGATED STOCK OPTION EXERCISES IN 1995 AND YEAR-END OPTION VALUES Aggregated Stock Option Exercises. The following table sets forth information concerning options exercised during the year ending December 31, 1995, by the named executive officers and value of unexercised options held by them as of December 31, 1995. ALABAMA, GEORGIA, GULF, MISSISSIPPI and SAVANNAH are incorporated by reference to page numbers III-21 and III-22 in the SOUTHERN system's combined Form 10-K for the year ended December 31, 1995. Aggregated Stock Option Exercises in 1995 and Year-End Option Values information for SOUTHERN is incorporated by reference to "Aggregated Stock Option Exercises in 1995 and Year-End Option Values" under ELECTION OF DIRECTORS in SOUTHERN's definitive Proxy Statement relating to 1996 annual meeting of stockholders. Value of Number of Unexercised Unexercised In-the-Money Options at Options at Fiscal Fiscal Year-End (#) Year-End($)20 Shares Acquired Value Exercisable/ Exercisable/ Name on Exercise (#) Realized($)21 Unexercisable Unexercisable - -------------------------------------------------------------------------------------------------------------- SCS A. W. Dahlberg - - 83,184/108,379 635,073/450,394 Paul J. DeNicola - - 30,918/58,398 210,228/247,326 Bill M. Guthrie - - 59,311/40,314 547,143/225,948 David M. Ratcliffe - - 30,092/31,597 253,341/131,173 W. L. Westbrook 12,489 81,332 0/26,075 0/106,668 SEI Thomas G. Boren 8,096 49,706 6,737/28,360 30,397/119,706 Raymond D. Hill - - 0/4,221 0/12,663 Richard J. Pershing - - - - Charles W. Whitney - - - - S. Marce Fuller - - - - Southern Communications Robert G. Dawson - - 2,390/2,390 8,141/8,141 See footnotes on the next page. 27
AGGREGATED STOCK OPTION EXERCISES IN 1995 AND YEAR-END OPTION VALUES Value of Number of Unexercised Unexercised In-the-Money Options at Options at Fiscal Fiscal Year-End (#) Year-End($)20 Shares Acquired Value Exercisable/ Exercisable/ Name on Exercise (#) Realized($)21 Unexercisable Unexercisable - -------------------------------------------------------------------------------------------------------------- Southern Development J. Kevin Fletcher - - 0/4,023 0/12,069 Tommy R. Kellogg - - 0/2,574 0/7,722 SOUTHERN NUCLEAR William G. Hairston, III 15,253 95,787 5,891/35,574 20,066/148,978 Jack D. Woodard - - 5,094/17,890 21,835/70,747 James H. Miller, III - - 1,907/14,663 10,965/59,725 Charles K. McCoy - - 0/7,159 0/21,477 J. Thomas Beckham, Jr. - - 0/7,159 0/21,477 20 This represents the excess of the fair market value as of December 31, 1995, of the option shares over exercise price of the options. One column reports the "value" of options that are vested and therefore could be exercised; the other the "value" of options that are not vested and therefore could not be exercised as of December 31, 1995. 21 The "Value Realized" is ordinary income, before taxes, and represents the amount equal to the excess of the fair market value of the shares at the time of exercise over the exercise price. 28
LONG-TERM INCENTIVE PLANS - AWARDS IN 1995 Long-Term Incentive Awards. The following table sets forth the long-term incentive plan awards made to the named executive officers for the performance period January 1, 1995 through December 31, 1998. ALABAMA, GEORGIA, GULF, MISSISSIPPI and SAVANNAH are incorporated by reference to page numbers III-23 and III-24 in the SOUTHERN system's combined Form 10-K for the year ended December 31, 1995. Long-Term Incentive Plans- Awards information for SOUTHERN is incorporated by reference to "Aggregated Stock Option Exercises in 1995 and Year-End Option Values" under ELECTION OF DIRECTORS in SOUTHERN's definitive Proxy Statement relating to the 1996 annual meeting of stockholders. Estimated Future Payouts under Non-Stock Price-Based Plans Number Performance or of Other Period Units Until Maturation Threshold Target Maximum Name (#)22 or Payout ($)23 ($)23 ($)23 - -------------------------------------------------------------------------------------------------------------------------- SCS A. W. Dahlberg 481,385 4 years 240,963 481,385 962,770 Paul J. DeNicola 266,526 4 years 133,263 266,526 533,052 Bill M. Guthrie 153,000 4 years 76,500 153,000 306,000 David M. Ratcliffe 129,576 4 years 64,788 129,576 259,152 W. L. Westbrook 106,310 4 years 53,155 106,310 212,620 SEI Thomas G. Boren 1,500 4 years - - - Richard J. Pershing 750 4 years - - - Raymond D. Hill 750 4 years - - - Charles W. Whitney - - - - - S. Marce Fuller 400 4 years - - - Southern Communications Robert G. Dawson - - - - - See footnotes on the next page. 29
LONG-TERM INCENTIVE PLANS - AWARDS IN 1995 Estimated Future Payouts under Non-Stock Price-Based Plans Number Performance or of Other Period Units Until Maturation Threshold Target Maximum Name (#)22 or Payout ($)23 ($)24 ($)24 - -------------------------------------------------------------------------------------------------------------------------- Southern Development J. Kevin Fletcher 37,897 4 years 18,949 37,897 75,794 Tommy R. Kellogg 18,233 4 years 9,116 18,233 36,466 SOUTHERN NUCLEAR William G. Hairston, III 160,560 4 years 80,325 160,650 321,300 Jack D. Woodard 78,797 4 years 39,399 78,797 157,594 James H. Miller, III 78,797 4 years 39,399 78,797 157,594 Charles K. McCoy 52,529 4 years 26,265 52,529 105,058 J. Thomas Beckham, Jr. 52,529 4 years 26,265 52,529 105,058 22 A performance unit is a method of assigning a dollar value to a performance award opportunity. The actual number of units granted to a named executive officers (except those employees of SEI who do not participate in this plan) is based on an award percentage of an individual's base salary range mid-point with each unit valued at $1.00. For SEI, the number of units awarded, each valued at $100, is determined by the board of directors of SEI. The number of units payable at the end of the four year performance period is adjusted annually by a performance index based on the return on common equity of SOUTHERN and the performance of SEI's investment projects. At the end of the four-year performance period, the units, as adjusted, are payable in cash unless the participant elects, 12 months in advance of the end of the period, to defer receipt of the award made. No awards are paid unless the participant remains employed by SOUTHERN through the end of the performance period. 23 The threshold, target, and maximum value of a unit is $0.50, $1.00, and $2.00, respectively, and can vary based on SOUTHERN's return on common equity relative to a selected group of electric and gas utilities in the Southeastern United States. If certain minimum performance relative to the selected group is not achieved, there will be no payout; nor is there a payout if the current earnings of SOUTHERN are not sufficient to fund the dividend rate paid in the last calendar year. All awards are payable in cash at the end of the performance period. 30
ITEM 6. OFFICERS AND DIRECTORS. PART III. (b) Stock Ownership. The following tables show the number of shares of SOUTHERN common stock and preferred stock owned by the directors, nominees and executive officers as of December 31, 1995. It is based on information furnished to SOUTHERN by the directors, nominees and executive officers. The shares owned by all directors, nominees and executive officers of each company as a group constitute less than one percent of the total number of shares of the respective classes outstanding on December 31, 1995. SOUTHERN is incorporated by reference to "Stock Ownership" under ELECTION OF DIRECTORS in SOUTHERN's definitive Proxy Statement relating to the 1996 annual meeting of stockholders. ALABAMA, GEORGIA, GULF, MISSISSIPPI and SAVANNAH are incorporated by reference to page numbers III-30 through III-35 in the SOUTHERN system's combined Form 10-K for the year ended December 31, 1995.
Name of Directors or Nominees and Number of Shares Executive Officers Title of Class Beneficially Owned (1)(2) - ------------------ -------------- ------------------ SCS A. W. Dahlberg SOUTHERN Common 139,108 Paul J. DeNicola SOUTHERN Common 62,502 H. Allen Franklin SOUTHERN Common 86,620 Elmer B. Harris SOUTHERN Common 138,012 Kerry E. Adams SOUTHERN Common 20,387 GEORGIA Preferred 200 Thomas A. Fanning SOUTHERN Common 4,870 Bill M. Guthrie SOUTHERN Common 110,654 William K. Newman SOUTHERN Common 16,788 W. L. Westbrook SOUTHERN Common 52,192 David M. Ratcliffe SOUTHERN Common 9,424 The directors, nominees and executive officers of SCS as a Group SOUTHERN Common 640,557 shares GEORGIA Preferred 200 shares SEGCO Robert L. Boyer SOUTHERN Common 35,884 H. Allen Franklin SOUTHERN Common 86,620 Bill M. Guthrie SOUTHERN Common 110,654 Elmer B. Harris SOUTHERN Common 138,012 Robert H. Haubein, Jr. SOUTHERN Common 18,179 31
ITEM 6. OFFICERS AND DIRECTORS. PART III. Name of Directors or Nominees and Number of Shares Executive Officers Title of Class Beneficially Owned (1)(2) - ------------------ -------------- ------------------ SEGCO (continued) William B. Hutchins, III SOUTHERN Common 29,071 Warren Y. Jobe SOUTHERN Common 40,766 GEORGIA Preferred 403 Charles D. McCrary SOUTHERN Common 16,145 Earl B. Parsons, Jr. SOUTHERN Common 10,112 The directors, nominees and executive officers of SEGCO as a Group SOUTHERN Common 485,443 shares GEORGIA Preferred 403 shares SEI Kerry E. Adams SOUTHERN Common 20,387 GEORGIA Preferred 200 Thomas G. Boren SOUTHERN Common 16,723 Travis J. Bowden SOUTHERN Common 65,518 A. W. Dahlberg SOUTHERN Common 139,108 Paul J. DeNicola SOUTHERN Common 62,502 H. Allen Franklin SOUTHERN Common 86,620 W. L. Westbrook SOUTHERN Common 52,192 S. Marce Fuller SOUTHERN Common 2,298 Raymond D. Hill SOUTHERN Common 705 Richard J. Pershing SOUTHERN Common 17,729 Charles W. Whitney SOUTHERN Common 6,694 The directors, nominees and executive officers of SEI as a Group SOUTHERN Common 504,382 shares GEORGIA Preferred 200 shares
32
ITEM 6. OFFICERS AND DIRECTORS. PART III. Name of Directors or Nominees and Number of Shares Executive Officers Title of Class Beneficially Owned (1)(2) - ------------------ -------------- ------------------ Southern Communications Robert S. Beason SOUTHERN Common 8,851 Wayne T. Dahlke SOUTHERN Common 27,931 Robert G. Dawson SOUTHERN Common 17,963 Paul J. DeNicola SOUTHERN Common 62,502 Dwight H. Evans SOUTHERN Common 30,247 Thomas A. Fanning SOUTHERN Common 4,870 John E. Hodges, Jr. SOUTHERN Common 28,067 William B. Hutchins, III SOUTHERN Common 29,071 David M. Ratcliffe SOUTHERN Common 9,424 W. L. Westbrook SOUTHERN Common 52,192 The directors, nominees and executive officers of Southern Communications as a Group SOUTHERN Common 271,119 shares Southern Development William P. Bowers SOUTHERN Common 4,454 Paul J. DeNicola SOUTHERN Common 62,502 Dwight E. Evans SOUTHERN Common 30,247 GEORGIA Preferred 300 Thomas A. Fanning SOUTHERN Common 4,870 J. Kevin Fletcher SOUTHERN Common 9,747 Michael L. Scott SOUTHERN Common 6,771 W. L. Westbrook SOUTHERN Common 52,192 Tommy R. Kellogg SOUTHERN Common 4,661 33
ITEM 6. OFFICERS AND DIRECTORS. PART III. Name of Directors or Nominees and Number of Shares Executive Officers Title of Class Beneficially Owned (1)(2) - ------------------ -------------- ------------------ Southern Development (continued) The directors, nominees and executive officers of Southern Development as a Group SOUTHERN Common 175,444 shares GEORGIA Preferred 300 shares SOUTHERN NUCLEAR A. W. Dahlberg SOUTHERN Common 139,108 Paul J. DeNicola SOUTHERN Common 62,502 H. Allen Franklin SOUTHERN Common 86,620 William G. Hairston, III SOUTHERN Common 22,875 Elmer B. Harris SOUTHERN Common 138,012 J. Thomas Beckham, Jr. SOUTHERN Common 63,610 Charles K. McCoy SOUTHERN Common 3,249 James H. Miller, III SOUTHERN Common 2,579 ALABAMA Preferred 40 Jack D. Woodard SOUTHERN Common 26,495 The directors, nominees and executive officers of SOUTHERN NUCLEAR as a Group SOUTHERN Common 564,173 shares ALABAMA Preferred 40 shares Notes to Item 6, Part III(b): (1) As used in these tables, "beneficial ownership" means the sole or shared power to vote, or to direct the voting of, a security and/or investment power with respect to a security (i.e., the power to dispose of, or to direct the disposition of, a security). (2) The shares shown include shares of common stock of which certain directors and officers have the right to acquire beneficial ownership within 60 days pursuant to the Executive Stock Option Plan, as follows: Mr. Boren, 6,737 shares; Mr. Bowden, 37,205 shares; Mr. Dahlberg, 83,184 shares; Mr. Dahlke, 8,317 shares; Mr. Dawson, 2,390 shares; Mr. DeNicola, 30,918 shares; Mr. Evans, 12,564 shares; Mr. Franklin, 64,202 shares; Mr. Guthrie, 59,311 shares; Mr. Hairston, 5,891 shares; Mr. Harris, 90,131 shares; Mr. Hodges, 7,450 shares; Mr. Hutchins, 9,074 shares; Mr. Miller, 1,907 shares; Mr. Newman, 2,356 shares; Mr. Ratcliffe, 30,092 shares; and Mr. Woodard, 5,094 shares. Also included are shares of SOUTHERN common stock held by the spouse of the Mr. Harris, 310 shares. 34
ITEM 6. OFFICERS AND DIRECTORS. PART III. (c) Contracts and transactions with system companies. ALABAMA, GEORGIA, GULF, MISSISSIPPI and SAVANNAH are incorporated by reference to page numbers III-36 and III-37 in the SOUTHERN system's combined Form 10-K for the year ended December 31, 1995. (d) Indebtedness to system companies. None. (e) Participation in bonus and profit sharing arrangements and other benefits. SOUTHERN is incorporated by reference to "Executive Compensation" under ELECTION OF DIRECTORS in SOUTHERN's definitive Proxy Statement relating to the 1996 annual meeting of stockholders. (f) Rights to indemnity. Incorporated by reference are the by-laws, for the companies of the SOUTHERN system, contained herein as Exhibits. 35 ITEM 7. CONTRIBUTIONS AND PUBLIC RELATIONS. (1) Expenditures, disbursements or payments, directly or indirectly, in money, goods or services, to or for the account of any political party, candidate for public office or holder of such office, or any committee or agent thereof.
Accounts Charged, if any, per Books of Disbursing Name of Company Name of Recipient or Beneficiary Purpose Company Amount($) - --------------- -------------------------------- ------- ------- --------- SOUTHERN The 1995 Republican Senate-House Dinner Trust-Building Fund Donation 426 40,000 Majority Anniversary Dinner-Building Fund Donation 426 20,000
ALABAMA, GEORGIA, GULF, MISSISSIPPI and SAVANNAH have established political action committees and have incurred certain costs in the administration of these committees in accordance with the provisions of the Federal Election Campaign Act and the Public Utility Holding Company Act. (2) Expenditures, disbursements or payments, directly or indirectly, in money, goods or services, to or for the account of any citizens group or public relations counsel. The information called for by this item was compiled, and memoranda from each company in the system were received and are being preserved by SOUTHERN, in accordance with the instructions to this item.
Accounts Charged, if any, per Books of Disbursing Name of Company Name of Recipient or Beneficiary Purpose Company Amount($) - --------------- -------------------------------- ------- ------- --------- SOUTHERN Center for Energy and Economic Development Dues 930 100,000 Coalition for Change Donation 426 25,000 Edison Electric Institute Dues 930 3,600 Edison Illuminating Dues 930 100 Global Climate Coalition Donation 426 50,000 National Policy Forum Donation 426 50,000 Smithsonian Tropical Research Donation 426 200,000 Southeastern Legal Foundation Donation 426 6,500 ALABAMA Alabama Alliance of Business & Industry Dues 426 2,695 Business Council of Alabama Dues & Support 930,793,426 1,112,240* Cahaba River Society Dues & Support 793,426 1,300 Nature Conservancy Dues & Support 921,793,426 16,001 Nuclear Energy Institute Dues & Support 426,524, 921,930 367,190 Public Affairs Research Council of Alabama Dues & Support 930,426 10,520 GEORGIA Central Atlanta Progress, Inc. Dues 930 23,155 Council on Economic Education Dues N/A 21,660** Georgia Conservancy Support N/A 25,000** Georgia Council for International Visitors Dues 930 2,500 Midtown Alliance Dues 930 8,400 Nature Conservancy Support N/A 33,333** Nuclear Energy Institute Dues 524 & 426 415,161*** * This amount includes an accrual of $1,000,000. ** Georgia Power Foundation. *** Excludes dues billed to joint owners of Plants Hatch and Vogtle.
36
ITEM 7. CONTRIBUTIONS AND PUBLIC RELATIONS. (Continued) Accounts Charged, if any, per Books of Disbursing Name of Company Name of Recipient or Beneficiary Purpose Company Amount($) - --------------- -------------------------------- ------- ------- --------- GULF Associated Industries of Florida Dues 930 4,000 Coalition for Affordable Power Support 426 10,000 Economic Development Council - East Jackson County Dues 930 200 Economic Development Council - Okaloosa County Dues 930 1,000 Economic Development Council - Walton County Dues & Support 930,426 1,750 Economic Development Council - Washington County Dues 930 1,000 Florida Economic Development Council Dues 930 640 Florida Taxwatch, Inc. Dues 426 10,000 Tampa Electric Company - Education on Wheeling Project Support 426 30,000 T.E.A.M. Santa Rosa - Council of Economic Activity Dues 930 1,000 MISSISSIPPI American National Standards Institute Dues 930 1,780 Business and Industry Dues 930 1,375 Jackson County Area Commerce Dues 930 1,000 Jones County Economic Development Dues 930 2,500 Mississippi Association of Broadcasters Dues 930 1,500 Mississippi Business Roundtable Dues 930 5,000 Mississippi Downtown Development Dues 930 500 Mississippi Gulf Coast Chamber of Commerce Dues 930 3,543 Mississippi Gulf Coast Economic Development Council Dues 930 1,125 Mississippi Manufacturers Association Dues 930 1,615 Mississippi Wildlife Federation Dues 930 1,000 Retail Association of Mississippi Dues 930 1,600 The Nature Conservancy Dues 930 5,000 The Partnership Dues 930 6,000 SAVANNAH American Economic Development Dues 930 280 Association County Commissioners of Georgia Dues 930 1,000 Committee for Economic Development Support 426 1,000 Economic Opportunity Authority Support 426 150 Georgia Conservancy Support & Dues 426,930 2,000 Georgia Council for Economic Education Support 426 2,000 Georgia Economic Developers Association Dues 930 340 Georgia Electrification Council Dues 930 3,200 Savannah Development and Renewal Authority Support 426 100 The Nature Conservancy Support 426 15,000 37
ITEM 8. SERVICE, SALES AND CONSTRUCTION CONTRACTS. PART I.
In Effect on Dec. 31 Transactions Serving Company Receiving Company Compensation Contract (Yes or No) (1) (2) (3) (4) (5) (6) - ------------------------------------------------------------------------------------------------------------------ (Note) (Note) SEI (Note) (Note) Yes (Note) (Note) Southern Communications (Note) (Note) Yes (Note) (Note) Southern Development (Note) (Note) Yes Sublease of railcars ALABAMA GEORGIA $204,769 Yes Sublease of railcars GEORGIA ALABAMA $222,105 Yes Sublease of railcars GEORGIA SAVANNAH $121,137 Yes Sublease of railcars MISSISSIPPI ALABAMA $220,080 Yes Sublease of railcars MISSISSIPPI SAVANNAH $8,933 Yes Note: SEI, Southern Communications, and Southern Development have agreements with SCS, ALABAMA, GEORGIA, GULF, MISSISSIPPI and SAVANNAH pursuant to which SEI, Southern Communications and Southern Development reimburse each of such companies for the full cost of services, personnel and facilities provided to SEI, Southern Communications and Southern Development. Pursuant to such agreements, during 1995 the total reimbursements to SCS, ALABAMA, GEORGIA, GULF, MISSISSIPPI and SAVANNAH from SEI were $10,715,000; $1,677,000; $3,401,000; $17,000; $76,000 and $9,000, respectively; from Southern Communications were $3,471,000; $2,186,000; $1,607,000; $905,000; $608,000; and $8,000, respectively; and from Southern Development were $6,553,000; $476,000; $2,798,000; $57,000; $59,000; and $0, respectively.
Part II. None. Part III. SAVANNAH - LCG Associates, Inc. - Pension Advisors - $40,000 per year. 38 ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES PART I(a) Key terms: FUCO means Foreign Utility Company FUCO-S means a subsidiary of a FUCO EWG means Exempt Wholesale Generator PP means Project Parent
- -------------------------------------------------- ----------- --------------------------- -------------------- ----------- COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED FUCO-S TRANSMISSION, EWG, PP DISTRIBUTION - -------------------------------------------------- ----------- --------------------------- -------------------- ----------- GEN TRAN DIST -------- --------- -------- 1. Southern Electric Bahamas PP N/A N/A N/A SEI NEWCO 2, Inc. 100% Holdings, Ltd. Atlanta, GA 900 Ashwood Parkway, Suite 500 Atlanta, GA 30338 2. Southern Electric Bahamas, Ltd. PP N/A N/A N/A Southern Electric Atlanta, GA Bahamas Holdings, 900 Ashwood Parkway, Suite 500 Ltd. 100% Atlanta, GA 30338 3. Freeport Power Company, Ltd. FUCO Note Note Note Southern Electric Freeport, Grand Bahamas, Bahamas (1) (2) (3) Bahamas, Ltd. 50% Port Authority Building Third Party 50% P.O. Box F-40888 Freeport, Grand Bahamas, Bahamas 4. SEI Operadora del Argentina, S.A. FUCO N/A N/A N/A Southern Electric Buenos Aires, Argentina International, Inc. 99.99% LN Alem 712 - Piso 7 SEI Holdings, Inc. .01% (1001) Buenos Aires, Argentina 5. SEI Holdings, Inc. PP N/A N/A N/A The Southern 100% Atlanta, GA Company 900 Ashwood Parkway, Suite 500 Atlanta, GA 30338 6. Asociados de Electricidad, S.A. PP N/A N/A N/A SEI Holdings, Inc. 99.99% Buenos Aires, Argentina Third Party .01% LN Alem 712 - Piso 7 (1001) Buenos Aires, Argentina 7. SEI y Asociados de Argentina, S.A. PP N/A N/A N/A SEI Holdings, Inc. 80% Buenos Aires, Argentina Asociados de LN Alem 712 - Piso 7 Electricidad, S.A. 14% (1001) Buenos Aires, Argentina Third Party 6% 8. Hidroelectrica Alicura, S.A. FUCO Note N/A N/A SEI y Asociados de Buenos Aires, Argentina (1) Argentina, S.A. LN Alem 712 - Piso 7 Third Party 59% (1001) Buenos Aires, Argentina 41% 9. SEI Holdings III, Inc. PP N/A N/A N/A Merged with SEI Atlanta, GA NEWCO 2, Inc. 900 Ashwood Parkway, Suite 500 12/31/95 Atlanta, GA 30338 - -------------------------------------------------- ----------- -------- --------- -------- -------------------- -----------
39 ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES PART I(a)
- -------------------------------------------------- ----------- --------------------------- -------------------- ----------- COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, TRANSMISSION, OWNERSHIP % OWNED FUCO-S DISTRIBUTION EWG,PP - -------------------------------------------------- ----------- --------------------------- -------------------- ----------- GEN TRAN DIST -------- --------- -------- 10. SEI Chile, S.A. PP N/A N/A N/A SEI NEWCO 2, Inc. 100% Apoquindo 3721 Oficina 114 Edificio "Torre Las Condes" Las Condes, Chile 11. Inversiones SEI Chile Limitada PP N/A N/A N/A SEI Chile, S.A. 99% Apoquindo 3721 SEI Holdings, Inc. 1% Oficina 114 Edificio "Torre Las Condes" Las Condes, Chile 12. Electrica SEI Chile Limitada PP N/A N/A N/A SEI Chile, S.A. 97.05% Apoquindo 3721 SEI Holdings, Inc. 2.95% Oficina 114 Edificio "Torre Las Condes" Las Condes, Chile 13. Empresa Electrica del Norte Grande, S.A. FUCO Note Note N/A Inversiones SEI Antofagasta, Chile (3) (2) Chile Ltda 26.63% Avenida Grecia 750 Electrica SEI Casilla 1290 Chile Ltda 38.35% Antofagasta, Chile Third Party 35.02% 14. Sitranor S. A. FUCO-S N/A N/A N/A Empresa Electric a Antofagasta, Chile del Avenida Grecia 750 Norte Grande, SA 60% Casilla 1290 Third Party 40% Antofagasta, Chile 15. Energia del Pacifico PP N/A N/A N/A SEI Chile, S.A. 99.9% Apoquindo 3721 Inversiones SEI Oficina 114 Chile Limitada .1% Edificio "Torre Las Condes" Las Condes, Chile 16. Energia de Nuevo Leon, SA de CV FUCO N/A N/A N/A The Southern Atlanta, GA Company 33.33% 900 Ashwood Parkway, Suite 500 Third Party 66.66% Atlanta, GA 30338 17. SEI Europe Inc. PP N/A N/A N/A SEI NEWCO 1, Inc. 100% Atlanta, GA 900 Ashwood Parkway, Suite 500 Atlanta, GA 30338 18. Southern Investment UK Holding, Ltd PP N/A N/A N/A SEI Europe, Inc. 100% 31 Curzon Street London, WIY 7AE England - -------------------------------------------------- ----------- -------- --------- -------- -------------------- -----------
40 ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES PART I(a)
- -------------------------------------------------- ----------- --------------------------- -------------------- ----------- COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED FUCO-S TRANSMISSION, EWG,PP DISTRIBUTION - -------------------------------------------------- ----------- --------------------------- -------------------- ----------- GEN TRAN DIST 19. Southern Investment UK, plc PP N/A N/A N/A Southern 31 Curzon Street Investment UK London, WIY 7AE Holding, Ltd. 100% England 20. South West Electricity, plc FUCO Note Note Note Southern 800 Park Avenue (1) (1) (1) Investment UK, plc Aztec West 100% Almondsbury, Bristol BS12 4SE 21. South Western Property Management Services FUCO-S N/A N/A N/A South Western 100% (Inactive) Electricity, plc 800 Park Avenue Aztec West Almondsbury, Bristol BS12 4SE 22. SWEB Finance Limited (Inactive) FUCO-S N/A N/A N/A South Western 100% 800 Park Avenue Electricity, plc Aztec West Almondsbury, Bristol BS12 4SE 23. SWEB Soft Limited (Inactive) FUCO-S N/A N/A N/A South Western 100% 800 Park Avenue Electricity, plc Aztec West Almondsbury, Bristol BS12 4SE 24. SWEB Telecom Limited (Inactive) FUCO-S N/A N/A N/A South Western 100% 800 Park Avenue Electricity, plc Aztec West Almondsbury, Bristol BS12 4SE 25. SWEB Gas Limited (Inactive) FUCO-S N/A N/A N/A South Western 100% 800 Park Avenue Electricity, plc Aztec West Almondsbury, Bristol BS12 4SE 26. South Western Energy Limited (Inactive) FUCO-S N/A N/A N/A South Western 100% 800 Park Avenue Electricity, plc Aztec West Almondsbury, Bristol BS12 4SE 27. SWEB Limited (Inactive) FUCO-S N/A N/A N/A South Western 100% 800 Park Avenue Electricity, plc Aztec West Almondsbury, Bristol BS12 4SE - -------------------------------------------------- ----------- -------- --------- -------- -------------------- -----------
41 ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES PART I(a)
- -------------------------------------------------- ----------- --------------------------- -------------------- ----------- COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED FUCO-S TRANSMISSION, EWG,PP DISTRIBUTION - -------------------------------------------------- ----------- --------------------------- -------------------- ----------- GEN TRAN DIST -------- --------- -------- 28. SWEB International Limited (Inactive) FUCO-S N/A N/A N/A South Western 100% 800 Park Avenue Electricity, plc Aztec West Almondsbury, Bristol BS12 4SE 29. SWEB Natural Gas Limited (Inactive) FUCO-S N/A N/A N/A South Western 100% 800 Park Avenue Electricity, plc Aztec West Almondsbury, Bristol BS12 4SE 30. South Western Natural Gas Limited (Inactive) FUCO-S N/A N/A N/A South Western 100% 800 Park Avenue Electricity, plc Aztec West Almondsbury, Bristol BS12 4SE 31. Western Natural Gas Limited (Inactive) FUCO-S N/A N/A N/A South Western 100% 800 Park Avenue Electricity, plc Aztec West Almondsbury, Bristol BS12 4SE 32. SWEB Retail Limited (Inactive) FUCO-S N/A N/A N/A South Western 100% 800 Park Avenue Electricity, plc Aztec West Almondsbury, Bristol BS12 4SE 33. Dressadmire Limited (Inactive) FUCO-S N/A N/A N/A South Western 100% 800 Park Avenue Electricity, plc Aztec West Almondsbury, Bristol BS12 4SE 34. Escortloyal Limited (Inactive) FUCO-S N/A N/A N/A South Western 100% 800 Park Avenue Electricity, plc Aztec West Almondsbury, Bristol BS12 4SE 35. Insuredress Limited (Inactive) FUCO-S N/A N/A N/A South Western 100% 800 Park Avenue Electricity, plc Aztec West Almondsbury, Bristol BS12 4SE 36. REC Collect Limited FUCO-S N/A N/A N/A South Western 800 Park Avenue Electricity, plc 25.0% Aztec West Almondsbury, Bristol BS12 4SE 37. South Western Power Limited FUCO-S Note N/A N/A South Western 800 Park Avenue (1) Electricity, plc 100% Aztec West Almondsbury, Bristol BS12 4SE - -------------------------------------------------- ----------- -------- --------- -------- -------------------- -----------
42 ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES PART I(a)
- -------------------------------------------------- ----------- --------------------------- -------------------- ----------- COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED FUCO-S TRANSMISSION, EWG,PP DISTRIBUTION - -------------------------------------------------- ----------- --------------------------- -------------------- ----------- GEN TRAN DIST -------- --------- -------- 38. South Western Power Investments Limited FUCO-S N/A N/A N/A South Western 800 Park Avenue Power Limited 100% Aztec West Almondsbury, Bristol BS12 4SE 39. Bioelectrica SpA FUCO-S N/A N/A N/A South Western Andrea Pisano n. 120 Power Investments Pisa, Italy Limited 25.0% 40. Winterton Power Limited FUCO-S Note N/A N/A South Western 800 Park Avenue (1) Power Investments Aztec West Limited 25.0% Almondsbury, Bristol BS12 4SE 41. Teeside Power Limited FUCO-S Note N/A N/A South Western 7.7% 800 Park Avenue (1) Power Investments Aztec West Limited Almondsbury, Bristol BS12 4SE 42. Wind Resources Limited FUCO-S N/A N/A N/A South Western 800 Park Avenue Power Investments Aztec West Limited 45.0% Almondsbury, Bristol BS12 4SE 43. Coal Clough Limited FUCO-S Note N/A N/A Wind Resources 800 Park Avenue (1) Limited 100% Aztec West Almondsbury, Bristol BS12 4SE 44. Carland Cross Limited FUCO-S Note N/A N/A Wind Resources 800 Park Avenue (1) Limited 100% Aztec West Almondsbury, Bristol BS12 4SE 45. SWEB Property Investments Ltd FUCO-S N/A N/A N/A South Western 800 Park Avenue Electricity, plc 100% Aztec West Almondsbury, Bristol BS12 4SE 46. SWEB Property Developments Ltd FUCO-S N/A N/A N/A South Western 800 Park Avenue Electricity, plc 100% Aztec West Almondsbury, Bristol BS12 4SE 47. Temple Back Developments Ltd FUCO-S N/A N/A N/A SWEB Property 800 Park Avenue Developments Ltd 49.0% Aztec West Almondsbury, Bristol BS12 4SE - -------------------------------------------------- ----------- -------- --------- -------- -------------------- -----------
43 ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES PART I(a)
- -------------------------------------------------- ----------- --------------------------- --------------------- ----------- COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED FUCO-S TRANSMISSION, EWG,PP DISTRIBUTION - -------------------------------------------------- ----------- --------------------------- --------------------- ----------- GEN TRAN DIST 48. Weston Super Mare Developments Limited FUCO-S N/A N/A N/A SWEB Property 800 Park Avenue Developments Ltd 100% Aztec West Almondsbury, Bristol BS12 4SE 49. SWEB Investments Limited FUCO-S N/A N/A N/A South Western 800 Park Avenue Electricity, plc 100% Aztec West Almondsbury, Bristol BS12 4SE 50. Midlands Enterprise Fund FUCO-S N/A N/A N/A SWEB Investments 800 Park Avenue Limited 26.8% Aztec West Almondsbury, Bristol BS12 4SE 51. Croeso Systems Development Ltd FUCO-S N/A N/A N/A SWEB Investments 800 Park Avenue Limited Aztec West 50.0% Almondsbury, Bristol BS12 4SE 52. Eurobell (South West) Holding Ltd FUCO-S N/A N/A N/A SWEB Investments 800 Park Avenue Limited Aztec West 30.0% Almondsbury, Bristol BS12 4SE 53. Eurobell (South West) Limited FUCO-S N/A N/A N/A Eurobell (South 800 Park Avenue West) Holding Aztec West Limited 100% Almondsbury, Bristol BS12 4SE 54. Eurobell (South West) Communications Limited FUCO-S N/A N/A N/A Eurobell (South 800 Park Avenue West) Holding Aztec West Limited 100% Almondsbury, Bristol BS12 4SE 55. South Western Electricity (Connect) Limited FUCO-S N/A N/A N/A South Western 800 Park Avenue Electricity, plc 100% Aztec West Almondsbury, Bristol BS12 4SE 56. SWEB Servicing Limited FUCO-S N/A N/A N/A South Western 800 Park Avenue Electricity Aztec West (Connect) Limited 100% Almondsbury, Bristol BS12 4SE 57. South Western Helicopters Limited FUCO-S N/A N/A N/A South Western 800 Park Avenue Electricity, plc 100% Aztec West Almondsbury, Bristol BS12 4SE - -------------------------------------------------- ----------- -------- --------- -------- -------------------- -----------
44 ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES PART I(a)
- -------------------------------------------------- ----------- --------------------------- -------------------- ----------- COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED FUCO-S TRANSMISSION, EWG,PP DISTRIBUTION - -------------------------------------------------- ----------- --------------------------- -------------------- ----------- GEN TRAN DIST 58. Concorde House Limited FUCO-S N/A N/A N/A South Western 800 Park Avenue Electricity, plc 100% Aztec West Almondsbury, Bristol BS12 4SE 59. Western Gas Limited FUCO-S N/A N/A N/A South Western 800 Park Avenue Electricity, plc 75% Aztec West Almondsbury, Bristol BS12 4SE 60. SWEB Insurance Limited FUCO-S N/A N/A N/A South Western 800 Park Avenue Electricity, plc 100% Aztec West Almondsbury, Bristol BS12 4SE 61. AZTEC Insurance Ltd FUCO-S N/A N/A N/A South Western 800 Park Avenue Electricity, plc 100% Aztec West Almondsbury, Bristol BS12 4SE 62. SWEB Pension Trustee Limited FUCO-S N/A N/A N/A South Western 800 Park Avenue Electricity, plc 100% Aztec West Almondsbury, Bristol BS12 4SE 63. South Western Electricity Share Scheme FUCO-S N/A N/A N/A South Western Trustees Limited Electricity, plc 100% 800 Park Avenue Aztec West Almondsbury, Bristol BS12 4SE 64. Dreamplayer Limited FUCO-S N/A N/A N/A South Western 800 Park Avenue Electricity, plc 100% Aztec West Almondsbury, Bristol BS12 4SE 65. Dreamphoto Limited FUCO-S N/A N/A N/A South Western 800 Park Avenue Electricity, plc 100% Aztec West Almondsbury, Bristol BS12 4SE 66. Southern Energy Investments Australia Pty, PP N/A N/A N/A Southern Electric Limited International-Europe, Arthur Robinson & Heddericks Inc. 100% Collins Street Melbourne, Victoria Australia 3000 - -------------------------------------------------- ----------- -------- --------- -------- -------------------- -----------
45 ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES PART I(a)
- -------------------------------------------------- ----------- --------------------------- --------------------- ----------- COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED FUCO-S TRANSMISSION, EWG,PP DISTRIBUTION - -------------------------------------------------- ----------- --------------------------- --------------------- ----------- GEN TRAN DIST -------- --------- -------- 67. Solaris Holding Company Pty, Limited PP N/A N/A N/A Southern Energy Arthur Robinson & Heddericks Investments Collins Street Australia Pty, Ltd 90% Melbourne, Victoria Third Party 10% Australia 3000 68. Tesro Holding, B.V. PP N/A N/A N/A SEI Europe, Inc. 100% Amsterdam, The Netherlands Hoekenrode 6-8 1102 BR Amsterdam The Netherlands 69. SEI Bahamas Argentina II, Inc. PP N/A N/A N/A Merged with SEI Atlanta, GA Europe, Inc. 900 Ashwood Parkway, Suite 500 Atlanta, GA 30338 70. Southern Electric, Inc. EWG N/A N/A N/A SEI Holdings, Inc. 100% Atlanta, GA 900 Ashwood Parkway, Suite 500 Atlanta, GA 30338 71. SEI Bahamas Argentina I, Inc. PP N/A N/A N/A Merged with Atlanta, GA Southern Electric, 900 Ashwood Parkway, Suite 500 Inc. 12/31/95 Atlanta, GA 30338 72. SEI Inversora, S.A. PP N/A N/A N/A Merged with Atlanta, GA Southern Electric. 900 Ashwood Parkway, Suite 500 Inc. 12/31/95 Atlanta, GA 30338 73. SEI Holdings VIII, Inc. PP N/A N/A N/A Merged with SEI Atlanta, GA NEWCO 2, Inc. 900 Ashwood Parkway, Suite 500 12/31/95 Atlanta, GA 30338 74. SEI Beteilligungs GmbH PP N/A N/A N/A SEI NEWCO 2, Inc. 100% Atlanta, GA 900 Ashwood Parkway, Suite 500 Atlanta, GA 30338 75. Southern Electric International Trinidad, EWG N/A N/A N/A SEI NEWCO I, Inc. 100% Inc. (formerly SEI Holdings IX) Atlanta, GA 900 Ashwood Parkway, Suite 500 Atlanta, GA 30338 - -------------------------------------------------- ----------- -------- --------- -------- -------------------- -----------
46 ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES PART I(a)
- -------------------------------------------------- ----------- --------------------------- --------------------- ----------- COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED FUCO-S TRANSMISSION, EWG,PP DISTRIBUTION - -------------------------------------------------- ----------- --------------------------- --------------------- ----------- GEN TRAN DIST -------- --------- -------- 76. The Power Generation Company of EWG Note N/A N/A Southern Electric Trinidad & Tobago, Ltd. (1) International 6A Queens Park West Trinidad, Inc. 39% Port of Spain, Trinidad, West Indies Third Party 61% 77. SEI Holdings X, Inc. PP N/A N/A N/A Merged with SEI Atlanta, GA NEWCO 2, Inc. 900 Ashwood Parkway, Suite 500 Atlanta, GA 30338 78. Southern Electric Brasil Participacoes, PP N/A N/A N/A SEI NEWCO 2, Inc. 99% Limitada SEI Holdings, Inc. 1% Atlanta, GA 900 Ashwood Parkway, Suite 500 Atlanta, GA 30338 79. SEI Holdings XI, Inc. PP N/A N/A N/A Merged with SEI Atlanta, GA NEWCO 2, Inc. 900 Ashwood Parkway, Suite 500 12/31/95 Atlanta, GA 30338 80. Southern Electric Wholesale EWG N/A N/A N/A SEI Holdings, Inc. 100% Generators, Inc. Atlanta, GA 900 Ashwood Parkway, Suite 500 Atlanta, GA 30338 81. Southern Energy Marketing, Inc. EWG N/A N/A N/A Southern Electric Atlanta, GA Wholesale 900 Ashwood Parkway, Suite 500 Generators, Atlanta, GA 30338 Inc. 100% 82. SEI Birchwood, Inc. EWG N/A N/A N/A Southern Electric Atlanta, GA Wholesale 900 Ashwood Parkway, Suite 500 Generators, Atlanta, GA 30338 Inc. 95% Southern Energy Marketing, Inc. 5% 83. Birchwood Power Partners, L.P. EWG Note N/A N/A SEI Birchwood, Inc. Atlanta, GA (1) Third Party 50% 900 Ashwood Parkway, Suite 500 50% Atlanta, GA 30338 84. SEI Hawaiian Cogenerators, Inc. EWG N/A N/A N/A Southern Electric Atlanta, GA Wholesale 900 Ashwood Parkway, Suite 500 Generators, Atlanta, GA 30338 Inc. 100% - -------------------------------------------------- ----------- -------- --------- -------- -------------------- -----------
47 ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES PART I(a)
- -------------------------------------------------- ----------- --------------------------- --------------------- ----------- COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED FUCO-S TRANSMISSION, EWG,PP DISTRIBUTION - -------------------------------------------------- ----------- --------------------------- --------------------- ----------- GEN TRAN DIST -------- --------- -------- 85. Kalaeloa Partners, L.P. N/A Note N/A N/A SEI Hawaiian Kapolei, HI (1) Cogenerators, Inc. 33.33% 91-111C Kalaeloa Boulevard Third Party 66.66% Kapolei, HI 96707 86. SEI NEWCO 1, Inc. PP N/A N/A N/A SEI Holdings, Inc. 100% Atlanta, GA 900 Ashwood Parkway, Suite 500 Atlanta, GA 30338 87. SEI NEWCO 2, Inc. PP N/A N/A N/A SEI NEWCO 1, Inc. 100% Atlanta, GA 900 Ashwood Parkway, Suite 500 Atlanta, GA 30338 - -------------------------------------------------- ----------- -------- --------- -------- -------------------- -----------
NOTES Note 1 - Generating Facilities: Facilities in Operation - -------------------------------- ------------------------------ -------- ------------------------ ------------- ----------- Megawatts of Capacity Percentage - -------------------------------- ------------------------------ -------- ------------------------ ------------- ----------- Facility Location Units Owned Operated Ownership Type - -------------------------------- ------------------------------ -------- ----------- ------------ ------------- ----------- Alicura Argentina 4 (A) 551 (A) 1,000 55.14% Hydro - -------------------------------- ------------------------------ -------- ----------- ------------ ------------- ----------- Edelnor Chile 27 55 86 64.98% Oil - -------------------------------- ------------------------------ -------- ----------- ------------ ------------- ----------- Edelnor Chile 2 7 10 64.98% Hydro - -------------------------------- ------------------------------ -------- ----------- ------------ ------------- ----------- Freeport Grand Bahamas 5 56 113 50.00% Oil & Gas - -------------------------------- ------------------------------ -------- ----------- ------------ ------------- ----------- Kalaeloa Hawaii 1 60 180 33.33% Oil (B) - -------------------------------- ------------------------------ -------- ----------- ------------ ------------- ----------- PowerGen Co. Trinidad and Tobago 21 459 1,178 39.00% Gas - -------------------------------- ------------------------------ -------- ----------- ------------ ------------- ----------- South Western Electric United Kingdom 8 144 -- 7.70% Gas - -------------------------------- ------------------------------ -------- ----------- ------------ ------------- ----------- South Western Electric United Kingdom 13 19 19 100.00% Oil & Gas - -------------------------------- ------------------------------ -------- ----------- ------------ ------------- ----------- South Western Electric United Kingdom 3 8 8 38.27% Wind - -------------------------------- ------------------------------ -------- ----------- ------------ ------------- ----------- Total Capacity 1,359 2,594 - -------------------------------- ------------------------------ -------- ----------- ------------ ------------- -----------
48 ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES PART I(a)
Facilities Under Development - -------------------------------- ------------------------------ -------- ------------------------ ------------- ----------- Megawatts of Capacity Percentage - -------------------------------- ------------------------------ -------- ------------------------ ------------- ----------- Facility Location Units Owned Operated Ownership Type - -------------------------------- ------------------------------ -------- ----------- ------------ ------------- ----------- Birchwood Virginia 1 110 220 50.00% Coal (B) - -------------------------------- ------------------------------ -------- ----------- ------------ ------------- ----------- Edelnor Chile 1 98 150 64.98% Coal - -------------------------------- ------------------------------ -------- ----------- ------------ ------------- ----------- - -------------------------------- ------------------------------ -------- ----------- ------------ ------------- ----------- Total Capacity 208 370 - -------------------------------- ------------------------------ -------- ----------- ------------ ------------- ----------- (A) Represents megawatts of capacity under a concession agreement expiring in the year 2023. (B) Cogeneration facility. Note 2 - Transmission Facilities: Edelnor (Chile) - approximately 920 kilometers of 220 kV and 23 kV transmission lines. Freeport (Grand Bahamas) - approximately 72 kilometers of 69 kV transmission lines. Note 3 - Distribution Facilities: Freeport (Grand Bahamas) - approximately 1,1015 kilometers of 12.5 kV distribution lines South Western Electric (United Kingdom) - approximately 46,326 kilometers as follows: Operating Approximate Voltage Kilometers (kVs) Under 5 18,244 6.6 184 11 22,657 33 3,746 132 1,495 ----- 46,326 South Western Electric's distribution system for the Isles of Scilly includes 57 kilometers of 33 kV submarine cable, which connects the islands to the mainland, and 15 kilometers of 11 kV submarine cable which interconnects the individual islands. PART I(b); PART I(c) and PART I(d) are being filed pursuant to Rule 104. PART II Exhibits H and I submitted with this filing, are being incorporated by reference. PART III is being filed pursuant to Rule 104.
49 ITEM 10 - FINANCIAL STATEMENTS AND EXHIBITS
SOUTHERN AND SUBSIDIARY COMPANIES INDEX TO FINANCIAL STATEMENTS DECEMBER 31, 1995 Page Number REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS A-1 FINANCIAL STATEMENTS: Consolidating Statement of Income for the Year Ended December 31, 1995 A-2 Consolidating Statement of Cash Flows for the Year Ended December 31, 1995 A-4 Consolidating Balance Sheet at December 31, 1995 A-6 Consolidating Statement of Capitalization at December 31, 1995 A-10 Consolidating Statement of Retained Earnings for the Year Ended December 31, 1995 A-13 Consolidating Statement of Paid-in Capital for the Year Ended December 31, 1995 A-14 Notes to Financial Statements at December 31, 1995 A-15 OTHER FINANCIAL STATEMENTS: Alabama Property Company (Unaudited; Not consolidated in Parent, ALABAMA) A-16 GEORGIA consolidated with PIEDMONT and GEORGIA CAPITAL A-19 PIEDMONT (Consolidated in Parent, GEORGIA) A-24 GEORGIA CAPITAL (Consolidated in Parent, GEORGIA) A-27 EXHIBITS A-30 SCHEDULES: Schedules supporting financial statements of ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SEGCO are incorporated by reference to those companies' annual reports on Federal Energy Regulatory Commission Form 1 for the year ended December 31, 1995, as filed with the Federal Energy Regulatory Commission.
A ARTHUR ANDERSEN LLP REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS To The Southern Company: We have audited the consolidated balance sheet and consolidated statement of capitalization of THE SOUTHERN COMPANY (a Delaware corporation) and its subsidiaries as of December 31, 1995, and the related consolidated statement of income, retained earnings, paid-in capital, and cash flows for the year then ended (included in the 1995 annual report to the stockholders and incorporated by reference in this Form U5S as Exhibit A-1). These financial statements are the responsibility of the company's management. Our responsibility is to express an opinion on these financial statements based on our audit. We conducted our audit in accordance with generally accepted auditing standards. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audit provides a reasonable basis for our opinion. In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of The Southern Company and its subsidiaries as of December 31, 1995, and the results of their operations and their cash flows for the year then ended, in conformity with generally accepted accounting principles. /s/ Arthur Andersen LLP Atlanta, Georgia February 21, 1996 A-1
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES CONSOLIDATING STATEMENT OF INCOME FOR THE YEAR ENDED DECEMBER 31, 1995 (Stated in Thousands of Dollars) Intercompany Eliminations and Transfers OPERATING REVENUES: Consolidated Add (Deduct) SOUTHERN ALABAMA Subsidiary operating companies-- Revenues $9,180,027 $ (19,287) $ - $2,897,044 Sales to affiliates - (381,399) - 127,730 SOUTHERN, equity in earnings of subsidiary companies - (1,127,882) 1,127,882 - Total operating revenues 9,180,027 (1,528,568) 1,127,882 3,024,774 OPERATING EXPENSES: Operation-- Fuel 2,126,291 (16) - 791,819 Purchased power from non-affiliates 490,508 2,821 - 30,065 Purchased power from affiliates - (385,561) - 112,826 Other 1,625,965 (32,078) 15,715 501,876 Maintenance 683,166 10,192 - 243,218 Depreciation & amortization 903,492 (261) - 303,050 Amortization of deferred Plant Vogtle costs, net 124,454 - - - Taxes other than income taxes 535,222 994 155 185,620 Federal and state income taxes 804,505 883 - 230,982 Total operating expenses 7,293,603 (403,026) 15,870 2,399,456 OPERATING INCOME 1,886,424 (1,125,542) 1,112,012 625,318 OTHER INCOME (EXPENSE): Allowance for equity funds used during construction 5,071 - - 1,649 Interest income 38,285 (6,963) 9,253 13,768 Other, net (65,346) (10,158) 2,157 (29,027) Income taxes - other income 35,854 137 - 14,142 INCOME BEFORE INTEREST CHARGES 1,900,288 (1,142,526) 1,123,422 625,850 INTEREST CHARGES: Interest on long-term debt 557,199 (7,335) - 180,714 Allowance for debt funds used during construction (20,267) - - (7,067) Interest on interim obligations 62,693 (94) 19,772 16,917 Amortization of debt discount, premium, & expense, net 43,960 238 - 20,259 Other interest charges 52,712 249 558 27,064 Net interest charges 696,297 (6,942) 20,330 237,887 NET INCOME 1,203,991 (1,135,584) 1,103,092 387,963 Preferred dividends of subsidiary companies 88,257 - - 27,069 NET INCOME AFTER DIVIDENDS ON PREFERRED STOCK OF SUBSIDIARY COMPANIES 1,115,734 (1,135,584) 1,103,092 360,894 Minority Interest 12,642 (206) - - NET INCOME AFTER DIVIDENDS ON PREFERRED STOCK AND MINORITY INTEREST OF SUBSIDIARY COMPANIES $1,103,092 $ (1,135,378) $ 1,103,092 $ 360,894 AVERAGE NUMBER OF SHARES OF COMMON STOCK OUTSTANDING (in thousands) 665,064 EARNINGS PER SHARE OF COMMON STOCK $1.66 CASH DIVIDENDS PAID PER SHARE OF COMMON STOCK $1.22 (Continued on following page) A-2(a)
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES CONSOLIDATING STATEMENT OF INCOME FOR THE YEAR ENDED DECEMBER 31, 1995 (Stated in Thousands of Dollars) (Continued) OPERATING REVENUES: GEORGIA GULF MISSISSIPPI SAVANNAH Subsidiary operating companies-- Revenues $4,328,432 $ 600,458 $ 508,862 $ 218,529 Sales to affiliates 76,906 18,619 7,691 7,200 SOUTHERN, equity in earnings of subsidiary companies - - - - Total operating revenues 4,405,338 619,077 516,553 225,729 OPERATING EXPENSES: Operation-- Fuel 900,973 185,274 111,071 25,386 Purchased power from non-affiliates 183,009 8,594 6,019 2,139 Purchased power from affiliates 131,740 29,966 57,777 53,252 Other 746,525 113,397 107,296 45,214 Maintenance 292,029 51,917 39,627 13,668 Depreciation & amortization 421,850 55,104 39,224 18,949 Amortization of deferred Plant Vogtle costs, net 124,454 - - - Taxes other than income taxes 204,675 49,598 42,443 11,465 Federal and state income taxes 449,204 34,065 34,486 17,378 Total operating expenses 3,454,459 527,915 437,943 187,451 OPERATING INCOME 950,879 91,162 78,610 38,278 OTHER INCOME (EXPENSE): Allowance for equity funds used during construction 2,734 36 366 163 Interest income 5,524 2,877 199 164 Other, net (4,922) (1,261) 4,596 (618) Income taxes - other income 3,022 (121) (1,006) 651 INCOME BEFORE INTEREST CHARGES 957,237 92,693 82,765 38,638 INTEREST CHARGES: Interest on long-term debt 254,607 23,294 21,898 12,380 Allowance for debt funds used during construction (12,081) (187) (399) (450) Interest on interim obligations 21,463 2,931 1,141 135 Amortization of debt discount, premium, & expense, net 15,835 2,014 1,510 448 Other interest charges 20,399 1,674 1,185 406 Net interest charges 300,223 29,726 25,335 12,919 NET INCOME 657,014 62,967 57,430 25,719 Preferred dividends of subsidiary companies 48,152 5,813 4,899 2,324 NET INCOME AFTER DIVIDENDS ON PREFERRED STOCK OF SUBSIDIARY COMPANIES 608,862 57,154 52,531 23,395 Minority Interest - - - - NET INCOME AFTER DIVIDENDS ON PREFERRED STOCK AND MINORITY INTEREST OF SUBSIDIARY COMPANIES $ 608,862 $ 57,154 $ 52,531 $ 23,395 (Continued on following page) A-2(b)
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES CONSOLIDATING STATEMENT OF INCOME FOR THE YEAR ENDED DECEMBER 31, 1995 (Stated in Thousands of Dollars) Southern Southern OPERATING REVENUES: SEGCO SEI SEIH MESH Development Communications Subsidiary operating companies-- Revenues $ 2,684 $ - $ 560,808 $ 82,497 $ - $ - Sales to affiliates 143,253 - - - - - SOUTHERN, equity in earnings of subsidiary companies - - - - - - Total operating revenues 145,937 - 560,808 82,497 - - OPERATING EXPENSES: Operation-- Fuel 89,255 - 16,226 6,303 - - Purchased power from non-affiliates - - 257,861 - - - Purchased power from affiliates - - - - - - Other 17,207 - 84,719 26,094 - - Maintenance 13,994 - 18,521 - - - Depreciation & amortization 7,955 - 46,013 11,608 - - Amortization of deferred Plant Vogtle costs, net - - - - - - Taxes other than income taxes 959 - 39,313 - - - Federal and state income taxes 4,256 - 25,193 8,058 - - Total operating expenses 133,626 - 487,846 52,063 - - OPERATING INCOME 12,311 - 72,962 30,434 - - OTHER INCOME (EXPENSE): Allowance for equity funds used during construction 123 - - - - - Interest income 167 852 12,381 - 43 20 Other, net 130 (32,286) 25,703 1,076 (8,198) (12,538) Income taxes - other income 282 10,934 138 - 2,854 4,821 INCOME BEFORE INTEREST CHARGES 13,013 (20,500) 111,184 31,510 (5,301) (7,697) INTEREST CHARGES: Interest on long-term debt 4,970 - 48,170 18,501 - - Allowance for debt funds used during construction (83) - - - - - Interest on interim obligations - - 428 - - - Amortization of debt discount, premium, & expense, net 22 - 3,634 - - - Other interest charges - - 1,177 - - - Net interest charges 4,909 - 53,409 18,501 - - NET INCOME 8,104 (20,500) 57,775 13,009 (5,301) (7,697) Preferred dividends of subsidiary companies - - - - - - NET INCOME AFTER DIVIDENDS ON PREFERRED STOCK OF SUBSIDIARY COMPANIES 8,104 (20,500) 57,775 13,009 (5,301) (7,697) Minority Interest - - 12,638 210 - - NET INCOME AFTER DIVIDENDS ON PREFERRED STOCK AND MINORITY INTEREST OF SUBSIDIARY COMPANIES $ 8,104 $ (20,500) $ 45,137 $ 12,799 $ (5,301) $ (7,697) The notes to the financial statements (herein incorporated by reference as part of exhibit numbers A-1 through A-6 inclusive) are an integral part of this statement. A-3
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES CONSOLIDATING STATEMENT OF CASH FLOWS FOR THE YEAR ENDED DECEMBER 31, 1995 (Stated in Thousands of Dollars) Intercompany Eliminations and Transfers Consolidated Add (Deduct) SOUTHERN ALABAMA OPERATING ACTIVITIES: Net income $ 1,103,092 $(1,223,635) $1,103,092 $ 387,963 Adjustments to reconcile net income to net cash provided by operating activities-- Depreciation and amortization 1,133,955 (360) - 371,382 Deferred income taxes and investment tax credits 116,873 (5,501) - 32,627 Allowance for equity funds used during construction (5,071) - - (1,649) Amortization of deferred Plant Vogtle costs 124,454 - - - Other, net (85,384) 256,133 (270,693) 33,244 Changes in current assets and liabilities -- Receivables, net (109,075) 273,519 (135,298) (54,209) Prepayments (60,885) (4,964) 6,062 (30,634) Fossil fuel stock 38,329 116 - 12,928 Materials & supplies 10,574 (124) - 5,497 Accounts payable (137,849) (83,440) 4,723 (63,656) Other 186,233 (107,610) 3,276 16,467 NET CASH PROVIDED FROM (USED FOR) OPERATING ACTIVITIES 2,315,246 (895,866) 711,162 709,960 INVESTING ACTIVITIES: Gross property additions (1,400,768) (987) - (551,781) Southern Electric business acquisitions (1,416,194) 665 - - Sales of property 287,213 (71) - - Other 152,342 472,012 (466,123) (53,321) NET CASH PROVIDED FROM (USED FOR) INVESTING ACTIVITIES (2,377,407) 471,619 (466,123) (605,102) FINANCING ACTIVITIES: Proceeds -- Common stock 276,798 - 276,798 - Capital contributions - (504,164) - - First mortgage bonds 375,210 255,210 - - Other long-term debt 1,805,680 (842,194) - 131,500 Retirements -- Preferred stock (1,000) - - - First mortgage bonds (538,414) - - - Other long-term debt (902,477) 117,557 - (132,291) Interim obligations, net 727,353 398,678 313,563 210,134 Payment of common stock dividends (811,165) 939,443 (811,165) (285,000) Payment of preferred stock dividends - 88,573 - (27,118) Special Deposits (156,114) - - - Miscellaneous (80,679) (44,631) (4,279) (4,143) NET CASH PROVIDED FROM (USED FOR) FINANCING ACTIVITIES 695,192 408,472 (225,083) (106,918) NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS 633,031 (15,775) 19,956 (2,060) CASH AND CASH EQUIVALENTS AT BEGINNING OF YEAR 139,309 2,581 944 14,676 CASH AND CASH EQUIVALENTS AT END OF YEAR $ 772,340 $ (13,194) $ 20,900 $ 12,616 SUPPLEMENTAL CASH FLOW INFORMATION: Cash paid during the year for -- Interest (net of amount capitalized) $ 621,502 $ (1,435) $ 17,212 $ 189,268 Income taxes 645,222 12,565 - 172,777 Business acquisitions -- Fair value of assets acquired $ 2,744,950 $ - $ - $ - Less cash paid for common stock 1,416,194 - - - Liabilities assumed $ 1,328,756 $ - $ - $ - (Continued on following page) A-4(a)
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES CONSOLIDATING STATEMENT OF CASH FLOWS FOR THE YEAR ENDED DECEMBER 31, 1995 (Stated in Thousands of Dollars) GEORGIA GULF MISSISSIPPI SAVANNAH OPERATING ACTIVITIES: Net income $ 657,014 $ 62,967 $ 57,430 $ 25,719 Adjustments to reconcile net income to net cash provided by operating activities-- Depreciation and amortization 527,310 75,293 51,588 20,535 Deferred income taxes and investment tax credits 37,150 390 (480) 4,359 Allowance for equity funds used during construction (2,734) (36) (366) (163) Amortization of deferred Plant Vogtle costs 124,454 - - - Other, net 134 (26,537) 5,704 35 Changes in current assets and liabilities -- Receivables, net (59,370) (12,210) (8,758) (6,241) Prepayments (36,374) (3,646) 3,376 622 Fossil fuel stock 24,101 (2,189) 1,219 1,481 Materials & supplies 6,660 1,571 2,743 837 Accounts payable 45,882 18,258 17,421 2,213 Other 93,796 (13,910) (2,695) (2,470) NET CASH PROVIDED FROM (USED FOR) OPERATING ACTIVITIES 1,418,023 99,951 127,182 46,927 INVESTING ACTIVITIES: Gross property additions (480,449) (63,113) (67,570) (26,503) Southern Electric business acquisitions - - - - Sales of property 131,099 - - - Other (42,579) 4,401 (1,697) 3,198 NET CASH PROVIDED FROM (USED FOR) INVESTING ACTIVITIES (391,929) (58,712) (69,267) (23,305) FINANCING ACTIVITIES: Proceeds -- Common stock - - - - Capital contributions - 58 - - First mortgage bonds 75,000 - 30,000 15,000 Other long-term debt 504,700 - 10,600 33,500 Retirements -- Preferred stock - (1,000) - - First mortgage bonds (505,789) (1,750) (1,625) (29,250) Other long-term debt (541,810) (13,439) (40,699) (23,003) Interim obligations, net (24,472) 27,000 - 1,500 Payment of common stock dividends (451,500) (46,400) (39,400) (17,600) Payment of preferred stock dividends (48,419) (5,813) (4,899) (2,324) Special Deposits - - - - Miscellaneous (17,413) (117) (568) (2,131) NET CASH PROVIDED FROM (USED FOR) FINANCING ACTIVITIES (1,009,703) (41,461) (46,591) (24,308) NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS 16,391 (222) 11,324 (686) CASH AND CASH EQUIVALENTS AT BEGINNING OF YEAR 12,539 902 1,317 1,563 CASH AND CASH EQUIVALENTS AT END OF YEAR $ 28,930 $ 680 $ 12,641 $ 877 SUPPLEMENTAL CASH FLOW INFORMATION: Cash paid during the year for -- Interest (net of amount capitalized) $ 298,482 $ 26,161 $ 23,308 $ 12,775 Income taxes 404,129 38,537 36,908 11,316 Business acquisitions -- Fair value of assets acquired $ - $ - $ - $ - Less cash paid for common stock - - - - Liabilities assumed $ - $ - $ - $ - (Continued on following page) A-4(b)
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES CONSOLIDATING STATEMENT OF CASH FLOWS FOR THE YEAR ENDED DECEMBER 31, 1995 (Stated in Thousands of Dollars) SOUTHERN SEGCO SCS NUCLEAR SEI OPERATING ACTIVITIES: Net income $ 8,104 $ - $ - $ (20,500) Adjustments to reconcile net income to net cash provided by operating activities-- Depreciation and amortization 8,520 17,971 1,714 1,093 Deferred income taxes and investment tax credits (1,311) - - (1,525) Allowance for equity funds used during construction (123) - - - Amortization of deferred Plant Vogtle costs - - - - Other, net 550 30,853 3,444 1,326 Changes in current assets and liabilities -- Receivables, net 1,103 (54,409) (10,498) (8,288) Prepayments 870 733 418 101 Fossil fuel stock - - - - Materials & supplies - (223) - - Accounts payable (6,310) 22,789 1,845 10,226 Other 99 21,922 3,783 19,158 NET CASH PROVIDED FROM (USED FOR) OPERATING ACTIVITIES 11,502 39,636 706 1,591 INVESTING ACTIVITIES: Gross property additions (4,530) (17,626) (1,281) (600) Southern Electric business acquisitions - - - (665) Sales of property - - - 71 Other 310 (521) 69 - NET CASH PROVIDED FROM (USED FOR) INVESTING ACTIVITIES (4,220) (18,147) (1,212) (1,194) FINANCING ACTIVITIES: Proceeds -- Common stock - - - - Capital contributions - - - 9,006 First mortgage bonds - - - - Other long-term debt 700 - - - Retirements -- Preferred stock - - - - First mortgage bonds - - - - Other long-term debt (350) (428) - - Interim obligations, net - (21,160) - - Payment of common stock dividends (7,463) - - (1,104) Payment of preferred stock dividends - - - - Special Deposits - - - - Miscellaneous - - - - NET CASH PROVIDED FROM (USED FOR) FINANCING ACTIVITIES (7,113) (21,588) - 7,902 NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS 169 (99) (506) 8,299 CASH AND CASH EQUIVALENTS AT BEGINNING OF YEAR 5 99 3,274 13,535 CASH AND CASH EQUIVALENTS AT END OF YEAR $ 174 $ - $ 2,768 $ 21,834 SUPPLEMENTAL CASH FLOW INFORMATION: Cash paid during the year for -- Interest (net of amount capitalized) $ 4,937 $ 8,302 $ 308 $ - Income taxes 3,935 - 110 - Business acquisitions -- Fair value of assets acquired $ - $ - $ - $ - Less cash paid for common stock - - - - Liabilities assumed $ - $ - $ - $ - The notes to the financial statements (herein incorporated by reference as part of exhibit numbers A-1 through A-6 inclusive) are an integral part of this statement. A-5(a)
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES CONSOLIDATING STATEMENT OF CASH FLOWS FOR THE YEAR ENDED DECEMBER 31, 1995 (Stated in Thousands of Dollars) Southern Southern SEIH MESH Development Communications SERC OPERATING ACTIVITIES: Net income $ 45,137 $ 12,799 $ (5,301) $ (7,697) $ - Adjustments to reconcile net income to net cash provided by operating activities-- Depreciation and amortization 46,583 11,608 196 522 - Deferred income taxes and investment tax credits 26,720 18,880 137 5,427 - Allowance for equity funds used during construction - - - - - Amortization of deferred Plant Vogtle costs - - - - - Other, net (55,465) 210 3,921 (68,243) - Changes in current assets and liabilities -- Receivables, net (15,712) (8,165) (7,845) (2,628) (66) Prepayments 3,702 (765) (85) (301) - Fossil fuel stock 673 - - - - Materials & supplies (5,881) (402) (104) - - Accounts payable (18,438) (6,709) 7,203 (89,891) 35 Other 138,119 14,493 2,138 (333) - NET CASH PROVIDED FROM (USED FOR) OPERATING ACTIVITIES 165,438 41,949 260 (163,144) (31) INVESTING ACTIVITIES: Gross property additions (122,989) (11,097) - (52,242) - Southern Electric business acquisitions (1,416,194) - - - - Sales of property 156,114 - - - - Other 130,962 - (5,062) 110,693 - NET CASH PROVIDED FROM (USED FOR) INVESTING ACTIVITIES (1,252,107) (11,097) (5,062) 58,451 - FINANCING ACTIVITIES: Proceeds -- Common stock - - - - - Capital contributions 389,609 - 2,417 103,074 - First mortgage bonds - - - - - Other long-term debt 1,671,826 294,590 - 458 - Retirements -- Preferred stock - - - - - First mortgage bonds - - - - - Other long-term debt (183,014) (85,000) - - - Interim obligations, net (1,965) (175,925) - - - Payment of common stock dividends (76,282) (14,694) - - - Payment of preferred stock dividends - - - - - Special Deposits (156,114) - - - - Miscellaneous 2,481 (9,878) - - - NET CASH PROVIDED FROM (USED FOR) FINANCING ACTIVITIES 1,646,541 9,093 2,417 103,532 - NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS 559,872 39,945 (2,385) (1,161) (31) CASH AND CASH EQUIVALENTS AT BEGINNING OF YEAR 82,844 1,173 2,558 1,251 48 CASH AND CASH EQUIVALENTS AT END OF YEAR $ 642,716 $ 41,118 $ 173 $ 90 $ 17 SUPPLEMENTAL CASH FLOW INFORMATION: Cash paid during the year for -- Interest (net of amount capitalized) $ 33,772 $ 8,412 $ - $ - $ - Income taxes (22,050) (13,005) - - - Business acquisitions -- Fair value of assets acquired $ 2,744,950 $ - $ - $ - $ - Less cash paid for common stock 1,416,194 - - - - Liabilities assumed $ 1,328,756 $ - $ - $ - $ - The notes to the financial statements (herein incorporated by reference as part of exhibit numbers A-1 through A-6 inclusive) are an integral part of this statement. A-5(b)
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES CONSOLIDATING BALANCE SHEET-- DECEMBER 31, 1995 (Stated in Thousands of Dollars) Intercompany Eliminations and Transfers ASSETS Consolidated Add (Deduct) SOUTHERN ALABAMA UTILITY PLANT: Plant in service $ 31,878,166 $ (7,844) $ - $ 10,430,792 Less accumulated provision for depreciation 10,067,081 (197) - 3,838,093 21,811,085 (7,647) - 6,592,699 Nuclear fuel, at amortized cost 225,386 - - 100,537 Construction work in progress 989,808 1,656 - 362,768 Total 23,026,279 (5,991) - 7,056,004 OTHER PROPERTY AND INVESTMENTS: Investments in and advances to consolidated subsidiary companies, stated at equity 86,145 (8,999,155) 8,921,227 27,232 Argentine operating concession, being amortized 431,212 - - - Goodwill 343,897 1 - - Nuclear decommissioning trusts 200,641 - - 108,368 Miscellaneous 230,958 11,725 8,699 19,156 Total 1,292,853 (8,987,429) 8,929,926 154,756 CURRENT ASSETS: Cash and cash equivalents 772,340 (13,194) 20,900 12,616 Special Deposits 156,114 (1,758) - - Receivables-- Customer accounts receivable 1,140,023 (22,067) - 355,833 Affiliated companies - (802,063) 455,817 41,731 Other accounts and notes receivable 260,008 29,107 1,474 28,170 Accumulated provision for uncollectible accounts (37,119) (1) - (1,212) Refundable income taxes - (52,665) - 2,635 Fossil fuel stock, at average cost 326,669 14,330 - 106,627 Materials and supplies, at average cost 551,546 - - 179,103 Prepayments 265,988 (10,119) 715 116,331 Vacation pay deferred 74,135 - - 29,458 Total 3,509,704 (858,430) 478,906 871,292 DEFERRED CHARGES: Deferred charges related to income taxes 1,386,116 (19,250) - 436,837 Deferred Plant Vogtle costs 307,638 - - - Debt expense, being amortized 100,388 34,150 - 7,648 Premium on reacquired debt, being amortized 294,825 - - 89,967 Deferred fuel charges 33,768 - - - Nuclear decontamination and decommissioning fund 73,419 - - 40,282 Miscellaneous 529,140 (11,955) 4,883 87,574 Total 2,725,294 2,945 4,883 662,308 TOTAL ASSETS $ 30,554,130 $ (9,848,905) $ 9,413,715 $ 8,744,360 (Continued on following page) A-6(a)
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES CONSOLIDATING BALANCE SHEET-- DECEMBER 31, 1995 (Stated in Thousands of Dollars) GEORGIA GULF MISSISSIPPI SAVANNAH UTILITY PLANT: Plant in service $ 14,538,595 $ 1,695,814 $ 1,434,327 $ 715,146 Less accumulated provision for depreciation 4,417,120 658,806 499,308 287,004 10,121,475 1,037,008 935,019 428,142 Nuclear fuel, at amortized cost 124,849 - - - Construction work in progress 236,715 26,301 41,210 6,707 Total 10,483,039 1,063,309 976,229 434,849 OTHER PROPERTY AND INVESTMENTS: Investments in and advances to consolidated subsidiary companies, stated at equity 27,232 - - - Argentine operating concession, being amortized - - - - Goodwill - - - - Nuclear decommissioning trusts 92,273 - - - Miscellaneous 120,383 740 4,160 1,788 Total 239,888 740 4,160 1,788 CURRENT ASSETS: Cash and cash equivalents 28,930 680 12,641 877 Special Deposits - - - - Receivables-- Customer accounts receivable 418,749 85,365 32,307 19,574 Affiliated companies 15,482 802 9,213 614 Other accounts and notes receivable 102,953 3,393 9,438 7,251 Accumulated provision for uncollectible accounts (5,000) (768) (802) (983) Refundable income taxes - - - - Fossil fuel stock, at average cost 145,151 37,875 15,666 6,076 Materials and supplies, at average cost 286,804 33,686 22,558 8,239 Prepayments 107,764 12,232 7,584 6,467 Vacation pay deferred 35,543 4,419 4,715 - Total 1,136,376 177,684 113,320 48,115 DEFERRED CHARGES: Deferred charges related to income taxes 871,783 29,093 23,384 21,557 Deferred Plant Vogtle costs 307,638 - - - Debt expense, being amortized 27,227 3,444 1,530 2,754 Premium on reacquired debt, being amortized 174,018 17,015 8,509 5,316 Deferred fuel charges - 33,768 - - Nuclear decontamination and decommissioning fund 33,137 - - - Miscellaneous 197,169 16,806 21,821 10,283 Total 1,610,972 100,126 55,244 39,910 TOTAL ASSETS $ 13,470,275 $ 1,341,859 $ 1,148,953 $ 524,662 (Continued on following page) A-6(b)
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES CONSOLIDATING BALANCE SHEET-- DECEMBER 31, 1995 (Stated in Thousands of Dollars) SOUTHERN SEGCO SCS NUCLEAR SEI UTILITY PLANT: Plant in service $ 309,545 $ 228,515 $ 12,585 $ - Less accumulated provision for depreciation 186,182 121,392 8,477 - 123,363 107,123 4,108 - Nuclear fuel, at amortized cost - - - - Construction work in progress 983 17,492 - - Total 124,346 124,615 4,108 - OTHER PROPERTY AND INVESTMENTS: Investments in and advances to consolidated subsidiary companies, stated at equity - - - - Argentine operating concession, being amortized - - - - Goodwill - - - - Nuclear decommissioning trusts - - - - Miscellaneous 7 3,401 1,822 3,810 Total 7 3,401 1,822 3,810 CURRENT ASSETS: Cash and cash equivalents 174 - 2,768 21,834 Special Deposits - - - - Receivables-- Customer accounts receivable - - - 7,754 Affiliated companies 32,596 133,339 76,032 27,003 Other accounts and notes receivable - 31,606 470 - Accumulated provision for uncollectible accounts - - - (282) Refundable income taxes 311 - - - Fossil fuel stock, at average cost - - - - Materials and supplies, at average cost - 1,764 - - Prepayments 201 1,601 929 2,817 Vacation pay deferred - - - - Total 33,282 168,310 80,199 59,126 DEFERRED CHARGES: Deferred charges related to income taxes 3,462 - - 13,066 Deferred Plant Vogtle costs - - - - Debt expense, being amortized 149 1 - - Premium on reacquired debt, being amortized - - - - Deferred fuel charges - - - - Nuclear decontamination and decommissioning fund - - - - Miscellaneous 955 7,677 22,319 2,312 Total 4,566 7,678 22,319 15,378 TOTAL ASSETS $ 162,201 $ 304,004 $ 108,448 $ 78,314 (Continued on following page) A-7(a)
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES CONSOLIDATING BALANCE SHEET-- DECEMBER 31, 1995 (Stated in Thousands of Dollars) Southern Southern SEIH MESH Development Communications SERC UTILITY PLANT: Plant in service $ 2,067,348 $ 361,076 $ - $ 92,266 $ 1 Less accumulated provision for depreciation 39,101 11,795 - - - 2,028,247 349,281 - 92,266 1 Nuclear fuel, at amortized cost - - - - - Construction work in progress 255,398 7,810 - 32,768 - Total 2,283,645 357,091 - 125,034 1 OTHER PROPERTY AND INVESTMENTS: Investments in and advances to consolidated subsidiary companies, stated at equity 109,609 - - - - Argentine operating concession, being amortized 431,212 - - - - Goodwill 343,896 - - - - Nuclear decommissioning trusts - - - - - Miscellaneous 41,840 - 5,448 7,979 - Total 926,557 - 5,448 7,979 - CURRENT ASSETS: Cash and cash equivalents 642,716 41,118 173 90 17 Special Deposits 157,872 - - - - Receivables-- Customer accounts receivable 228,239 13,798 - 471 - Affiliated companies 5,840 - 1,455 2,073 66 Other accounts and notes receivable 38,971 526 6,565 84 - Accumulated provision for uncollectible accounts (27,916) - (155) - - Refundable income taxes 49,719 - - - - Fossil fuel stock, at average cost 944 - - - - Materials and supplies, at average cost 16,770 2,518 104 - - Prepayments 17,966 1,107 85 308 - Vacation pay deferred - - - - - Total 1,131,121 59,067 8,227 3,026 83 DEFERRED CHARGES: Deferred charges related to income taxes 6,184 - - - - Deferred Plant Vogtle costs - - - - - Debt expense, being amortized 8,623 14,862 - - - Premium on reacquired debt, being amortized - - - - - Deferred fuel charges - - - - - Nuclear decontamination and decommissioning fund - - - - - Miscellaneous 167,527 - 120 1,649 - Total 182,334 14,862 120 1,649 - TOTAL ASSETS $ 4,523,657 $ 431,020 $ 13,795 $ 137,688 $ 84 (Continued on following page)
A-7(b)
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES CONSOLIDATING BALANCE SHEET-- DECEMBER 31, 1995 (Stated in Thousands of Dollars) (Continued) Intercompany Eliminations and Transfers CAPITALIZATION AND LIABILITIES Consolidated Add (Deduct) SOUTHERN ALABAMA CAPITALIZATION (see accompanying statements): Common stock equity $ 8,772,162 $ (8,976,486) $ 8,772,162 $ 2,690,374 Preferred stock 1,332,203 - - 440,400 Subsidiary obligated mandatorily redeemable preferred securities 100,000 - - - Long-term debt 8,305,861 (392,833) - 2,374,948 Total 18,510,226 (9,369,319) 8,772,162 5,505,722 MINORITY INTEREST 230,500 (666) - - CURRENT LIABILITIES: Amount of debt due within one year 508,572 (191) - 84,682 Notes payable 444,829 (5,890) 6,000 - Commercial paper 1,224,909 - 612,563 390,016 Accounts payable-- Affiliated companies - (317,902) 11,295 76,294 Other 785,490 4,590 4,008 182,433 Customer deposits 216,644 - - 30,353 Taxes accrued-- Federal and state income 92,684 (63,921) - 13,599 Other 178,807 163 9 18,158 Interest accrued 199,112 (85) 4,707 53,527 Vacation pay accrued 99,678 1,472 - 29,458 Miscellaneous 530,461 1,195 - 70,543 Total 4,281,186 (380,569) 638,582 949,063 DEFERRED CREDITS AND OTHER LIABILITIES: Accumulated deferred income taxes 4,611,081 (48,987) - 1,191,591 Deferred credits related to income taxes 935,611 - - 386,038 Accumulated deferred investment tax credits 820,127 - - 305,372 Prepaid capacity revenues, net 131,186 - - 131,186 Department of Energy assessments 86,113 - - 36,620 Disallowed Plant Vogtle capacity buyback costs 58,514 - - - Storm damage reserves 30,777 - - 17,959 Miscellaneous 858,809 (49,364) 2,971 220,809 Total 7,532,218 (98,351) 2,971 2,289,575 TOTAL CAPITALIZATION AND LIABILITIES $ 30,554,130 $ (9,848,905) $ 9,413,715 $ 8,744,360 (Continued on following page) A-8(a)
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES CONSOLIDATING BALANCE SHEET-- DECEMBER 31, 1995 (Stated in Thousands of Dollars) (Continued) CAPITALIZATION AND LIABILITIES GEORGIA GULF MISSISSIPPI SAVANNAH CAPITALIZATION (see accompanying statements): Common stock equity $ 4,299,012 $ 436,242 $ 374,884 $ 167,812 Preferred stock 692,787 89,602 74,414 35,000 Subsidiary obligated mandatorily redeemable preferred securities 100,000 - - - Long-term debt 3,315,460 323,376 288,820 153,679 Total 8,407,259 849,220 738,118 356,491 MINORITY INTEREST - - - - CURRENT LIABILITIES: Amount of debt due within one year 150,446 31,548 57,229 1,407 Notes payable 178,000 80,500 - 4,000 Commercial paper 222,330 - - - Accounts payable-- Affiliated companies 72,878 14,447 13,646 5,742 Other 316,278 27,196 37,129 5,620 Customer deposits 53,145 13,195 2,716 5,054 Taxes accrued-- Federal and state income 7,759 - 97 570 Other 96,633 9,547 31,816 1,014 Interest accrued 96,162 5,719 4,701 6,331 Vacation pay accrued 34,233 4,419 4,563 1,916 Miscellaneous 137,184 10,156 8,890 6,735 Total 1,365,048 196,727 160,787 38,389 DEFERRED CREDITS AND OTHER LIABILITIES: Accumulated deferred income taxes 2,510,458 162,345 129,711 74,152 Deferred credits related to income taxes 410,016 67,481 43,266 24,419 Accumulated deferred investment tax credits 432,184 36,052 29,773 13,934 Prepaid capacity revenues, net - - - - Department of Energy assessments 49,493 - - - Disallowed Plant Vogtle capacity buyback costs 58,514 - - - Storm damage reserves - - 12,018 800 Miscellaneous 237,303 30,034 35,280 16,477 Total 3,697,968 295,912 250,048 129,782 TOTAL CAPITALIZATION AND LIABILITIES $ 13,470,275 $ 1,341,859 $ 1,148,953 $ 524,662 (Continued on following page) A-8(b)
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES CONSOLIDATING BALANCE SHEET-- DECEMBER 31, 1995 (Stated in Thousands of Dollars) (Continued) SOUTHERN CAPITALIZATION AND LIABILITIES SEGCO SCS NUCLEAR SEI CAPITALIZATION (see accompanying statements): Common stock equity $ 54,465 $ 875 $ 1,624 $ 113 Preferred stock - - - - Subsidiary obligated mandatorily redeemable preferred securities - - - - Long-term debt 78,408 63,450 5,000 - Total 132,873 64,325 6,624 113 MINORITY INTEREST - - - - CURRENT LIABILITIES: Amount of debt due within one year - 10,598 - - Notes payable - 5,890 - - Commercial paper - - - - Accounts payable-- Affiliated companies 5,352 42,663 16,653 6,801 Other - 27,336 8,361 13,397 Customer deposits - - - - Taxes accrued-- Federal and state income 5,963 - 41 - Other 302 292 343 - Interest accrued 897 106 75 - Vacation pay accrued - 16,727 5,390 - Miscellaneous 186 47,546 10,792 47,202 Total 12,700 151,158 41,655 67,400 DEFERRED CREDITS AND OTHER LIABILITIES: Accumulated deferred income taxes 9,425 - - - Deferred credits related to income taxes 4,391 - - - Accumulated deferred investment tax credits 2,812 - - - Prepaid capacity revenues, net - - - - Department of Energy assessments - - - - Disallowed Plant Vogtle capacity buyback costs - - - - Storm damage reserves - - - - Miscellaneous - 88,521 60,169 10,801 Total 16,628 88,521 60,169 10,801 TOTAL CAPITALIZATION AND LIABILITIES $ 162,201 $ 304,004 $ 108,448 $ 78,314 (Continued on following page) A-9(a)
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES CONSOLIDATING BALANCE SHEET-- DECEMBER 31, 1995 (Stated in Thousands of Dollars) (Continued) Southern Southern CAPITALIZATION AND LIABILITIES SEIH MESH Development Communications SERC CAPITALIZATION (see accompanying statements): Common stock equity $ 806,507 $ 40,766 $ 4,359 $ 99,448 $ 5 Preferred stock - - - - - Subsidiary obligated mandatorily redeemable preferred securities - - - - - Long-term debt 1,792,837 302,466 - 250 - Total 2,599,344 343,232 4,359 99,698 5 MINORITY INTEREST 230,498 668 - - - CURRENT LIABILITIES: Amount of debt due within one year 166,750 5,895 - 208 - Notes payable 162,254 14,075 - - - Commercial paper - - - - - Accounts payable-- Affiliated companies 10,364 29,011 819 11,859 78 Other 135,511 783 6,478 16,369 1 Customer deposits 112,181 - - - - Taxes accrued-- Federal and state income 125,241 3,335 - - - Other 19,506 - 46 978 - Interest accrued 17,083 9,889 - - - Vacation pay accrued 1,166 - 153 181 - Miscellaneous 185,156 2,038 1,939 899 - Total 935,212 65,026 9,435 30,494 79 DEFERRED CREDITS AND OTHER LIABILITIES: Accumulated deferred income taxes 554,756 22,094 - 5,536 - Deferred credits related to income taxes - - - - - Accumulated deferred investment tax credits - - - - - Prepaid capacity revenues, net - - - - - Department of Energy assessments - - - - - Disallowed Plant Vogtle capacity buyback costs - - - - - Storm damage reserves - - - - - Miscellaneous 203,847 - 1 1,960 - Total 758,603 22,094 1 7,496 - TOTAL CAPITALIZATION AND LIABILITIES $ 4,523,657 $ 431,020 $ 13,795 $ 137,688 $ 84 (Continued on following page) A-9(b) The notes to the financial statements (herein incorporated by reference as part of exhibit numbers A-1 through A-6 inclusive) are an integral part of this statement.
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES CONSOLIDATING STATEMENT OF CAPITALIZATION--DECEMBER 31, 1995 (Stated in Thousands of Dollars) Intercompany Eliminations and Transfers Consolidated Add (Deduct) SOUTHERN ALABAMA COMMON STOCK EQUITY: Common stock, par value $5 per share Authorized -- 1,000,000,000 shares Outstanding -- 669,542,914 shares $ 3,347,715 $ - $ 3,347,715 $ - Common stock of subsidiaries - (699,754) - 224,358 Paid-in capital 1,939,811 (5,153,071) 1,940,823 1,304,645 Premium on preferred stock 1,012 - - 146 Additional minimum liability for - under-funded pension obligations - 132 - - Retained earnings 3,483,624 (3,123,793) 3,483,624 1,161,225 Total common stock equity 8,772,162 (8,976,486) 8,772,162 2,690,374 CUMULATIVE PREFERRED STOCK OF SUBSIDIARIES (See note on page A-12): $100 par or stated value-- 4.20% to 5.96% 199,299 - - 77,400 6.32% to 7.88% 205,404 - - 5,000 $25 par or stated value-- $1.90 to $2.125 295,000 - - - 6.40% to 7.60% 322,500 - - 238,000 Auction rates--at January 1, 1996; 4.43% to 4.53% 70,000 - - 70,000 Adjustable rates--at January 1, 1996; 4.67% to 5.27% 240,000 - - 50,000 Total (annual dividend requirement--$86,121) 1,332,203 - - 440,400 SUBSIDIARY OBLIGATED MANDATORILY REDEEMABLE PREFERRED SECURITIES: $25 stated value-- 9% (annual distribution requirement--$9,000) 100,000 - - - LONG-TERM DEBT: First mortgage bonds of subsidiaries-- Maturity Interest Rates 1996 4-1/2% to 4-3/4% 210,000 - - 60,000 1997 5-7/8% 25,000 - - - 1998 5% to 5.55% 230,000 - - 50,000 1999 6-1/8% to 6-3/8% 365,000 - - 170,000 2000 6% to 7% 340,000 - - 100,000 2001 through 2005 6-1/8% to 7% 910,000 - - 400,000 2006 through 2010 6-7/8% to 9% 225,930 - - 175,000 2016 through 2020 8.665% 255,210 - - - 2021 through 2025 6-7/8% to 9-3/8% 1,900,071 - - 1,044,856 Total first mortgage bonds 4,461,211 - - 1,999,856 Other long-term debt 4,402,342 (426,836) - 485,103 Unamortized debt premium (discount), net (49,120) 33,812 - (25,329) Total long-term debt (annual interest requirement--$625,874) 8,814,433 (393,024) - 2,459,630 Less amount due within one year 508,572 (191) - 84,682 Long-term debt excluding amount due within one year 8,305,861 (392,833) - 2,374,948 TOTAL CAPITALIZATION $ 18,510,226 $ (9,369,319) $ 8,772,162 $ 5,505,722 (Continued on following page) A-10(a)
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES CONSOLIDATING STATEMENT OF CAPITALIZATION--DECEMBER 31, 1995 (Stated in Thousands of Dollars) GEORGIA GULF MISSISSIPPI SAVANNAH COMMON STOCK EQUITY: Common stock, par value $5 per share Authorized -- 1,000,000,000 shares Outstanding -- 669,542,914 shares $ - $ - $ - $ - Common stock of subsidiaries 344,250 38,060 37,691 54,223 Paid-in capital 2,384,444 218,438 179,362 8,688 Premium on preferred stock 413 81 372 - Additional minimum liability for under-funded pension obligations - - - (132) Retained earnings 1,569,905 179,663 157,459 105,033 Total common stock equity 4,299,012 436,242 374,884 167,812 CUMULATIVE PREFERRED STOCK OF SUBSIDIARIES (See note on page A-12): $100 par or stated value-- 4.20% to 5.96% 95,787 15,102 11,010 - 6.32% to 7.88% 127,000 10,000 63,404 - $25 par or stated value-- $1.90 to $2.125 295,000 - - - 6.40% to 7.60% - 49,500 - 35,000 Auction rates--at January 1, 1996; 4.43% to 4.53% - - - - Adjustable rates--at January 1, 1996; 4.67% to 5.27% 175,000 15,000 - - Total (annual dividend requirement--$86,121) 692,787 89,602 74,414 35,000 SUBSIDIARY OBLIGATED MANDATORILY REDEEMABLE PREFERRED SECURITIES: $25 stated value-- 9% (annual distribution requirement--$9,000) 100,000 - - - LONG-TERM DEBT: First mortgage bonds of subsidiaries-- Maturity Interest Rates 1996 4-1/2% to 4-3/4% 150,000 - - - 1997 5-7/8% - 25,000 - - 1998 5% to 5.55% 100,000 45,000 35,000 - 1999 6-1/8% to 6-3/8% 195,000 - - - 2000 6% to 7% 200,000 - 40,000 - 2001 through 2005 6-1/8% to 7% 425,000 30,000 35,000 20,000 2006 through 2010 6-7/8% to 9% 50,000 930 - - 2016 through 2020 8.665% - - - - 2021 through 2025 6-7/8% to 9-3/8% 595,368 50,000 110,447 99,400 Total first mortgage bonds 1,715,368 150,930 220,447 119,400 Other long-term debt 1,765,430 206,704 128,745 38,440 Unamortized debt premium (discount), net (14,892) (2,710) (3,143) (2,754) Total long-term debt (annual interest requirement--$625,874) 3,465,906 354,924 346,049 155,086 Less amount due within one year 150,446 31,548 57,229 1,407 Long-term debt excluding amount due within one year 3,315,460 323,376 288,820 153,679 TOTAL CAPITALIZATION $ 8,407,259 $ 849,220 $ 738,118 $ 356,491 (Continued on following page) A-10(b)
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES CONSOLIDATING STATEMENT OF CAPITALIZATION--DECEMBER 31, 1995 (Stated in Thousands of Dollars) SOUTHERN SEGCO SCS NUCLEAR SEI COMMON STOCK EQUITY: Common stock, par value $5 per share Authorized -- 1,000,000,000 shares Outstanding -- 669,542,914 shares $ - $ - $ - $ - Common stock of subsidiaries 328 725 10 100 Paid-in capital 32,472 150 1,614 101,932 Premium on preferred stock - - - - Additional minimum liability for under-funded pension obligations - - - - Retained earnings 21,665 - - (101,919) Total common stock equity 54,465 875 1,624 113 CUMULATIVE PREFERRED STOCK OF SUBSIDIARIES (See note on page A-12): $100 par or stated value-- 4.20% to 5.96% - - - - 6.32% to 7.88% - - - - $25 par or stated value-- $1.90 to $2.125 - - - - 6.40% to 7.60% - - - - Auction rates--at January 1, 1996; 4.43% to 4.53% - - - - Adjustable rates--at January 1, 1996; 4.67% to 5.27% - - - - Total (annual dividend requirement--$86,121) - - - - SUBSIDIARY OBLIGATED MANDATORILY REDEEMABLE PREFERRED SECURITIES: $25 stated value-- 9% (annual distribution requirement--$9,000) - - - - LONG-TERM DEBT: First mortgage bonds of subsidiaries-- Maturity Interest Rates 1996 4-1/2% to 4-3/4% - - - - 1997 5-7/8% - - - - 1998 5% to 5.55% - - - - 1999 6-1/8% to 6-3/8% - - - - 2000 6% to 7% - - - - 2001 through 2005 6-1/8% to 7% - - - - 2006 through 2010 6-7/8% to 9% - - - - 2016 through 2020 8.665% - - - - 2021 through 2025 6-7/8% to 9-3/8% - - - - Total first mortgage bonds - - - - Other long-term debt 78,700 74,048 5,000 - Unamortized debt premium (discount), net (292) - - - Total long-term debt (annual interest requirement--$625,874) 78,408 74,048 5,000 - Less amount due within one year - 10,598 - - Long-term debt excluding amount due within one year 78,408 63,450 5,000 - TOTAL CAPITALIZATION $ 132,873 $ 64,325 $ 6,624 $ 113 The notes to the financial statements (herein incorporated by reference as part of exhibit numbers A-1 through A-6 inclusive) are an integral part of this statement. A-11(a)
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES CONSOLIDATING STATEMENT OF CAPITALIZATION--DECEMBER 31, 1995 (Stated in Thousands of Dollars) Southern Southern SEIH MESH Development Communications SERC COMMON STOCK EQUITY: Common stock, par value $5 per share Authorized -- 1,000,000,000 shares Outstanding -- 669,542,914 shares $ - $ - $ - $ - $ - Common stock of subsidiaries 1 1 1 1 5 Paid-in capital 762,144 41,367 9,659 107,144 - Premium on preferred stock - - - - - Additional minimum liability for under-funded pension obligations - - - - - Retained earnings 44,362 (602) (5,301) (7,697) - Total common stock equity 806,507 40,766 4,359 99,448 5 CUMULATIVE PREFERRED STOCK OF SUBSIDIARIES (See note on page A-12): $100 par or stated value-- 4.20% to 5.96% - - - - - 6.32% to 7.88% - - - - - $25 par or stated value-- $1.90 to $2.125 - - - - - 6.40% to 7.60% - - - - - Auction rates--at January 1, 1996; 4.43% to 4.53% - - - - - Adjustable rates--at January 1, 1996; 4.67% to 5.27% - - - - - Total (annual dividend requirement--$86,121) - - - - - SUBSIDIARY OBLIGATED MANDATORILY REDEEMABLE PREFERRED SECURITIES: $25 stated value-- 9% (annual distribution requirement--$9,000) - - - - - LONG-TERM DEBT: First mortgage bonds of subsidiaries-- Maturity Interest Rates 1996 4-1/2% to 4-3/4% - - - - - 1997 5-7/8% - - - - - 1998 5% to 5.55% - - - - - 1999 6-1/8% to 6-3/8% - - - - 2000 6% to 7% - - - - 2001 through 2005 6-1/8% to 7% - - - - - 2006 through 2010 6-7/8% to 9% - - - - - 2016 through 2020 8.665% - 255,210 - - - 2021 through 2025 6-7/8% to 9-3/8% - - - - - Total first mortgage bonds - 255,210 - - - Other long-term debt 1,961,550 85,000 - 458 - Unamortized debt premium (discount), net (1,963) (31,849) - - - Total long-term debt (annual interest requirement--$625,874) 1,959,587 308,361 - 458 - Less amount due within one year 166,750 5,895 - 208 - Long-term debt excluding amount due within one year 1,792,837 302,466 - 250 - TOTAL CAPITALIZATION $ 2,599,344 $ 343,232 $ 4,359 $ 99,698 $ 5
The notes to the financial statements (herein incorporated by reference as part of exhibit numbers A-1 through A-6 inclusive) are an integral part of this statement. A-11(b) SOUTHERN AND SUBSIDIARY COMPANIES CONSOLIDATING STATEMENT OF CAPITALIZATION--DECEMBER 31, 1995 (Continued) NOTE TO CONSOLIDATING STATEMENT OF CAPITALIZATION: Shares authorized, shares outstanding and redemption prices of the preferred stock and preferred securities are shown below:
Shares Redemption Price Series Authorized Outstanding Per Share** Cumulative Preferred Stock, $100 par or stated value-- 4.20% to 5.96% 2,165,125 1,992,989 $102.18 to $110.00 6.32% to 7.88% 2,054,040 2,054,040 $101.82 to $108.32* Undesignated 6,676,600 - - $25 par or stated value-- $1.90 to $2.125 11,800,000 11,800,000 $26.90* to $27.13* 6.40% to 7.60% 12,900,000 12,900,000 $26.60* to $26.90* Adjustable rate--at 1/1/96 4.67%-1993 Series 600,000 600,000 $26.25* 4.82%-1993 Series 2,000,000 2,000,000 $26.25* 5.27%-1993 Series 3,000,000 3,000,000 $27.50* 4.85%-1993 Series 4,000,000 4,000,000 $27.50* Undesignated 32,000,000 - - $1 Par Value--Undesignated 15,479,800 - - Auction rate--at 1/1/96: 4.43% $100 Stated Capital 500,000 500,000 $100 Auction rate--at 1/1/96: 4.53% $100,000 Stated Capital 200 200 $100,000 $10 Par or Stated Value-- Undesignated 7,420,000 - - Preferred Securities Redemption Price Series Authorized Outstanding Per Preferred Security** Subsidiary Obligated Mandatorily Redeemable Preferred Securities 9% 4,000,000 4,000,000 $25 *Amount of premium in excess of par or stated value reduces in future years. **Plus accrued dividends in each case.
A-12
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES CONSOLIDATING STATEMENT OF RETAINED EARNINGS FOR THE YEAR ENDED DECEMBER 31, 1995 (Stated in Thousands of Dolllars) Intercompany Eliminations and Transfers Consolidated Add (Deduct) SOUTHERN ALABAMA BALANCE, December 31, 1994 $ 3,191,228 $ (2,855,692) $ 3,191,228 $ 1,085,256 ADD: Net income after dividends on preferred stock of subsidiary companies 1,103,092 (1,135,378) 1,103,092 360,894 4,294,320 (3,991,070) 4,294,320 1,446,150 DEDUCT (ADD): Cash dividends paid on common stock 811,165 (1) (871,797) 811,165 (1) 285,000 Other common and preferred stock transactions, net (469) 4,520 (469) (75) BALANCE, December 31, 1995 $ 3,483,624 $ (3,123,793) $ 3,483,624 $ 1,161,225 (1) SOUTHERN paid quarterly dividends during 1995 of 30-1/2 cents per share or $1.22 for the year. A-13(a)
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES CONSOLIDATING STATEMENT OF RETAINED EARNINGS FOR THE YEAR ENDED DECEMBER 31, 1995 (Stated in Thousands of Dolllars) GEORGIA GULF MISSISSIPPI SAVANNAH BALANCE, December 31, 1994 $ 1,412,543 $ 168,951 $ 144,328 $ 99,216 ADD: Net income after dividends on preferred stock of subsidiary companies 608,862 57,154 52,531 23,395 2,021,405 226,105 196,859 122,611 DEDUCT (ADD): Cash dividends paid on common stock 451,500 46,400 39,400 17,600 Other common and preferred stock transactions, net - 42 - (22) BALANCE, December 31, 1995 $ 1,569,905 $ 179,663 $ 157,459 $ 105,033
A-13(b)
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES CONSOLIDATING STATEMENT OF RETAINED EARNINGS FOR THE YEAR ENDED DECEMBER 31, 1995 (Stated in Thousands of Dolllars) Southern Southern SEGCO SEI SEIH MESH Development Communications BALANCE, December 31, 1994 $ 21,170 $ (80,315) $ 7,715 $ 1,293 $ (4,465) $ - ADD: Net income after dividends on preferred stock of subsidiary companies 8,104 (20,500) 45,137 12,799 (5,301) (7,697) 29,274 (100,815) 52,852 14,092 (9,766) (7,697) DEDUCT (ADD): Cash dividends paid on common stock 7,609 1,104 8,490 14,694 - - Other common and preferred stock transactions, net - - - - (4,465) - BALANCE, December 31, 1995 $ 21,665 $ (101,919) $ 44,362 $ (602) $ (5,301) $ (7,697) The notes to the financial statements (herein incorporated by reference as part of exhibit numbers A-1 through A-6 inclusive) are an integral part of this statement. A-13(c)
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES CONSOLIDATING STATEMENT OF PAID-IN CAPITAL FOR THE YEAR ENDED DECEMBER 31, 1995 (Stated in Thousands of Dollars) Intercompany Eliminations and Transfers Consolidated Add (Deduct) SOUTHERN ALABAMA BALANCE, December 31, 1994 $ 1,711,366 $ (4,670,443) $ 1,712,378 $ 1,304,645 ADD (DEDUCT): Proceeds from issuance of common stock over the par value thereof 211,724 (1) - 211,724 (1) - Contributions to (repayments of) capital - (303,677) - - Conversion of debt to equity - (158,036) - - Translation adjustment (6,748) - - - Unrealized gains/losses on investment valuations 27,358 - - - Other (3,889) (20,915) 16,721 - BALANCE, December 31, 1995 $ 1,939,811 $ (5,153,071) $ 1,940,823 $ 1,304,645 (1) SOUTHERN issued 13,014,788 shares of common stock during 1995. A-14(a)
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES CONSOLIDATING STATEMENT OF PAID-IN CAPITAL FOR THE YEAR ENDED DECEMBER 31, 1995 (Stated in Thousands of Dollars) GEORGIA GULF MISSISSIPPI SAVANNAH BALANCE, December 31, 1994 $ 2,384,348 $ 218,380 $ 179,362 $ 8,688 ADD (DEDUCT): Proceeds from issuance of common stock over the par value thereof - - - - Contributions to (repayments of) capital - - - - Conversion of debt to equity - - - - Translation adjustment - - - - Unrealized gains/losses on investment valuations - - - - Other 96 58 - - BALANCE, December 31, 1995 $ 2,384,444 $ 218,438 $ 179,362 $ 8,688 A-14(b)
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES CONSOLIDATING STATEMENT OF PAID-IN CAPITAL FOR THE YEAR ENDED DECEMBER 31, 1995 (Stated in Thousands of Dollars) SOUTHERN SEGCO SCS NUCLEAR SEI BALANCE, December 31, 1994 $ 32,472 $ 58 $ 1,530 $ 92,926 ADD (DEDUCT): Proceeds from issuance of common stock over the par value thereof - - - - Contributions to (repayments of) capital - - - 9,006 Conversion of debt to equity - - - - Translation adjustment - - - - Unrealized gains/losses on investment valuations - - - - Other - 92 84 - BALANCE, December 31, 1995 $ 32,472 $ 150 $ 1,614 $ 101,932 A-14(c)
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES CONSOLIDATING STATEMENT OF PAID-IN CAPITAL FOR THE YEAR ENDED DECEMBER 31, 1995 (Stated in Thousands of Dollars) Southern Southern SEIH MESH Development Communications BALANCE, December 31, 1994 $ 361,461 $ 74,249 $ 7,242 $ 4,070 ADD (DEDUCT): Proceeds from issuance of common stock over the par value thereof - - - - Contributions to (repayments of) capital 222,062 (32,882) 2,417 103,074 Conversion of debt to equity 158,036 - - - Translation adjustment (6,748) - - - Unrealized gains/losses on investment valuations 27,358 - - - Other (25) - - - BALANCE, December 31, 1995 $ 762,144 $ 41,367 $ 9,659 $ 107,144 The notes to the financial statements (herein incorporated by reference as part of exhibit numbers A-1 through A-6 inclusive) are an integral part of this statement. A-14(d)
Notes to Financial Statements at December 31, 1995 The notes to the financial statements are herein incorporated by reference as part of exhibit numbers A-1 through A-6 inclusive and are an integral part of the financial statements. A-15 ALABAMA PROPERTY COMPANY STATEMENT OF INCOME FOR THE YEAR ENDED DECEMBER 31, 1995 (Unaudited; Not Consolidated in Parent, ALABAMA) REVENUES: Sales of recreational lots $3,416,050 Other sales 608,430 Rentals 109,993 ------------ Total Revenues 4,134,473 COSTS AND EXPENSES: Cost of recreational lot sales 1,702,526 Other cost of sales 631,049 Selling, administrative and general expenses 829,224 ------------ Total costs and expenses 3,162,799 OPERATING INCOME 971,674 OTHER INCOME: Interest income 170,259 Other (37,331) INCOME BEFORE PROVISION FOR INCOME TAXES 1,104,602 PROVISION FOR INCOME TAXES 401,987 NET INCOME $ 702,615 ALABAMA PROPERTY COMPANY STATEMENT OF RETAINED EARNINGS FOR THE YEAR ENDED DECEMBER 31, 1995 (Unaudited; Not Consolidated in Parent, ALABAMA) RETAINED EARNINGS AT DECEMBER 31, 1994 $8,439,562 Net income 702,615 Dividend on common stock (2,000,000) ---------- RETAINED EARNINGS AT DECEMBER 31, 1995 $7,142,177 ========== A-16 ALABAMA PROPERTY COMPANY STATEMENT OF CASH FLOWS FOR THE YEAR ENDED DECEMBER 31, 1995 (Unaudited; Not Consolidated in Parent, ALABAMA) CASH FLOWS FROM OPERATING ACTIVITIES: Net income $ 702,615 ------------ Adjustments to reconcile net income to net cash provided by operating activities: Additions to property held for sale (770,428) Property cost of lot sales 1,289,083 Changes in current assets and liabilities: Interest receivable (6,630) Receivable from parent company (30,245) Refundable income taxes (98,214) Prepayments and other current assets 33,233 Accrued income taxes (82,036) Other accrued taxes (15,261) ------------ Total adjustments 319,502 NET CASH PROVIDED FROM OPERATING ACTIVITIES 1,022,117 CASH FLOWS FROM FINANCING ACTIVITIES: Dividends Paid (2,000,000) NET CHANGE IN CASH AND CASH EQUIVALENTS (977,883) CASH AND CASH EQUIVALENTS, Beginning of year 3,202,797 CASH AND CASH EQUIVALENTS, End of year $2,224,914 ========== SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION: Net cash paid during the year for income taxes $608,550 ======== A-17 ALABAMA PROPERTY COMPANY BALANCE SHEET AT DECEMBER 31, 1995 (Unaudited; Not Consolidated in Parent, ALABAMA) ASSETS CURRENT ASSETS: Cash $ 9,914 Temporary cash investments 2,215,000 Interest receivable 6,630 Accounts receivable 7,250 Receivable from parent company 31,674 Refundable income taxes 269,043 ------------ Total current assets 2,539,511 PROPERTY AND MINERAL RIGHTS HELD FOR FUTURE DEVELOPMENT 5,073,015 Total Assets $7,612,526 ========== LIABILITIES AND CAPITALIZATION CURRENT LIABILITIES: Other accrued taxes $ 20,349 ---------- Total current liabilities 20,349 ---------- CAPITALIZATION: Common stock, $150 par value; 1,000 shares authorized, issued and outstanding 150,000 Additional paid-in capital 300,000 Retained earnings 7,142,177 ---------- Total capitalization 7,592,177 ---------- Total liabilities and capitalization $7,612,526 ========== A-18
GEORGIA AND SUBSIDIARY COMPANIES CONSOLIDATING STATEMENT OF INCOME FOR THE YEAR ENDED DECEMBER 31, 1995 (in thousands) GEORGIA GEORGIA GEORGIA CONSOLIDATED ELIMINATIONS CORPORATE PIEDMONT CAPITAL - ------------------------------------------------------------------------------------------------------------------------------------ OPERATING REVENUES: $4,405,338 $(839) $4,405,338 $839 $ - - ------------------------------------------------------------------------------------------------------------------------------------ OPERATING EXPENSES: Operation-- Fuel 900,973 - 900,973 - - Purchased power from non-affiliates 183,009 - 183,009 - - Purchased power from affiliates 131,740 - 131,740 - - Other 746,525 (839) 747,364 - - Maintenance 292,029 - 292,029 - - Depreciation and amortization 421,850 - 421,804 46 - Amortization of deferred Plant Vogtle costs 124,454 - 124,454 - - Taxes other than income taxes 204,675 - 204,336 339 - Federal and state income taxes 449,204 - 449,029 175 - - ------------------------------------------------------------------------------------------------------------------------------------ Total operating expenses 3,454,459 (839) 3,454,738 560 - - ------------------------------------------------------------------------------------------------------------------------------------ OPERATING INCOME 950,879 - 950,600 279 - OTHER INCOME (EXPENSE): Allowance for equity funds used during construction 2,734 - 2,734 - - Interest income 5,524 (10,883) 6,165 963 9,279 Other, net (4,922) - (4,835) (Note A) (87) - Income taxes applicable to other income 3,022 - 3,113 (91) - - ------------------------------------------------------------------------------------------------------------------------------------ INCOME BEFORE INTEREST CHARGES 957,237 (10,883) 957,777 1,064 9,279 - ------------------------------------------------------------------------------------------------------------------------------------ INTEREST CHARGES: Interest on long-term debt 254,607 (642) 254,607 642 - Allowance for debt funds used during construction (12,081) - (12,081) - - Amortization of debt discount, premium, and expense, net 15,835 - 15,835 - - Other interest charges 41,862 (10,241) 43,103 - 9,000 - ------------------------------------------------------------------------------------------------------------------------------------ Net interest charges 300,223 (10,883) 301,464 642 9,000 - ------------------------------------------------------------------------------------------------------------------------------------ NET INCOME 657,014 - 656,313 422 279 DIVIDENDS ON PREFERRED STOCK 48,152 - 48,152 - - - ------------------------------------------------------------------------------------------------------------------------------------ NET INCOME AFTER DIVIDENDS ON PREFERRED STOCK $ 608,862 $ - $ 608,161 $ 422 $ 279 ==================================================================================================================================== A-19
GEORGIA AND SUBSIDIARY COMPANIES CONSOLIDATING STATEMENT OF CASH FLOWS FOR THE YEAR ENDED DECEMBER 31, 1995 (in thousands) GEORGIA GEORGIA GEORGIA CONSOLIDATED ELIMINATIONS CORPORATE PIEDMONT CAPITAL - ------------------------------------------------------------------------------------------------------------------------------------ OPERATING ACTIVITIES: Net income $657,014 $ - $656,313 $422 $279 Adjustments to reconcile consolidated net income to net cash provided by operating activities- Depreciation and amortization 527,310 - 527,208 102 - Deferred income taxes and investment tax credits, net 37,150 - 37,229 (79) - Allowance for equity funds used during construction (2,734) - (2,734) - - Amortization of deferred Plant Vogtle costs124,454 - 124,454 - - Other, net 134 - 134 - - Changes in current assets and liabilities- Receivables, net (59,370) 279 (59,370) - (279) Inventories 30,761 - 30,761 - - Payables 45,882 - 45,882 - - Taxes accrued 11,373 (184) 11,373 184 - Energy cost recovery, retail 42,576 - 42,576 - - Other 3,473 - 3,473 - - - ------------------------------------------------------------------------------------------------------------------------------------ NET CASH PROVIDED FROM OPERATING ACTIVITIES 1,418,023 95 1,417,299 629 - - ------------------------------------------------------------------------------------------------------------------------------------ INVESTING ACTIVITIES: Gross property additions (480,449) - (480,449) - - Sales of property 131,099 - 131,099 - - Other (42,579) - (42,579) - - - ------------------------------------------------------------------------------------------------------------------------------------ NET CASH USED FOR INVESTING ACTIVITIES (391,929) - (391,929) - - - ------------------------------------------------------------------------------------------------------------------------------------ FINANCING ACTIVITIES: Proceeds- First Mortgage Bonds 75,000 - 75,000 - - Other long-term debt 504,700 (210) 504,700 210 - Retirements- First mortgage bonds (505,789) - (505,789) - - Other long-term debt (541,810) - (541,810) - - Interim obligations, net (24,472) - (24,472) - - Payment of common stock dividends (451,500) - (451,500) - - Payment of preferred stock dividends (48,419) - (48,419) - - Miscellaneous (17,413) 838 (17,413) (838) - - ------------------------------------------------------------------------------------------------------------------------------------ NET CASH PROVIDED FROM (USED FOR) FINANCING ACTIVITIES (1,009,703) 628 (1,009,703) (628) - - ------------------------------------------------------------------------------------------------------------------------------------ NET CHANGE IN CASH AND CASH EQUIVALENTS 16,391 723 15,667 1 - CASH AND CASH EQUIVALENTS AT THE BEGINNING OF THE YEAR 12,539 (41) 12,539 41 - - ------------------------------------------------------------------------------------------------------------------------------------ CASH AND CASH EQUIVALENTS AT THE END OF THE YEAR $ 28,930 $682 $28,206 $ 42 $ - ==================================================================================================================================== A-20
GEORGIA AND SUBSIDIARY COMPANIES CONSOLIDATING BALANCE SHEET DECEMBER 31, 1995 (in thousands) GEORGIA GEORGIA GEORGIA CONSOLIDATED ELIMINATIONS CORPORATE PIEDMONT CAPITAL - ------------------------------------------------------------------------------------------------------------------------------------ UTILITY PLANT $10,483,039 $ - $10,463,875 $19,164 $ - - ------------------------------------------------------------------------------------------------------------------------------------ OTHER PROPERTY AND INVESTMENTS 239,888 (126,049) 260,606 (Note B) 2,231 103,100 - ------------------------------------------------------------------------------------------------------------------------------------ CURRENT ASSETS: Cash and cash equivalents 28,930 - 28,888 42 - Receivables- Customer accounts receivable 418,749 - 418,749 - - Affiliated companies 15,482 - 15,482 - - Other accounts receivable 102,953 (1,038) 102,953 - 1,038 Accumulated provisions for uncollectible accounts (5,000) - (5,000) - - Fossil fuel stock, at average cost 145,151 - 145,151 - - Materials and supplies, at average cost 286,804 - 286,804 - - Prepayments 107,764 - 107,764 - - Vacation pay deferred 35,543 - 35,543 - - - ------------------------------------------------------------------------------------------------------------------------------------ Total 1,136,376 (1,038) 1,136,334 42 1,038 - ------------------------------------------------------------------------------------------------------------------------------------ DEFERRED CHARGES Deferred charges related to income taxes 871,783 - 871,783 - - Deferred Plant Vogtle costs 307,638 - 307,638 - - Miscellaneous 431,551 - 431,551 - - - ------------------------------------------------------------------------------------------------------------------------------------ Total 1,610,972 - 1,610,972 - - - ------------------------------------------------------------------------------------------------------------------------------------ TOTAL ASSETS $13,470,275 $(127,087) $13,471,787 $21,437 $104,138 ====================================================================================================================================
A-21
GEORGIA AND SUBSIDIARY COMPANIES CONSOLIDATING BALANCE SHEET DECEMBER 31, 1995 (in thousands) GEORGIA GEORGIA GEORGIA CONSOLIDATED ELIMINATIONS CORPORATE PIEDMONT CAPITAL - ------------------------------------------------------------------------------------------------------------------------------------ CAPITALIZATION: Common stock equity $4,299,012 $ (11,194) $4,297,708 $9,110 $ 3,388 Preferred stock 692,787 - 692,787 - - Subsidiary obligated mandatorily redeemable preferred securities 100,000 - - 100,000 Long-term debt 3,315,460 (114,855) 3,418,560 11,755 - - ------------------------------------------------------------------------------------------------------------------------------------ Total 8,407,259 (126,049) 8,409,055 20,865 103,388 - ------------------------------------------------------------------------------------------------------------------------------------ CURRENT LIABILITIES: Long-term debt due within one year 150,446 - 150,446 - - Notes payable to banks 178,000 - 178,000 - - Commercial paper 222,330 - 222,330 - - Accounts payable- Affiliated companies 72,878 - 72,878 - - Other 316,278 - 316,278 - - Customer deposits 53,145 - 53,145 - - Taxes accrued 104,392 - 103,519 873 - Interest accrued 96,162 (1,038) 96,450 - 750 Vacation pay accrued 34,233 - 34,233 - - Miscellaneous 137,184 - 137,184 - - - ------------------------------------------------------------------------------------------------------------------------------------ Total 1,365,048 (1,038) 1,364,463 873 750 - ------------------------------------------------------------------------------------------------------------------------------------ DEFERRED CREDITS: Accumulated deferred income taxes 2,510,458 - 2,510,458 - - Accumulated deferred investment tax credits 432,184 - 432,485 (301) - Deferred credits related to income taxes 410,016 - 410,016 - - Miscellaneous 345,310 - 345,310 - - - ------------------------------------------------------------------------------------------------------------------------------------ Total 3,697,968 - 3,698,269 (301) - - ------------------------------------------------------------------------------------------------------------------------------------ TOTAL CAPITALIZATION AND LIABILITIES $13,470,275 $(127,087) $13,471,787 $21,437 $104,138 ====================================================================================================================================
A-22 Notes to GEORGIA's Consolidated Financial Statements (A) Includes $4,052,000 equity in earnings for SEGCO, a non-consolidated subsidiary in which GEORGIA has 50% ownership. SEGCO is accounted for on the equity basis. See pages A-2 through A-14 for SEGCO's financial statements consolidated for SOUTHERN. (B) Includes $27,232,000 of investments in SEGCO. A-23 PIEDMONT STATEMENT OF INCOME AND EARNINGS RETAINED IN THE BUSINESS FOR THE YEAR ENDED DECEMBER 31, 1995 (Consolidated in Parent, GEORGIA) (Unaudited) (in thousands) REVENUES: Rent $839 Other (Interest) 963 $1,802 ---- EXPENSES: Interest 642 Taxes 605 Depreciation 102 Miscellaneous 31 1,380 ---- ------ NET INCOME 422 EARNINGS RETAINED IN THE BUSINESS AT DECEMBER 31, 1994 594 ------ EARNINGS RETAINED IN THE BUSINESS AT DECEMBER 31, 1995 $1,016 ====== A-24 PIEDMONT STATEMENT OF CASH FLOWS FOR THE YEAR ENDED DECEMBER 31, 1995 (Consolidated in Parent, GEORGIA) (Unaudited) (in thousands) OPERATING ACTIVITIES: Net income $422 Deferred income taxes (79) Depreciation 102 Change in current liabilities 184 $629 ---- FINANCING ACTIVITIES: Increase in advances from parent 210 Decrease in capital contributions (838) (628) ---- ---- NET CHANGE IN CASH $ 1 ==== A-25 PIEDMONT BALANCE SHEET AT DECEMBER 31, 1995 (Consolidated in Parent, GEORGIA) (Unaudited) (in thousands) ASSETS INVESTMENTS: Plant-in-service $19,164 Non-utility property 2,231 $21,395 --------- CURRENT ASSETS: Cash 42 ------- TOTAL ASSETS $21,437 ======= CAPITALIZATION AND LIABILITIES CAPITALIZATION: Common stock, $1 par (1,000,000 shares authorized, 100,000 shares issued) $ 100 Other paid-in capital 7,994 Retained earnings 1,016 $ 9,110 ------ Long-term debt - Advances from parent company 11,755 -------- Total capitalization 20,865 CURRENT LIABILITIES: Federal and state income taxes accrued 610 Taxes other than income taxes 263 873 ------ DEFERRED CREDITS: Accumulated deferred income taxes (301) --------- TOTAL CAPITALIZATION AND LIABILITIES $21,437 ========= A-26 GEORGIA CAPITAL STATEMENT OF INCOME FOR THE YEAR ENDED DECEMBER 31, 1995 (Consolidated in Parent, GEORGIA) (Unaudited) (in thousands) Interest Income $9,279 Less: Preferred Distributions 9,000 ------ NET INCOME 279 EARNINGS RETAINED IN THE BUSINESS AT DECEMBER 31, 1994 9 ------ EARNINGS RETAINED IN THE BUSINESS AT DECEMBER 31, 1995 $ 288 ====== A-27 GEORGIA CAPITAL STATEMENT OF CASH FLOWS FOR THE YEAR ENDED DECEMBER 31, 1995 (Consolidated in Parent, GEORGIA) (Unaudited) (in thousands) OPERATING ACTIVITIES: Net income $279 Change in current assets and current liabilities (279) ----- NET CHANGE IN CASH $ 0 ===== A-28 GEORGIA CAPITAL BALANCE SHEET AT DECEMBER 31, 1995 (Consolidated in Parent, GEORGIA) (Unaudited) (in thousands) ASSETS INVESTMENTS $103,100 CURRENT ASSETS: Interest receivable 1,038 -------- TOTAL ASSETS $104,138 ======== CAPITALIZATION CAPITALIZATION: Miscellaneous paid-in capital $3,100 Retained earnings 288 $ 3,388 -------- Preferred securities 100,000 -------- Total Capitalization 103,388 CURRENT LIABILITIES: Distributions payable 750 -------- TOTAL CAPITALIZATION AND LIABILITIES $104,138 ======== A-29
EXHIBITS. Exhibits (including reference to previous filings): Exhibit Number Description of Exhibit A-1 Annual Report of SOUTHERN on Form 10-K for the year ended December 31, 1995. (File No. 1-3526.) A-2 Annual Report of ALABAMA on Form 10-K for the year ended December 31, 1995. (File No. 1-3164.) A-3 Annual Report of GEORGIA on Form 10-K for the year ended December 31, 1995. (File No. 1-6468.) A-4 Annual Report of GULF on Form 10-K for the year ended December 31, 1995 (File No. 0-2429.) A-5 Annual Report of MISSISSIPPI on Form 10-K for the year ended December 31, 1995. (File No. 0-6849.) A-6 Annual Report of SAVANNAH on Form 10-K for the year ended December 31, 1995. (File No. 1-5072.) A-7 Annual Report on Form U-13-60 for SEI for the year ended December 31, 1995. B-1 Composite Certificate of Incorporation of SOUTHERN, reflecting all amendments thereto through January 5, 1994. (Designated in Registration No. 33-3546, as Exhibit 4(a), in Certificate of Notification, File No. 70-7341, as Exhibit A and in Certificate of Notification, File No. 70-8181, as Exhibit A.) B-2 By-laws of SOUTHERN as amended effective October 21, 1991, and as presently in effect. (Designated in Form U-1, File No. 70-8181, as Exhibit A-2.) B-3 Charter of ALABAMA and amendments thereto through October 14, 1994. (Designated in Registration No. 2-59634 as Exhibit 2(b), in Registration No. 2-60209 as Exhibit 2(c), in Registration No. 2-60484 as Exhibit 2(b), in Registration No. 2-70838 as Exhibit 4(a)-2, in Registration No. 2-85987 as Exhibit 4(a)-2, in Registration No. 33-25539 as Exhibit 4(a)-2, in Registration No. 33-43917 as Exhibit 4(a)-2, in Form 8-K dated February 5, 1992, File No. 1-3164, as Exhibit 4(b)-3, in Form 8-K dated July 8, 1992, File No. 1-3164, as Exhibit 4(b)-3, in Form 8-K dated October 27, 1993, File No. 1-3164, as Exhibits 4(a) and 4(b) , in Form 8-K dated November 16, 1993, File No. 1-3164, as Exhibit 4(a) and in Certificate of Notification, File No. 70-8191, as Exhibit A.) B-4 By-laws of ALABAMA as amended effective July 23, 1993, and as presently in effect. (Designated in Form U-1, File No. 70-8191, as Exhibit A-2.) A-30
EXHIBITS. Exhibits (including reference to previous filings): (Continued) Exhibit Number Description of Exhibit B-5 Charter of GEORGIA and amendments thereto through October 25, 1993. (Designated in Registration No. 2-63392 as Exhibit 2(a)-2, in Registration No. 2-78913 as Exhibits 4(a)-(2) and 4(a)-(3), in Registration No. 2-93039 as Exhibit 4(a)-(2), in Registration No. 2-96810 as Exhibit 4(a)(2), in Registration No. 33-141 as Exhibit 4(a)(2), in Registration No. 33-1359 as Exhibit 4(a)(2), in Registration No. 33-5405 as Exhibit 4(b)(2), in Registration No. 33-14367 as Exhibits 4(b)-2 and 4(b)-3, in Registration No. 33-22504 as Exhibits 4(b)-(2), 4(b)-(3) and 4(b)-(4), in GEORGIA's Form 10-K for the year ended December 31, 1991, File No. 1-6468, as Exhibits 4(a)(2) and 4(a)(3), in Registration No. 33-48895, as Exhibits 4(b)-(2) and 4(b)-(3), in Form 8-K dated December 10, 1992, File No. 1-6468, as Exhibit 4(b), in Form 8-K dated June 17, 1993, File No. 1-6468, as Exhibit 4(b) and in Form 8-K dated October 20, 1993, File No. 1-6468, as Exhibit 4(b).) B-6 By-laws of GEORGIA as amended effective July 18, 1990, and as presently in effect. (Designated in GEORGIA's Form 10-K for the year ended December 31, 1990, File No. 1-6468, as Exhibit 3.) B-7 Restated Articles of Incorporation of GULF and amendments thereto through November 8, 1993. (Designated in Registration No. 33-43739 as Exhibit 4(b)-1), in Form 8-K dated January 15, 1992, File No. 0-2429, as Exhibit 1(b), in Form 8-K dated August 18, 1992, File No. 0-2429, as Exhibit 4(b)-2, in Form 8-K dated September 22, 1993, File No. 0-2429, as Exhibit 4 and in Form 8-K dated November 3, 1993, File No. 0-2429, as Exhibit 4.) B-8 By-laws of GULF as amended effective February 25, 1994, and as presently in effect. (Designated in GULF's Form 10-K for the year ended December 31, 1993, File No. 0-2429, as Exhibit 3(d)2.) B-9 Articles of incorporation of MISSISSIPPI, articles of merger of Mississippi Power Company (a Maine corporation) into MISSISSIPPI and articles of amendment to the articles of incorporation of MISSISSIPPI through August 19, 1993. (Designated in Registration No. 2-71540 as Exhibit 4(a)-1, in Form U5S for 1987, File No. 30-222-2, as Exhibit B-10, in Registration No. 33-49320 as Exhibit 4(b)-1, in Form 8-K dated August 5, 1992, File No. 0-6849, as Exhibits 4(b)-2 and 4(b)-3 in Form 8-K dated August 4, 1993, File No. 0-6849, as Exhibit 4(b)-3 and in Form 8-K dated August 18, 1993, File No. 0-6849, as Exhibit 4(b)-3.) B-10 By-laws of MISSISSIPPI as amended effective April 2, 1996, and as presently in effect. B-11 Charter of SAVANNAH and amendments thereto through November 10, 1993. (Designated in Registration No. 33-25183 as Exhibit 4(b)-(1), in Registration No. 33-45757 as Exhibit 4(b)-(2) and in Form 8-K dated November 9, 1993, File No. 1-5072 as Exhibit 4(b).) A-31
EXHIBITS. Exhibits (including reference to previous filings): (Continued) Exhibit Number Description of Exhibit B-12 By-laws of SAVANNAH as amended effective February 16, 1994, and as presently in effect. (Designated in SAVANNAH's Form 10-K for the year ended December 31, 1993, File No. 1-5072, as Exhibit 3(f)2.) B-13 SEGCO Certificate of Incorporation as amended to date, last amended November 29, 1966. (Designated in Forms U-1, File No. 70-3480, as Exhibit A-5, File No. 70-3630, as Exhibit A-6, File Nos. 70-3738 and 70-3842, as Exhibit A-8(b); Registration No. 2-18084 as Exhibit 3(a)-2 and First Certificate of Notification, File No. 70-3945, as Exhibit A.) B-14 SEGCO By-laws as amended to date, last amended July 10, 1986. (Designated in Form U5S for the year ended December 31, 1990, as Exhibit B-14.) B-15 SCS Certificate of Incorporation as amended. (Designated in Form U-1, File No. 70-3573, as Exhibit A-1; in Form U-1, File No. 70-3833, as Exhibit A-2; Form U5S for 1962, File No. 30-222-2, as Exhibit A-17; and Form U5S for 1985, File No. 30-222-2, as Exhibit B-13(b).) B-16 SCS By-laws as amended to date, last amended February 20, 1995. (Designated in Form U5S for 1994, File No. 30-222-2, as Exhibit B-16) B-17 Alabama Property Company Certificate of Incorporation. (Designated in Form U-5B, File No. 30-115, as Exhibit B-29.) B-18 Alabama Property Company By-laws. (Designated in Form U-5B, File No. 30-115, as Exhibit B-30.) B-19 Piedmont-Forrest Corporation Articles of Incorporation and amendments thereto through August 31, 1987. (Designated in Form U-1, File No. 70-6135, as Exhibit A-1 and in Form U5S for 1987, File No. 30-222-2, as Exhibit B-21.) B-20 Piedmont-Forrest Corporation By-laws as presently in effect. (Designated in Form U-1, File No. 70-6135, as Exhibit A-2.) B-21 Articles of Incorporation of SEI and amendments thereto through September 24, 1987. (Designated in Form U5S for 1982, File No. 30-222-2, as Exhibit A-19 and in Form U5S for 1987, File No. 30-222-2, as Exhibit B-24.) B-22 By-laws of SEI as amended to date, last amended February 25, 1994. (Designated in Form U5S for 1993, File No. 30-222-2, as Exhibit B-24.) B-23 Articles of Incorporation of MESH and amendments thereto. B-24 By-laws of MESH.
A-32
EXHIBITS. Exhibits (including reference to previous filings): (Continued) Exhibit Number Description of Exhibit B-25 Articles of Incorporation of Southern Development and amendments thereto through March 25, 1993. (Designated in Form U5S for 1985, File No. 30-222-2, as Exhibit B-23 , in Form U5S for 1987, File No. 30-222-2, as Exhibit B-27 and in Form U5S for 1993, File No. 30-222-2, as Exhibit B-25.) B-26 By-laws of Southern Development. (Designated in Form U5S for 1985, File No. 30-222-2, as Exhibit B-24.) B-27 By-laws of SOUTHERN NUCLEAR as amended to date, last amended May 21, 1991. (Designated in Form U5S for 1991, File No. 30-222-2, as Exhibit B-27.) B-28 Articles of Incorporation of SOUTHERN NUCLEAR and amendment thereto through June 14, 1991. (Designated in Form U5S for 1991, File No. 30-222-2, as Exhibit B-28.) B-29 Certificate of Incorporation of SERC. (Designated in Form U5S for 1993, File No. 30-222-2, as Exhibit B-30 B-30 By-laws of SERC. (Designated in Form U5S for 1993, File No. 30-222-2, as Exhibit B-31.) B-31 Certificate of Incorporation of SOUTHERN COMMUNICATIONS. (Designated in Form U5S for 1994, File No. 30-222-2, as Exhibit B-31) B-32 By-laws of SOUTHERN COMMUNICATIONS. (Designated in Form U5S for 1994, File No. 30-222-2, as Exhibit B-32) B-33 Certificate of Incorporation of SEIH. (Designated in Form U5S for 1993, File No. 30-222-2, as Exhibit B-32.) B-34 By-laws of SEIH. (Designated in Form U5S for 1993, File No. 30-222-2, as Exhibit B-33.) B-35 Certificate of Incorporation of SEIH-III. (Designated in Form U5S for 1993, File No. 30-222-2, as Exhibit B-34.) B-36 By-laws of SEIH-III. (Designated in Form U5S for 1993, File No. 30-222-2, as Exhibit B-35.) B-37 Certificate of Incorporation of Southern Electric International - Europe, Inc. and amendments thereto. B-38 By-laws of Southern Electric International - Europe, Inc. A-33
EXHIBITS. Exhibits (including reference to previous filings): (Continued) Exhibit Number Description of Exhibit B-39 Certificate of Incorporation of SEWG. (Designated in Form U5S for 1993, File No. 30-222-2, as Exhibit B-38.) B-40 By-laws of SEWG. (Designated in Form U5S for 1993, File No. 30-222-2, as Exhibit B-39.) B-41 Certificate of Incorporation of SEIH-VIII. (Designated in Form U5S for 1994, File No. 30-222-2, as Exhibit B-41) B-42 By-laws of SEIH-VIII. (Designated in Form U5S for 1994, File No. 30-222-2, as Exhibit B-42) B-43 Certificate of Incorporation of Southern Electric International Trinidad, Inc. and amendments thereto. B-44 By-laws of Southern Electric International Trinidad, Inc. B-45 Certificate of Incorporation of SEIH-X. (Designated in Form U5S for 1994, File No. 30-222-2, as Exhibit B-45) B-46 By-laws of SEIH-X. (Designated in Form U5S for 1994, File No. 30-222-2, as Exhibit B-46) B-47 Certificate of Incorporation of SEIH-XI. (Designated in Form U5S for 1994, File No. 30-222-2, as Exhibit B-47) B-48 By-laws of SEIH-XI. (Designated in Form U5S for 1994, File No. 30-222-2, as Exhibit B-48) B-49 Articles of Organization of MESCO and amendments thereto. B-50 Operating Agreement of MESCO. B-51 Certificate of Incorporation of Southern Electric, Inc. (Designated in Form U5S for 1994, File No. 30-222-2, as Exhibit B-51) B-52 By-laws of Southern Electric, Inc. (Designated in Form U5S for 1994, File No. 30-222-2, as Exhibit B-52) B-53 Certificate of Incorporation of GEORGIA POWER HOLDINGS. (Designated in Form U5S for 1994, File No. 30-222-2, as Exhibit B-53) A-34
EXHIBITS. Exhibits (including reference to previous filings): (Continued) Exhibit Number Description of Exhibit B-54 By-laws of GEORGIA POWER HOLDINGS. (Designated in Form U5S for 1994, File No. 30-222-2, as Exhibit B-54) B-55 Certificate of Limited Partnership of GEORGIA CAPITAL. (Designated in Form U5S for 1994, File No. 30-222-2, as Exhibit B-55) B-56 Amended and Restated Agreement of Limited Partnership of GEORGIA CAPITAL. (Designated in Form U5S for 1994, File No. 30-222-2, as Exhibit B-56) B-57 Action of General Partner of GEORGIA CAPITAL dated December 9, 1994. (Designated in Form U5S for 1994, File No. 30-222-2, as Exhibit B-57) B-58 Certificate of Incorporation of SEI Newco 1, Inc. B-59 By-laws of SEI Newco 1, Inc. B-60 Certificate of Incorporation of SEI Newco 2, Inc. B-61 By-laws of SEI Newco 2, Inc. C-1 Indenture dated as of January 1, 1942, between ALABAMA and Chemical Bank, as Trustee, and indentures supplemental thereto through that dated as of December 1, 1994. (Designated in Registration Nos. 2-59843 as Exhibit 2(a)-2, 2-60484 as Exhibits 2(a)-3 and 2(a)-4, 2-60716 as Exhibit 2(c), 2-67574 as Exhibit 2(c), 2-68687 as Exhibit 2(c), 2-69599 as Exhibit 4(a)-2, 2-71364 as Exhibit 4(a)-2, 2-73727 as Exhibit 4(a)-2, 33-5079 as Exhibit 4(a)-2, 33-17083 as Exhibit 4(a)-2, 33-22090 as Exhibit 4(a)-2, in ALABAMA's Form 10-K for the year ended December 31, 1990, File No. 1-3164, as Exhibit 4(c), in Registration Nos. 33-43917 as Exhibit 4(a)-2, 33-45492 as Exhibit 4(a)-2, 33-48885 as Exhibit 4(a)-2, 33-48917 as Exhibit 4(a)-2, in Form 8-K dated January 20, 1993, File No. 1-3436, as Exhibit 4(a)-3, in Form 8-K dated February 17, 1993, File No. 1-3436, as Exhibit 4(a)-3, in Form 8-K dated March 10, 1993, File No. 1-3436, as Exhibit 4(a)-3, in Certificate of Notification, File No. 70-8069, as Exhibits A and B, in Form 8-K dated June 24, 1993, File No. 1-3436, as Exhibit 4, in Certificate of Notification, File No. 70-8069, as Exhibit A, in Form 8-K dated November 16, 1993, File No. 1-3436, as Exhibit 4(b), in Certificate of Notification, File No. 70-8069, as Exhibits A and B, in Certificate of Notification, File No. 70-8069, as Exhibit A, in Certificate of Notification, File No. 70-8069, as Exhibit A and in Form 8-K dated November 30, 1994, File No. 1-3436, as Exhibit 4.) A-35
EXHIBITS. Exhibits (including reference to previous filings): (Continued) Exhibit Number Description of Exhibit C-2 Indenture dated as of March 1, 1941, between GEORGIA and Chemical Bank, as Trustee, and indentures supplemental thereto dated as of March 1, 1941, March 3, 1941 (3 indentures), March 6, 1941 (139 indentures), March 1, 1946 (88 indentures) and December 1, 1947, through October 15, 1995. (Designated in Registration Nos. 2-4663 as Exhibits B-3 and B-3(a), 2-7299 as Exhibit 7(a)-2, 2-61116 as Exhibit 2(a)-3 and 2(a)-4, 2-62488 as Exhibit 2(a)-3, 2-63393 as Exhibit 2(a)-4, 2-63705 as Exhibit 2(a)-3, 2-68973 as Exhibit 2(a)-3, 2-70679 as Exhibit 4(a)-(2), 2-72324 as Exhibit 4(a)-2, 2-73987 as Exhibit 4(a)-(2), 2-77941 as Exhibits 4(a)-(2) and 4(a)-(3), 2-79336 as Exhibit 4(a)-(2), 2-81303 as Exhibit 4(a)-(2), 2-90105 as Exhibit 4(a)-(2), 33-5405 as Exhibit 4(a)-(2), 33-14367 as Exhibits 4(a)-(2) and 4(a)-(3), 33-22504 as Exhibits 4(a)-(2), 4(a)-(3) and 4(a)-(4), 33-32420 as Exhibit 4(a)-(2), 33-35683 as Exhibit 4(a)-(2), in GEORGIA's Form 10-K for the year ended December 31, 1990, File No. 1-6468, as Exhibit 4(a)(3), in Form 10-K for the year ended December 31, 1991, File No. 1-6468, as Exhibit 4(a)(5), in Registration No. 33-48895 as Exhibit 4(a)-(2), in Form 8-K dated August 26, 1992, File No. 1-6468, as Exhibit 4(a)-(3), in Form 8-K dated September 9, 1992, File No. 1-6468, as Exhibits 4(a)-(3) and 4(a)-(4), in Form 8-K dated September 23, 1992, File No. 1-6468, as Exhibit 4(a)-(3), in Form 8-A dated October 12, 1992, as Exhibit 2(b), in Form 8-K dated January 27, 1993, File No. 1-6468, as Exhibit 4(a)-(3), in Registration No. 33-49661 as Exhibit 4(a)-(2), in Form 8-K dated July 26, 1993, File No. 1-6468, as Exhibit 4, in Certificate of Notification, File No. 70-7832, as Exhibit M, in Certificate of Notification, File No. 70-7832, as Exhibit C, in Certificate of Notification, File No. 70-7832, as Exhibits K and L, in Certificate of Notification, File No. 70-8443, as Exhibit C, in Certificate of Notification, File No. 70-8443, as Exhibit C, in Certificate of Notification, File No. 70-8443, as Exhibit E, in Certificate of Notification, File No. 70-8443, as Exhibit E, in Certificate of Notification, File No. 70-8443, as Exhibit E, in GEORGIA's Form 10-K for the year ended December 31, 1994, File No. 1-6468, as Exhibits 4(c)2 and 4(c)3, in Certificate of Notification, File No. 70-8443, as Exhibit C, in Certificate of Notification, File No. 70-8443, as Exhibit C, in Form 8-K dated May 17, 1995, File No. 1-6468, as Exhibit 4 and in GEORGIA's Form 10-K for the year ended December 31, 1995, File No. 1-6468, as Exhibits 4(c)2, 4(c)3, 4(c)4, 4(c)5 and 4(c)6.) C-3 Indenture dated as of June 1, 1994, between GEORGIA and Trust Company Bank, as Trustee and indenture supplemental thereto dated December 15, 1994. (Designated in Certificate of Notification, File No. 70-8461 as Exhibits E and F.) A-36
EXHIBITS. Exhibits (including reference to previous filings): (Continued) Exhibit Number Description of Exhibit C-4 Indenture dated as of September 1, 1941, between GULF and The Chase Manhattan Bank (National Association), as Trustee, and indentures supplemental thereto through February 1, 1996. (Designated in Registration Nos. 2-4833 as Exhibit B-3, 2-62319 as Exhibit 2(a)-3, 2-63765 as Exhibit 2(a)-3, 2-66260 as Exhibit 2(a)-3, 33-2809 as Exhibit 4(a)-2, 33-43739 as Exhibit 4(a)-2, in GULF's Form 10-K for the year ended December 31, 1991, File No. 0-2429, as Exhibit 4(b), in Form 8-K dated August 18, 1992, File No. 0-2429, as Exhibit 4(a)-3, in Registration No. 33-50165 as Exhibit 4(a)-2, in Form 8-K dated July 12, 1993, File No. 0-2429, as Exhibit 4, in Certificate of Notification, File No. 70-8229, as Exhibit A, in Certificate of Notification, File No. 70-8229, as Exhibits E and F, in Form 8-K dated January 17, 1996, File No. 0-2429, as Exhibit 4 and in Certificate of Notification, File No. 70-8229, as Exhibit A.) C-5 Indenture dated as of September 1, 1941, between MISSISSIPPI and Bankers Trust Company, as Successor Trustee, and indentures supplemental thereto through December 1, 1995. (Designated in Registration Nos. 2-4834 as Exhibit B-3, 2-62965 as Exhibit 2(b)-2, 2-66845 as Exhibit 2(b)-2, 2-71537 as Exhibit 4(a)-(2), 33-5414 as Exhibit 4(a)-(2), 33-39833 as Exhibit 4(a)-2, in MISSISSIPPI's Form 10-K for the year ended December 31, 1991, File No. 0-6849, as Exhibit 4(b), in Form 8-K dated August 5, 1992, File No. 0-6849, as Exhibit 4(a)-2, in Second Certificate of Notification, File No. 70-7941, as Exhibit I, in MISSISSIPPI's Form 8-K dated February 26, 1993, File No. 0-6849, as Exhibit 4(a)-2, in Certificate of Notification, File No. 70-8127, as Exhibit A, in Form 8-K dated June 22, 1993, File No. 0-6849, as Exhibit 1, in Certificate of Notification, File No. 70-8127, as Exhibit A, in Form 8-K dated March 8, 1994, File No. 0-6849, as Exhibit 4, in Certificate of Notification, File No. 70-8127, as Exhibit C and in Form 8-K dated December 5, 1995, File No. 0-6849, as Exhibit 4.) C-6 Indenture dated as of March 1, 1945, between SAVANNAH and Bank of New York, New York, as Trustee, and indentures supplemental thereto through May 1, 1995. (Designated in Registration Nos. 33-25183 as Exhibit 4(a)-(1), 33-41496 as Exhibit 4(a)-(2), 33-45757 as Exhibit 4(a)-(2), in SAVANNAH's Form 10-K for the year ended December 31, 1991, File No. 1-5072, as Exhibit 4(b), in Form 8-K dated July 8, 1992, File No. 1-5072, as Exhibit 4(a)-3, in Registration No. 33-50587 as Exhibit 4(a)-(2), in Form 8-K dated July 22, 1993, File No. 1-5072, as Exhibit 4 and in Form 8-K dated May 18, 1995, File No. 1-5072, as Exhibit D-1 Income Tax Allocation Agreement and Amendments 1 through 27 thereto. (Designated in Form U5S for 1981, File No. 30-222-2, as Exhibit A-21, in Form U5S for 1982, File No. 30-222-2, as Exhibit A-22(b), in Form U5S for 1982, File No. 30-222-2, as Exhibit A-22(c), in Form U5S for 1983, File No. 30-222-2, as Exhibit D-1(d), in Form U5S for 1985, File No. 30-222-2, as Exhibit D-1(e), in Amendment No. 1 to Form U5S for 1985, File No. 30-222-2, as Exhibit D-1(f) in Form U5S for 1987, File No. 30-222-2, as
A-37
EXHIBITS. Exhibits (including reference to previous filings): (Continued) Exhibit Number Description of Exhibit Exhibit D-2, in Form U5S for 1991, File No. 30-222-2, as Exhibit D-2 and in Form U5S for 1992, File No. 30-222-2, as Exhibit D-2 and in Form U5S for 1991, File No. 30-222-2, as Exhibit D-2 and in Form U5S for 1994, File No. 30-222-2, as Exhibit D-2.) D-2 Amendments 28 through 31 to Income Tax Allocation Agreement. E-1 ALABAMA's, GEORGIA's, GULF's, MISSISSIPPI's, SCS's and SOUTHERN NUCLEAR's personnel policies pertaining to employee loans. (Designated in Form U5S for 1985, File No. 30-222-2, as Exhibits E-1, E-2, E-3, E-4 and E-5, in Form U5S, File No. 30-222-2, for 1987 as Exhibit E-2, in Form U5S for 1990, File No. 30-222-2, as Exhibit E-2, in Form U5S for 1991, File No. 30-222-2, as Exhibits E-2 and E-3 , in Form U5S for 1992, File No. 30-222-2, as Exhibit E-2 in Form U5S for 1993, File No. 30-222-2, as Exhibit E-2, in Form U5S for 1991, File No. 30-222-2, as Exhibit D-2 and in Form U5S for 1994, File No. 30-222-2, as Exhibit E-2.) E-2 Supplements to GULF's, MISSISSIPPI's and SCS's personnel policies pertaining to employee loans. G-1 ALABAMA's Financial Data Schedule. (Designated in Form 8-K dated February 21, 1996, File No. 1-3164, as Exhibit 27.) G-2 GEORGIA's Financial Data Schedule. (Designated in Form 8-K dated February 21, 1996, File No. 1-6468, as Exhibit 27.) G-3 GULF's Financial Data Schedule. (Designated in Form 8-K dated February 21, 1996, File No. 0-2429, as Exhibit 27.) G-4 MISSISSIPPI's Financial Data Schedule. (Designated in Form 8-K dated February 21, 1996, File No. 0-6849, as Exhibit 27.) G-5 SAVANNAH's Financial Data Schedule. (Designated in Form 8-K dated February 21, 1996, File No. 1-5072, as Exhibit 27.) G-6 SOUTHERN system's consolidated Financial Data Schedule. (Designated in Form 8-K dated February 21, 1996, File No. 1-3526, as Exhibit 27.) H Organizational chart. I Financial statements relating to certain exempt wholesale generators and foreign utility companies.
Exhibits listed above which have heretofore been filed with the SEC pursuant to various Acts administered by the SEC, and which were designated as noted above, are hereby incorporated herein by reference and made a part hereof with the same effect as if filed herewith. A-38 SIGNATURE The undersigned registered holding company has duly caused this annual report to be signed on its behalf by the undersigned thereunto duly authorized pursuant to the requirements of the Public Utility Holding Company Act of 1935. THE SOUTHERN COMPANY Date: April 26, 1996 By/s/ W. L. Westbrook W. L. Westbrook Financial Vice President, Chief Financial Officer, and Treasurer A-39 EX-99 2 EXHIBIT A-7 1 INSTRUCTIONS FOR THE USE OF MODIFIED FORM U-13-60 1. Time of Filing - - Annual Report essentially in the form of U-13-60 shall be filed appended to Form U5S, Annual Report of the Parent and Associate Companies Pursuant to the Public Utility Holding Company Act of 1935. Form U5S is required to be filed by May 1. 2. Number of Copies - - Each annual report shall be filed in duplicate. The company should prepare and retain at least one extra copy for itself in case correspondence with reference to the report becomes necessary. 3. Definitions - - Definitions contained in Instruction 01-8 to the Uniform System of Accounts for Mutual Service Companies and Subsidiary Service Companies, Public Utility Holding Company Act of 1935, as amended February 2, 1979 shall be applicable to words or terms used specifically within the modified Form U-13-60. 4. Organization Chart - - The company shall submit with each annual report a copy of its current organization chart. Exhibit A-7 MODIFIED Form U-13-60 ANNUAL REPORT For The Period Beginning January 1, 1995 and Ending December 31, 1995 To The U.S. SECURITIES AND EXCHANGE COMMISSION Of SOUTHERN ELECTRIC INTERNATIONAL, INC. (Exact Name of Reporting Company) A Subsidiary Company Date of Incorporation July 29, 1981. If not incorporated Date of Organization______________ State or Sovereign Power under which Incorporated or Organized State of Delaware Location of Principal Executive Offices of Reporting Company 900 Ashwood Parkway, Suite 500 Atlanta, GA 30338 Report filed pursuant to File Number 70-6599 Name,title, and address of officer to whom correspondence concerning this report should be addressed: James A. Ward Controller 900 Ashwood Parkway, Suite 500 (Name) (Title) (Address) Name of Principal Holding Company under which Reporting Company is Organized: THE SOUTHERN COMPANY 2 - ------------------------------------------------------------------------------- LISTING OF SCHEDULES AND ANALYSIS OF ACCOUNTS - ------------------------------------------------------------------------------- Description of Schedules and Accounts Schedule or Page Account Number Number - ------------------------------------------------------------------------------- COMPARATIVE BALANCE SHEET Schedule I 3-4 COMPANY PROPERTY Schedule II 5 ACCUMULATED PROVISIONS FOR DEPRECIATION AND AMORTIZATION OF COMPANY PROPERTY Schedule III 6 INVESTMENTS Schedule IV 7 ACCOUNTS RECEIVABLE FROM ASSOCIATE COMPANIES Schedule V 8 MISCELLANEOUS DEFERRED DEBITS Schedule IX 9 PROPRIETARY CAPITAL Schedule XI 10 LONG TERM DEBT Schedule XII 11 CURRENT AND ACCRUED LIABILITIES Schedule XIII 12 NOTES TO FINANCIAL STATEMENTS Schedule XIV 13 COMPARATIVE INCOME STATEMENT Schedule XV 14 ANALYSIS OF BILLING-ASSOCIATE COMPANIES Account 457 15 ANALYSIS OF BILLING-NONASSOCIATE COMPANIES Account 458 16 SCHEDULE OF EXPENSE BY DEPARTMENT OR FUNCTION Schedule XVII 17-18 DEPARTMENTAL ANALYSIS OF SALARIES Account 920 19 DISPOSITION OF INTELLECTUAL PROPERTY Account 928 20 MISCELLANEOUS GENERAL EXPENSES Account 930.2 21 TAXES OTHER THAN INCOME TAXES Account 408 22 DONATIONS Account 426.1 23 OTHER DEDUCTIONS Account 426.5 24 NOTES TO STATEMENT OF INCOME Schedule XVIII 25 OUTSIDE SERVICES EMPLOYED Schedule XIX 26 ORGANIZATION CHART 27-28 - ------------------------------------------------------------------------------- 3 ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC. - ------------------------------------------------------------------------------- SCHEDULE 1 - COMPARATIVE BALANCE SHEET - ------------------------------------------------------------------------------- Give balance sheet of the Company as of December 31 of the current and prior year. (Note: Amounts are in thousands of dollars) - ------------------ ------------------------------------------------------------ ACCOUNT ASSETS AND OTHER DEBITS AS OF DECEMBER 31 - ------------------------------------------------------------------------------- CURRENT PRIOR ------------- ------ COMPANY PROPERTY 101 Company Property (Schedule II) 8,815 8,797 107 Construction work in progress (Schedule II) - - ------ ------- Total Property 8,815 8,797 ------ ------- 108 Less accumulated provision for depreciation and amortization of company property (Schedule III) 4,572) (3,757) ----- ------ Net Company Property 4,243 5,040 ----- ------ INVESTMENTS 123 Investments in associate companies - - 124 Other Investments (Schedule IV) 665 - ----- ------ Total Investments 665 - ----- ------ CURRENT AND ACCRUED ASSETS 131 Cash 21,798 15,742 134 Special deposits 1,144 1,084 135 Working funds 35 130 136 Temporary cash investments (Schedule IV) - - 141 Notes Receivable 35 35 143 Accounts Receivable 8,288 5,733 144 Accumulated provision for uncollectable accounts (283) (196) 146 Accounts receivable from associate companies (Schedule V) 26,122 24,048 152 Fuel stock expenses undistributed - - 154 Materials and supplies - 267 163 Stores expenses undistributed - - 165 Prepayments 328 205 174 Miscellaneous current and accrued assets 2,319 2,469 ------- -------- Total Current and Accrued Assets 59,786 49,517 ------ -------- DEFERRED DEBITS 181 Unamortized debt expense - - 184 Clearing accounts - - 186 Miscellaneous deferred debits (Schedule IX) 109 78 188 Research, development, or demonstration expenditures - - 190 Accumulated deferred income taxes 14,055 14,093 ------- ------- Total Deferred Debits 14,164 14,171 ------ ------- TOTAL ASSETS AND OTHER DEBITS 78,858 68,728 ------ ------- - -------------------------------------------------------------------------------
4 ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC. - ------------------------------------------------------------------------------------------- SCHEDULE I - COMPARATIVE BALANCE SHEET - ------------------------------------------------------------------------------------------- ACCOUNT LIABILITIES AND PROPRIETARY CAPITAL AS OF DECEMBER 31 - ------------------------------------------------------------------------------------------- CURRENT PRIOR ---------- -------- PROPRIETARY CAPITAL 201 Common stock issued (Schedule XI) 100 100 211 Miscellaneous paid-in capital (Schedule XI) 101,932 92,926 215 Appropriated retained earnings (Schedule XI) - - 216 Unappropriated retained earnings (Schedule XI) (101,919) (80,315) -------- ------- Total Proprietary Capital 113 12,711 -------- ------- LONG TERM DEBT 223 Advances from associate companies (Schedule XII) - - 224 Other long-term debt (Schedule XII) - - 225 Unamortized premium on long-term debt - - 226 Unamortized discount on long-term debt-debit - - -------- ------- Total long-term debt - - -------- ------- CURRENT AND ACCRUED LIABILITIES 231 Notes Payable - - 232 Accounts payable 13,387 13,342 233 Notes payable to associate companies (Schedule XIII) - - 234 Accounts payable to associate companies (Schedule XIII) 6,811 4,515 236 Taxes accrued 190 1,532 237 Interest accrued - - 238 Dividends declared - - 241 Tax collections payable 4 305 242 Miscellaneous current and accrued liabilities (Schedule XIII) 56,962 35,198 ------- ------- Total current and accrued liabilities 77,354 54,892 ------- ------- DEFERRED CREDITS 253 Other deferred credits 1,391 1,125 255 Accumulated deferred investment tax credits - - ------- ------- Total Deferred Credits 1,391 1,125 ------- ------- 282 ACCUMULATED DEFERRED INCOME TAXES TOTAL LIABILITIES AND PROPRIETARY CAPITAL 78,858 68,728 ------- ------- - -------------------------------------------------------------------------------------------
5 ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL , INC. For the Year Ended December 31, 1995 ---------------------------------------------------------------------------------------------------------------- SCHEDULE II - COMPANY PROPERTY ---------------------------------------------------------------------------------------------------------------- START OF END OF YEAR RETIRED OTHER YEAR DESCRIPTION BALANCE ADDITION OR SOLD CHANGES BALANCE ---------------------------------------------------------------------------------------------------------------- COMPANY PROPERTY Account 301 ORGANIZATION - 9 - - 9 303 MISCELLANEOUS INTANGIBLE PLANT 1,568 - - - 1,568 304 LAND AND LAND RIGHTS 210 - 210 - 0 305 STRUCTURES AND IMPROVEMENTS - - - - - 306 LEASEHOLD IMPROVEMENTS 1/ 796 65 3 858 307 EQUIPMENT 1/ , 2/ 3,774 670 53 - 4,391 308 OFFICE FURNITURE AND EQUIPMENT 1/ 1,746 113 19 - 1,840 309 AUTOMOBILES, OTHER VEHICLES AND RELATED GARAGE EQUIPMENT 152 - 3 - 149 310 AIRCRAFT AND AIRPORT EQUIPMENT - - - - - 311 OTHER COMPANY PROPERTY 3/ - - - - - ----- --- --- --- ----- SUB-TOTAL 8,246 857 288 - 8,815 ----- --- --- --- ----- 107 CONSTRUCTION WORK IN PROGRESS 4/ - - - - - ----- --- --- --- ----- TOTAL 8,246 857 288 - 8,815 ----- --- --- --- ----- ----------------------------------------------------------------------------------------------------------------
1/ PROVIDE AN EXPLANATION OF THOSE CHANGES CONSIDERED MATERIAL: Purchase of computer hardware: $ 670 Purchase of office furniture: 113 Lease of Additional Space: 65 2/ SUBACCOUNTS ARE REQUIRED FOR EACH CLASS OF EQUIPMENT OWNED. THE COMPANY SHALL PROVIDE A LISTING BY SUBACCOUNT OF EQUIPMENT ADDITIONS DURING THE YEAR AND THE BALANCE AT THE CLOSE OF THE YEAR: - ------------------------------------------------------------------------------- BALANCE AT CLOSE OF YEAR SUBACCOUNT DESCRIPTION ADDITIONS - ------------------------------------------------------------------------------- Computer Software - 1,568 Computer Hardware 667 4,391 - ------------------------------------------------------------------------------- 3/ DESCRIBE OTHER COMPANY PROPERTY: Reproduction equipment 4/ DESCRIBE CONSTRUCTION WORK IN PROGRESS: Not Applicable
6 ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL , INC. For the Year Ended December 31, 1995 - --------------------------------------------------------------------------------------------------------------------- SCHEDULE III ACCUMULATED PROVISION FOR DEPRECIATION AND AMORTIZATION OF COMPANY PROPERTY - --------------------------------------------------------------------------------------------------------------------- CHARGED OTHER CHANGES START OF YEAR TO CHANGES END OF YEAR ACCOUNT RETIRE- ADD YEAR DESCRIPTION BALANCE 403 /2 MENTS (DEDUCT) BALANCE - --------------------------------------------------------------------------------------------------------------------- COMPANY PROPERTY Account 301 ORGANIZATION - - - - - 303 MISCELLANEOUS INTANGIBLE PLANT 1,095 114 - - 1,209 304 LAND AND LAND RIGHTS - - - - - 305 STRUCTURES AND IMPROVEMENTS - - - - - 306 LEASEHOLD IMPROVEMENTS 101 134 - - 235 307 EQUIPMENT 1,874 663 3 - 2,534 308 OFFICE FURNITURE AND FIXTURES 358 148 8 - 498 309 AUTOMOBILES, OTHER VEHICLES AND RELATED GARAGE EQUIPMENT 57 42 3 - 96 310 AIRCRAFT AND AIRPORT EQUIPMENT - - - - - 311 OTHER COMPANY PROPERTY - - - - - ----- ----- --- --- ----- TOTAL 3,485 1,101 14 - 4,572 ----- ----- --- --- ----- - ---------------------------------------------------------------------------------------------------------------------
1/ PROVIDE AN EXPLANATION OF THOSE CHANGES CONSIDERED MATERIAL: 2/ Amortization expense of $6, included on Schedule XV is related to product development and is charged to development expenditures (Account 188) rather than accumulated depreciation. 7 ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC. For the Year Ended December 31, 1995 - ------------------------------------------------------------------------------- SCHEDULE IV - INVESTMENTS - ------------------------------------------------------------------------------- INSTRUCTIONS: Complete the following schedule concerning investments. Under account 124, "Other Investments", state each investment separately, with description, including the name of issuing company, number of shares or principal amount, ect. - ------------------------------------------------------------------------------- BALANCE AT BEGINNING OF BALANCE AT DESCRIPTION YEAR CLOSE OF YEAR - ------------------------------------------------------------------------------- ACCOUNT 124 - OTHER INVESTMENT 1/ Investment in Mobile Energy Services Co , LLC - 665 --- --- TOTAL - 665 --- --- - ------------------------------------------------------------------------------- 1/ Southern Enterprises (Southern Development Investment Group) was spun off of Southern Electric International, Inc. effective 1/1/95. Therefore, Southern Enterprises is not reflected in the 1995 financial information. 8 ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC. For the Year Ended December 31, 1995 - ------------------------------------------------------------------------------- SCHEDULE V - ACCOUNTS RECEIVABLE FROM ASSOCIATE COMPANIES - ------------------------------------------------------------------------------- INSTRUCTIONS: Complete the following schedule listing accounts receivable from each associate company. Where the company has provided accommodation or convenience payments for associate companies, a separate listing of total payments for each associate by subaccount should be provided. - ------------------------------------------------------------------------------- BALANCE AT BEGINNING OF BALANCE AT DESCRIPTION YEAR CLOSE OF YEAR - ------------------------------------------------------------------------------- ACCOUNT 146 - ACCOUNTS RECEIVABLE FROM ASSOCIATE COMPANIES: Joint Venture - - Alabama Power Co. 101 3 Georgia Power Co. 160 Gulf Power Co. - - Mississippi Power Co. - - Southern Company Services 1,084 611 The Southern Co. - 8,000 Southern Nuclear Operating Company 4 - Southern Electric Wholesale Generators, Inc. 10 Southern Electric International Birchwood, Inc. 805 Southern Electric International Holdings, Inc. 78 38 Associadios - 10 Southern Electric Holdings III, Inc. 1,935 113 Electricidad - 10 Hidroelectric Alicura, S.A. 105 - Mobile Energy Services Company (MESCO) 11,249 6,007 Mobile Energy Services Holding (MESH) - 21 Southern Energy Marketing, Inc. - 591 Southern Electric International Birchwood Dev. 16 - Edelnor 882 1,566 SEI Chile S.A. - 60 Southern Electric Holdings, IX 5,440 660 Birchwood Power Partners 738 1,344 SEI Hawaii Cogenerators - 49 Southern Electric, Inc - 3 Southern Electric Holdings X 6 8 Southern Electric Holdings VIII 11 29 Electrica SEI Chile Limitada 590 498 Inversiones SEI Chile Limitada 362 306 Southern Investments Holding UK - 124 Southern Investments UK plc - 10 South Western Electricity plc - 506 Southern Electric Bahamas Holding, Ltd 468 1,265 Beteiligungs GmbH - 141 Southern Electric Holdings Europe (IV) 4 4,149 ------ ------ TOTAL 24,048 26,122 ------ ------ - ------------------------------------------------------------------------------- ANALYSIS OF CONVENIENCE OR ACCOMMODATION PAYMENTS: TOTAL PAYMENTS ------------- Not Applicable - ------------- TOTAL PAYMENTS - - ------------------------------------------------------------------------------- 9 ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL , INC. For the year Ended December 31, 1995 - ------------------------------------------------------------------------------- SCHEDULE IX - MISCELLANEOUS DEFERRED DEBITS - ------------------------------------------------------------------------------- INSTRUCTION: Provide detail of items in this account. Items less than $10,000 may be grouped by class showing the number of items in each class. - ------------------------------------------------------------------------------- BALANCE AT BEGINNING OF BALANCE AT DESCRIPTION YEAR CLOSE OF YEAR - ------------------------------------------------------------------------------- ACCOUNT 186 - MISCELLANEOUS DEFERRED DEBITS 1\ 78 109 --- --- TOTAL 78 109 --- --- - ------------------------------------------------------------------------------- 1\ Miscellaneous Deferred Debits: $ 109 for Income Tax Advances, "VAT" credit, & Withholdings (Operadora).
10 ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC. For the Year Ended December 31, 1995 - ----------------------------------------------------------------------------------------------------------------------- SCHEDULE XI PROPRIETARY CAPITAL - ----------------------------------------------------------------------------------------------------------------------- NUMBER OF SHARES PAR OR STATED VALUE ACCOUNT NUMBER CLASS OF STOCK AUTHORIZED PER SHARE OUTSTANDING CLOSE OF PERIOD ----------------------------------- NO. OF SHARES TOTAL AMOUNT ----------------------------------- 201 COMMON STOCK ISSUED 1,000 $100 1,000 100 INSTRUCTIONS: Classify amounts in each account with brief explanation, disclosing the general nature of transactions which give rise to the reported amounts. D E S C R I P T I O N AMOUNT ACCOUNT 211 MISC. PAID IN CAPITAL 101,932 ACCOUNT 215 APPROPRIATED RETAINED EARNINGS TOTAL 101,932 ------- BALANCE AT BEGINNING OF NET INCOME OR BALANCE AT D E S C R I P T I O N YEAR LOSS 1/ DIVIDENDS PAID CLOSE OF YEAR - ----------------------------------- ---------------------------------------------------------------------------------- ACCOUNT 216 UNAPPROPRIATED RETAINED EARNINGS (79,883) (20,932) 1,104 (101,919) TOTAL (79,883) (20,932) 1,104 (101,919) ------ ------ ----- -------- - ----------------------------------------------------------------------------------------------------------------------- 1/ The actual net income from operations was ($20,500). Also, a retained earnings adjustment of ($432) was booked relative to 1994 and Southern Enterprises. In addition, effective 1/1/95, Southern Enterprises (Southern Development Investment Group) was spun off of Southern Electric International, Inc.
11 ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC. For the Year Ended December 31, 1995 - ------------------------------------------------------------------------------------------------------------------------------ SCHEDULE XII LONG-TERM DEBT - ------------------------------------------------------------------------------------------------------------------------------ INSTRUCTIONS: Advances from parent and associate companies should be reported separately for advances on notes, and advances on open accounts. Names of associate companies from which advances were received shall be shown under the class and series of obligation column. For Account 224 - Other Long Term Debt provide the name of creditor company or organization, terms of the obligation, date of maturity, interest rate, and the amount authorized and outstanding. - ---------------------------------------------------------------------------------------------------------------------------- TERMS OF OBLIG BALANCE AT BALANCE N A M E O F C R E D I T O R CLASS & SERIES DATE OF INTEREST AMOUNT BEGINNING (1) AT CLOSE OF OBLIGATION MATURITY RATE AUTHORIZED OF YEAR ADDITIONS DEDUCTIONS OF YEAR - ------------------------------------------------------------------------------------------------------------------------------ ACCOUNT 223 - ADVANCES FROM PARENT AND ASSOCIATE COMPANIES: - - - - ACCOUNT 224 - OTHER LONG -TERM DEBT: Not Applicable TOTAL - - - - --- --- --- --- - ------------------------------------------------------------------------------------------------------------------------------ (1) GIVE AN EXPLANATION OF DEDUCTIONS:
12 ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC. For the Year Ended December 31, 1995 - ------------------------------------------------------------------------------- SCHEDULE XIII - CURRENT AND ACCRUED LIABILITIES - ------------------------------------------------------------------------------- INSTRUCTIONS: Provide balance of notes and accounts payable to each associate company. Give description and amount of miscellaneous current and accrued liabilities. Items less than $10,000 may be grouped, showing the number of items in each group. - ------------------------------------------------------------------------------- BALANCE AT BALANCE AT BEGINNING CLOSE D E S C R I P T I O N OF YEAR YEAR - ------------------------------------------------------------------------------- ACCOUNT 233 - NOTES PAYABLE TO ASSOCIATE COMPANIES: THE SOUTHERN COMPANY - - ----- ---- TOTAL - - - ------------------------------------------------------------------------------- ACCCOUNT 234 - ACCOUNTS PAYABLE TO ASSOCIATE COMPANIES" Alabama Power Company 35 436 Georgia Power Company 511 1,127 Gulf Power Company - - Mississippi Power Company 6 - Southern Company Services 1,690 674 Southern Electric Wholesale Generators - - Southern Elec Int'l. Hawaiian Cogenerators 347 - Hidroelectric Alicura, S.A. 173 406 Birchwood Power Partners 1,748 3,291 South Western Electricity plc - 14 Mobile Energy Services Co, LLC - 850 SEI Birchwood - 3 Southern Enterprises - 10 Bemberg - - Electricidad 5 - ----- ----- TOTAL 4,515 6,811 ----- ----- - ------------------------------------------------------------------------------- ACCOUNT 242 - MISCELLANEOUS CURRENT AND ACCRUED LIABILITIES: Accrued Pensions 3,366 3,904 Scott Credit Union W/H 17 - Alabama Credit Union W/H 2 - Employee Flex Care 6 10 Accrued Post Retirement Medical 3,884 4,421 Accrued Bonuses - Home Office 2,420 2,930 Accrued Bonuses - Plant 144 138 Accrued Officers Incentives - 677 Accrued Incentive Payable 486 899 Employee Group Insurance Premiums Withheld 9 13 Billing in Excess of Cost on Uncompleted Contracts 1/ 23,185 40,982 Vacation Clearing Current/Prior Year 917 1,472 Loss Provision 747 1,477 ESP and ESOP 3 - MESCO Insurance / Union Dues 8 29 Miscellaneous 4 10 ------ ------ TOTAL 35,198 56,962 - ------------------------------------------------------------------------------- 1/ Primarily represents billings relating to the Birchwood Construction project. 13-A ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC. For the Year Ended December 31, 1995 - ------------------------------------------------------------------------------- SCHEDULE XIV NOTES TO FINANCIAL STATEMENTS - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- INSTRUCTIONS: The space below is provided for important notes regarding the financial statements or any accounts thereof. Furnish particulars as to any significant contingent assets or liabilities existing at the end of the year. Notes relating to financial statements shown elsewhere in this report may be indicated here by reference. - ------------------------------------------------------------------------------- 1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES General Southern Electric International, Inc. ("SEI" or the "Company"), a wholly owned subsidiary of The Southern Company ("Southern"), is engaged in the development, construction, operation and maintenance ("O&M"), and ownership of cogeneration and independent power facilities in the United States and internationally. The Company's affiliate construction activities in Virginia (Note 6) represent approximately 86% of revenues, while its O&M activities with unaffiliated entities in Nevada and New York represent approximately 4% of revenues. SEI's global business development efforts represent approximately 14% of the Company's operating expenses. SEI owns 99% of SEI Operadora del Argentina, S.A., incorporated in 1993 for the purpose of providing operational and maintenance services to Hidroelectrica Alicura, S.A., and 1% of Mobile Energy Services Company, L.L.C. ("Mobile Energy"), formed in 1995 for the purpose of owning and operating an energy and chemical recovery complex located in Mobile, Alabama. SEI also owns 100% of Southern Electric International, Asia, Inc. and 100% of Southern Electric International, GmbH, which were formed in 1995 for the purpose of business development in Asia and Europe, respectively. Accounting Estimates The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. Basis of Presentation The consolidated financial statements include the accounts of SEI and its subsidiaries. All significant intercompany accounts and transactions have been eliminated in consolidation. Certain prior year amounts have been reclassified to conform with the current financial statement presentation. Cash and Cash Equivalents Investments with an original maturity of 90 days or less are classified as cash and cash equivalents. Property and Equipment Property and equipment are recorded at cost. Depreciation and amortization are provided using the straight-line method over the estimated economic lives of the related assets (ranging from 3 years to 12 years). Leasehold improvements are amortized over the shorter of the respective lease terms or the useful lives of the improvements. The Company's capitalization policy expenses the cost of certain immaterial assets when purchased. Upon the retirement or sale of assets, the cost of such assets and the related accumulated depreciation are removed from the balance sheet and the gain or loss, if any, is credited or charged to income. 13-B ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC. For the Year Ended December 31, 1995 - ------------------------------------------------------------------------------- SCHEDULE XIV NOTES TO FINANCIAL STATEMENTS - ------------------------------------------------------------------------------- INSTRUCTIONS: The space below is provided for important notes regarding the financial statements or any accounts thereof. Furnish particulars as to any significant contingent assets or liabilities existing at the end of the year. Notes relating to financial statements shown elsewhere in this report may be indicated here by reference. - ------------------------------------------------------------------------------- Project Development Costs SEI capitalizes and simultaneously fully reserves for development costs for projects in which a milestone has not yet been achieved but whose likelihood of success is probable. It is reasonably possible that the estimated reserve will be reduced significantly in the near term due to successful project development efforts, which would have a beneficial impact on earnings. Income Taxes The Company provides deferred income taxes for all significant income tax temporary differences in accordance with Financial Accounting Standards Board Statement of Financial Accounting Standards ("SFAS") No. 109, "Accounting for Income Taxes." SFAS No. 109 requires, among other things, the use of an asset and liability method for the recognition of deferred tax liabilities and assets. Revenue Recognition Revenues from construction contracts are recognized using the percentage-of-completion method. The extent of progress toward completion is measured by comparing the percentage of costs incurred to date to total estimated costs on each contract. Provisions for estimated losses on uncompleted contracts are charged to income in full when such losses become probable and are reasonably estimable. Estimates used in calculating the percentage-of-completion revenue recognition for the affiliate construction in Virginia (Note 6) are likely to change in the near term as construction is planned for completion during 1996. Other service revenues are recognized when earned. 2. EMPLOYEE BENEFITS Pension Plan SEI participates in the Pension Plan for Employees of Southern Company Services, Inc., a defined benefit, trusteed, noncontributory plan covering substantially all regular employees. Certain union employees engaged in the operations and maintenance contract with Mobile Energy (Note 6) participate in a separate pension plan.
The following table sets forth SEI's defined benefit plans' funded status as of December 31, 1995 and 1994 (in thousands): 1995 1994 ----- ---- Actuarial present value of benefit obligations: Vested benefits $ (8,980) $ (6,103) Nonvested benefits (1,055) (471) Accumulated benefit obligation (10,035) (6,574) Additional amounts related to projected salary increases (4,196) (3,665) -------- -------- Projected benefit obligation (14,231) (10,239) Less: Fair value of plan assets, primarily equity and fixed income securities 10,125 7,053 Unrecognized net gain (391) (333) Unrecognized net transition obligation 138 157 Unrecognized prior service cost (63) (69) -------- -------- Accrued pension costs recognized in the balance sheets $ (4,422) $ (3,431) ======== ========
13-C ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC. For the Year Ended December 31, 1995 - ------------------------------------------------------------------------------- SCHEDULE XIV NOTES TO FINANCIAL STATEMENTS - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- INSTRUCTIONS: The space below is provided for important notes regarding the financial statements or any accounts thereof. Furnish particulars as to any significant contingent assets or liabilities existing at the end of the year. Notes relating to financial statements shown elsewhere in this report may be indicated here by reference. - ------------------------------------------------------------------------------- The actuarial present value of the projected benefit obligation for the plans was determined using a discount rate of 7.25% for 1995 and 8% for 1994 and a rate of increase in future compensation levels of 4.75% for 1995 and 5.5% for 1994. The expected long-term rate of return on assets was 8.5% for 1995 and 1994. The net periodic pension cost for 1995 and 1994 included the following components (in thousands): 1995 1994 Service cost--benefits earned $ 794 $558 Interest cost on projected benefit obligation 801 395 Actual return on plan assets (1,604) 87 Net amortization and deferrals 1,058 (382) ------ ---- Net periodic pension cost $1,049 $658 ====== ==== Postretirement Benefits SEI also provides certain medical care and life insurance benefits for retired employees. Substantially all employees may become eligible for these benefits when they retire. Effective January 1, 1993, the Company adopted SFAS No. 106, "Employers Accounting for Postretirement Benefits Other Than Pensions." SFAS No. 106 requires that medical care and life insurance benefits for retired employees be accounted for on an accrual basis using a specified actuarial method, benefit/years-of-service. The costs of such benefits recognized by the Company in 1995 and 1994 were approximately $656,076 and $311,000, respectively.
The funded status of the medical and life plans at December 31, 1995 and 1994 was as follows (in thousands): 1995 1994 Medical Life Medical Life ------- ------ ------- ------ Actuarial present value of benefit obligation: Retirees and dependents $ 119 $135 $ 109 $134 Employees eligible to retire 604 60 547 54 Other 2,261 454 2,410 505 Accumulated benefit obligation 2,984 649 3,066 693 Unamortized prior service cost 769 245 0 0 Unrecognized net (loss) gain (191) (35) 100 63 Accrued liability recognized in the balance sheets ------ ---- ------ ---- $3,562 $859 $3,166 $756 ====== ==== ====== ====
The discount, future compensation, and expected long-term return on assets rates used for the pensions described above were also used in measuring the postretirement benefit obligation. The weighted average medical care cost trend rate was 9.8 % for 1995, decreasing gradually to 5.3% through the year 2005 and remaining at that level thereafter. An annual increase in the assumed medical care cost trend rate by 1% would increase the accumulated postretirement benefit obligation for the medical portion of the plan as of December 31, 1995 by approximately $321,000 and the aggregate of the service cost and interest cost components of the net retiree medical cost by approximately $107,000. 13-D ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC. For the Year Ended December 31, 1995 - ------------------------------------------------------------------------------- SCHEDULE XIV NOTES TO FINANCIAL STATEMENTS - ------------------------------------------------------------------------------- INSTRUCTIONS: The space below is provided for important notes regarding the financial statements or any accounts thereof. Furnish particulars as to any significant contingent assets or liabilities existing at the end of the year. Notes relating to financial statements shown elsewhere in this report may be indicated here by reference. - ------------------------------------------------------------------------------- The components of the plans' net costs are shown below (in thousands): 1995 1994 Medical Life Medical Life ------- ---- ------- ---- Benefits earned during the year $267 $ 69 $200 $52 Interest costs on accumulated projected benefit obligation 238 57 85 31 ---- ---- ---- --- Net postretirement costs $505 $126 $285 $83 ==== ==== ==== === Deferred Compensation Plans In 1993, SEI began to partially compensate certain senior officers through a stock formula plan, which seeks to reward individuals for the performance of the investments of SEI and its affiliated companies over a period of four years, relative to the performance of Southern. Units are awarded annually by the SEI board of directors, the initial value of which is based on the closing price of Southern common stock on the date prior to the unit awards. The value of the units during the subsequent four years generally depends upon SEI's return on equity relative to that of Southern (excluding SEI), SEI's reliance on Southern for equity funding and financial guarantees, and SEI's ability to provide cash dividends to Southern. The original value of units awarded for the past three years, the first of which will vest in January 1997, is as follows (in thousands): 1993 $ 202 1994 475 1995 914 ----- Total $1,591 ====== As the value of the units is not known until the vesting date, SEI accounts for this formula plan as a variable plan; as such, the Company regularly assesses the current value of the awards and adjusts its accrued liability accordingly. At December 31, 1995 and 1994, the Company had accrued approximately $677,000 and $235,000, respectively, related to this plan, which are included in long-term liabilities in the accompanying consolidated balance sheets. In addition to the stock formula plan for senior officers, SEI partially compensates employees associated with a specific successful project bid effort through a deferred cash compensation program. Upon successful completion of a bid, members directly affiliated with the effort receive a cash bonus, half of which is paid immediately and half of which is deferred for a period of two years and paid based on the actual performance of the related investment. SEI accrues amounts at the time the award is granted and adjusts the liability accordingly when awards vest and are paid. At December 31, 1995 and 1994, the Company had accrued approximately $486,000 and $898,000, respectively, related to this plan, which is included in other accrued liabilities in the accompanying consolidated balance sheets. SEI paid approximately $313,000 to employees under this plan during 1995 related to successful bids in 1993; no payments were made under this plan during 1994. 13-E ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC. For the Year Ended December 31, 1995 - ------------------------------------------------------------------------------- SCHEDULE XIV NOTES TO FINANCIAL STATEMENTS - ------------------------------------------------------------------------------- INSTRUCTIONS: The space below is provided for important notes regarding the financial statements or any accounts thereof. Furnish particulars as to any significant contingent assets or liabilities existing at the end of the year. Notes relating to financial statements shown elsewhere in this report may be indicated here by reference. - ------------------------------------------------------------------------------- 3. OPERATING LEASES SEI has entered into noncancelable operating leases for office space. The expenses under these leases were approximately $1,753,000 in 1995 and $804,000 in 1994. These leases contain certain concessions and escalations; therefore, rent expense is recognized on a straight-line basis over the lease terms. The future rental obligations for the remaining lease terms are as follows (in thousands): 1996 $1,040 1997 1,085 1998 1,118 1999 1,151 2000 1,082 Thereafter 0 ------ Total minimum lease commitments $5,476 ====== 4. INCOME TAXES A detail of the benefit for income taxes is set forth below (in thousands): 1995 1994 --------- --------- Current benefit $ 6,174 $ 7,654 Deferred benefit 4,760 3,163 ------- ------- $10,934 $10,817 ======= ======= The tax effects of temporary differences between the carrying amounts of assets and liabilities in the financial statements and their respective bases, which give rise to deferred tax assets and liabilities, are as follows:
1995 1994 Deferred Deferred Deferred Deferred Tax Tax Tax Tax Assets Liabilities Assets Liabilities --------- ----------- -------- ----------- Accelerated depreciation $ 0 $ 217 $ 0 $ 117 Costs in excess of billings for contracts 189 0 133 0 Billings in excess of costs for contracts 582 0 1,069 0 Contract loss provisions 370 0 1,342 0 Deferred bidding expenses 7,856 0 7,653 0 Other 7,950 1,356 4,356 807 ------- ------ ------- ------ Total 16,758 1,762 14,420 1,057 Less current portion 2,595 773 5,782 218 ------- ------ ------- ------ Total noncurrent $14,163 $ 989 $ 8,638 $ 839 ======= ====== ======= ======
13-F ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC. For the Year Ended December 31, 1995 - ------------------------------------------------------------------------------- SCHEDULE XIV NOTES TO FINANCIAL STATEMENTS - ------------------------------------------------------------------------------- INSTRUCTIONS: The space below is provided for important notes regarding the financial statements or any accounts thereof. Furnish particulars as to any significant contingent assets or liabilities existing at the end of the year. Notes relating to financial statements shown elsewhere in this report may be indicated here by reference. - --------------------- --------------------------------------------------------- A reconciliation of the statutory federal tax rate to the effective federal tax rate is as follows: 1995 1994 ---- ---- Effective tax rate 35% 35% Other, net 0 0 ---- --- Statutory federal tax rate 35% 35% ==== === SEI and the other subsidiaries of Southern file a consolidated federal tax return. Under a joint consolidated income tax agreement, each company's current and deferred tax expense is computed on a stand-alone basis. Under this agreement, SEI received tax refunds from Southern of approximately $8,740,000 and $11,800,000 during 1995 and 1994, respectively. Approximately $533,000 of the receivables from associated companies balances at December 31, 1995 is comprised of tax refunds under the joint consolidated income tax agreement. 5. CONCENTRATION OF REVENUES During the years ended December 31, 1995 and 1994, revenues generated from contracts with affiliates accounted for approximately 89% and 85%, respectively, of revenue earned. 6. RELATED-PARTY TRANSACTIONS Additional Equity Contributions During 1995, Southern contributed approximately $9,000,000 to paid-in capital. Effective May 26, 1994, Southern converted $25,100,000 in principal amount of notes payable to Southern to equity. This amount was recorded as an increase in paid-in capital during the year ended December 31, 1994. Construction Activities During 1994, SEI was engaged by an affiliated company to construct a coal-fired cogeneration facility and related greenhouse in King George County, Virginia, the construction of which is scheduled for completion during 1996. The fixed contract price for the construction of these facilities is $292,040,000, and at December 31, 1995 the Company had incurred approximately $212,000,000 in related expenses. Substantially all of the balance of billings in excess of costs and estimated earnings on contracts at December 31, 1995 is related to these construction activities. Services SEI has agreements with Southern Company Services, Inc. and each of the system operating companies under which those companies provide the following services to SEI at cost: general engineering, design engineering, accounting and statistical budgeting, business promotion and public relations, systems and procedures, training, and administrative and financial services. In addition to these services, certain facilities of the system companies are made available to SEI and its customers. SEI reimburses the service company and the various operating companies at cost for these services. Such costs amounted to approximately $15,500,000 and $15,000,000 in 1995 and 1994, respectively. 13-G ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC. For the Year Ended December 31, 1995 - ------------------------------------------------------------------------------- SCHEDULE XIV NOTES TO FINANCIAL STATEMENTS - ------------------------------------------------------------------------------- INSTRUCTIONS: The space below is provided for important notes regarding the financial statements or any accounts thereof. Furnish particulars as to any significant contingent assets or liabilities existing at the end of the year. Notes relating to financial statements shown elsewhere in this report may be indicated here by reference. - ------------------------------------------------------------------------------- SEI has a contract with Mobile Energy, an affiliated entity (Note 1), to operate and maintain an energy complex in Mobile, Alabama for a period of 25 years at cost. SEI has a similar agreement with Birchwood Power Partners, L.P. ("BPP") to operate and maintain its 220 megawatt coal-fired cogeneration facility located in King George County, Virginia, for a period of 25 years for a fee of $120,000 per year, adjusted annually for inflation. The agreement with BPP will commence when SEI has completed construction of the facility, which is planned for November 1996. 7. WOOD GASIFICATION PROJECT During 1991, SEI recorded a loss provision of approximately $20,903,000 related to its wood gasification project with a paper company in Macon, Georgia. The provision included asset write-offs and an estimate of future costs to terminate the project. Subsequent to 1991, the loss provision was reduced as termination costs were incurred and when SEI reached an agreement to terminate the project and remove its leased equipment from the paper plant in exchange for a $2,000,000 payment. On March 31, 1994, SEI purchased the equipment from the lessor for $7,444,000. As a result of the sale, the reserve for loss on the wood gasification project was reduced by approximately $7,906,000 during 1994. The remaining equipment was retained by an affiliated company during 1995. 8. CONTINGENCIES Litigation With Former President In October 1991, a former SEI president filed suit in the Superior Court of DeKalb County (Georgia) against Southern, SEI, and an executive vice president of Southern. The plaintiff alleged defamation, breach of contract, and intentional infliction of emotional distress arising from his termination as president of SEI. Judgment in favor of the plaintiff was awarded by the court during 1994 in the amount of $2,700,000, plus legal costs of approximately $2,000,000. In 1994, SEI filed an insurance claim for an amount equal to the total judgment. The Company's insurer has elected to appeal the Superior Court's judgment. In the opinion of management, any portion of the judgment ultimately deemed uninsurable will not have a material adverse impact on the results of operations or financial position of the Company. Labor Subject to Collective Bargaining Agreements Substantially all of the employees engaged in the operations and maintenance contract with Mobile Energy are subject to collective bargaining agreements, none of which expire during 1996. Other Matters The Company is subject to other legal actions and claims arising in the ordinary course of business. In the opinion of management, the disposition of these matters will not have a material adverse impact on the results of operations or financial position of the Company. 9. DISCONTINUED OPERATIONS During 1993, SEI adopted a plan to dispose of certain noncore consulting operations of the Company. The net assets of these operations were transferred to Southern during 1995 in the form of a tax-free dividend. As such, no gain or loss was recorded on the disposal of these discontinued operations. The results of operations and net assets attributable to these consulting services are presented as discontinued operations in the accompanying consolidated statements of operations and balance sheets. 14 ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC. For the Year Ended December 31, 1995 - ------------------------------------------------------------------------------- SCHEDULE XV STATEMENT OF INCOME - ------------------------------------------------------------------------------- CURRENT PRIOR ACCOUNT D E S C R I P T I O N YEAR YEAR - ----------------------------------------------------------------------------- INCOME 457 Charges rendered to associate companies - 134 458 Services rendered to non-associate companies 181,218 105,517 421 Miscellaneous income or loss 722 590 ------- ------- Total Income 181,940 106,241 -------- ------- EXPENSES 920 Salaries and wages 22,682 12,855 921 Office supplies and expenses 6,612 5,514 922 Administrative expense transferred - credit (4,317) (4,092) 923 Outside services employed 157,401 113,670 924 Property insurance 423 425 925 Injuries and damages 303 148 926 Employee pensions and benefits 7,495 4,145 928 Disposition of intellectual property - - 930.1 General advertising expense 37 33 930.2 Miscellaneous general expenses 777 622 931 Rents 2,048 1,573 932 Maintenance of structures and equipment 13,459 311 403 Depreciation and amortization expense 1,107 1,332 408 Taxes other than income taxes 3,917 1,355 409 Income taxes (6,077) (8,560) 410 Provision for deferred income taxes (1,189) (922) 411 Provision for deferred income taxes - credit (3,667) (1,568) 411.5 Investment tax credit - - Foreign taxes 168 169 426.1 Donations 1,008 77 426.5 Other deductions 4 1 427 Interest on long-term debt 249 - 430 Interest on debt to associate companies - - 431 Other interest expense - - -------- ------- Total Expense 202,440 127,088 -------- ------- Net Income or (Loss) (20,500) (20,847) -------- ------- INSTRUCTION: Provide a schedule briefly describing types of intercompany transactions. TRANSACTIONS WITH ASSOCIATE COMPANIES SEI has agreements with Southern Company Services, Inc. and each of the system operating companies under which those companies provide the following services to SEI at cost: general engineering, design engineering, accounting and statistical, rates, budgeting, business promotion and public relations, systems and procedures, training, administrative, and financial services. In addition to these services, certain facilities of the system companies are made available to SEI and its customers. The service company and operating companies provide technical direction and management of the services provided to SEI and its customers. SEI reimburses the service company and operating companies at cost for these services. 15 ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC. For the Year Ended December 31,1995 - ------------------------------------------------------------------------------- ANALYSIS OF BILLINGS CHARGES FOR INTELLECTUAL PROPERTY TO ASSOCIATE COMPANIES ACCOUNT 457 - ------------------------------------------------------------------------------- TOTAL NAME OF ASSOCIATE COMPANY AMOUNT BILLED - ------------------------------------------------------------------------------- Not Applicable --------- TOTAL - - ------------------------------------------------------------------------------- 16 - ------------------------------------------------------------------------------- ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC. For the Year Ended December 31, 1995 - ------------------------------------------------------------------------------- ANALYSIS OF BILLING NON-ASSOCIATE COMPANIES ACCOUNT 458 - ------------------------------------------------------------------------------- DESCRIPTION TOTAL COST EXCESS OR TOTAL AMOUNT DEFICIENCY BILLED - ------------------------------------------------------------------------------- Consulting & Engineering 1/ 9,637 1,567 11,204 Information Systems - - - Nuclear - - - Franchises & Other - - - Operations 34,390 1,453 35,843 Project Management 253 (253) - Construction 132,006 616 132,622 Pooled Inventory Management (PEICO) - - - Good Cents - - - ------- ------ ------- TOTAL 179,286 3,383 179,669 ------- ------ ------- INSTRUCTION: Provide a brief description of the sales and services rendered by category in accordance with your sales and service contracts and list the amounts applicable per category. - ------------------------------------------------------------------------------- 1/ Consulting & Engineering includes Revenues and Costs relative to the Virgin Islands Storm Restoration project as a result of Hurrican Marilyn. The totals for 1995 are as follows: Costs 5,046 Exess / Efficiency 688 ------ Amount Billed 5,734
17 ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC. For the Year Ended December 31, 1995 SCHEDULE XVII SCHEDULE OF EXPENSE DISTRIBUTION BY DEPARTMENT OR SERVICE FUNCTION - -------------------------------------------------------------------------------------------------------------------------------- D E S C R I P T I O N O F I T E M S TOTAL D E P A R T M E N T O R S E R V I C E F U N C T I O N AMOUNT OVERHEAD SEI Operadora Asia GmbH - -------------------------------------------------------------------------------------------------------------------------------- 920 SALARIES AND WAGES 22,682 22,646 - 36 - 921 OFFICE SUPPLIES AND EXPENSES 6,612 6,590 - 22 - 922 ADMIN EXP TRANSFERRED - CREDIT (4,317) (4,317) - - - 923 OUTSIDE SERVICES EMPLOYED 157,401 157,027 354 20 - 924 PROPERTY INSURANCE 423 423 - - - 925 INJURIES AND DAMAGES 303 303 - - - 926 EMPLOYEE PENSIONS AND BENEFITS 7,495 7,495 - - - 928 DISPOSITION OF INTELLECTUAL PROP. - - - - - 930.1 GENERAL ADVERTISING EXPENSE 37 37 - - - 930.2 MISCELLANEOUS GENERAL EXPENSE 777 326 - 1 450 931 RENTS 2,048 1,739 - 309 - 932 MAINTENANCE OF STRUCTURES & EQUIP 13,459 13,459 - - - 403 DEPRECIATION & AMORTIZATION EXP 1,107 1,093 - 14 - 408 TAXES OTHER THAN INCOME TAX 3,917 3,917 - - - 409 INCOME TAXES (6,077) (6,077) - - - 410 PROVISION FOR DEFERRED INCOME TAX (1,189) (1,189) - - - 411 PROV DEFERRED INCOME TAX - CREDIT (3,667) (3,667) - - - FOREIGN TAXES 168 - 168 - - 411.5 INVESTMENT TAX CREDIT - - - - - 426.1 DONATIONS 1,008 1,008 - - - 426.5 OTHER DEDUCTIONS 4 4 - - - 427 INTEREST ON LONG TERM DEBT 249 249 - - - 430 INTEREST ON DEBT TO ASSOCIATE CO. - - - - - 431 OTHER INTEREST EXPENSE - - - - - INSTRUCTION: Indicate each department or service function. (See instruction 01-3 Gen'l Structure of Acc'ting Structure System: Uniform System Account. TOTAL EXPENSES 202,440 201,066 522 402 450 ------- ------- --- --- --- - --------------------------------------------------------------------------------------------------------------------------------
18 ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC. For the Year Ended December 31, 1995 - ------------------------------------------------------------------------------- SCHEDULE XVII SCHEDULES OF EXPENSE DISTRIBUTION BY DEPARTMENT OR FUNCTION - ------------------------------------------------------------------------------- ACCOUNT NUMBER D E P A R T M E N T O R F U N C T I O N - ------------------------------------------------------------------------------- 920 Not needed 921 922 923 924 925 926 928 930.1 930.2 931 932 403 408 409 410 411 411.5 426.1 426.5 427 430 431 - ------------------------------------------------------------------------------- 19 ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC. For the Year Ended December 31,1995 - ------------------------------------------------------------------------------- DEPARTMENTAL ANALYSIS OF SALARIES ACCOUNT 920 - ------------------------------------------------------------------------------- SALARY NUMBER NAME OF DEPARTMENT OR SERVICE FUNCTION EXPENSE PERSONNEL Indicate each department or service function. TOTAL AMOUNT END OF YEAR SOUTHERN ELECTRIC INTERNATIONAL 22,682 431 TOTAL 22,682 431 ------ ---- - ------------------------------------------------------------------------------- 20 ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC. For the Year Ended December 31,1995 - ------------------------------------------------------------------------------- DISPOSITION OF INTELLECTUAL PROPERTY ACCOUNT 928 - ------------------------------------------------------------------------------- INSTRUCTIONS: Provide a listing of the amount included in Account 928, "Disposition of Intellectual Property", classifying such expenses by associate company receiving compensation for Disposition of Intellectual Property. - ------------------------------------------------------------------------------- A S S O C I A T E C O M P A N Y AMOUNT - ------------------------------------------------------------------------------- Not Applicable ------ TOTAL - ------ - ------------------------------------------------------------------------------- 21 ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC. For the Year Ended December 31,1995 - ------------------------------------------------------------------------------- MISCELLANEOUS GENERAL EXPENSES ACCOUNT 930.2 - ------------------------------------------------------------------------------- INSTRUCTIONS: Provide a listing of the amount in Account 930.2, "Miscellaneous General Expenses", classifying such expenses according to their nature. Payments and expenses permitted by Section 321 (b) (2) of the Federal Election Campaign Act, as amended by Public Law 94-283 in 1976 (2 U.S.C.S. 441 (b) (2) shall be separately classified. - ------------------------------------------------------------------------------- D E S C R I P T I O N AMOUNT - ------------------------------------------------------------------------------- Dues and Memberships 116 Miscellaneous General Expense 646 Bad Debt Expense 15 ------ TOTAL 777 - ------------------------------------------------------------------------------- 22 ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC. For the Year Ended December 31,1995 - ------------------------------------------------------------------------------- TAXES OTHER THAN INCOME TAXES ACCOUNT 408 - ------------------------------------------------------------------------------- INSTRUCTIONS: Provide an analysis of Account 408, "Taxes Other Than Income Taxes". Separate the analysis into two groups: (1) other than U.S. Government taxes, and (2) U.S. Government taxes. Specify each of the various kinds of taxes and show the amounts thereof. Provide a subtotal for each class of tax. - ------------------------------------------------------------------------------- K I N D O F T A X AMOUNT - ------------------------------------------------------------------------------- Other than U.S. Government: State Unemployment 74 Real Estate and Personal Property 78 Other State and Local Taxes and Licenses 192 Sales Tax 476 Argentina Withholding Tax expense 600 Chile Withholding Tax expense 759 Mexico Expatriate Social Security Tax - Employer - Australia Expatriate Income tax - Employer 42 Puerto Rico Income Tax - Employee Differential - Austria Income Tax - Employee Differential 13 Use Tax - Expatriate Taxes 11 ----- Subtotal 2,245 ----- U. S. Government: FICA - Employers Portion 1,647 FUTA 25 ----- Subtotal 1,672 ----- ----- TOTAL 3,917 - ------------------------------------------------------------------------------- 23 ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC. For the Year Ended December 31,1995 - ------------------------------------------------------------------------------- DONATIONS ACCOUNT 426.1 - ------------------------------------------------------------------------------- INSTRUCTIONS: Provide a listing of the amount included in Account 426.1 "Donations", classifying such expenses by its purpose. The aggregate number and amount of all items less than $3,000 may be shown in lieu of details. - ------------------------------------------------------------------------------- NAME OF RECIPIENT PURPOSE OF DONATION AMOUNT - ------------------------------------------------------------------------------- 19 Items (Less than $3,000 each) Employer Gift Matching Contributions 5 Set up Charitable Contribution Trust 1,000 United Way of Metropolitan Atlanta Corporate Contribution - UW campaign 3 ----- TOTAL 1,008 - ------------------------------------------------------------------------------- 24 ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC. For the Year Ended December 31,1995 - ------------------------------------------------------------------------------- OTHER DEDUCTIONS ACCOUNT 426.5 - ------------------------------------------------------------------------------- INSTRUCTIONS: Provide a listing of the amount included in Account 426.5 "Other Deductions", classifying such expenses according to their nature. AMOUNT D E S C R I P T I O N NAME OF PAYEE BILLED - ------------------------------------------------------------------------------ State & Local - Penalties /Fines - Federal - Penalties / Fines Internal Revenue Service 4 ---- TOTAL 4 - ------------------------------------------------------------------------------- 25 ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC. For the Year Ended December 31,1995 - ------------------------------------------------------------------------------- SCHEDULE XVIII NOTES TO STATEMENT OF INCOME - ------------------------------------------------------------------------------- INSTRUCTIONS: The space below is provided for important notes regarding the statement of income or any account thereof. Furnish particulars as to any significant increase in services rendered or expenses incurred during the year. Notes relating to financial statements shown elsewhere in this report may be indicated here by reference. - ------------------------------------------------------------------------------- NOT APPLICABLE - ------------------------------------------------------------------------------- 26 ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC. For the Year Ended December 31,1995 - ------------------------------------------------------------------------------- SCHEDULE XIX OUTSIDE SERVICES EMPLOYED 923 - ------------------------------------------------------------------------------- INSTRUCTIONS: Provided below is a break down of outside services employed. - ------------------------------------------------------------------------------- 1995 1994 ---- ---- Legal Fees 6,231 6,196 Accounting and Audit Fees 582 156 Alabama Power Company 1,969 452 Georgia Power Company 3,334 2,945 Gulf Power Company 190 13 Mississippi Power Company 103 78 Southern Company Services 9,732 18,613 Savannah Electric Company 129 - Other Outside Companies 1\ 135,131 85,159 Joint Venture SEI/Daniel - 58 ------- ------- 157,401 113,670 - ------------------------------------------------------------------------------- 1\ Detail of Other Ouside Companies for 1994 is as follows: Engineering 516 Computer consulting (28) Temporary office services 248 Consulting (non financial) 6,547 Construction subcontractors (Birchwood) 124,392 Other plant operations 14 Financial consulting 326 Operadora expenses 354 Asia expenses 20 Other 2,742 ------- 135,131 27 ANNUAL REPORT OF SOUTHERN ELECTRIC INTERNATIONAL, INC. ORGANIZATION CHART OF SOUTHERN ELECTRIC INTERNATIONAL, INC. Tom Boren/President and CEO S. Marce Fuller/Vice President, Domestic Division Mark S. Lynch/Vice President, Construction and Project Development Raymond D. Hill/Senior Vice President Corporate Services Division and Chief Financial Officer William A. Maner, III/Vice President J.R. Harris/Vice President, External Affairs Richard J. Pershing/Senior Vice President, International Division and Assistant Secretary Tommy Chisholm/Vice President and Secretary David T. Gallaspy/Vice President, Business Development Asia and Pacific Rim J. William Holden, III/Vice President. Operations and Development Latin America & Caribbean Ronald E. Leggett/Vice President. O&M and Engineering Services William L. Westbrook/Vice President Charles W. Whitney/Vice President James A. Ward/Controller Karl E. Olsoni/Treasurer ORGANIZATION CHART OF SEI OPERADORA DE ARGENTINA, S.A. J. William Holden, III/ President of the Board Mariano F. Grondona/Secretary of the Board EX-99 3 EXHIBIT B-10 EXHIBIT B-10 MISSISSIPPI POWER COMPANY BY-LAWS AMENDED: April 2, 1996 MISSISSIPPI POWER COMPANY BYLAWS ARTICLE I Stockholders SECTION 1.01. Annual Meeting. The annual meeting of the shareholders of the Corporation for the election of directors and for the transaction of such other corporate business as may properly come before such meeting shall be held at the Corporation's office at Gulfport, in the State of Mississippi, or at such other place within or without the State of Mississippi as the Chairman of the Board, the President or the Board of Directors may determine on the first Tuesday in April in each year; provided, however, that the Chairman of the Board, the President or the Board of Directors may fix an earlier day for such annual meeting of shareholders in any particular year; and provided further that, if the day fixed for such annual meeting of shareholders is a legal holiday, such meeting shall be held on the first day thereafter which is not a legal holiday. [79-4-7.01] SECTION 1.02. Special Meetings. Subject to the provisions of Article Fourth of the Corporation's Articles of Incorporation, special meetings of the shareholders of the Corporation may be held at such time and at such place within or without the State of Mississippi as the Chairman of the Board, the President or the Board of Directors may determine. A special meeting may be called at any time by the Chairman of the Board, the President, the Board of Directors, the Executive Committee or shareholders holding one-tenth of the then outstanding capital stock entitled to vote. [79-4-7.02] SECTION 1.03. Notice of Meetings of Stockholders. Written or printed notice stating the place, day and hour of the meeting and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered by the Secretary or the other officer performing his duties, or the officer or persons calling the meeting not less than ten nor more than fifty days before the meeting, either personally or by mail, to each shareholder of record entitled to vote. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail addressed to the shareholder at his address as it appears on the stock transfer books of the Corporation, with postage prepaid. [79-4-7.05] Whenever any notice is required to be given to any shareholder, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be equivalent to the giving of such notice. [79-4-7.06] SECTION 1.04. Fixing Date for Determination of Stockholders of Record. In order to determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or entitled to receive payment of any dividend, or in order to make a determination of shareholders for any other purpose, the Board of Directors may provide that the stock transfer books of the Corporation shall be closed for a stated period but not to exceed fifty (50) days. If the stock transfer books shall be closed for the purpose of determining shareholders entitled to notice of or to vote at a meeting of shareholders, such books shall be closed for at least ten (10) days immediately preceding such meeting. In lieu of closing the stock transfer books, the Board of Directors may fix, in advance, a record date for any such determination of shareholders, which shall not be more than fifty (50) days and, in case of a meeting of shareholders, not less than ten (10) days prior to the date on which the particular action requiring such determination of shareholders is to be taken. If the stock transfer books are not closed and no record date is fixed for the determination of shareholders entitled to notice of or to vote at a meeting of shareholders, or shareholders entitled to receive payment of a dividend, the date on which notice of the meeting is mailed or the date on which the resolution of the Board of Directors declaring such dividend is adopted shall be the record date for such determination of shareholders. When a determination of shareholders entitled to vote at any meeting of shareholders 2 has been made as provided in this section, such determination shall apply to any adjournment thereof. [79-4-7.07 & 79-4-7.20(a)] SECTION 1.05. Quorum. Subject to the provisions of Article Fourth of the Corporation's Articles of Incorporation, at all meetings of shareholders, the holders of a majority of the shares entitled to vote, represented in person or by proxy, shall constitute a quorum for the transaction of any business. If a quorum is present, the affirmative vote of the majority of the shares represented at the meeting and entitled to vote on the subject matter shall constitute the act of shareholders. [79-4-7.25] SECTION 1.06. Voting Rights of Shareholders. Each shareholder of record entitled to vote in accordance with the laws of the State of Mississippi, the Corporation's Articles of Incorporation, or these Bylaws, shall at every meeting of shareholders be entitled to one vote in person or by proxy for each share of stock entitled to vote, but no proxy shall be valid after eleven months from the date of its execution, unless otherwise provided in the proxy. [79-4-7.21 & 79-4-7.22] SECTION 1.07. Voting List - Shareholder Examination. The officer or agent having charge of the stock transfer books for shares of the Corporation shall make, at least ten (10) days before each meeting of shareholders, a complete list of the shareholders entitled to vote at such meeting or any adjournment thereof, arranged in alphabetical order, with the address of and the number of shares held by each, which list, for a period of ten (10) days prior to such meeting, shall be kept on file at the registered office of the Corporation and shall be subject to inspection by any shareholder at any time during usual business hours. Such list shall also be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholder during the whole time of the meeting. No 3 shareholder shall be entitled to inspect any such list or the stock transfer books unless such inspection shall be made in good faith for a proper purpose. The original stock transfer books shall be prima facie evidence as to who are the shareholders entitled to examine such list or transfer books or to vote at any meeting of shareholders. [79-4-7.20(b)-(d)] Failure to comply with the requirements of this section shall not affect the validity of any action taken at such meeting. [79-4-7.20(e)] SECTION 1.08. Consent in Lieu of Meeting. Any corporate action either required or permitted by the Business Corporation Act of Mississippi, the Corporation's Articles of Incorporation, or these Bylaws, to be taken at a meeting of the shareholders, may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof. [79-4-7.04(a)] ARTICLE II Directors SECTION 2.01. Management of Business. The business and affairs of the Corporation shall be managed by the Board of Directors. The provisions of this Article II shall be subject to Article Fourth of the Corporation's Articles of Incorporation. [79-4-8.01(b)] SECTION 2.02. Number and Qualification of Directors. The number of directors shall be not less than three nor more than fifteen, the number to be fixed at the annual or any special meeting of the stockholders entitled to vote for the election of directors, but no decrease shall have the effect of shortening the term of any incumbent director. [79-4-8.03(a)-(c)] Directors need not be residents of Mississippi or shareholders of the Corporation. [79-4-8.02] 4 No person who is engaged or interested in a competing business either individually or as employee or stockholder, shall serve as a director without the consent of a majority of interest of the stockholders. [79-4-8.31] A person being a full-time executive employee of the Corporation or its parent company or any affiliated company when first elected a director of the Corporation (hereinafter sometimes referred to as an "employee-director") shall not be eligible to serve as a director when he ceases to be an executive employee, whether by reason of resignation, retirement or other cause; and a person not an employee-director shall not be eligible to serve as a director of the Corporation after his 70th birthday. Any employee-director who is not eligible to serve as a director by reason of the foregoing provisions shall be eligible to serve as an advisory director until he shall have reached his 70th birthday, if elected or re-elected by the Board of Directors, upon the recommendation of the Chief Executive Officer of the Corporation. The term of office of each advisory director shall terminate on the earlier of the date when he ceases to be eligible for such position or, subject to reappointment, the date of the first meeting of the Board of Directors after the annual meeting of stockholders next following his appointment. Any person eligible for election as an advisory director must be one whose services as such will be, in the opinion of the Board of Directors, of value to the Corporation. An advisory director shall be entitled to notice of, to attend, and to advise but not to vote at meetings of the Board of Directors and of any committees thereof to which he shall be appointed. An advisory director shall not be counted in determining the existence of a quorum, and for his services may be paid, in the discretion of the Board of Directors, compensation and reimbursement of expenses on the same basis as if he were a director. SECTION 2.03. Election and Term. The directors shall be elected at the annual meeting of shareholders, and each director shall be elected to hold office until his successor shall be 5 elected and qualified, or until his earlier resignation or removal. The Board of Directors, as soon as may be convenient after the election of directors in each year, may appoint one of their number Chairman of the Board. [79-4-8.03(d)] SECTION 2.04. Vacancies and Newly Created Directorships. In case of any vacancies in the Board of Directors through death, resignation, disqualification or any other cause, including a vacancy resulting from an increase in the number of directors, the Board of Directors may fill the vacancy by the affirmative vote of a majority of the remaining directors, which shall constitute a quorum for such purpose, and the director or directors so chosen shall hold office until the next annual election by shareholders and until their successor or successors shall be elected and qualified. [79-4-8.10] SECTION 2.05. Removal. At a meeting called expressly for that purpose, any and all of the directors may at any time be removed, with or without cause, by a vote of the holders of a majority of the shares then entitled to vote at an election of directors. If less than the entire Board is to be removed, no one of the directors may be removed if the votes cast against his removal would be sufficient to elect him if then cumulatively voted at an election of the entire Board of Directors. [79-4-8.08] SECTION 2.06. Quorum of Directors. At all meetings of the Board of Directors, one-half of the number of directors then in office or, if there shall be an odd number of directors, then a majority thereof, shall constitute a quorum for the transaction of business. The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. [79-4-8.24] SECTION 2.07. Annual Meeting. The newly elected Board of Directors shall meet as soon as practicable after the annual meeting of shareholders, within or without the State of Mississippi, and no notice of such meeting shall be necessary. [79-4-8.20] 6 SECTION 2.08. Regular Meetings. Regular meetings of the Board may be held at such time and place, within or without the State of Mississippi, as shall from time to time be fixed by the Chairman of the Board, the President or the Board of Directors, and no notice of such meeting shall be necessary. [79-4-8.20] SECTION 2.09. Special Meetings. Special meetings may be called at any time by the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary or by the Board of Directors. Special meetings shall be held at such place, within or without the State of Mississippi, as shall be fixed by the person or persons calling the meeting and stated in the notice or waiver of notice of the meeting. [79-4-8.20] Notice of a special meeting shall be given by the Secretary, or such other officer performing his duties, to each director at least two days prior to such meeting, if delivered by express mail or courier, or one day's notice if given by telegram or telecopy or personal communication by telephone or otherwise, or not later than the fourth day prior to the meeting if given by regular, postage-prepaid U.S. mail. Attendance of a director at a special meeting shall constitute a waiver of notice of such meeting, except when a director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Notice by mail or telegraph to the usual business or residence address of the director shall be sufficient. The business to be transacted at or the purpose of a special meeting of the Board of Directors need not be stated in such notice or waiver of notice and any and all business may be transacted at a special meeting of the Board of Directors. [79-4-8.22 & 79-4-8.23] 7 SECTION 2.10. Action Without a Meeting. Any corporate action either required or permitted by the Business Corporation Act of Mississippi, the Corporation's Articles of Incorporation, or these Bylaws, to be taken at a meeting of the Board of Directors may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the directors entitled to vote with respect to the subject matter thereof. Members of the Board of Directors or any committee thereof may participate in a meeting of the Board or any committee thereof by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. [79-4-8.21] SECTION 2.11. Compensation. Directors shall be entitled to a fee for attendance at each regular or special meeting of the Board of Directors, or a committee of the Board, and in otherwise performing duties as such directors, and/or to a monthly or annual fee or salary, provided that no fees or salaries shall be paid to those directors who are officers or employees, other than retired employees, who are on a fixed basis of compensation from the Company or any subsidiary or affiliated company and who have duties and responsibilities to such companies other than those arising from the office of director. Directors shall be reimbursed for actual expenses incurred in attending meetings of the Board of Directors or any committee thereof and in otherwise performing duties as such directors or in lieu thereof to an allowance for expenses. The amount of fee or salary paid to directors and expense allowance, if any, shall be fixed by the Board of Directors. [79-4-8.11] SECTION 2.12. Executive and Other Committees. The Board of Directors may, by resolution or resolutions passed by a majority of the whole Board, designate an Executive Committee and one or more other committees, including without limitation Audit and Compensation Committees, each consisting of three or more directors, and each of which 8 committees may act by a majority of its members. Such Executive Committee shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Company when the Board is not meeting; and each other committee shall have such powers of the Board and otherwise as are provided in the resolution establishing such committee. Provided, however, notwithstanding anything to the contrary herein, the Executive Committee and all other committees established by the Board shall have no power or authority to take any action specifically prohibited under the Mississippi Business Corporation Act, Section 79-4-8.25(e), or any successor statute. Unless otherwise specifically permitted by the Board, the rules promulgated by these Bylaws with respect to meetings of directors, notice, quorums, voting and other procedures at such meetings shall be applicable to meetings of committees established by the Board. [79-4-8.25] SECTION 2.13. Interest of Director in Corporate Act. A director of this Corporation shall not be disqualified by his office from dealing or contracting with the Corporation, either as vendor, purchaser or otherwise, nor shall any transaction or contract of this Corporation be void or voidable by reason of the fact that any director or any firm of which any director is a member or any corporation of which any director is a shareholder or director is in any way interested in such transaction or contract, provided that such transaction or contract is or shall be authorized, ratified or approved either (1) by vote of a majority or a quorum of the Board of Directors or the Executive Committee, without counting in such majority or quorum any directors so interested or being a member of a firm so interested or a shareholder or director of a corporation so interested, or (2) by vote at a stockholders' meeting of the holders of a majority of all the outstanding shares of the stock of the Corporation entitled to vote or by a writing or writings signed by a majority of such holders; nor shall any director be liable to account to the Corporation for any profit realized by him from or through any transaction or contract of this Corporation authorized, ratified or approved as 9 aforesaid, by reason of the fact that he or any firm of which he is a member or any corporation of which he is a shareholder or director was interested in such transaction or contract. Nothing herein contained shall create any liability in the events above described or prevent the authorization, ratification or approval of such contracts or transactions in any other manner provided by law. ARTICLE III Officers SECTION 3.01. Number. The officers of the Corporation shall be chosen by the Board of Directors. The officers shall be a President, a Secretary and a Treasurer, and such number of Vice Presidents, Assistant Secretaries and Assistant Treasurers, and such other officers, if any, as the Board of Directors may from time to time determine. The Board of Directors may from time to time, but shall not be required to, establish the office of Chairman of the Board and may, but shall not be required to, designate the holder of such office, if established, as Chief Executive Officer of the Corporation. The Board of Directors may choose such other agents as it shall deem necessary. Any number of offices may be held by the same person, except the offices of President and Secretary. [79-4-8.40] SECTION 3.02. Terms of Office. Each officer shall hold his office until the next election of directors and until his successor is chosen and qualified or until his earlier resignation or removal. Any officer may resign at any time upon written notice to the Corporation. Vacancies in any office shall be filled by the Board of Directors. 10 SECTION 3.03. Removal of Officers. Any officer or agent may be removed by the Board of Directors whenever in its judgment the best interest of the Corporation will be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. Election or appointment of an officer or agent shall not of itself create contract rights. [79-4-8.43(b)] SECTION 3.04. Authority. The officers of the Corporation shall have such duties as usually pertain to their offices, except as modified by the Board of Directors and shall also have such powers and duties as may from time to time be conferred upon them by the Board of Directors. Notwithstanding the provisions of Section 3.01 hereof, in the event of the absence or inability of the President to act, the powers and duties of the President shall, subject to the control of the Board of Directors, devolve successively upon such other persons as shall have been designated in a resolution adopted by the Board of Directors, and in accordance with the order of succession set forth therein. [79-4-8.41] ARTICLE IV Indemnification of Directors and Officers SECTION 4.01. Indemnification and Related Matters. To the fullest extent permitted by law, the Company shall indemnify each person made, or threatened to be made, a party to any threatened, pending, or completed claim, action, suit or proceeding, whether civil or criminal, administrative or investigative, and whether by or in the right of the Company or otherwise, by reason of the fact that such person, or such person's testator or intestate, is or was a director, officer or was an employee of the Company holding one or more management positions through and inclusive of department managers (but not positions below the level of department managers) (such positions being hereinafter referred to as "Management Positions") or is or was serving at the request of the Company as a director, officer, employee, agent or 11 trustee of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, in any capacity at the request of the Company, against all loss and expense actually or reasonably incurred by him including, without limiting the generality of the foregoing, judgments, fines, penalties, liabilities, sanctions, and amounts paid in settlement and attorney's fees and disbursements actually and necessarily incurred by him in defense of such action or proceeding, or any appeal therefrom. The indemnification provided by this Section shall inure to the benefit of the heirs, executors and administrators of such person. In any case in which a director, officer of the Company or employee of the Company holding one or more Management Positions requests indemnification with respect to the defense of any such claim, action or suit or proceedings, the Company may advance expenses (including attorney's fees) incurred by such person prior to the final disposition of such claim, action, suit or proceeding, as authorized by the Board of Directors in the specific case, upon receipt of a written undertaking by or on behalf of such person to repay amounts advanced if it shall ultimately be determined that such person was not entitled to be indemnified by the Company under this Section or otherwise; provided, however, that the advancement of such expenses shall not be deemed to be indemnification unless and until it shall ultimately be determined that such person is entitled to be indemnified by the Company. Such a person claiming indemnification shall be entitled to indemnification upon a determination that no judgment or other final adjudication adverse to such person has established that such person's acts were committed in bad faith or were the result of active and deliberate dishonesty and were material to the cause of action so adjudicated, or such person personally obtained an economic benefit including a financial profit or other advantage to which such person was not legally entitled. 12 Without limiting the generality of the foregoing provision, no former, present or future director or officer of the Company or employee of the Company holding one or more management positions, or his heirs, executors or administrators, shall be liable for any undertaking entered into by the Company or its subsidiaries or affiliates as required by the Securities and Exchange Commission pursuant to any rule or regulation of the Securities and Exchange Commission now or hereafter in effect or orders issued pursuant to the Public Utility Holding Company Act of 1935, the Federal Power Act, or any undertaking entered into by the Company due to environmental requirements including all legally enforceable environmental compliance obligations imposed by federal, state or local statute, regulation, permit, judicial or administrative decree, order and judgment or other similar means, or any undertaking entered into by the Company pursuant to any approved Company compliance plan or any federal or state or municipal ordinance which directly or indirectly regulates the Company, or its parent by reason of their being holding or investment companies, public utility companies, public utility holding companies or subsidiaries of public utility holding companies. The foregoing rights shall not be exclusive of any other rights to which any such director, officer or employee may otherwise be entitled and shall be available whether or not the director, officer or employee continues to be a director, officer or employee at the time of incurring any such expenses and liabilities. If any word, clause or provision of the Bylaws or any indemnification made under this Section 4.01 shall for any reason be determined to be invalid, the remaining provisions of the Bylaws shall not otherwise be affected thereby but shall remain in full force and effect. The masculine pronoun, as used in the Bylaws, means the masculine and feminine wherever applicable. [79-4-8.51, 79-4-8.52, 79-4-8.53, 79-4-8.55 & 79-4-8.56] 13 SECTION 4.02. Liability Insurance. The Company may purchase and maintain insurance on behalf of any person described in Section 4.01 against any liability or expense (including attorney's fees) which may be asserted against such person whether or not the Company would have the power to indemnify such person against such liability or expense under this Article IV or otherwise. [79-4-8.57] ARTICLE V Capital Stock SECTION 5.01. Stock Certificates. Every holder of stock in the Corporation shall be entitled to have a certificate signed by the President or a Vice President of the Corporation, and by the Secretary or an Assistant Secretary of the Corporation, one of which may be facsimile signature, and may be sealed with the seal of the Corporation or a facsimile thereof. The signatures of the President or Vice President and the Secretary or Assistant Secretary upon a certificate may both be facsimiles if the certificate is countersigned by a transfer agent or registered by a registrar, other than the Corporation itself or an employee of the Corporation. In case any officer who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer at the date of issue. The certificates of stock of the Corporation shall be numbered and shall be entered in the books of the Corporation and registered as they are issued. They shall exhibit the name of the registered holder and shall certify the number of shares owned by him. [79-4-6.25] SECTION 5.02. Registered Holders. Prior to due presentment for registration of transfer of any security of the Corporation in registered form, the Corporation shall treat the 14 registered owner as the person exclusively entitled to vote, to receive notifications and to otherwise exercise all the rights and powers of an owner, and shall not be bound to recognize any equitable or other claim to, or interest in, any security, whether or not the Corporation shall have notice thereof, except as otherwise provided by the laws of the State of Mississippi. SECTION 5.03. Transfers. The stock of the Corporation shall be transferable or assignable on the books of the Corporation by the holders in person or by attorney on the surrender of the certificates therefor duly endorsed, or in any other manner prescribed by the laws of the State of Mississippi. SECTION 5.04. Replacement Certificates. The Corporation may issue a new certificate of stock in place of any certificates theretofore issued by it, alleged to have been lost or destroyed, provided the person seeking the issuance of the new certificate shall be the owner or satisfy the Corporation he is the owner of the stock certificate alleged to have been lost or destroyed, and the directors shall require the owner of the lost or destroyed certificate, or his legal representatives, to give the Corporation a bond sufficient to indemnify the Corporation against any claim that may be made against it on account of the alleged loss or destruction of any such certificate or the issuance of such new certificate. The issuance of a new certificate, as herein above provided, shall not relieve the Corporation or the directors from corporate or personal liability in damages to any person to whom the original certificate has been or shall be transferred for value without notice of the issuance of the new certificate. 15 ARTICLE VI Miscellaneous SECTION 6.01. Seal. The corporate seal of the Corporation shall be in such form as the Board of Directors shall prescribe. SECTION 6.02. Checks. The Board of Directors is authorized to select such depositories as they shall deem proper for the funds of the Corporation. All checks and drafts against such deposited funds shall be signed by such officers or such other persons as may be specified by the Board of Directors. SECTION 6.03. Loans. No loans shall be made by the Corporation to its officers or directors, except in the amounts and under the same terms and conditions as available to all regular employees of the Corporation, and no loans shall be made by the Corporation secured by its shares. SECTION 6.04. Amendment of Bylaws. These Bylaws may be amended or repealed and new Bylaws adopted by the Board of Directors or by vote of the holders of the shares at the time entitled to vote in the election of any director, except that any Bylaw adopted by such holders shall not be amended or repealed by the Board of Directors. [79-4-10.20] SECTION 6.05. Section Headings and References. The headings of the Articles and Sections of these Bylaws and the bracketed references to the Mississippi Business Corporation Act have been inserted for convenience of reference only and shall not be deemed to be a part of these Bylaws. 16 EX-99 4 EXHIBIT B-23 EXHIBIT B-23 AMENDMENT TO AND RESTATEMENT OF THE ARTICLES OF INCORPORATION OF MOBILE ENERGY SERVICES HOLDINGS, INC. Pursuant to, and with the effect provided in, Sections 10-2B-10.01 to 10-2B-10.07 of the Code of Alabama, 1975, as amended (the "Code"), the undersigned corporation adopts the following Amendment to and Restatement of the Articles of Incorporation: FIRST: The name of the corporation is Mobile Energy Services Holdings, Inc. (the "Corporation"). SECOND: The following amendment to the Corporation's Articles of Incorporation was adopted in the manner provided by the Code by the Corporation's sole shareholder, as of January ___, 1996: "IV. The Corporation shall be authorized to issue Two Thousand (2,000) shares of capital stock of which One Thousand (1,000) shall be shares of One Dollar ($1.00) par value common stock (the "Common Stock") and One Thousand (1,000) shall be shares of no par value preferred stock (the "Preferred Stock"). The shares of Common Stock shall have unlimited voting rights. The shares of Preferred Stock shall not be entitled to vote on any matter except for: (i) such matters as require a vote of preferred stockholders under Alabama law, and (ii) any subsequent amendment to the Articles of Incorporation that would affect the priorities of the holders of such shares to dividends and to distributions upon liquidation of the Corporation. The Board of Directors is hereby authorized to determine the designation and the dividend, liquidation and other rights, preferences and limitations of such shares of Preferred Stock." THIRD: The Corporation had 1,000 shares of $1.00 par value Common Stock issued and outstanding at the time of the adoption of this amendment. Of the 1,000 shares of $1.00 par value Common Stock issued and outstanding, 1,000 shares voted to approve, and 0 shares voted against or abstained from voting on the foregoing amendment. FOURTH: The Articles of Incorporation of the Corporation are hereby restated as follows: I. The name of the corporation is MOBILE ENERGY SERVICES HOLDINGS, INC. (the "Corporation"). II. The Corporation shall have perpetual duration. III. The nature of the business of the Corporation and its objects, purposes and powers shall be limited to the following activities: (a) to acquire, finance, own, expand, improve and operate or contract for the operation of the energy and recovery complex and related facilities located at the pulp and tissue mill in Mobile, Alabama owned by Scott Paper Company, a Pennsylvania corporation ("Scott") (or any successor thereto), and the paper mill owned by S.D. Warren Company, a Pennsylvania corporation ("S.D. Warren") (or any successor thereto) (the "Energy Complex"); (b) to serve as a member of and to own a majority of the outstanding membership interests of Mobile Energy Services Company, L.L.C., an Alabama limited liability company (the "Company"), and to act as the sole manager thereof, provided that the foregoing shall not be construed as restraining the Corporation from transferring interests in the Company (i) in an amount not to exceed one percent (1%) of the total interests in the Company to The Southern Company, a Delaware corporation ("Southern"), prior to the issuance of the "Offered Securities" (as hereinafter defined) by the Company; (ii) on commercially reasonable terms to third parties that are not "Southern Affiliated Entities" (as hereinafter defined), and permitting such third parties to participate in the management of the Company, even if the effect thereof would be to cause (A) the Corporation's ownership interests in the Company to be reduced below a majority of the ownership interests in the Company or (B) one or more such third parties to acquire or share managerial control of the Company; or (iii) to a Southern Affiliated Entity whose Articles of Incorporation (or other organizational documents) contain the same operative provisions as these Articles and which undertakes, for the benefit of the "Bondholders" (as herein defined), each of the covenants and restrictions of the Corporation set forth in the indenture among the Company, the Corporation, as guarantor, and First Union National Bank of Georgia ("First Union"), as trustee (the "Indenture") relating to up to $290,000,000 aggregate principal amount of first mortgage bonds (the "First Mortgage Bonds"), the Amended and Restated Lease and Agreement (the "Tax-Exempt Lease") among the Company, the Corporation, as guarantor, and the Industrial Development Board of the City of Mobile, Alabama (the "IDB") entered into in connection with the issuance by the IDB, for the benefit of the Company of $85,000,000 aggregate principal amount of tax-exempt bonds (the "Tax-Exempt Bonds") pursuant to the Amended and Restated Trust Indenture between the IDB and First Union (the "Tax-Exempt Indenture") -2- in each case relating to compliance with and amendment of these Articles. For purposes of these Articles, the term "Southern Affiliated Entities" shall mean the Corporation, Southern, Southern Electric International, Inc., a Delaware corporation ("SEI"), the Company and any other corporation, partnership, limited liability company or other business entity with respect to which the Corporation, Southern, SEI, or the Company, through ownership of voting securities, by contract or otherwise, has the power to direct (or cause the direction of) the management and policies of such corporation, partnership, limited liability company or other business entity; (c) to enter into and perform any agreement providing for or relating to (i) the issuance by the Company of the First Mortgage Bonds, the issuance by the IDB of the Tax-Exempt Bonds, and the working capital facility to be provided to the Company by an unaffiliated third party (the "Working Capital Facility"), and in each case to receive and dispose of proceeds thereunder or in exchange therefor and to provide for any refinancing or refunding of the foregoing (the First Mortgage Bonds, the Tax-Exempt Bonds and the Working Capital Facility are sometimes collectively referred to as the "Offered Securities") and (ii) the issuance by the Company of other additional indebtedness as may be consistent with clause (g) of this Article III; (d) to take all actions necessary to offer the First Mortgage Bonds and the Tax- Exempt Bonds to the purchasers thereof (the "Bondholders"); (e) to enter into and perform any agreement for or relating to the management and administration of the activities of the Corporation or the Company; (f) to enter into and perform any agreements to accomplish the purposes set forth in paragraphs (a),(b),(c),(d) or (e) above; and (g) to engage in any lawful act or activity, and to exercise any powers permitted to corporations organized under the laws of the State of Alabama, that are incidental to and necessary, suitable or convenient for the accomplishment of the purposes set forth in (a), (b), (c), (d), (e) or (f) above. IV. The Corporation shall be authorized to issue Two Thousand (2,000) shares of capital stock of which One Thousand (1,000) shall be shares of One Dollar ($1.00) par value common stock (the "Common Stock") and One Thousand (1,000) shall be shares of no par value preferred stock (the "Preferred Stock"). The shares of Common Stock shall have unlimited voting rights. The shares of Preferred Stock shall not be entitled to vote on any matter except for: (i) such matters as require a vote of preferred stockholders under Alabama law, and (ii) any subsequent amendment to the Articles of Incorporation that would affect the priorities of the -3- holders of such shares to dividends and to distributions upon liquidation of the Corporation. The Board of Directors is hereby authorized to determine the designation and the dividend, liquidation and other rights, preferences and limitations of such shares of Preferred Stock. V. The Board of Directors of the Corporation shall have the power to adopt, amend and repeal the By-Laws of the Corporation. VI. To the fullest extent that the General Corporation Law of Alabama, as it exists on the date hereof or as it may hereafter be amended, permits the limitation or elimination of the liability of directors, no director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of duty of care or other duty as a director. No amendment to or repeal of this Article shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal. VII. The initial registered office of the Corporation in the State of Alabama shall be located at 60 Commerce Street, Montgomery, Montgomery Co., Alabama 36104. The initial registered agent of the Corporation at such address shall be The Corporation Company. VIII. The affairs of the Corporation shall be managed by a Board of Directors and as otherwise provided in the By-Laws of the Corporation. The initial Board of Directors of the Corporation shall consist of one (1)member, whose name and corresponding mailing address is: Raymond D. Hill c/o Southern Electric International, Inc. 900 Ashwood Parkway Suite 500 Atlanta, Georgia 30338 -4- IX. The name and address of the Incorporator of the Corporation are Elizabeth B. Chandler, NationsBank Plaza, 600 Peachtree Street, N.E., Suite 5200, Atlanta, Georgia 30309-2216. X. The unanimous approval of the Board of Directors of the Corporation is required: (a) to file a bankruptcy or insolvency petition or otherwise institute insolvency proceedings under Section 301 of the Bankruptcy Code, 11 U.S.C. ss. 301, or any successor thereto (the "Bankruptcy Code"), or any similar statute, seeking protection of the Corporation as a debtor in such proceedings; (b) to consent to the filing of a bankruptcy or insolvency petition or to the institution of an insolvency proceeding under Section 301 of the Bankruptcy Code, 11 U.S.C. ss. 301, or any successor thereto, or any similar statute seeking protection of the Company as a debtor in such proceeding, or (c) to amend, repeal or supersede any provision of Articles III, X, XI, XII or XIII hereof unless, in connection with such amendment, repeal or supersession, the Corporation receives from a nationally recognized law firm acceptable to those rating agencies which at the time of such opinion are rating the First Mortgage Bonds or the Tax-Exempt Bonds a reasoned opinion to the effect that, if Southern or SEI were to become a debtor under the Bankruptcy Code, a federal bankruptcy court, exercising reasonable judgment after full consideration of all relevant circumstances, in a properly presented case, would not disregard the separate corporate existence of the Corporation or the Company so as to order substantive consolidation of the assets and liabilities of the Corporation or the Company with those of SEI or Southern. The Board of Directors of the Corporation shall consist of a number as determined by the By-Laws of the Corporation, provided that one duly qualified and elected director at all times shall constitute an "Independent Director" (as hereinafter defined). For purposes of the foregoing, the term "Independent Director" shall mean an individual who, at all times during such individual's service as a director of the Corporation, is not any of the following: (a) a person who received more than eight percent (8%) of his or her gross income (as defined for Federal income tax purposes) during either of the preceding two calendar years ended December 31 from wages, dividends, distributions or other payments received directly from the Southern Affiliated Entities; (b) a director, general partner, member, trustee, beneficiary or the holder of ten percent (10%) or more of the equity interests of any corporation, partnership, limited liability company, trust or other entity which received more than eight (8%) of its gross revenues during either of the preceding two calendar years ended December 31 from wages, dividends, distributions or other payments received from the Southern Affiliated Entities; -5- (c) a person who possesses equity or other interests in the Southern Affiliated Entities, or debt of any of the Southern Affiliated Entities, which, in the aggregate, have a fair market value in excess of eight percent (8%) of the net worth of such person; (d) a person who, on such date or at any time during the two years preceding such date, was a director of any of the Southern Affiliated Entities (other than the Corporation) or was an officer or employee of any of the Southern Affiliated Entities (including the Corporation); or (e) a parent, child, sibling or spouse of any person described in clauses (a), (b), (c) or (d) above. XI. Neither the Corporation's funds nor any other assets thereof shall be commingled with those of any other person or entity, and the Corporation's funds shall be clearly traceable at all times and in all transactions. The Corporation's assets shall remain identifiably separate from those of all other entities such that there shall be no material difficulty in segregating and ascertaining the assets of the Corporation as distinct from those of the other Southern Affiliated Entities or any other person or entity. Notwithstanding the foregoing: (a) equity or other contributions from any shareholder of the Corporation may be received by the Corporation, deposited to the account of the Corporation and treated as funds of the Corporation, and (b) revenues of the Corporation or the Company may be collected by affiliates of the Corporation and such affiliates may pay liabilities of the Corporation or the Company, as applicable, therewith pursuant to the "Relevant Documents" (as hereinafter defined), so long as appropriate records are maintained by the Corporation to identify at all times funds belonging to the Corporation or the Company, respectively. For purposes of these Articles, the "Relevant Documents" shall mean: (1) the Registration Statement filed on Form S-1 under the Securities Act of 1933, as amended, and the Prospectus, each relating to the issuance of the First Mortgage Bonds, and the Limited Offering Memorandum issued in connection with the sale of the Tax-Exempt Bonds; (2) the Articles of Incorporation of SEI and Southern, the Articles of Organization of the Company, and these Articles; (3) the By-Laws of the Corporation, SEI and Southern; (4) the Indenture, the Tax-Exempt Indenture and the Tax-Exempt Lease Agreement; (5) the Working Capital Facility and the Corporation's guaranty in respect thereof; (6) those certain guaranties from Southern or appropriate letters of credit necessary to satisfy certain of the Company's reserve account funding requirements under the Indenture, the Tax-Exempt Indenture, and the "Intercreditor Agreement"(as hereinafter defined); (7) the Intercreditor Agreement entered into by and among the Corporation, the Company, First Union, as trustee with respect to the First Mortgage Bonds, First Union, as trustee with respect to the Tax-Exempt Bonds, the IDB, Banque Paribas, as Working Capital Facility provider, and Bankers Trust Company, as Collateral Agent (the "Intercreditor Agreement"); (8) the Asset Purchase Agreement dated as of December 12, 1994, between Scott Paper Company ("Scott") and the -6- Corporation; (9) the Pulp Mill Environmental Indemnity Agreement, dated as December 12, 1994, between Scott and the Corporation (the "Pulp Mill Environmental Indemnity Agreement"), the Tissue Mill Environmental Indemnity Agreement, dated as December 12, 1994, between Scott and the Corporation (the "Tissue Mill Environmental Indemnity Agreement"), the Paper Mill Environmental Indemnity Agreement, dated as December 12, 1994, between S.D. Warren and the Corporation, and the Environmental Guaranty dated as of December 12, 1994, made by Southern (together with the Pulp Mill Environmental Indemnity Agreement and the Tissue Mill Environmental Indemnity Agreement, the "Environmental Indemnity Agreements") in connection with the Company's obligations under the Environmental Indemnity Agreements; (10) the Administrative Services Agreements (the "SCS Agreements"), pursuant to which Southern Company Services, Inc. ("SCS") will provide certain administrative services to the Corporation and the Company, the Operations and Maintenance Agreement, dated as of December 12, 1994 between the Corporation and SEI and the Administrative Services Agreement dated as of July 14, 1995 between SEI and the Corporation; (11) the agreement between the Corporation and Southern relating to the allocation of certain tax liabilities; (12) the Mill Owner Maintenance Reserve Account Agreement among the Company, Southern, Scott and S.D. Warren; and (13) the Employee Transition Agreement among Scott, the Corporation and SEI, in each case as in effect on the date of issuance and sale of the First Mortgage Bonds or as may be amended, replaced or otherwise modified from time to time, provided that in connection with any such amendment, replacement or modification, the Corporation receives from a nationally recognized law firm acceptable to those rating agencies which at the time of such opinion are rating the First Mortgage Bonds or the Tax-Exempt Bonds a reasoned opinion to the effect that, if Southern or SEI were to become a debtor under the Bankruptcy Code, a federal bankruptcy court, exercising reasonable judgment after full consideration of all relevant circumstances, in a properly presented case, would not disregard the separate corporate existence of the Company or the Corporation so as to order substantive consolidation of the assets and liabilities of the Company or the Corporation with those of SEI or Southern. XII. The Corporation: (a) shall maintain corporate records and books of account which at all times shall be separate from those of any other person or entity and shall be materially correct and complete; (b) shall conduct its own business solely in its own name or through its authorized agents, and not in the name of any of the other Southern Affiliated Entities, in a manner which is not likely to mislead others as to the identity of the legal entity with which such others are dealing, shall not permit any person or entity to conduct any business of such person or entity in the Corporation's name, and without limiting the generality of the foregoing: (i) shall ensure that all oral and written communications, including without -7- limitation, letters, invoices, purchase orders, contracts, statements and applications, are and will be made solely in the name of the entity to which they relate or in the name of such entity's authorized agents, and (ii) shall not refer, and shall ensure that the other Southern Affiliated Entities do not refer, to the Corporation or the Company as a division or department of any other entity; (c) shall prepare financial statements separate from any other person or entity, which shall disclose its separate existence and the transactions contemplated by the Relevant Documents in accordance with generally accepted accounting principles, and shall disclose that the assets of the Corporation are not available to any creditor of any affiliate of the Corporation (other than as contemplated by the Relevant Documents); (d) except to the extent set forth in the Relevant Documents, shall pay its liabilities out of its own funds, and, except as set forth in the Relevant Documents, shall not permit any of the other Southern Affiliated Entities to pay such liabilities; (e) shall not hold out employees or officers of any of the other Southern Affiliated Entities as employees or officers of the Corporation, nor permit employees or officers of the Corporation to be held out as employees or officers of any of the other Southern Affiliated Entities; provided that said restrictions shall not preclude a particular employee or officer of any of the other Southern Affiliated Entities from also holding a position as an employee or officer of the Corporation, so long as the Corporation takes reasonably appropriate steps to assure that unaffiliated parties dealing with such employee or officer are able to distinguish the particular entity which such person is representing at any particular time; (f) shall not guarantee or become obligated for the debts of any of the other Southern Affiliated Entities or hold out its credit as being available to satisfy the obligations of any of the other Southern Affiliated Entities, other than (i) obligations to reimburse SEI for expenses paid by SEI on behalf of the Corporation in connection with the operation and maintenance of the Energy Complex in accordance with the Relevant Documents, (ii) obligations of the Company related to the First Mortgage Bonds, the Tax-Exempt Bonds or the Working Capital Facility, and (iii) obligations to indemnify SEI for certain claims and losses relating to SEI's operation and maintenance of the Energy Complex in accordance with the Relevant Documents; (g) shall allocate fairly and equitably any overhead for office space shared with any of the other Southern Affiliated Entities; (h) shall use stationery, invoices, checks and other business forms dentifiably separate and distinct from those of any of the other Southern Affiliated Entities. Such items shall bear a mailing address and telephone number for the Corporation which is different from that used by any of the other Southern Affiliated Entities. The -8- Corporation further shall maintain, as its principal address and telephone number for receipt of notices and other communications under the Relevant Documents, a mailing address and telephone number separate from those of any of the other Southern Affiliated Entities; (i) shall not pledge its funds or assets for the benefit of any of the other Southern Affiliated Entities, except as set forth in the Relevant Documents; and (j) at all times shall hold itself out to the public as an entity legally separate and distinct from any of the other Southern Affiliated Entities. XIII. The Corporation shall at all times maintain and observe all corporate formalities in the conduct of its affairs and with respect to the acquisition, ownership, encumbrance or transfer of any material assets or the incurrence of any material indebtedness. Such formalities shall include without limitation the holding of appropriate periodic meetings of its Board of Directors and shareholders in accordance with Alabama law, the recording of minutes of such meetings and any other proceedings of its shareholders and Board of Directors, the adoption by the Board of Directors (and, as appropriate, the shareholders) of resolutions to approve material actions of the Corporation and the execution and maintenance of appropriate documentation with respect to and in order to evidence the acquisition, ownership, encumbrance or transfer of any material assets or the incurrence of any material indebtedness. -9- IN WITNESS WHEREOF, the undersigned has caused this Amendment to and Restatement of the Articles of Incorporation to be executed as of this ___ day of January, 1996. MOBILE ENERGY SERVICES HOLDINGS, INC. By: Title: -10- July 6, 1995 AMENDMENTS TO AND RESTATEMENT OF THE ARTICLES OF INCORPORATION OF MOBILE ENERGY SERVICES HOLDINGS, INC. I. The name of the corporation is MOBILE ENERGY SERVICES HOLDINGS, INC. (the "Corporation"). II. The Corporation shall have perpetual duration. III. The nature of the business of the Corporation and its objects, purposes and powers shall be limited to the following activities: (a) to acquire, finance, own, expand, improve and operate or contract for the operation of the cogeneration power production and recovery complex located on the grounds of Scott Paper Company's pulp and tissue mill in Mobile, Alabama (the "Energy Complex"); (b) to serve as a member of and to own a majority of the outstanding membership interests of Mobile Energy Services Company, L.L.C., an Alabama limited liability company (the "Company"), and to act as the sole manager thereof, provided that the foregoing shall not be construed as restraining the Corporation from transferring interests in the Company (i) in an amount not to exceed one percent (1%) of the total interests in the Company to The Southern Company, a Delaware corporation ("Southern"), prior to the issuance of the "Offered Securities" (as hereinafter defined) by the Company; (ii) on commercially reasonable terms to third parties that are not "Southern Affiliated Entities" (as hereinafter defined), and permitting such third parties to participate in the management of the Company, even if the effect thereof would be to cause (A) the Corporation's ownership interests in the Company to be reduced below a majority of the ownership interests in the Company or (B) such third parties to acquire or share managerial control of the Company; or (iii) to a Southern Affiliated Entity whose Articles of Incorporation (or other organizational documents) contain the same operative provisions as these Articles and which undertakes, for the benefit of the "Bondholders" (as herein defined), each of the covenants and restrictions of the Corporation set forth in the indenture relating to the initial series of first mortgage bonds (the "First Mortgage Bonds") relating to compliance with and amendment of these Articles. For purposes of these Articles, the term "Southern Affiliated Entities" shall mean the Corporation, Southern, Southern Electric International, Inc., a Delaware corporation ("SEI"), the Company and any other corporation, partnership, limited liability company or other business entity with respect to which the Corporation, Southern, SEI, or the Company, through ownership of voting securities, by contract or otherwise, has the power to direct (or cause the direction of) the management and policies of such corporation, partnership, limited liability company or other business entity; (c) to enter into and perform any agreement providing for or relating to the issuance or guaranty of the First Mortgage Bonds or the $85,000,000 aggregate principal amount of tax-exempt bonds due _______, 2___ (the "Tax-Exempt Bonds") (and to receive and dispose of proceeds in exchange therefor), or relating to the incurrence or guaranty of obligations under a $15,000,000 working capital credit facility to be provided to the Company by Banque Paribas (the "Working Capital Facility") (the First Mortgage Bonds, the Tax-Exempt Bonds and the Working Capital Facility are sometimes collectively referred to as the "Offered Securities"); (d) to take all actions necessary to offer the First Mortgage Bonds and the Tax-Exempt Bonds to the purchasers thereof (the "Bondholders"); (e) to enter into and perform any agreement for or relating to the management and administration of the activities of the Corporation or the Company; (f) to enter into and perform any agreements to accomplish the purposes set forth in paragraphs (a), (b), (c), (d) or (e) above; and (g) to engage in any lawful act or activity, and to exercise any powers permitted to corporations organized under the laws of the State of Alabama, that are incidental to and necessary, suitable or convenient for the accomplishment of the purposes set forth in (a), (b), (c), (d), (e) or (f) above. IV. The Corporation shall be authorized to issue One Thousand (1,000) shares of One Dollar ($1.00) par value capital stock, all of which shall be designated "Common Stock." The shares of Common Stock shall have unlimited voting rights and shall be entitled to receive all of the net assets of the Corporation upon dissolution or liquidation. V. The Board of Directors of the Corporation shall have the power to adopt, amend and repeal the By-Laws of the Corporation. -2- VI. To the fullest extent that the General Corporation Law of Alabama, as it exists on the date hereof or as it may hereafter be amended, permits the limitation or elimination of the liability of directors, no director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of duty of care or other duty as a director. No amendment to or repeal of this Article shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal. VII. The initial registered office of the Corporation in the State of Alabama shall be located at 60 Commerce Street, Montgomery, Montgomery Co., Alabama 36104. The initial registered agent of the Corporation at such address shall be The Corporation Company. VIII. The affairs of the Corporation shall be managed by a Board of Directors and as otherwise provided in the By-Laws of the Corporation. The unanimous approval of the Board of Directors of the Corporation is required: (a) to file a bankruptcy or insolvency petition or otherwise institute insolvency proceedings under Section 301 of the Bankruptcy Code, 11 U.S.C. ss. 301, or any successor thereto, or any similar statute, seeking protection of the Corporation as a debtor in such proceedings; (b) to consent to the filing of a bankruptcy or insolvency petition or to the institution of an insolvency proceeding under Section 301 of the Bankruptcy Code, 11 U.S.C. ss. 301, or any successor thereto, or any similar statute, or (c) to amend, repeal or supersede any provision of Articles III, VIII, IX, X, or XI hereof; The Board of Directors of the corporation shall consist of a number as determined by the ByLaws of the Corporation, provided one director at all times shall constitute an "Independent Director" (as hereinafter defined). For purposes of the foregoing, the term "Independent Director" shall mean an individual who, at all times during such individual's service as a director of the Corporation, is not any of the following: (a) a person who received more than eight percent (8%) of his or her gross income (as defined for Federal income tax purposes) during either of the preceding two calendar years ended December 31 from wages, dividends, distributions or other payments received directly from the Southern Affiliated Entities; (b) a director, general partner, member, trustee, beneficiary or the holder of ten percent (10%) or more of the equity interests of any corporation, partnership, limited liability company, trust or other entity which received more than eight (8%) of its gross revenues during either of the preceding two calendar years ended December 31 from wages, dividends, distributions or other payments received from the Southern Affiliated Entities; -3- (c) a person who possesses equity or other interests in the Southern Affiliated Entities, or debt of any of the Southern Affiliated Entities, which, in the aggregate, have a fair market value in excess of eight percent (8%) of the net worth of such person; (d) a person who, on such date or at any time during the two years preceding such date, was a director of any of the Southern Affiliated Entities (other than the Corporation) or was an officer or employee of any of the Southern Affiliated Entities (including the Corporation); or (e) a parent, child, sibling or spouse of any person described in clauses (a), (b), (c) or (d)above. IX. Neither the Corporation's funds nor any other assets thereof shall be commingled with those of any other person or entity, and the Corporation's funds shall be clearly traceable at all times and in all transactions. The Corporation's assets shall remain identifiably separate from those of all other entities such that there shall be no material difficulty in segregating and ascertaining the assets of the Corporation as distinct from those of the other Southern Affiliated Entities or any other person or entity. Notwithstanding the foregoing: (a) equity or other contributions from any shareholder of the Corporation may be received by the Corporation, deposited to the account of the Corporation and treated as funds of the Corporation, and (b) revenues of the Corporation or the Company may be collected by affiliates of the Corporation and such affiliates may pay liabilities of the Corporation or the Company, as applicable, therewith pursuant to the "Relevant Documents" (as hereinafter defined), so long as appropriate records are maintained by the Corporation to identify at all times funds belonging to the Corporation or the Company, respectively. For purposes of these Articles, the "Relevant Documents" shall mean: (1) the Registration Statement filed on Form S-1 under the Securities Act of 1933, as amended, and the Prospectus dated _______, 1995, each relating to the issuance of the First Mortgage Bonds, and the Official Statement dated _______, 1995, issued in connection with the sale of the Tax-Exempt Bonds; (2) the Articles of Incorporation of SEI and Southern, the Articles of Organization of the Company, and these Articles of Organization; (3) the By-Laws of the Corporation, SEI and Southern; (4) the indenture dated as of ______, 1995, (the "Indenture") among the Company, the Corporation, as guarantor, and First Union National Bank of Georgia, as trustee, entered into in connection with the issuance of the First Mortgage Bonds, the indenture dated as of _______, 1995 (the "Tax-Exempt Indenture") among the IDB and First Union National Bank of Georgia, as tax-exempt trustee, entered into in connection with the issuance of the Tax-Exempt Bonds, and Tax-Exempt Lease Agreement; (5) the Working Capital Facility and the Corporation's guaranty in respect thereof; (6) the guaranty from Southern or the appropriate letter of credit necessary to satisfy the Company's reserve requirements under the Indenture, the Tax-Exempt Indenture, and the "Intercreditor Agreement"(as hereinafter defined); (7) the Intercreditor Agreement entered into between and among the Corporation, the Company, First Union National Bank of Georgia, as trustee with respect to the First Mortgage Bonds, First Union National Bank of Georgia, as trustee with respect to the Tax-Exempt Bonds, the IDB, Banque Paribas, as Working Capital Facility provider, and Bankers Trust Company, as Collateral Agent (the "Intercreditor Agreement"); (8) the Asset Purchase Agreement dated as of December 12, 1994, between Scott Paper Company, a Pennsylvania corporation ("Scott") and the Corporation; (9) the Pulp Mill Environmental Indemnity Agreement, dated as December 12, 1994, between Scott and the Corporation, the Tissue Mill -4- Environmental Indemnity Agreement, dated as December 12, 1994, between Scott and the Corporation, the Paper Mill Environmental Indemnity Agreement, dated as December 12, 1994, between S.D. Warren Company, a Pennsylvania corporation and the Corporation, and the Environmental Guaranty dated as of December 12, 1994, made by Southern in favor of the owners of the pulp mill, the tissue mill, and the paper mill located in Mobile, Alabama; (10) the Administrative Services Agreements (the "SCS Agreements"), pursuant to which Southern Company Services, Inc. ("SCS") will provide certain administrative services to the Corporation and the Company, and the Operations and Maintenance Agreement, dated as of December 12, 1994 between the Company (as assignee of the Corporation) and SEI; and (iii) the Southern Master Tax Sharing Agreement. X. The Corporation: (a) shall maintain corporate records and books of account which at all times shall be separate from those of any other person or entity and shall be materially correct and complete; (b) shall conduct its own business solely in its own name or through its authorized agents, and not in the name of any of the other Southern Affiliated Entities, in a manner which is not likely to mislead others as to the identity of the legal entity with which such others are dealing, shall not permit any person or entity to conduct any business of such person or entity in the Corporation's name, and without limiting the generality of the foregoing: (i) shall ensure that all oral and written communications, including without limitation, letters, invoices, purchase orders, contracts, statements and applications, are and will be made solely in the name of the entity to which they relate or in the name of such entity's authorized agents, and (ii) shall not refer, and shall ensure that the other Southern Affiliated Entities do not refer, to the Corporation or the Company as a division or department of any other entity; (c) shall prepare financial statements separate from any other person or entity, which shall disclose its separate existence and the transactions contemplated by the Relevant Documents in accordance with generally accepted accounting principles, and shall disclose that the assets of the Corporation are not available to any creditor of any affiliate of the Corporation (other than as contemplated by the Relevant Documents); (d) except to the extent set forth in the Relevant Documents, shall pay its liabilities out of its own funds, and, except as set forth in the Relevant Documents, shall not permit any of the other Southern Affiliated Entities to pay such liabilities; (e) shall not hold out employees or officers of any of the other Southern Affiliated Entities as employees or officers of the Corporation, nor permit employees or officers of the Corporation to be held out as employees or officers of any of the other Southern Affiliated Entities; provided that said restrictions shall not preclude a particular employee or officer of any of the other Southern Affiliated Entities from also holding a position as an employee or officer of the Corporation, so long as the Corporation takes reasonably appropriate steps to assure that unaffiliated parties dealing with such employee or officer are able to distinguish the particular entity which such person is representing at any particular time; -5- (f) shall not guarantee or become obligated for the debts of any of the other Southern Affiliated Entities or hold out its credit as being available to satisfy the obligations of any of the other Southern Affiliated Entities, other than (i) obligations to reimburse SEI for expenses paid by SEI on behalf of the Corporation in connection with the operation and maintenance of the Energy Complex in accordance with the Relevant Documents, (ii) obligations of the Company related to the First Mortgage Bonds, the Tax-Exempt Bonds or the Working Capital Facility, and (iii) obligations to indemnify SEI for certain claims and losses relating to SEI's operation and maintenance of the Energy Complex in accordance with the Relevant Documents; (g) shall allocate fairly and equitably any overhead for office space shared with any of the other Southern Affiliated Entities; (h) shall use stationery, invoices, checks and other business forms identifiably separate and distinct from those of any of the other Southern Affiliated Entities. Such items shall bear a mailing address and telephone number for the Corporation which is different from that used by any of the other Southern Affiliated Entities. The Corporation further shall maintain, as its principal address and telephone number for receipt of notices and other communications under the Relevant Documents, a mailing address and telephone number separate from those of any of the other Southern Affiliated Entities; (i) shall not pledge its funds or assets for the benefit of any of the other Southern Affiliated Entities, except as set forth in the Relevant Documents; and (j) at all times shall hold itself out to the public as an entity legally separate and distinct from any of the other Southern Affiliated Entities. XI. The Corporation shall at all times maintain and observe all corporate formalities in the conduct of its affairs and with respect to the acquisition, ownership, encumbrance or transfer of any material assets or the incurrence of any material indebtedness. Such formalities shall include without limitation the holding of appropriate periodic meetings of its Board of Directors and shareholders in accordance with Alabama law, the recording of minutes of such meetings and any other proceedings of its shareholders and Board of Directors, the adoption by the Board of Directors (and, as appropriate, the shareholders) of resolutions to approve material actions of the Corporation and the execution and maintenance of appropriate documentation with respect to and in order to evidence the acquisition, ownership, encumbrance or transfer of any material assets or the incurrence of any material indebtedness. -6- AMENDMENTS TO AND RESTATEMENT OF THE ARTICLES OF INCORPORATION OF MOBILE ENERGY SERVICES HOLDINGS, INC. Pursuant to, and with the effect provided in, Sections 10-2B-10.01 to 10-2B-10.07 of the Code of Alabama, 1975, as amended (the "Code"), the undersigned corporation adopts the following Amendments to and Restatement of the Articles of Incorporation: FIRST: The name of the corporation is Mobile Energy Services Holdings, Inc. (the "Corporation"). SECOND: The following amendments to the Corporation's Articles of Incorporation were adopted in the manner provided by the Code by the Corporation's sole shareholder, as of July 13, 1995: "III. The nature of the business of the Corporation and its objects, purposes and powers shall be limited to the following activities: (a) to acquire, finance, own, expand, improve and operate or contract for the operation of the energy and recovery complex and related facilities located at the pulp and tissue mill in Mobile, Alabama owned by Scott Paper Company, a Pennsylvania corporation ("Scott") (or any successor thereto), and the paper mill owned by S.D. Warren Company, a Pennsylvania corporation ("S.D. Warren") (or any successor thereto) (the "Energy Complex"); (b) to serve as a member of and to own a majority of the outstanding membership interests of Mobile Energy Services Company, L.L.C., an Alabama limited liability company (the "Company"), and to act as the sole manager thereof, provided that the foregoing shall not be construed as restraining the Corporation from transferring interests in the Company (i) in an amount not to exceed one percent (1%) of the total interests in the Company to The Southern Company, a Delaware corporation ("Southern"), prior to the issuance of the "Offered Securities" (as hereinafter defined) by the Company; (ii) on commercially reasonable terms to third parties that are not "Southern Affiliated Entities" (as hereinafter defined), and permitting such third parties to participate in the management of the Company, even if the effect thereof would be to cause (A) the Corporation's ownership interests in the Company to be reduced below a majority of the ownership interests in the Company or (B) one or more such third parties to acquire or share managerial control of the Company; or (iii) to a Southern Affiliated Entity whose Articles of Incorporation (or other organizational documents) contain the same operative provisions as these Articles and which undertakes, for the benefit of the "Bondholders" (as herein defined), each of the covenants and restrictions of the Corporation set forth in the indenture among the Company, the Corporation, as guarantor, and First Union National Bank of Georgia ("First Union"), as trustee (the "Indenture") relating to up to $290,000,000 aggregate principal amount of first mortgage bonds (the "First Mortgage Bonds"), the Amended and Restated Lease and Agreement (the "Tax-Exempt Lease") among the Company, the Corporation, as guarantor, and the Industrial Development Board of the City of Mobile, Alabama (the "IDB") entered into in connection with the issuance by the IDB, for the benefit of the Company of $85,000,000 aggregate principal amount of tax-exempt bonds (the "Tax-Exempt Bonds") pursuant to the Amended and Restated Trust Indenture between the IDB and First Union (the "Tax-Exempt Indenture") in each case relating to compliance with and amendment of these Articles. For purposes of these Articles, the term "Southern Affiliated Entities" shall mean the Corporation, Southern, Southern Electric International, Inc., a Delaware corporation ("SEI"), the Company and any other corporation, partnership, limited liability company or other business entity with respect to which the Corporation, Southern, SEI, or the Company, through ownership of voting securities, by contract or otherwise, has the power to direct (or cause the direction of) the management and policies of such corporation, partnership, limited liability company or other business entity; (c) to enter into and perform any agreement providing for or relating to (i) the issuance by the Company of the First Mortgage Bonds, the issuance by the IDB of the Tax-Exempt Bonds, and the working capital facility to be provided to the Company by an unaffiliated third party (the "Working Capital Facility"), and in each case to receive and dispose of proceeds thereunder or in exchange therefor and to provide for any refinancing or refunding of the foregoing (the First Mortgage Bonds, the Tax-Exempt Bonds and the Working Capital Facility are sometimes collectively referred to as the "Offered Securities") and (ii) the issuance by the Company of other additional indebtedness as may be consistent with clause (g) of this Article III; (d) to take all actions necessary to offer the First Mortgage Bonds and the Tax-Exempt Bonds to the purchasers thereof (the "Bondholders"); (e) to enter into and perform any agreement for or relating to the management and administration of the activities of the Corporation or the Company; (f) to enter into and perform any agreements to accomplish the purposes set forth in paragraphs (a), (b), (c), (d) or (e) above; and (g) to engage in any lawful act or activity, and to exercise any powers permitted to corporations organized under the laws of the State of Alabama, that are incidental to and necessary, suitable or convenient for the accomplishment of the purposes set forth in (a), (b), (c), (d), (e) or (f) above. -2- X. The unanimous approval of the Board of Directors of the Corporation is required: (a) to file a bankruptcy or insolvency petition or otherwise institute insolvency proceedings under Section 301 of the Bankruptcy Code, 11 U.S.C. ss. 301, or any successor thereto (the "Bankruptcy Code"), or any similar statute, seeking protection of the Corporation as a debtor in such proceedings; (b) to consent to the filing of a bankruptcy or insolvency petition or to the institution of an insolvency proceeding under Section 301 of the Bankruptcy Code, 11 U.S.C. ss. 301, or any successor thereto, or any similar statute seeking protection of the Company as a debtor in such proceeding, or (c) to amend, repeal or supersede any provision of Articles III, X, XI, XII or XIII hereof unless, in connection with such amendment, repeal or supersession, the Corporation receives from a nationally recognized law firm acceptable to those rating agencies which at the time of such opinion are rating the First Mortgage Bonds or the Tax-Exempt Bonds a reasoned opinion to the effect that, if Southern or SEI were to become a debtor under the Bankruptcy Code, a federal bankruptcy court, exercising reasonable judgment after full consideration of all relevant circumstances, in a properly presented case, would not disregard the separate corporate existence of the Corporation or the Company so as to order substantive consolidation of the assets and liabilities of the Corporation or the Company with those of SEI or Southern. The Board of Directors of the Corporation shall consist of a number as determined by the By-Laws of the Corporation, provided that one duly qualified and elected director at all times shall constitute an "Independent Director" (as hereinafter defined). For purposes of the foregoing, the term "Independent Director" shall mean an individual who, at all times during such individual's service as a director of the Corporation, is not any of the following: (a) a person who received more than eight percent (8%) of his or her gross income (as defined for Federal income tax purposes) during either of the preceding two calendar years ended December 31 from wages, dividends, distributions or other payments received directly from the Southern Affiliated Entities; (b) a director, general partner, member, trustee, beneficiary or the holder of ten percent (10%) or more of the equity interests of any corporation, partnership, limited liability company, trust or other entity which received more than eight (8%) of its gross revenues during either of the preceding two calendar years ended December 31 from wages, dividends, distributions or other payments received from the Southern Affiliated Entities; (c) a person who possesses equity or other interests in the Southern Affiliated Entities, or debt of any of the Southern Affiliated Entities, which, in the aggregate, have a fair market value in excess of eight percent (8%) of the net worth of such person; -3- (d) a person who, on such date or at any time during the two years preceding such date, was a director of any of the Southern Affiliated Entities (other than the Corporation) or was an officer or employee of any of the Southern Affiliated Entities (including the Corporation); or (e) a parent, child, sibling or spouse of any person described in clauses (a), (b), (c) or (d) above. XI. Neither the Corporation's funds nor any other assets thereof shall be commingled with those of any other person or entity, and the Corporation's funds shall be clearly traceable at all times and in all transactions. The Corporation's assets shall remain identifiably separate from those of all other entities such that there shall be no material difficulty in segregating and ascertaining the assets of the Corporation as distinct from those of the other Southern Affiliated Entities or any other person or entity. Notwithstanding the foregoing: (a) equity or other contributions from any shareholder of the Corporation may be received by the Corporation, deposited to the account of the Corporation and treated as funds of the Corporation, and (b) revenues of the Corporation or the Company may be collected by affiliates of the Corporation and such affiliates may pay liabilities of the Corporation or the Company, as applicable, therewith pursuant to the "Relevant Documents" (as hereinafter defined), so long as appropriate records are maintained by the Corporation to identify at all times funds belonging to the Corporation or the Company, respectively. For purposes of these Articles, the "Relevant Documents" shall mean: (1) the Registration Statement filed on Form S-1 under the Securities Act of 1933, as amended, and the Prospectus, each relating to the issuance of the First Mortgage Bonds, and the Limited Offering Memorandum issued in connection with the sale of the Tax-Exempt Bonds; (2) the Articles of Incorporation of SEI and Southern, the Articles of Organization of the Company, and these Articles; (3) the By-Laws of the Corporation, SEI and Southern; (4) the Indenture, the Tax-Exempt Indenture and the Tax-Exempt Lease Agreement; (5) the Working Capital Facility and the Corporation's guaranty in respect thereof; (6) those certain guaranties from Southern or appropriate letters of credit necessary to satisfy certain of the Company's reserve account funding requirements under the Indenture, the Tax-Exempt Indenture, and the "Intercreditor Agreement"(as hereinafter defined); (7) the Intercreditor Agreement entered into by and among the Corporation, the Company, First Union, as trustee with respect to the First Mortgage Bonds, First Union, as trustee with respect to the Tax-Exempt Bonds, the IDB, Banque Paribas, as Working Capital Facility provider, and Bankers Trust Company, as Collateral Agent (the "Intercreditor Agreement"); (8) the Asset Purchase Agreement dated as of December 12, 1994, between Scott Paper Company ("Scott") and the Corporation; (9) the Pulp Mill Environmental Indemnity Agreement, dated as December 12, 1994, between Scott and the Corporation (the "Pulp Mill Environmental Indemnity Agreement"), the Tissue Mill Environmental Indemnity Agreement, dated as December 12, 1994, between Scott and the Corporation (the "Tissue Mill Environmental Indemnity Agreement"), the Paper -4- Mill Environmental Indemnity Agreement, dated as December 12, 1994, between S.D. Warren and the Corporation, and the Environmental Guaranty dated as of December 12, 1994, made by Southern (together with the Pulp Mill Environmental Indemnity Agreement and the Tissue Mill Environmental Indemnity Agreement, the "Environmental Indemnity Agreements") in connection with the Company's obligations under the Environmental Indemnity Agreements; (10) the Administrative Services Agreements (the "SCS Agreements"), pursuant to which Southern Company Services, Inc. ("SCS") will provide certain administrative services to the Corporation and the Company, the Operations and Maintenance Agreement, dated as of December 12, 1994 between the Corporation and SEI and the Administrative Services Agreement dated as of July 14, 1995 between SEI and the Corporation; (11) the agreement between the Corporation and Southern relating to the allocation of certain tax liabilities; (12) the Mill Owner Maintenance Reserve Account Agreement among the Company, Southern, Scott and S.D. Warren; and (13) the Employee Transition Agreement among Scott, the Corporation and SEI, in each case as in effect on the date of issuance and sale of the First Mortgage Bonds or as may be amended, replaced or otherwise modified from time to time, provided that in connection with any such amendment, replacement or modification, the Corporation receives from a nationally recognized law firm acceptable to those rating agencies which at the time of such opinion are rating the First Mortgage Bonds or the Tax-Exempt Bonds a reasoned opinion to the effect that, if Southern or SEI were to become a debtor under the Bankruptcy Code, a federal bankruptcy court, exercising reasonable judgment after full consideration of all relevant circumstances, in a properly presented case, would not disregard the separate corporate existence of the Company or the Corporation so as to order substantive consolidation of the assets and liabilities of the Company or the Corporation with those of SEI or Southern. XII. The Corporation: (a) shall maintain corporate records and books of account which at all times shall be separate from those of any other person or entity and shall be materially correct and complete; (b) shall conduct its own business solely in its own name or through its authorized agents, and not in the name of any of the other Southern Affiliated Entities, in a manner which is not likely to mislead others as to the identity of the legal entity with which such others are dealing, shall not permit any person or entity to conduct any business of such person or entity in the Corporation's name, and without limiting the generality of the foregoing: (i) shall ensure that all oral and written communications, including without limitation, letters, invoices, purchase orders, contracts, statements and applications, are and will be made solely in the name of the entity to which they relate or in the name of such entity's authorized agents, and (ii) shall not refer, and shall ensure that the other Southern Affiliated Entities do not refer, to the Corporation or the Company as a division -5- or department of any other entity; (c) shall prepare financial statements separate from any other person or entity, which shall disclose its separate existence and the transactions contemplated by the Relevant Documents in accordance with generally accepted accounting principles, and shall disclose that the assets of the Corporation are not available to any creditor of any affiliate of the Corporation (other than as contemplated by the Relevant Documents); (d) except to the extent set forth in the Relevant Documents, shall pay its liabilities out of its own funds, and, except as set forth in the Relevant Documents, shall not permit any of the other Southern Affiliated Entities to pay such liabilities; (e) shall not hold out employees or officers of any of the other Southern Affiliated Entities as employees or officers of the Corporation, nor permit employees or officers of the Corporation to be held out as employees or officers of any of the other Southern Affiliated Entities; provided that said restrictions shall not preclude a particular employee or officer of any of the other Southern Affiliated Entities from also holding a position as an employee or officer of the Corporation, so long as the Corporation takes reasonably appropriate steps to assure that unaffiliated parties dealing with such employee or officer are able to distinguish the particular entity which such person is representing at any particular time; (f) shall not guarantee or become obligated for the debts of any of the other Southern Affiliated Entities or hold out its credit as being available to satisfy the obligations of any of the other Southern Affiliated Entities, other than (i) obligations to reimburse SEI for expenses paid by SEI on behalf of the Corporation in connection with the operation and maintenance of the Energy Complex in accordance with the Relevant Documents, (ii) obligations of the Company related to the First Mortgage Bonds, the Tax-Exempt Bonds or the Working Capital Facility, and (iii) obligations to indemnify SEI for certain claims and losses relating to SEI's operation and maintenance of the Energy Complex in accordance with the Relevant Documents; (g) shall allocate fairly and equitably any overhead for office space shared with any of the other Southern Affiliated Entities; (h) shall use stationery, invoices, checks and other business forms identifiably separate and distinct from those of any of the other Southern Affiliated Entities. Such items shall bear a mailing address and telephone number for the Corporation which is different from that used by any of the other Southern Affiliated Entities. The Corporation further shall maintain, as its principal address and telephone number for receipt of notices and other communications under the Relevant Documents, a mailing address and telephone number separate from those of any of the other Southern Affiliated Entities; -6- (i) shall not pledge its funds or assets for the benefit of any of the other Southern Affiliated Entities, except as set forth in the Relevant Documents; and (j) at all times shall hold itself out to the public as an entity legally separate and distinct from any of the other Southern Affiliated Entities. XIII. The Corporation shall at all times maintain and observe all corporate formalities in the conduct of its affairs and with respect to the acquisition, ownership, encumbrance or transfer of any material assets or the incurrence of any material indebtedness. Such formalities shall include without limitation the holding of appropriate periodic meetings of its Board of Directors and shareholders in accordance with Alabama law, the recording of minutes of such meetings and any other proceedings of its shareholders and Board of Directors, the adoption by the Board of Directors (and, as appropriate, the shareholders) of resolutions to approve material actions of the Corporation and the execution and maintenance of appropriate documentation with respect to and in order to evidence the acquisition, ownership, encumbrance or transfer of any material assets or the incurrence of any material indebtedness." THIRD: The Corporation had 1,000 shares of $1.00 par value Common Stock issued and outstanding at the time of the adoption of this amendment. Of the 1,000 shares of $1.00 par value Common Stock issued and outstanding, 1,000 shares voted to approve, and 0 shares voted against or abstained from voting on the foregoing amendment. FOURTH: The Articles of Incorporation of the Corporation are hereby restated as follows: I. The name of the corporation is MOBILE ENERGY SERVICES HOLDINGS, INC. (the "Corporation"). II. The Corporation shall have perpetual duration. III. -7- The nature of the business of the Corporation and its objects, purposes and powers shall be limited to the following activities: (a) to acquire, finance, own, expand, improve and operate or contract for the operation of the energy and recovery complex and related facilities located at the pulp and tissue mill in Mobile, Alabama owned by Scott Paper Company, a Pennsylvania corporation ("Scott") (or any successor thereto), and the paper mill owned by S.D. Warren Company, a Pennsylvania corporation ("S.D. Warren") (or any successor thereto) (the "Energy Complex"); (b) to serve as a member of and to own a majority of the outstanding membership interests of Mobile Energy Services Company, L.L.C., an Alabama limited liability company (the "Company"), and to act as the sole manager thereof, provided that the foregoing shall not be construed as restraining the Corporation from transferring interests in the Company (i) in an amount not to exceed one percent (1%) of the total interests in the Company to The Southern Company, a Delaware corporation ("Southern"), prior to the issuance of the "Offered Securities" (as hereinafter defined) by the Company; (ii) on commercially reasonable terms to third parties that are not "Southern Affiliated Entities" (as hereinafter defined), and permitting such third parties to participate in the management of the Company, even if the effect thereof would be to cause (A) the Corporation's ownership interests in the Company to be reduced below a majority of the ownership interests in the Company or (B) one or more such third parties to acquire or share managerial control of the Company; or (iii) to a Southern Affiliated Entity whose Articles of Incorporation (or other organizational documents) contain the same operative provisions as these Articles and which undertakes, for the benefit of the "Bondholders" (as herein defined), each of the covenants and restrictions of the Corporation set forth in the indenture among the Company, the Corporation, as guarantor, and First Union National Bank of Georgia ("First Union"), as trustee (the "Indenture") relating to up to $290,000,000 aggregate principal amount of first mortgage bonds (the "First Mortgage Bonds"), the Amended and Restated Lease and Agreement (the "Tax-Exempt Lease") among the Company, the Corporation, as guarantor, and the Industrial Development Board of the City of Mobile, Alabama (the "IDB") entered into in connection with the issuance by the IDB, for the benefit of the Company of $85,000,000 aggregate principal amount of tax-exempt bonds (the "Tax-Exempt Bonds") pursuant to the Amended and Restated Trust Indenture between the IDB and First Union (the "Tax-Exempt Indenture") in each case relating to compliance with and amendment of these Articles. For purposes of these Articles, the term "Southern Affiliated Entities" shall mean the Corporation, Southern, Southern Electric International, Inc., a Delaware corporation ("SEI"), the Company and any other corporation, partnership, limited liability company or other business entity with respect to which the Corporation, Southern, SEI, or the Company, through ownership of voting securities, by contract or otherwise, has the power to direct (or cause the direction of) the management and policies of such corporation, partnership, limited liability company or other business entity; -8- (c) to enter into and perform any agreement providing for or relating to (i) the issuance by the Company of the First Mortgage Bonds, the issuance by the IDB of the Tax-Exempt Bonds, and the working capital facility to be provided to the Company by an unaffiliated third party (the "Working Capital Facility"), and in each case to receive and dispose of proceeds thereunder or in exchange therefor and to provide for any refinancing or refunding of the foregoing (the First Mortgage Bonds, the Tax-Exempt Bonds and the Working Capital Facility are sometimes collectively referred to as the "Offered Securities") and (ii) the issuance by the Company of other additional indebtedness as may be consistent with clause (g) of this Article III; (d) to take all actions necessary to offer the First Mortgage Bonds and the Tax-Exempt Bonds to the purchasers thereof (the "Bondholders"); (e) to enter into and perform any agreement for or relating to the management and administration of the activities of the Corporation or the Company; (f) to enter into and perform any agreements to accomplish the purposes set forth in paragraphs (a), (b), (c), (d) or (e) above; and (g) to engage in any lawful act or activity, and to exercise any powers permitted to corporations organized under the laws of the State of Alabama, that are incidental to and necessary, suitable or convenient for the accomplishment of the purposes set forth in (a), (b), (c), (d), (e) or (f) above. IV. The Corporation shall be authorized to issue One Thousand (1,000) shares of One Dollar ($1.00) par value capital stock, all of which shall be designated "Common Stock." The shares of Common Stock shall have unlimited voting rights and shall be entitled to receive all of the net assets of the Corporation upon dissolution or liquidation. V. The Board of Directors of the Corporation shall have the power to adopt, amend and repeal the By-Laws of the Corporation. -9- VI. To the fullest extent that the General Corporation Law of Alabama, as it exists on the date hereof or as it may hereafter be amended, permits the limitation or elimination of the liability of directors, no director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of duty of care or other duty as a director. No amendment to or repeal of this Article shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal. VII. The initial registered office of the Corporation in the State of Alabama shall be located at 60 Commerce Street, Montgomery, Montgomery Co., Alabama 36104. The initial registered agent of the Corporation at such address shall be The Corporation Company. VIII. The affairs of the Corporation shall be managed by a Board of Directors and as otherwise provided in the By-Laws of the Corporation. The initial Board of Directors of the Corporation shall consist of one (1)member, whose name and corresponding mailing address is: Raymond D. Hill c/o Southern Electric International, Inc. 900 Ashwood Parkway Suite 500 Atlanta, Georgia 30338 IX. The name and address of the Incorporator of the Corporation are Elizabeth B. Chandler, NationsBank Plaza, 600 Peachtree Street, N.E., Suite 5200, Atlanta, Georgia 30309-2216. X. The unanimous approval of the Board of Directors of the Corporation is required: (a) to file a bankruptcy or insolvency petition or otherwise institute insolvency proceedings under Section 301 of the Bankruptcy Code, 11 U.S.C. ss. 301, or any successor thereto (the "Bankruptcy Code"), or any similar statute, seeking protection of the Corporation as a debtor -10- in such proceedings; (b) to consent to the filing of a bankruptcy or insolvency petition or to the institution of an insolvency proceeding under Section 301 of the Bankruptcy Code, 11 U.S.C. ss. 301, or any successor thereto, or any similar statute seeking protection of the Company as a debtor in such proceeding, or (c) to amend, repeal or supersede any provision of Articles III, X, XI, XII or XIII hereof unless, in connection with such amendment, repeal or supersession, the Corporation receives from a nationally recognized law firm acceptable to those rating agencies which at the time of such opinion are rating the First Mortgage Bonds or the Tax-Exempt Bonds a reasoned opinion to the effect that, if Southern or SEI were to become a debtor under the Bankruptcy Code, a federal bankruptcy court, exercising reasonable judgment after full consideration of all relevant circumstances, in a properly presented case, would not disregard the separate corporate existence of the Corporation or the Company so as to order substantive consolidation of the assets and liabilities of the Corporation or the Company with those of SEI or Southern. The Board of Directors of the Corporation shall consist of a number as determined by the By-Laws of the Corporation, provided that one duly qualified and elected director at all times shall constitute an "Independent Director" (as hereinafter defined). For purposes of the foregoing, the term "Independent Director" shall mean an individual who, at all times during such individual's service as a director of the Corporation, is not any of the following: (a) a person who received more than eight percent (8%) of his or her gross income (as defined for Federal income tax purposes) during either of the preceding two calendar years ended December 31 from wages, dividends, distributions or other payments received directly from the Southern Affiliated Entities; (b) a director, general partner, member, trustee, beneficiary or the holder of ten percent (10%) or more of the equity interests of any corporation, partnership, limited liability company, trust or other entity which received more than eight (8%) of its gross revenues during either of the preceding two calendar years ended December 31 from wages, dividends, distributions or other payments received from the Southern Affiliated Entities; (c) a person who possesses equity or other interests in the Southern Affiliated Entities, or debt of any of the Southern Affiliated Entities, which, in the aggregate, have a fair market value in excess of eight percent (8%) of the net worth of such person; (d) a person who, on such date or at any time during the two years preceding such date, was a director of any of the Southern Affiliated Entities (other than the Corporation) or was an officer or employee of any of the Southern Affiliated Entities (including the Corporation); or (e) a parent, child, sibling or spouse of any person described in clauses (a), (b), (c) or (d) above. -11- XI. Neither the Corporation's funds nor any other assets thereof shall be commingled with those of any other person or entity, and the Corporation's funds shall be clearly traceable at all times and in all transactions. The Corporation's assets shall remain identifiably separate from those of all other entities such that there shall be no material difficulty in segregating and ascertaining the assets of the Corporation as distinct from those of the other Southern Affiliated Entities or any other person or entity. Notwithstanding the foregoing: (a) equity or other contributions from any shareholder of the Corporation may be received by the Corporation, deposited to the account of the Corporation and treated as funds of the Corporation, and (b) revenues of the Corporation or the Company may be collected by affiliates of the Corporation and such affiliates may pay liabilities of the Corporation or the Company, as applicable, therewith pursuant to the "Relevant Documents" (as hereinafter defined), so long as appropriate records are maintained by the Corporation to identify at all times funds belonging to the Corporation or the Company, respectively. For purposes of these Articles, the "Relevant Documents" shall mean: (1) the Registration Statement filed on Form S-1 under the Securities Act of 1933, as amended, and the Prospectus, each relating to the issuance of the First Mortgage Bonds, and the Limited Offering Memorandum issued in connection with the sale of the Tax-Exempt Bonds; (2) the Articles of Incorporation of SEI and Southern, the Articles of Organization of the Company, and these Articles; (3) the By-Laws of the Corporation, SEI and Southern; (4) the Indenture, the Tax-Exempt Indenture and the Tax-Exempt Lease Agreement; (5) the Working Capital Facility and the Corporation's guaranty in respect thereof; (6) those certain guaranties from Southern or appropriate letters of credit necessary to satisfy certain of the Company's reserve account funding requirements under the Indenture, the Tax-Exempt Indenture, and the "Intercreditor Agreement"(as hereinafter defined); (7) the Intercreditor Agreement entered into by and among the Corporation, the Company, First Union, as trustee with respect to the First Mortgage Bonds, First Union, as trustee with respect to the Tax-Exempt Bonds, the IDB, Banque Paribas, as Working Capital Facility provider, and Bankers Trust Company, as Collateral Agent (the "Intercreditor Agreement"); (8) the Asset Purchase Agreement dated as of December 12, 1994, between Scott Paper Company ("Scott") and the Corporation; (9) the Pulp Mill Environmental Indemnity Agreement, dated as December 12, 1994, between Scott and the Corporation (the "Pulp Mill Environmental Indemnity Agreement"), the Tissue Mill Environmental Indemnity Agreement, dated as December 12, 1994, between Scott and the Corporation (the "Tissue Mill Environmental Indemnity Agreement"), the Paper Mill Environmental Indemnity Agreement, dated as December 12, 1994, between S.D. Warren and the Corporation, and the Environmental Guaranty dated as of December 12, 1994, made by Southern (together with the Pulp Mill Environmental Indemnity Agreement and the Tissue Mill Environmental Indemnity Agreement, the "Environmental Indemnity Agreements") in connection with the Company's obligations under the Environmental Indemnity Agreements; (10) the Administrative Services Agreements (the "SCS Agreements"), pursuant to which Southern Company Services, Inc. ("SCS") will provide certain administrative services to the Corporation -12- and the Company, the Operations and Maintenance Agreement, dated as of December 12, 1994 between the Corporation and SEI and the Administrative Services Agreement dated as of July 14, 1995 between SEI and the Corporation; (11) the agreement between the Corporation and Southern relating to the allocation of certain tax liabilities; (12) the Mill Owner Maintenance Reserve Account Agreement among the Company, Southern, Scott and S.D. Warren; and (13) the Employee Transition Agreement among Scott, the Corporation and SEI, in each case as in effect on the date of issuance and sale of the First Mortgage Bonds or as may be amended, replaced or otherwise modified from time to time, provided that in connection with any such amendment, replacement or modification, the Corporation receives from a nationally recognized law firm acceptable to those rating agencies which at the time of such opinion are rating the First Mortgage Bonds or the Tax-Exempt Bonds a reasoned opinion to the effect that, if Southern or SEI were to become a debtor under the Bankruptcy Code, a federal bankruptcy court, exercising reasonable judgment after full consideration of all relevant circumstances, in a properly presented case, would not disregard the separate corporate existence of the Company or the Corporation so as to order substantive consolidation of the assets and liabilities of the Company or the Corporation with those of SEI or Southern. XII. The Corporation: (a) shall maintain corporate records and books of account which at all times shall be separate from those of any other person or entity and shall be materially correct and complete; (b) shall conduct its own business solely in its own name or through its authorized agents, and not in the name of any of the other Southern Affiliated Entities, in a manner which is not likely to mislead others as to the identity of the legal entity with which such others are dealing, shall not permit any person or entity to conduct any business of such person or entity in the Corporation's name, and without limiting the generality of the foregoing: (iii) shall ensure that all oral and written communications, including without limitation, letters, invoices, purchase orders, contracts, statements and applications, are and will be made solely in the name of the entity to which they relate or in the name of such entity's authorized agents, and (iv) shall not refer, and shall ensure that the other Southern Affiliated Entities do not refer, to the Corporation or the Company as a division or department of any other entity; (c) shall prepare financial statements separate from any other person or entity, which shall disclose its separate existence and the transactions contemplated by the Relevant Documents in accordance with generally accepted accounting principles, and shall disclose that the assets of the Corporation are not available to any creditor of any affiliate of the Corporation (other than as contemplated by the Relevant Documents); -13- (d) except to the extent set forth in the Relevant Documents, shall pay its liabilities out of its own funds, and, except as set forth in the Relevant Documents, shall not permit any of the other Southern Affiliated Entities to pay such liabilities; (e) shall not hold out employees or officers of any of the other Southern Affiliated Entities as employees or officers of the Corporation, nor permit employees or officers of the Corporation to be held out as employees or officers of any of the other Southern Affiliated Entities; provided that said restrictions shall not preclude a particular employee or officer of any of the other Southern Affiliated Entities from also holding a position as an employee or officer of the Corporation, so long as the Corporation takes reasonably appropriate steps to assure that unaffiliated parties dealing with such employee or officer are able to distinguish the particular entity which such person is representing at any particular time; (f) shall not guarantee or become obligated for the debts of any of the other Southern Affiliated Entities or hold out its credit as being available to satisfy the obligations of any of the other Southern Affiliated Entities, other than (i) obligations to reimburse SEI for expenses paid by SEI on behalf of the Corporation in connection with the operation and maintenance of the Energy Complex in accordance with the Relevant Documents, (ii) obligations of the Company related to the First Mortgage Bonds, the Tax-Exempt Bonds or the Working Capital Facility, and (iii) obligations to indemnify SEI for certain claims and losses relating to SEI's operation and maintenance of the Energy Complex in accordance with the Relevant Documents; (g) shall allocate fairly and equitably any overhead for office space shared with any of the other Southern Affiliated Entities; (h) shall use stationery, invoices, checks and other business forms identifiably separate and distinct from those of any of the other Southern Affiliated Entities. Such items shall bear a mailing address and telephone number for the Corporation which is different from that used by any of the other Southern Affiliated Entities. The Corporation further shall maintain, as its principal address and telephone number for receipt of notices and other communications under the Relevant Documents, a mailing address and telephone number separate from those of any of the other Southern Affiliated Entities; (i) shall not pledge its funds or assets for the benefit of any of the other Southern Affiliated Entities, except as set forth in the Relevant Documents; and (j) at all times shall hold itself out to the public as an entity legally separate and distinct from any of the other Southern Affiliated Entities. -14- XIII. The Corporation shall at all times maintain and observe all corporate formalities in the conduct of its affairs and with respect to the acquisition, ownership, encumbrance or transfer of any material assets or the incurrence of any material indebtedness. Such formalities shall include without limitation the holding of appropriate periodic meetings of its Board of Directors and shareholders in accordance with Alabama law, the recording of minutes of such meetings and any other proceedings of its shareholders and Board of Directors, the adoption by the Board of Directors (and, as appropriate, the shareholders) of resolutions to approve material actions of the Corporation and the execution and maintenance of appropriate documentation with respect to and in order to evidence the acquisition, ownership, encumbrance or transfer of any material assets or the incurrence of any material indebtedness. -15- EX-99 5 EXHIBIT B-24 EXHIBIT B-24 Effective - May 25, 1995 MOBILE ENERGY SERVICES HOLDINGS, INC. * * * * * B Y L A W S * * * * * ARTICLE I OFFICES Section 1. The registered office of the corporation shall be in the State of Alabama at such location as determined by the board of directors from time to time. Section 2. The corporation's principal office shall be in Atlanta, DeKalb County, Georgia. Section 3. The corporation may also have offices at such other places both within and without the State of Alabama as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All meetings of stockholders for the election of directors shall be held at such place as may be fixed from time to time by the board of directors, or at such other place, within or without the State of Alabama, as shall be designated from time to time by the board of directors and stated in the notice of the meeting. Meetings of stockholders for any other purpose may be held at such time and place, within or without the State of Alabama, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Annual meetings of stockholders shall be held at such date and time as shall be designated from time to time by the board of directors and stated in the notice of the meeting, at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the articles of incorporation, may be called by the president or by a majority of the board of directors and shall be called by the president or secretary within 21 days of the receipt of a written demand of the holders of at least ten percent (10%) of all the votes entitled to be cast on any issue proposed to be considered at the proposed special meeting. Such demand shall be signed by the stockholders demanding the meeting and shall state the purpose or purposes of the proposed meeting. Section 4. Written notice stating the place, date and hour of all meetings shall, unless waived, be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting, and in the case of special meetings, the purpose thereof shall be stated. Section 5. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 6. Shares entitled to vote may take action on a matter at a meeting only if a quorum of those shares exists with respect to that matter. A majority of the shares entitled to vote on the matter, represented in person or by proxy, shall constitute a quorum for action on that matter. Once a share is represented for any purpose at a meeting, it is, unless established to the contrary, presumed present for quorum purposes for the remainder of the meeting. If a quorum is present when a vote is taken, action on a matter is approved if the votes cast favoring the action exceed the votes cast opposing the action, unless the Constitution of Alabama, the articles of incorporation, or the statutes require a greater number of affirmative votes. If, however, a quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. Section 7. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the Constitution of Alabama, the statutes or the articles of incorporation a different vote is required in which case such express provision shall govern and control the decision of such question. Section 8. Unless otherwise provided in the articles of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may -2- be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by all stockholders entitled to vote on the action, and such consent shall be delivered to the corporation for inclusion in the minutes or filing with the corporate records. The record date for determining the stockholders entitled to take action without a meeting is the date the first stockholder signs the consent. ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall be not less than one (1) nor more than fifteen (15). The initial board shall consist of one (1) director. Thereafter, the number of directors may be fixed or changed from time to time by the stockholders, or, if the articles of incorporation so provide, by the board of directors. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2 of this Article, and each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 2. If a vacancy occurs on the board of directors: (i) the stockholders may fill the vacancy, whether resulting from an increase in the number of directors or otherwise; or (ii) the board of directors may fill the vacancy, except that the directors shall have the power to fill a vacancy resulting from an increase in the number of directors only if expressly provided for in the articles of incorporation; or (iii) if the directors remaining in office constitute fewer than a quorum of the board, they may fill the vacancy, if such vacancy is one that the directors are authorized to fill, by the affirmative vote of a majority of all the directors remaining in office. A vacancy that will occur at a specific later date may be filled before the vacancy occurs but the new director may not take office until the vacancy occurs. Section 3. The business of the corporation shall be managed by or under the direction of its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the articles of incorporation or by these bylaws directed or required to be exercised or done by the stockholders. Section 4. The board of directors may elect a chairman and one or more vice-chairmen. The chairman and vice-chairmen shall perform such duties and have such powers as the board of directors may from time to time prescribe. MEETINGS OF THE BOARD OF DIRECTORS Section 5. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Alabama. Section 6. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting -3- and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 7. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board. Section 8. Special meetings of the board may be called by the president on two (2) days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the board consists of only one director, in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director. Attendance at or participation by a director at a special meeting (i) waives objection to lack of any required notice or defective notice of the meeting, unless the director at the beginning of the meeting (or promptly upon arrival) objects to holding the meeting or transacting business at the meeting and does not thereafter vote for or assent to action taken at the meeting; and (ii) waives objection to consideration of a particular matter at the meeting that is not within the purpose described in the meeting notice, unless the director objects to considering the matter before action is taken on the matter. Section 9. At all meetings of the board, a majority of the directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the articles of incorporation. If a quorum shall not be present at any meeting of the board of directors the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. A director is, unless established to the contrary, presumed present for quorum purposes for the remainder of the meeting at which he has been present for any purpose. A director who is present at a meeting of the board or any committee of the board when corporate action is taken is deemed to assent to the action taken place unless (i) he objects at the beginning of the meeting (or promptly upon arrival) to holding it or transacting business at the meeting or, as to a matter required under the articles of incorporation or these bylaws to be included in the notice of the purpose of the meeting, he objects before action is taken on the matter; (ii) his dissent or abstention from action taken is entered in the minutes of the meeting; or (iii) he delivers written notice of his dissent or abstention to the presiding officer of the meeting before its adjournment or to the corporation immediately after adjournment of the meeting. The right of dissent or abstention is not available to a director who votes in favor of the action taken. -4- Section 10. Unless otherwise restricted by the articles of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee. Action taken is effective when the last director signs the consent, unless the consent specifies a different effective date. Such consent shall have the same effect as a unanimous vote. Section 11. Unless otherwise restricted by the articles of incorporation or these bylaws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. COMMITTEES OF DIRECTORS Section 12. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution of the board of directors, shall have and may exercise all the powers and authority of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to (1) authorizing distributions, (2) approving or proposing to stockholders any action requiring approval of the stockholders, (3) filling vacancies on the board of directors or on any of its committees, (4) amending articles of incorporation, (5) adopting, amending or repealing these bylaws, (6) approving a plan of merger not requiring stockholder approval, (7) authorizing or approving reacquisition of shares, except according to a formula or method prescribed by the board of directors, or (8) authorizing or approving the issuance or sale or contract for sale of shares, or determining the designation and relative rights, preferences and limitations of a class or series of shares, except that the board of directors may authorize a committee (or a senior executive officer of the corporation) to do so within limits specifically prescribed by the board of directors. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. Section 13. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required. -5- COMPENSATION OF DIRECTORS Section 14. Unless otherwise restricted by the articles of incorporation or these bylaws, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. REMOVAL OF DIRECTORS Section 15. Unless otherwise restricted by the articles of incorporation or by law, any director of the entire board of directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of directors. ARTICLE IV NOTICES Section 1. Whenever, under the provisions of the statutes, the articles of incorporation or these bylaws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, telephone, telegraph, teletype, telecopier, facsimile transmission, or other form of wire or wireless communication; or by mail or private carrier. Written notice by the corporation to its stockholders, if in a comprehensible form, is effective when mailed, if mailed postpaid and correctly addressed to the stockholder's address shown in the corporation's current record of stockholders. Section 2. Whenever any notice is required to be given under the provisions of the statutes, the articles of incorporation or these bylaws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto and shall be delivered to the corporation for inclusion in the minutes or filing with the corporate records. A person's attendance at a meeting: (i) waives objection to lack of notice or defective notice of the meeting, unless the person at the beginning of the meeting objects to holding the meeting or transacting business at the meeting; and (2) waives objection to consideration of a particular matter at the meeting that is not within the purpose or purposes described in the meeting notice, unless the person objects to considering the matter before action is taken on the matter. -6- ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be at a minimum a president, secretary and controller. The board of directors may also choose one or more vice-presidents, assistant secretaries and assistant controllers. Any number of offices may be held by the same person, unless the articles of incorporation or these bylaws otherwise provide. Section 2. The board of directors at its first meeting after each annual meeting of stockholders shall choose a president, one or more vice-presidents, a secretary and a controller. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board. Section 4. The salary of the president shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualified. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. An officer may resign at any time by giving notice to the corporation. A resignation is effective when the notice is given unless the notice specifies a later effective date. If a resignation is made effective at a later date and the corporation accepts the future effective date, the board of directors may fill the pending vacancy before the effective date if the board of directors provides that the successor does not take office until the effective date. THE PRESIDENT Section 6. The president, subject to the board of directors, shall be the chief executive officer of the corporation, shall preside at all meetings of the stockholders and the board of directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. The president shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. -7- THE VICE-PRESIDENTS Section 8. In the absence of the president or in the event of his inability or refusal to act, the vice-president (or in the event there be more than one vice-president, the vice-presidents in the order designated by the directors, or in the absence of any designation, then in the order of their election) shall perform the duties of the president, and when so acting, shall have all the powers of and be subject to all the restrictions upon the president. The vice-presidents shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARY Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 10. In the absence of the secretary or in the event of his inability or refusal to act, the assistant secretary (or in the event there be more than one assistant secretary, the assistant secretaries in the order designated by the board of directors or in the absence of any designation, then in the order of their election) shall perform the duties of the secretary, and when so acting, shall have all the powers of and be subject to all the restrictions upon the secretary. The assistant secretary shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE CONTROLLER AND ASSISTANT CONTROLLERS Section 11. The controller shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 12. The controller shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board -8- of directors so requires, an account of all his transactions as controller and of the financial condition of the corporation. The controller shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. Section 13. In the absence of the controller or in the event of his inability or refusal to act, the assistant controller (or in the event there shall be more than one assistant controller, the assistant controllers in the order determined by the board of directors or in the absence of any determination, then in the order of their election) shall perform the duties of the controller, and when so acting, shall have all the powers of and be subject to all the restrictions upon the controller. The assistant controller shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. Section 14. Each officer of the corporation shall have the authority to execute and deliver any and all applications and filings as are necessary to be filed with federal, state and local regulatory agencies on behalf of the corporation. ARTICLE VI CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by a certificate. Certificates shall be signed by, or in the name of the corporation by, the chairman or vice-chairman of the board of directors, or the president or a vice-president and the controller or an assistant controller, or the secretary or an assistant secretary of the corporation. Section 2. Any of or all the signatures on a certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates or uncertificated shares, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to -9- give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed. TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. FIXING RECORD DATE Section 5. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board of directors may fix, in advance, a record date, which shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting unless the board of directors fixes a new record date for the adjourned meeting, which it must do if the meeting is adjourned to a date more than one hundred twenty (120) days after the date fixed for the original meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and entitled to vote as such owner, and entitled to hold liable for calls and assessments a person registered on its books as the owner of shares, and the corporation shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Alabama. ARTICLE VII INDEMNIFICATION Section 1. Each person who is or was a director of the corporation or officer or employee of the corporation holding one or more positions of management through and inclusive of project manager (such positions being hereinafter referred to as "Management Positions") and who was or is a party or was or is threatened to be made a party to any -10- threatened, pending or completed claim, action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director of the corporation or officer or employee of the corporation holding one or more Management Positions, or is or was serving at the request of the corporation as a director, alternate director, officer, employee, agent or trustee of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall be indemnified by the corporation as a matter of right against any and all expenses (including attorneys' fees) actually and reasonably incurred by him and against any and all claims, judgments, fines, penalties, liabilities and amounts paid in settlement actually incurred by him in defense of such claim, action, suit or proceeding, including appeals, to the full extent permitted by applicable law. The indemnification provided by this section shall inure to the benefit of the heirs, executors and administrators of such person. Section 2. Expenses (including attorneys' fees) incurred by a director of the corporation or officer or employee of the corporation holding one or more Management Positions with respect to the defense of any such claim, action, suit or proceeding may be advanced by the corporation prior to the final disposition of such claim, action, suit or proceeding, as authorized by the board of directors in the specific case upon a determination that the facts then known would not preclude indemnification under the applicable law, upon receipt of a written affirmation by such person that he has met the standard of conduct required by the applicable law and upon receipt of an undertaking by or on behalf of such person to repay such amount unless it shall ultimately be determined that such person is entitled to be indemnified by the corporation under these bylaws or otherwise; provided, however, that the advancement of such expenses shall not be deemed to be indemnification unless and until it shall ultimately be determined that such person is entitled to be indemnified by the corporation. Section 3. The corporation may purchase and maintain insurance, or furnish similar protection, at the expense of the corporation on behalf of any person who is or was a director, officer, employee or agent of the corporation, or any person who is or was serving at the request of the corporation as a director (or the equivalent), alternate director, officer, employee, agent or trustee of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against any liability or expense (including attorneys' fees) asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liability or expense under these bylaws or otherwise. Section 4. Without limiting the generality of the foregoing provisions, no present or future director or officer of the corporation, or his heirs, executors, or administrators, shall be liable for any act, omission, step, or conduct taken or had in good faith and in a manner reasonably believed to be in or, in the case of a director or officer not acting in his official capacity, not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such conduct was unlawful, which is required, authorized, or approved by any order or orders issued pursuant to the -11- Public Utility Holding Company Act of 1935, the Federal Power Act, or any federal or state statute or municipal ordinance regulating the corporation or its parent by reason of their being holding or investment companies, public utility companies, public utility holding companies, or subsidiaries of public utility holding companies. In any action, suit, or proceeding based on any act, omission, step, or conduct, as in this paragraph described, the provisions hereof shall be brought to the attention of the court. In the event that the foregoing provisions of this paragraph are found by the court not to constitute a valid defense on the grounds of not being applicable to the particular class of plaintiff, each such director and officer, and his heirs, executors, and administrators, shall be reimbursed for, or indemnified against, all expenses and liabilities incurred by him or imposed on him, in connection with, or arising out of, any such action, suit, or proceeding based on any act, omission, step, or conduct taken or had in good faith as further in this paragraph described. Such expenses and liabilities shall include, but shall not be limited to, judgments, court costs, and attorneys' fees. Section 5. The foregoing rights shall not be exclusive of any other rights to which any such director or officer or employee may otherwise be entitled and shall be available whether or not the director or officer or employee continues to be a director or officer or employee at the time of incurring any such expenses and liabilities. Section 6. If any word, clause or provision of the bylaws or any indemnification made under Article VII hereof shall for any reason be determined to be invalid, the provisions of the bylaws shall not otherwise be affected thereby but shall remain in full force and effect. The masculine pronoun, as used in the bylaws, means the masculine and feminine wherever applicable. ARTICLE VIII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the articles of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the articles of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the -12- corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. ANNUAL STATEMENT Section 3. The board of directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation. CHECKS Section 4. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 5. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 6. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Alabama." The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. ARTICLE IX AMENDMENTS Section 1. These bylaws may be altered, amended or repealed or new bylaws may be adopted by the stockholders or by the board of directors, when such power is conferred upon the board of directors by the articles of incorporation at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration, amendment, repeal or adoption of new bylaws be contained in the notice of such special meeting. If the power to adopt, amend or repeal bylaws is conferred upon the board of directors by the articles of incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal bylaws. -13- EX-99 6 EXHIBIT B-37 EXHIBIT B-37 CERTIFICATE OF INCORPORATION OF SEI HOLDINGS IV, INC. I. The name of the corporation is SEI HOLDINGS IV, INC. (the "Corporation"). II. The initial registered office of the Corporation in the State of Delaware shall be located at Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801. The initial registered agent of the Corporation at such address shall be The Corporation Trust Company. III. The purpose or purposes for which the Corporation is organized is to engage exclusively in the direct and indirect ownership of the securities, or an interest in the business, of any one or more exempt wholesale generators, foreign utility companies, or "qualifying facilities," as defined under the Public Utility Regulatory Policies Act of 1978, and in activities that are incidental thereto. IV. The Corporation shall be authorized to issue One Thousand (1,000) shares of One Dollar ($1.00) par value capital stock, all of which shall be designated "Common Stock." The shares of Common Stock shall have unlimited voting rights and shall be entitled to receive all of the net assets of the Corporation upon dissolution or liquidation. V. The affairs of the Corporation shall be managed by a Board of Directors and as otherwise provided in the By-Laws of the Corporation. The initial Board of Directors of the corporation shall consist of one (1) member, whose name and corresponding mailing address is: James A. Ward c/o Southern Electric International, Inc. 100 Ashford Center North Atlanta, Georgia 30338 VI. The Corporation shall have perpetual duration. VII. The Board of Directors of the Corporation shall have the power to adopt, amend and repeal the By-Laws of the Corporation. VIII. To the fullest extent that the General Corporation Law of Delaware, as it exists on the date hereof or as it may hereafter be amended, permits the limitation or elimination of the liability of directors, no director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of duty of care or other duty as a director. No amendment to or repeal of this Article shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal. IX. The name and address of the Incorporator of the Corporation is M. Stuart Sutherland, Esquire, NationsBank Plaza, 600 Peachtree Street, N.E., Suite 5200, Atlanta, Georgia 30308-2216. ------------------------------------------ M. Stuart Sutherland, Esquire, Incorporator CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF MACDONALD-BRYAN, INC. MACDONALD-BRYAN, INC., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the "Corporation") hereby certifies: FIRST: That the Board of Directors of the Corporation duly adopted a resolution proposing and declaring advisable the following amendment to the heading and Article I of the Certificate of Incorporation of the Corporation: RESOLVED, That the name of the Corporation be changed from MACDONALD-BRYAN, INC. to SOUTHERN ELECTRIC INTERNATIONAL -EUROPE, INC., and, to effect such change, the heading and Article I of the Articles of Incorporation of the Corporation be amended, insofar as they refer to the name of the Corporation, to read SOUTHERN ELECTRIC INTERNATIONAL - EUROPE, INC. in lieu of MACDONALD-BRYAN, INC. SECOND: That the sole shareholder of the Corporation has given its written consent to said amendment in accordance with the provisions of Section 228 of the General Corporation Law of the State of Delaware. THIRD: That the aforesaid amendment was duly adopted in accordance with the applicable provisions of Sections 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, the Corporation has caused its duly authorized officers to execute this Certificate as of this _____ day of ______________________, 1995. MACDONALD-BRYAN, INC. By: Its:_______________________________ Attest: Its: ______________________________ -2- CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF SEI HOLDINGS IV, INC. SEI HOLDINGS IV, INC., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the "Corporation") hereby certifies: FIRST: That the Board of Directors of the Corporation duly adopted a resolution proposing and declaring advisable the following amendment to the heading and Article 1. of the Certificate of Incorporation of the Corporation: RESOLVED, That the name of the Corporation be changed from SEI HOLDINGS IV, INC. to MACDONALD-BRYAN, INC., and, to effect such change, the heading and Article I of the Articles of Incorporation of the Corporation be amended, insofar as they refer to the name of the Corporation, to read MACDONALD-BRYAN, INC. in lieu of SEI HOLDINGS IV, INC. SECOND: That the sole shareholder of the Corporation has given its written consent to said amendment in accordance with the provisions of Section 228 of the General Corporation Law of the State of Delaware. THIRD: That the aforesaid amendment was duly adopted in accordance with the applicable provisions of Sections 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, the Corporation has caused its duly authorized officers to execute this Certificate as of this 16th day of June, 1995. SEI HOLDINGS IV, INC. By:/s/ James A. Ward Its: Sole Director Attest:/s/ Tommy Chisholm Its: Secretary and Treasurer EX-99 7 EXHIBIT B-38 EXHIBIT B-38 SOUTHERN ELECTRIC INTERNATIONAL - EUROPE, INC. (FORMERLY SEI HOLDINGS IV, INC.) * * * * * AMENDED AND RESTATED B Y L A W S * * * * * ARTICLE I OFFICES Section 1. The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware. Section 2. The corporation may also have offices at such other places both within and without the State of Delaware as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All meetings of the stockholders for the election of directors shall be held at such place as may be fixed from time to time by the board of directors, or at such other place either within or without the State of Delaware as shall be designated from time to time by the board of directors and stated in the notice of the meeting. Meetings of stockholders for any other purpose may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Annual meetings of stockholders shall be held at such date and time as shall be designated from time to time by the board of directors and stated in the notice of the meeting, at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten (10) nor more than sixty (60) days before the date of the meeting. Section 4. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 5. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 6. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting, to each stockholder entitled to vote at such meeting. Section 7. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 8. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which -2- a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. Section 9. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the certificate of incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question. Section 10. Unless otherwise provided in the certificate of incorporation or in an agreement among shareholders as permitted under the General Corporation Law of the State of Delaware (the "Delaware Corporation Law"), each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period. Section 11. Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall be not less than one (1) nor more than seven (7). The initial board shall consist of one (1) director. Thereafter, within the limits above specified, the number of directors shall be determined by resolution of the board of directors or by the stockholders at the annual meeting. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2 of this Article, and each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. -3- Section 2. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. Section 3. The business of the corporation shall be managed by or under the direction of its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. MEETINGS OF THE BOARD OF DIRECTORS Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board. Section 7. Special meetings of the board may be called by the president on 2 days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the board consists of only one director; in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director. -4- Section 8. At all meetings of the board a majority of the directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 9. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee. Section 10. Unless otherwise restricted by the certificate of incorporation or these by-laws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. COMMITTEES OF DIRECTORS Section 11. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution of the board of directors, shall have and may exercise all the powers and authority of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the certificate of incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, unless the resolution or the certificate of incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock or to adopt a certificate of ownership and merger. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. -5- Section 12. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required. COMPENSATION OF DIRECTORS Section 13. Unless otherwise restricted by the certificate of incorporation or these by-laws, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. REMOVAL OF DIRECTORS Section 14. Unless otherwise restricted by the certificate of incorporation or by law, any director of the entire board of directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of directors. ARTICLE IV NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these by-laws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice is required to be given under the provisions of the statutes or of the certificate of incorporation or of these by-laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. -6- ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be at a minimum a president, secretary and treasurer. The board of directors may also choose one or more vice-presidents, assistant secretaries and assistant treasurers. Any number of offices may be held by the same person, unless the certificate of incorporation or these by-laws otherwise provide. Section 2. The board of directors at its first meeting after each annual meeting of stockholders shall choose a president, one or more vice-presidents, a secretary and a treasurer. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualified. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the stockholders and the board of directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. The president shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. -7- THE VICE-PRESIDENTS Section 8. In the absence of the president or in the event of his inability or refusal to act, the vice-president (or in the event there be more than one vice-president, the vice-presidents in the order designated by the directors, or in the absence of any designation, then in the order of their election) shall perform the duties of the president, and when so acting, shall have all the powers of and be subject to all the restrictions upon the president. The vice-presidents shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARY Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 10. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the secretary or in the event of his inability or refusal to act, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. -8- Section 12. The treasurer shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 13. If required by the board of directors, he shall give the corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 14. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE VI CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by a certificate or shall be uncertificated. Certificates shall be signed by, or in the name of the corporation by, the chairman or vice-chairman of the board of directors, or the president or a vice-president and the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation. Within a reasonable time after the issuance or transfer of uncertificated stock, the corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to the Delaware Corporate Law Sections 151, 156, 202(a) or 218(a) or a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Section 2. Any of or all the signatures on a certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar -9- before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates or uncertificated shares, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed. TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Upon receipt of proper transfer instructions from the registered owner of uncertificated shares such uncertificated shares shall be cancelled and issuance of new equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the books of the corporation. FIXING RECORD DATE Section 5. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board of directors may fix, in advance, a record date, which shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to any other action. A determination of stockholders of record -10- entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting: provided, however, that the board of directors may fix a new record date for the adjourned meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. ARTICLE VII INDEMNIFICATION Section 1. Each person who is or was a director of the corporation or officer or employee of the corporation holding one or more positions of management through and inclusive of Project Managers and Business Development Managers (but not positions below the level of such managers) (such positions being hereinafter referred to as "Management Positions") and who was or is a party or was or is threatened to be made a party to any threatened, pending or completed claim, action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director of the corporation or officer or employee of the corporation holding one or more Management Positions, or is or was serving at the request of the corporation as a director, alternate director, officer, employee, agent or trustee of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall be indemnified by the corporation as a matter of right against any and all expenses (including attorneys' fees) actually and reasonably incurred by him and against any and all claims, judgments, fines, penalties, liabilities and amounts paid in settlement actually incurred by him in defense of such claim, action, suit or proceeding, including appeals, to the full extent permitted by applicable law. The indemnification provided by this section shall inure to the benefit of the heirs, executors and administrators of such person. Section 2. Expenses (including attorneys' fees) incurred by a director of the corporation or officer or employee of the corporation holding one or more Management Positions with respect to the defense of any such claim, action, suit or proceeding may be advanced by the corporation prior to the final disposition of such claim, action, suit or proceeding, as authorized by the board of directors in the specific case, upon receipt of an -11- undertaking by or on behalf of such person to repay such amount unless it shall ultimately be determined that such person is entitled to be indemnified by the corporation under these by-laws or otherwise; provided, however, that the advancement of such expenses shall not be deemed to be indemnification unless and until it shall ultimately be determined that such person is entitled to be indemnified by the corporation. Section 3. The corporation may purchase and maintain insurance at the expense of the corporation on behalf of any person who is or was a director, officer, employee or agent of the corporation, or any person who is or was serving at the request of the corporation as a director (or the equivalent), alternate director, officer, employee, agent or trustee of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against any liability or expense (including attorneys' fees) asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liability or expense under these by-laws or otherwise. Section 4. Without limiting the generality of the foregoing provisions, no present or future director or officer of the corporation, or his heirs, executors, or administrators, shall be liable for any act, omission, step, or conduct taken or had in good faith, which is required, authorized, or approved by any order or orders issued pursuant to the Public Utility Holding Company Act of 1935, the Federal Power Act, or any federal or state statute or municipal ordinance regulating the corporation or its parent by reason of their being holding or investment companies, public utility companies, public utility holding companies, or subsidiaries of public utility holding companies. In any action, suit, or proceeding based on any act, omission, step, or conduct, as in this paragraph described, the provisions hereof shall be brought to the attention of the court. In the event that the foregoing provisions of this paragraph are found by the court not to constitute a valid defense on the grounds of not being applicable to the particular class of plaintiff, each such director and officer, and his heirs, executors, and administrators, shall be reimbursed for, or indemnified against, all expenses and liabilities incurred by him or imposed on him, in connection with, or arising out of, any such action, suit, or proceeding based on any act, omission, step, or conduct taken or had in good faith as in this paragraph described. Such expenses and liabilities shall include, but shall not be limited to, judgments, court costs, and attorneys' fees. Section 5. The foregoing rights shall not be exclusive of any other rights to which any such director or officer or employee may otherwise be entitled and shall be available whether or not the director or officer or employee continues to be a director or officer or employee at the time of incurring any such expenses and liabilities. Section 6. If any word, clause or provision of the by-laws or any indemnification made under Article VII hereof shall for any reason be determined to be invalid, the provisions of the by-laws shall not otherwise be affected thereby but shall remain in full force and effect. The masculine pronoun, as used in the by-laws, means the masculine and feminine wherever applicable. -12- ARTICLE VIII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. ANNUAL STATEMENT Section 3. The board of directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation. CHECKS Section 4. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. -13- FISCAL YEAR Section 5. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 6. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. ARTICLE IX AMENDMENTS Section 1. These by-laws may be altered, amended or repealed or new by-laws may be adopted by the stockholders or by the board of directors, when such power is conferred upon the board of directors by the certificate of incorporation at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration, amendment, repeal or adoption of new by-laws be contained in the notice of such special meeting. If the power to adopt, amend or repeal by-laws is conferred upon the board of directors by the certificate of incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal by-laws. I hereby certify that the foregoing Amended and Restated By-Laws were duly adopted by the Board of Directors of the Corporation on , 1995. [SEAL] Assistant Secretary -14- EX-99 8 EXHIBIT B-43 EXHIBIT B-43 CERTIFICATE OF INCORPORATION OF SEI HOLDINGS IX, INC. I. The name of the corporation is SEI HOLDINGS IX, INC. (the "Corporation"). II. The initial registered office of the Corporation in the State of Delaware shall be located at Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801. The initial registered agent of the Corporation at such address shall be The Corporation Trust Company. III. The purpose or purposes for which the Corporation is organized is to engage exclusively in the direct and indirect ownership of the securities, or an interest in the business, of any one or more exempt wholesale generators, foreign utility companies, or "qualifying facilities," as defined under the Public Utility Regulatory Policies Act of 1978, and in activities that are incidental thereto. IV. The Corporation shall be authorized to issue One Thousand (1,000) shares of One Dollar ($1.00) par value capital stock, all of which shall be designated "Common Stock." The shares of Common Stock shall have unlimited voting rights and shall be entitled to receive all of the net assets of the Corporation upon dissolution or liquidation. V. The affairs of the Corporation shall be managed by a Board of Directors and as otherwise provided in the By-Laws of the Corporation. The initial Board of Directors of the corporation shall consist of one (1) member, whose name and corresponding mailing address is: Thomas G. Boren c/o Southern Electric International, Inc. 900 Ashwood Parkway Suite 500 Atlanta, Georgia 30338 VI. The Corporation shall have perpetual duration. VII. The Board of Directors of the Corporation shall have the power to adopt, amend and repeal the By-Laws of the Corporation. VIII. To the fullest extent that the General Corporation Law of Delaware, as it exists on the date hereof or as it may hereafter be amended, permits the limitation or elimination of the liability of directors, no director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of duty of care or other duty as a director. No amendment to or repeal of this Article shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal. IX. The name and address of the Incorporator of the Corporation is Richard A. Hartnig, Esquire, NationsBank Plaza, 600 Peachtree Street, N.E., Suite 5200, Atlanta, Georgia 30308-2216. ------------------------------------------ Richard A. Hartnig, Esquire, Incorporator -2- CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF SEI HOLDINGS IX, INC. SEI HOLDINGS IX, INC., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the "Corporation") hereby certifies: FIRST: That the Board of Directors of the Corporation duly adopted a resolution proposing and declaring advisable the following amendment to the heading and Article 1 of the Certificate of Incorporation of the Corporation: RESOLVED, That the name of the Corporation be changed from SEI HOLDINGS IX, INC. to SOUTHERN ELECTRIC INTERNATIONAL TRINIDAD, INC., and, to effect such change, the heading and Article I of the Certificate of Incorporation of the Corporation be amended, insofar as they refer to the name of the Corporation, to read SOUTHERN ELECTRIC INTERNATIONAL TRINIDAD, INC. in lieu of SEI HOLDINGS IX, INC. SECOND: That the sole shareholder of the Corporation has given its written consent to said amendment in accordance with the provisions of Section 228 of the General Corporation Law of the State of Delaware. THIRD: That the aforesaid amendment was duly adopted in accordance with the applicable provisions of Sections 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, the Corporation has caused its duly authorized officers to execute this Certificate as of the 12th day of September, 1995. SEI HOLDINGS IX, INC. By: Its: Attest: Its: EX-99 9 EXHIBIT B-44 EXHIBIT B-44 SEI HOLDINGS IX, INC. * * * * * B Y L A W S * * * * * ARTICLE I OFFICES Section 1. The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware. Section 2. The corporation may also have offices at such other places both within and without the State of Delaware as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All meetings of the stockholders for the election of directors shall be held at such place as may be fixed from time to time by the board of directors, or at such other place either within or without the State of Delaware as shall be designated from time to time by the board of directors and stated in the notice of the meeting. Meetings of stockholders for any other purpose may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Annual meetings of stockholders shall be held at such date and time as shall be designated from time to time by the board of directors and stated in the notice of the meeting, at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten (10) nor more than sixty (60) days before the date of the meeting. Section 4. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 5. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 6. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting, to each stockholder entitled to vote at such meeting. Section 7. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 8. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than -2- thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. Section 9. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the certificate of incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question. Section 10. Unless otherwise provided in the certificate of incorporation or in an agreement among shareholders as permitted under the General Corporation Law of the State of Delaware (the "Delaware Corporation Law"), each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period. Section 11. Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall be not less than one (1) nor more than seven (7). The initial board shall consist of one (1) director. Thereafter, within the limits above specified, the number of directors shall be determined by resolution of the board of directors or by the stockholders at the annual meeting. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2 of this Article, and each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 2. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, -3- though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. Section 3. The business of the corporation shall be managed by or under the direction of its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. MEETINGS OF THE BOARD OF DIRECTORS Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board. Section 7. Special meetings of the board may be called by the president on 2 days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the board consists of only one director; in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director. -4- Section 8. At all meetings of the board a majority of the directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 9. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee. Section 10. Unless otherwise restricted by the certificate of incorporation or these by-laws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. COMMITTEES OF DIRECTORS Section 11. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution of the board of directors, shall have and may exercise all the powers and authority of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the certificate of incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, unless the resolution or the certificate of incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock or to adopt a certificate of ownership and merger. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. -5- Section 12. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required. COMPENSATION OF DIRECTORS Section 13. Unless otherwise restricted by the certificate of incorporation or these by-laws, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. REMOVAL OF DIRECTORS Section 14. Unless otherwise restricted by the certificate of incorporation or by law, any director of the entire board of directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of directors. ARTICLE IV NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these by-laws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice is required to be given under the provisions of the statutes or of the certificate of incorporation or of these by-laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. -6- ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be at a minimum a president, secretary and treasurer. The board of directors may also choose one or more vice-presidents, assistant secretaries and assistant treasurers. Any number of offices may be held by the same person, unless the certificate of incorporation or these by-laws otherwise provide. Section 2. The board of directors at its first meeting after each annual meeting of stockholders shall choose a president, one or more vice-presidents, a secretary and a treasurer. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualified. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the stockholders and the board of directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. The president shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. -7- THE VICE-PRESIDENTS Section 8. In the absence of the president or in the event of his inability or refusal to act, the vice-president (or in the event there be more than one vice-president, the vice-presidents in the order designated by the directors, or in the absence of any designation, then in the order of their election) shall perform the duties of the president, and when so acting, shall have all the powers of and be subject to all the restrictions upon the president. The vice-presidents shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARY Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 10. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the secretary or in the event of his inability or refusal to act, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. -8- Section 12. The treasurer shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 13. If required by the board of directors, he shall give the corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 14. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. Section 15. Each officer of the corporation shall have the authority to execute and deliver any and all applications and filings as are necessary to be filed with federal, state and local regulatory agencies on behalf of the corporation. ARTICLE VI CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by a certificate or shall be uncertificated. Certificates shall be signed by, or in the name of the corporation by, the chairman or vice-chairman of the board of directors, or the president or a vice-president and the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation. Within a reasonable time after the issuance or transfer of uncertificated stock, the corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to the Delaware Corporate Law Sections 151, 156, 202(a) or 218(a) or a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. -9- Section 2. Any of or all the signatures on a certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates or uncertificated shares, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed. TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Upon receipt of proper transfer instructions from the registered owner of uncertificated shares such uncertificated shares shall be cancelled and issuance of new equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the books of the corporation. FIXING RECORD DATE Section 5. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other -10- lawful action, the board of directors may fix, in advance, a record date, which shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting: provided, however, that the board of directors may fix a new record date for the adjourned meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. ARTICLE VII INDEMNIFICATION Section 1. Each person who is or was a director of the corporation or officer or employee of the corporation holding one or more positions of management through and inclusive of Project Managers and Business Development Managers (but not positions below the level of such managers) (such positions being hereinafter referred to as "Management Positions") and who was or is a party or was or is threatened to be made a party to any threatened, pending or completed claim, action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director of the corporation or officer or employee of the corporation holding one or more Management Positions, or is or was serving at the request of the corporation as a director, alternate director, officer, employee, agent or trustee of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall be indemnified by the corporation as a matter of right against any and all expenses (including attorneys' fees) actually and reasonably incurred by him and against any and all claims, judgments, fines, penalties, liabilities and amounts paid in settlement actually incurred by him in defense of such claim, action, suit or proceeding, including appeals, to the full extent permitted by applicable law. The indemnification provided by this section shall inure to the benefit of the heirs, executors and administrators of such person. Section 2. Expenses (including attorneys' fees) incurred by a director of the corporation or officer or employee of the corporation holding one or more Management -11- Positions with respect to the defense of any such claim, action, suit or proceeding may be advanced by the corporation prior to the final disposition of such claim, action, suit or proceeding, as authorized by the board of directors in the specific case, upon receipt of an undertaking by or on behalf of such person to repay such amount unless it shall ultimately be determined that such person is entitled to be indemnified by the corporation under these by-laws or otherwise; provided, however, that the advancement of such expenses shall not be deemed to be indemnification unless and until it shall ultimately be determined that such person is entitled to be indemnified by the corporation. Section 3. The corporation may purchase and maintain insurance at the expense of the corporation on behalf of any person who is or was a director, officer, employee or agent of the corporation, or any person who is or was serving at the request of the corporation as a director (or the equivalent), alternate director, officer, employee, agent or trustee of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against any liability or expense (including attorneys' fees) asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liability or expense under these by-laws or otherwise. Section 4. Without limiting the generality of the foregoing provisions, no present or future director or officer of the corporation, or his heirs, executors, or administrators, shall be liable for any act, omission, step, or conduct taken or had in good faith, which is required, authorized, or approved by any order or orders issued pursuant to the Public Utility Holding Company Act of 1935, the Federal Power Act, or any federal or state statute or municipal ordinance regulating the corporation or its parent by reason of their being holding or investment companies, public utility companies, public utility holding companies, or subsidiaries of public utility holding companies. In any action, suit, or proceeding based on any act, omission, step, or conduct, as in this paragraph described, the provisions hereof shall be brought to the attention of the court. In the event that the foregoing provisions of this paragraph are found by the court not to constitute a valid defense on the grounds of not being applicable to the particular class of plaintiff, each such director and officer, and his heirs, executors, and administrators, shall be reimbursed for, or indemnified against, all expenses and liabilities incurred by him or imposed on him, in connection with, or arising out of, any such action, suit, or proceeding based on any act, omission, step, or conduct taken or had in good faith as in this paragraph described. Such expenses and liabilities shall include, but shall not be limited to, judgments, court costs, and attorneys' fees. Section 5. The foregoing rights shall not be exclusive of any other rights to which any such director or officer or employee may otherwise be entitled and shall be available whether or not the director or officer or employee continues to be a director or officer or employee at the time of incurring any such expenses and liabilities. Section 6. If any word, clause or provision of the by-laws or any indemnification made under Article VII hereof shall for any reason be determined to be invalid, the -12- provisions of the by-laws shall not otherwise be affected thereby but shall remain in full force and effect. The masculine pronoun, as used in the by-laws, means the masculine and feminine wherever applicable. ARTICLE VIII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. ANNUAL STATEMENT Section 3. The board of directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation. CHECKS Section 4. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. -13- FISCAL YEAR Section 5. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 6. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. ARTICLE IX AMENDMENTS Section 1. These by-laws may be altered, amended or repealed or new by-laws may be adopted by the stockholders or by the board of directors, when such power is conferred upon the board of directors by the certificate of incorporation at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration, amendment, repeal or adoption of new by-laws be contained in the notice of such special meeting. If the power to adopt, amend or repeal by-laws is conferred upon the board of directors by the certificate of incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal by-laws. I hereby certify that the foregoing By-Laws were duly adopted by the sole Director of the Corporation on October 14, 1994. [SEAL] Secretary -14- EX-99 10 EXHIBIT B-49 EXHIBIT B-49 ARTICLES OF ORGANIZATION OF MOBILE ENERGY SERVICES COMPANY, L.L.C. I. The name of the limited liability company is Mobile Energy Services Company, L.L.C. (the "Company"). II. The Company shall have perpetual duration. III. The nature of business to be conducted or promoted by the Company shall be limited to the following activities: (a) to acquire, finance, refinance, own, expand, improve and operate or contract for the operation of, and to assume certain existing indebtedness and liabilities in connection with, the energy and recovery complex and related facilities located at the pulp and tissue mill in Mobile, Alabama owned by Scott Paper Company, a Pennsylvania corporation ("Scott") (or any successor thereto), and the paper mill owned by S.D. Warren Company, a Pennsylvania corporation ("S.D. Warren") (or any successor thereto) (the "Energy Complex"); (b) to enter into and perform any agreement providing for or relating to (i) the issuance by the Company of up to $290,000,000 aggregate principal amount of first mortgage bonds (the "First Mortgage Bonds"), the issuance by the Industrial Development Board of the City of Mobile, Alabama (the "IDB"), for the benefit of the Company of $85,000,000 aggregate principal amount of tax-exempt bonds (the "Tax-Exempt Bonds"), and the working capital facility to be provided to the Company by an unaffiliated third party (the "Working Capital Facility"), and in each case to receive and dispose of proceeds thereunder or in exchange therefor, and to provide for any refinancing or refunding of the foregoing (the First Mortgage Bonds, the Tax-Exempt Bonds and the Working Capital Facility are sometimes collectively referred to as the "Offered Securities") and (ii) the issuance by the Company of other additional indebtedness as may be consistent with clause (f) of this Article III; (c) to take actions necessary to offer the First Mortgage Bonds and the Tax- Exempt Bonds to the purchasers thereof (the "Bondholders"); (d) to enter into and perform any agreements providing for or relating to the management and administration of the activities of the Company; (e) to enter into and perform any agreements to accomplish the purposes set forth in paragraphs (a), (b), (c) or (d) of this Article III; and (f) to engage in any lawful act or activity, and to exercise any powers permitted to limited liability companies organized under the laws of the State of Alabama, that are incidental to and necessary, suitable or convenient for the purposes set forth in paragraphs (a), (b), (c), (d) or (e) of this Article III. IV. The initial registered office of the Company in the State of Alabama shall be located at 60 Commerce Street, Montgomery, Montgomery County, Alabama 36104. The initial registered agent of the Company at such address shall be The Corporation Company. V. The names, addresses and initial capital contributions of the initial members of the Company are:
Members Address Initial Capital Contributions Mobile Energy Services Holdings, Inc. 900 Ashwood Parkway $100 Suite 450 Atlanta, Georgia 30338 Southern Electric International, Inc. 900 Ashwood Parkway $100 Suite 500 Atlanta, Georgia 30338
VI. The Company may admit additional members with the prior written consent of all the members. VII. The business of the Company may be continued in accordance with the terms of Section 10-12-37 of the Alabama Code following the dissociation of a member. VIII. From and after the date of filing of these Articles of Organization, the sole manager of the Company shall be Mobile Energy Services Holdings, Inc., an Alabama corporation ("Mobile Energy"), which shall be responsible for the day-to-day operations of the Company. The foregoing shall not be construed as restraining Mobile Energy from transferring interests in the Company (a) in 2 an amount not to exceed one percent (1%) of the total interests in the Company to The Southern Company, a Delaware corporation ("Southern"), prior to the issuance of the Offered Securities; (b) on commercially reasonable terms to third parties that are not "Southern Affiliated Entities" (as hereinafter defined), and permitting such third parties to participate in the management of the Company, even if the effect thereof would be to cause: (i) Mobile Energy's ownership interest in the Company to be reduced below a majority of the ownership interests in the Company; or (ii) one or more of such third parties to acquire or share managerial control of the Company; or (c) to a Southern Affiliated Entity whose Articles of Incorporation (or other organizational documents) contain the same operative provisions as the Articles of Incorporation of Mobile Energy and which undertakes, for the benefit of the Bondholders, each of the covenants and restrictions of Mobile Energy set forth in the indenture (the "Indenture") among the Company, Mobile Energy, as guarantor, and First Union National Bank of Georgia ("First Union"), as trustee, entered into in connection with the issuance of the First Mortgage Bonds, and the Amended and Restated Lease and Agreement (the "Tax-Exempt Lease") among the Company, Mobile Energy, as guarantor, and the IDB entered into in connection with the issuance of the Tax-Exempt Bonds pursuant to the Amended and Restated Trust Indenture between the IDB and First Union (the "Tax-Exempt Indenture") in each case relating to compliance with and amendment of such Articles of Incorporation. For purposes of these Articles, the term "Southern Affiliated Entities" shall mean the Company, Southern, Southern Electric International, Inc., a Delaware corporation ("SEI"), and Mobile Energy and any other corporation, partnership, limited liability company or other business entity with respect to which the Company, Southern, SEI or Mobile Energy, through ownership of voting securities, by contract or otherwise, has the power to direct (or cause the direction of) the management and policies of such corporation, partnership, limited liability company or other business entity. The mailing address of Mobile Energy is 900 Ashwood Parkway, Suite 450, Atlanta, Georgia 30338. IX. The unanimous approval of all members of the Company is required: (a) to file a bankruptcy or insolvency petition or otherwise institute insolvency proceedings under Section 301 of the Bankruptcy Code, 11 U.S.C. ss. 301, or any successor thereto (the "Bankruptcy Code"), or any similar statute, seeking protection of the Company as a debtor in such proceedings, or (b) to amend, repeal or supersede any provision of Articles III, VIII, IX, X, XI and XII hereof unless, in connection with such amendment, repeal or supersession, the Company receives from a nationally recognized law firm acceptable to those rating agencies which at the time of such opinion are rating the First Mortgage Bonds or the Tax-Exempt Bonds a reasoned opinion to the effect that, if Southern or SEI were to become a debtor under the Bankruptcy Code, a federal bankruptcy court, exercising reasonable judgment after full consideration of all relevant circumstances, in a properly presented case, would not disregard the separate corporate existence of the Company or Mobile Energy so as to order substantive consolidation of the assets and liabilities of the Company or Mobile Energy with those of SEI or Southern. X. Neither the Company's funds nor any other assets thereof shall be commingled with those of any other person or entity, and the Company's funds shall be clearly traceable at all times and in all transactions. The Company's assets shall remain identifiably separate from those of all other entities 3 such that there shall be no material difficulty in segregating and ascertaining the assets of the Company as distinct from those of its affiliates or any other person or entity. Notwithstanding the foregoing, (a) equity or other contributions from any member of the Company may be received by the Company, deposited to the account of the Company and treated as funds of the Company and (b) revenues of Mobile Energy or the Company may be collected by affiliates of Mobile Energy, and such affiliates may pay liabilities of Mobile Energy or the Company, as applicable, therewith pursuant to the "Relevant Documents" (as hereinafter defined), so long as appropriate records are maintained by Mobile Energy or the Company to identify at all times funds belonging to Mobile Energy or the Company, respectively. For purposes of these Articles, the "Relevant Documents" shall mean: (1) the Registration Statement filed on Form S-1 under the Securities Act of 1933, as amended, and the corresponding Prospectus, each relating to the issuance of the First Mortgage Bonds, and the Limited Offering Memorandum, issued in connection with the sale of the Tax-Exempt Bonds; (2) the Articles of Incorporation of Mobile Energy, SEI and Southern, and these Articles of Organization; (3) the ByLaws of Mobile Energy, SEI and Southern; (4) the Indenture, the Tax-Exempt Indenture, and the Tax-Exempt Lease Agreement; (5) the Working Capital Facility and Mobile Energy's guaranty in respect thereof; (6) those guaranties from Southern or appropriate letters of credit necessary to satisfy the Company's reserve account funding requirements under the Indenture, the Tax-Exempt Indenture, and the "Intercreditor Agreement"(as hereinafter defined); (7) the Intercreditor Agreement entered into by and among the Company, Mobile Energy, First Union, as trustee with respect to the First Mortgage Bonds, First Union, as trustee with respect to the Tax-Exempt Bonds, the IDB, and the Working Capital Facility provider, and Bankers Trust Company, as Collateral Agent, (the "Intercreditor Agreement"); (8) the Asset Purchase Agreement dated as of December 12, 1994, between Scott and Mobile Energy; (9) the Pulp Mill Environmental Indemnity Agreement, dated as December 12, 1994, between Scott and Mobile Energy (the "Pulp Mill Environmental Indemnity Agreement"), the Tissue Mill Environmental Indemnity Agreement, dated as December 12, 1994, between Scott and Mobile Energy (the "Tissue Mill Environmental Indemnity Agreement"), the Paper Mill Environmental Indemnity Agreement, dated as December 12, 1994, between S.D. Warren and Mobile Energy (together with the Pulp Mill Environmental Indemnity Agreement and the Tissue Mill Environmental Indemnity Agreement, the "Environmental Indemnity Agreements"), and the Environmental Guaranty dated as of December 12, 1994, made by Southern in connection with the Company's obligations under the Environmental Indemnity Agreements; (10) the Administrative Services Agreements (the "SCS Agreements"), pursuant to which Southern Company Services, Inc. ("SCS") will provide certain administrative services to Mobile Energy and the Company, the Operations and Maintenance Agreement, dated as of December 12, 1994 between Mobile Energy and SEI, and the Administrative Services Agreement dated as of July 14, 1995, between SEI and Mobile Energy; (11) the agreement between Mobile Energy and Southern relating to the allocation of certain tax liabilities; (12) the Mill Owner Maintenance Reserve Account Agreement among the Company, Southern, Scott and S.D. Warren; and (13) the Employee Transition Agreement among Scott, Mobile Energy and SEI; in each case as in effect on the date of filing of these Articles of Organization or, if entered into after such date, on the date of issuance and sale of the First Mortgage Bonds or as may be amended, replaced or otherwise modified from time to time, provided that in connection with any such amendment, replacement or modification, the Company receives from a nationally recognized law firm acceptable to those rating agencies which at the time of such opinion are rating the First Mortgage Bonds or the Tax-Exempt Bonds a reasoned opinion to the effect that, if Southern or SEI were to become a debtor under the Bankruptcy Code, a federal bankruptcy court, exercising reasonable judgment after full consideration of all relevant circumstances, in a properly presented case, would not disregard the separate corporate existence of the Company or Mobile Energy so as to 4 order substantive consolidation of the assets and liabilities of the Company or Mobile Energy with those of SEI or Southern. XI. The Company: (a) shall maintain complete records and books of account which at all times shall be separate from those of any other person or entity and shall be materially correct and complete; (b) shall conduct its own business solely in its own name or through its authorized agents, and not in the name of any of the other Southern Affiliated Entities, in a manner which is not likely to mislead others as to the identity of the legal entity with which such others are dealing, shall not permit any person or entity to conduct any business of such person or entity in the Company's name, and without limiting the generality of the foregoing: (i) shall ensure that all oral and written communications, including without limitation, letters, invoices, purchase orders, contracts, statements and applications, are and will be made solely in the name of the entity to which they relate or in the name of such entity's authorized agents, and (ii) shall not refer, and shall ensure that the other Southern Affiliated Entities do not refer, to the Company as a division or department of any other entity (including any affiliate thereof); (c) shall prepare financial statements separate from any other person or entity, which shall disclose its separate existence and the transactions contemplated by the Relevant Documents in accordance with generally accepted accounting principles, and shall disclose that the assets of the Company are not available to any creditor of the other Southern Affiliated Entities (other than as contemplated by the Relevant Documents); (d) except to the extent set forth in the Relevant Documents, shall pay its liabilities out of its own funds, and, except as set forth in the Relevant Documents, shall not permit any of the other Southern Affiliated Entities to pay such liabilities; (e) shall not hold out employees or officers of the other Southern Affiliated Entities as employees or officers of the Company, nor permit employees or officers of the Company to be held out as employees or officers of any of the other Southern Affiliated Entities; provided that such restrictions shall not preclude a particular employee or officer of any of the Southern Affiliated Entities from also holding a position as an employee or officer of the Company, so long as the Company takes reasonably appropriate steps to assure that unaffiliated parties dealing with such employee or officer are able to distinguish the particular entity which such person is representing at any particular time; (f) shall not guarantee or become obligated for the debts of any of the other Southern Affiliated Entities or hold out its credit as being available to satisfy the obligations of any of the other Southern Affiliated Entities, other than (i) obligations to reimburse SEI or SCS for expenses paid by SEI or SCS on behalf of the Company in connection with the operation and 5 maintenance of the Energy Complex in accordance with the Relevant Documents and (ii) obligations to indemnify SEI for certain claims and losses relating to SEI's operation and maintenance of the Energy Complex, in accordance with the Relevant Documents, and SCS for certain claims and losses relating to SCS's performance of its obligations under the SCS Agreement; (g) shall allocate fairly and equitably any overhead for office space shared with any of the other Southern Affiliated Entities; (h) shall use stationery, invoices, checks and other business forms identifiably separate and distinct from those of any of the other Southern Affiliated Entities. Such items shall bear a mailing address and telephone number for the Company which is different from that used by any of the other Southern Affiliated Entities. The Company further shall maintain, as its principal address and telephone number for receipt of notices and other communications under the Relevant Documents, a mailing address and telephone number separate from those of any of the other Southern Affiliated Entities; (i) shall not pledge its funds or assets for the benefit of any of the other Southern Affiliated Entities, except as set forth in the Relevant Documents; and (j) at all times shall hold itself out to the public as an entity legally separate and distinct from any of the other Southern Affiliated Entities. XII. The Company shall at all times maintain and observe all corporate formalities in the conduct of its affairs and with respect to the acquisition, ownership, encumbrance or transfer of any material assets or the incurrence of any material indebtedness. Such formalities shall include, without limitation, the recording of any proceedings of its members and the approval by its members, to the extent appropriate under Alabama law, of material actions of the Company and the execution and maintenance of appropriate documentation with respect to and in order to evidence the acquisition, ownership, encumbrance or transfer of any material assets or the incurrence of any material indebtedness. XIII. Notwithstanding anything contained herein to the contrary, the Company shall be dissolved and its functions shall be wound up if Mobile Energy transfers a sufficient amount of its membership interest in the Company such that its membership interest following such transfer(s) is less than twenty-five percent (25%) of the total membership interests in the Company. This provision shall automatically terminate and shall be of no further effect if any person or persons who are not Southern Affiliated Entities and who would not be deemed to be related to the Company, Mobile Energy, Southern or SEI, are admitted as members in the Company. Nothing in this provision shall prohibit Mobile Energy from making an assignment of its economic interest in the Company to an assignee. 6 AMENDED AND RESTATED ARTICLES OF ORGANIZATION OF MOBILE ENERGY SERVICES HOLDINGS COMPANY, L.L.C. I. The name of the corporation is Mobile Energy Services Holdings Company, L.L.C. (the "Corporation"). II. The Corporation shall have perpetual duration. III. The nature of business to be conducted or promoted by the Corporation shall be limited to the following activities: (a) to acquire, finance, refinance, own, expand, improve and operate or contract for the operation of the [Energy Complex]; (b) to serve as a member of and to own a majority of the outstanding ownership interest of the [LLC], and to act as the sole manager thereof; (c) to enter into and perform any agreement providing for or relating to the issuance of the [Offered Securities] and to receive and dispose of proceeds in exchange therefore; (d) to take all actions necessary to offer the [Offered Securities] to the purchasers thereof; (e) to enter into and perform any agreement providing for or relating to the management and administration of the activities of the Corporation; (f) to take any action to fulfill its obligations under the [Transaction Documents], and to perform any agreements to accomplish the purposes set forth in (a), (b), (c) (d) and (e) above; and (g) to engage in any lawful act or activity, and to exercise any powers permitted to corporations organized under the laws of the State of Alabama, that are incidental to and necessary, suitable or convenient for the accomplishment of the purposes set forth in (a), (b), (c), (d), (e) and (f) above. IV. The Corporation shall be authorized to issue One Thousand (1,000) shares of One Dollar ($1.00) par value capital stock all of which shall be designated "Common Stock." The shares of Common Stock shall have unlimited voting rights and shall be entitled to receive all of the net assets of the Corporation upon dissolution or liquidation. V. The Board of Directors of the Corporation shall have the power to adopt, amend and repeal the By-Laws of the Corporation. VI. There shall at all times be a duly qualified and elected director of the Corporation who shall be a person who, as of any date during such person's service as a director, has not been, at any time during the two years preceding such date, (a) a shareholder, officer or employee of the Corporation, or a controlling shareholder, director, officer or employee of any of its affiliates, (b) a person controlling any such shareholder, director, officer or employee or (c) a member of the immediate family of any such shareholder, director, officer or employee. As used herein, the term "control" means possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person or entity whether through ownership of voting securities, by contract or otherwise. VII. The unanimous approval of the Board of Directors of the Corporation is required: (a) to file a bankruptcy or insolvency petition or otherwise institute insolvency proceedings under Section 301 of the Bankruptcy Code, 11 U.S.C. ss. 301, or any successor thereto, or any similar statute; (b) to consent to the filing of a bankruptcy or insolvency petition or to the institution of insolvency proceeding under Section 301 of the Bankruptcy Code 11 U.S.C. ss. 301, or any successor thereto, or any similar statute, on behalf of the LLC; or (c) to amend, repeal or supersede any provision of items [1) through (6)] of the Articles of Incorporation of the Corporation. VIII. To the fullest extent that the General Corporation Law of Alabama, as it exists on the date hereof or as it may hereafter be amended, permits the limitation or elimination of the liability of directors, no director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of duty of care or other duty as a director. No amendment to or repeal of this Article shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal. -2- IX. Neither the Corporation's funds nor any other assets thereof shall be commingled with those of any other person or entity, and the Corporation's funds shall be clearly traceable at all times and in all transactions. The Corporation's assets shall remain identifiably separate from those of all other entities such that there shall be no material difficulty to segregating and ascertaining the assets of the Corporation as distinct from those of its affiliates or any other person or entity. Notwithstanding the foregoing, (a) equity or other contributions from any shareholder of the Corporation may be received by the Corporation, deposited to the account of the Corporation and treated as funds of the Corporation and (b) revenues of the Corporation or the LLC may be collected by affiliates of the Corporation and such affiliates may pay liabilities of the Corporation or the LLC, as applicable, therewith pursuant to the Operations and Maintenance Agreement, so long as appropriate records are maintained by the Corporation to identify at all times funds belonging to the Corporation and the LLC. X. The Corporation shall maintain complete corporate records and books of account which at all times shall be separate from those of any other person or entity and shall be materially correct and complete. XI. The Corporation shall at all times maintain and observe all corporate formalities in the conduct of its affairs and with respect to the acquisition, ownership, encumbrance or transfer of any material assets or the incurrence of any material indebtedness. Such formalities shall include without limitation the holding of appropriate periodic meetings of its Board of Directors and shareholders in accordance with Alabama law, the recording of minutes of such meetings and any other proceedings of its shareholders and Board of Directors, the adoption by the board of Directors (and, as appropriate, the shareholders) of resolutions to approve material actions of the Corporation and the execution and maintenance of appropriate documentation with respect to and in order to evidence the acquisition, ownership, encumbrance or transfer of any material assets or the incurrence of any material indebtedness. XII. The initial registered office of the Corporation in the State of Alabama shall be located at 60 Commerce Street, Montgomery, Montgomery Co., Alabama 36104. The initial registered agent of the Corporation at such address shall be The Corporation Company. -3- XIII. The affairs of the Corporation shall be managed by a Board of Directors and as otherwise provided in the By-Laws of the Corporation. The initial Board of Directors of the Corporation shall consist of one (1) member, whose name and corresponding mailing address is: Raymond D. Hill c/o Southern Electric International, Inc. 900 Ashwood Parkway Suite 500 Atlanta, Georgia 30338 XIV. The name and address of the Incorporator of the Corporation are Elizabeth B. Chandler, NationsBank Plaza, 600 Peachtree Street, N.E., Suite 5200, Atlanta, Georgia 30308-2216. ------------------------------------------ Elizabeth B. Chandler, Organizer -4- EX-99 11 EXHIBIT B-50 EXHIBIT B-50 OPERATING AGREEMENT OF MOBILE ENERGY SERVICES COMPANY, L.L.C. Dated as of July 14, 1995 TABLE OF CONTENTS Page ARTICLE I.......................................1 OFFICES........................................1 Section 1.1 Principal Office.........................................1 ---------------- Section 1.2 Registered Office........................................1 ----------------- ARTICLE II......................................1 DEFINITIONS......................................1 ARTICLE III......................................3 PERCENTAGE INTERESTS..................................3 Section 3.1 Names, Addresses and Percentage Interests of Members...........................................................3 Section 3.2 Capital Contributions....................................3 --------------------- Section 3.3 Summary of Capital Contributions.........................4 -------------------------------- Section 3.4 Capital Accounts.........................................4 ---------------- Section 3.5 Capital Account of Assignee..............................4 --------------------------- ARTICLE IV.......................................4 PROFITS, LOSSES AND DISTRIBUTIONS...........................4 Section 4.1 Profits and Losses.......................................4 ------------------ Section 4.2 Special Allocations.....................................4 -------------------- Section 4.3 Other Allocation Rules...................................6 ---------------------- Section 4.4 Tax Allocations; Code Section 704(c).....................6 ------------------------------------ Section 4.5 Property Distributions...................................7 ---------------------- ARTICLE V.......................................7 ACCOUNTING AND RECORDS.................................7 Section 5.1 Accountant...............................................7 ---------- Section 5.2 Legal Counsel............................................7 ------------- Section 5.3 Books and Records........................................7 ----------------- Section 5.4 Right of Inspection......................................7 ------------------- Section 5.5 Reports..................................................7 ------- Section 5.6 Tax Returns..............................................8 ----------- Section 5.7 Special Basis Adjustment.................................8 ------------------------ Section 5.8 Tax Matters Partner......................................8 ------------------- Section 5.9 Fiscal Year..............................................8 ----------- i ARTICLE VI......................................8 MANAGEMENT, OFFICERS, ELECTIONS AND APPROVALS...............................8 Section 6.1 Voting of Members........................................8 ----------------- Section 6.2 Management...............................................8 ---------- Section 6.3 Officers.................................................9 -------- Section 6.5 Independent Activities..................................11 ---------------------- ARTICLE VII....................................12 ADMISSION OF ADDITIONAL MEMBERS, DEATH OF A MEMBER, AND TRANSFER OF INTERESTS........................................12 Section 7.1 Addition of Additional Members..........................12 ------------------------------ Section 7.2 Restrictions on Transfer................................12 ------------------------ Section 7.3 Right of First Refusal..................................12 ---------------------- Section 7.5 General Transfer Provision..............................13 -------------------------- Section 7.6 Compliance..............................................14 ---------- Section 7.7 Waiver of Partition.....................................14 ------------------- ARTICLE VIII...................................14 DISSOLUTION AND WINDING UP..............................14 Section 8.1 Dissolution...........................................14 ----------- Section 8.2 Winding Up............................................14 ---------- Section 8.3 Compliance with Timing Requirements of Regulations....15 -------------------------------------------------- Section 8.4 Rights of Members.....................................15 ----------------- Section 8.5 Negative Capital Accounts.............................15 ------------------------- ARTICLE IX.....................................15 MISCELLANEOUS......................................15 Section 9.1 Notices...............................................15 ------- Section 9.2 Waiver of Notice......................................15 ---------------- Section 9.3 Indemnification by the Company........................16 ------------------------------ Section 9.4 Governing Law.........................................17 ------------- Section 9.5 Construction..........................................17 ------------ Section 9.6 Reimbursement of Members..............................17 ------------------------ Section 9.7 Binding Effect........................................17 -------------- Section 9.8 Headings..............................................17 -------- Section 9.9 Severability..........................................17 ------------ Section 9.10 Additional Documents..................................18 -------------------- Section 9.11 Variation of Pronouns.................................18 --------------------- Section 9.12 Counterpart Execution.................................18 --------------------- Section 9.13 Amendments............................................18 ---------- ii OPERATING AGREEMENT OF MOBILE ENERGY SERVICES COMPANY, L.L.C. THIS OPERATING AGREEMENT (the "Agreement") of Mobile Energy Services Company, L.L.C. (the "Company") is entered into and shall be effective as of the 13th day of July, 1995, by and between Mobile Energy Services Holdings, Inc., an Alabama corporation ("MESH"), and Southern Electric International, Inc., a Delaware corporation ("SEI"),and all additional and substitute Members, pursuant to the provisions of the Alabama Limited Liability Company Act, Code of Alabama of 1975, Section 10-2-1, et. seq. (the "Act"), on the following terms and conditions: ARTICLE I OFFICES Section 1.1 Principal Office. The principal office of the Company in the State of Alabama shall be located at 200 Bay Bridge Road, Mobile, Alabama 36652. The Company may have such other offices, either within or without the State of Alabama as the Members may designate or as the business of the Company may from time to time require. Section 1.2 Registered Office. The registered office of the Company, required by the Act to be maintained in the State of Alabama, may, but need not, be identical with the principal office in the State of Alabama. The address of the initial registered office of the Company is 60 Commerce Street, Montgomery, Montgomery County, Alabama 36104, and the initial registered agent at such address is The Corporation Company. The registered office and the registered agent may be changed from time to time by action of the Manager and by filing a statement of such change with the Alabama Secretary of State. ARTICLE II DEFINITIONS Defined terms used in this Agreement shall, unless the context otherwise requires, have the meanings specified below. Certain additional defined terms are set forth elsewhere in this Agreement. (a) "Assignee" means a person reflected in the records of the Company as the owner of financial rights in the Company. An Assignee does not have governance or management rights. (b) "Code" means the Internal Revenue Code of 1986, as amended from time to time, any successor thereto and applicable regulations thereunder. Any reference herein to a specific section or sections of the Code shall be deemed to include a reference to any corresponding provision of future law. (c) "Company Interest" means the interest of a Member or an Assignee in the Company as represented by such Member's or Assignee's Percentage Interest. (d) "Company Minimum Gain" shall have the meaning of "Partnership Minimum Gain", set forth in Regulations sections 1.704-2(b)(2) and 1.704-2(d). (e) "Manager" shall mean MESH together with any substitute or replacement Manager selected by the Members from time to time as permitted by the Articles of Organization. (f) "Member" means a person reflected in the records of the Company as the owner of all rights and benefits of a membership interest in the Company specified in this Agreement, including governance or management rights. (g) "Member Nonrecourse Debt" shall have the meaning of "Partner Nonrecourse Debt" set forth in Regulation section 1.704-2(b)(4). (h) "Member Nonrecourse Debt Minimum Gain" means an amount, with respect to each Member Nonrecourse Debt, equal to the Company Minimum Gain that would result if such Member Nonrecourse Debt were treated as a Nonrecourse Liability, determined in accordance with section 1.704-2(i)(3) of the Regulations. (i) "Member Nonrecourse Deductions" shall have the meaning of "Partner Nonrecourse Deductions" set forth in Regulation section 1.704-2(i)(2). (j) "Nonrecourse Deductions" shall have the meaning set forth in Regulation section 1.704-2(b)(1). (k) "Nonrecourse Liability" shall have the meaning set out in sections 1.704-2(b)(3) and 1.752-1(a)(2) of the Regulations. (l) "Percentage Interest" means the percentage interest of a Member in the Company including, without limitation, such Member's right (i) to a distributive share of the profits or losses and distributions of cash and/or other Company property and (ii) to a distributive share of the Company's assets. (m) "Person" means any individual, corporation, association, partnership, limited liability company, joint venture, trust, estate or other entity, or organization. 2 (n) "Regulations" means the permanent, temporary, proposed or proposed and temporary regulations of Department of the Treasury under the Code as such regulations may be lawfully changed from time to time. (o) "Southern Affiliated Entities" means the Company, The Southern Company, a Delaware corporation ("Southern"), Southern Electric International, Inc., a Delaware corporation ("SEI"), and MESH and any other corporation, partnership, limited liability company or other business entity with respect to which the Company, Southern, SEI, or Mobile Energy, through ownership of voting securities, by contract or otherwise, has the power to direct (or cause the direction of) the management and policies of such corporation, partnership, limited liability company or other business entity. (p) "Transfer" means to sell, convey, transfer, assign, mortgage, pledge, hypothecate, or otherwise encumber in any way all or any portion of a Company Interest. ARTICLE III PERCENTAGE INTERESTS Section 3.1 Names, Addresses and Percentage Interests of Members The following is a listing of the names, mailing addresses, and Percentage Interest of each of the Members: Percentage Name Address Interest Mobile Energy 900 Ashwood Services Holdings, Parkway, Suite 450 99% Inc. Atlanta, GA 30338 Southern Electric 900 Ashwood International, Inc. Parkway, Suite 500 1% Atlanta, GA 30338 Total 100% Section 3.2 Capital Contributions. Any Member may make capital contributions to the Company. Such contributions (if other than in cash) shall be valued at their net fair market value on the date of such contribution. Such value (the "Agreed Value") shall be agreed upon by the non-contributing Members owning a majority of the Percentage Interests of the Company, exclusive of the Percentage Interest owned by the contributing Member. 3 Section 3.3 Summary of Capital Contributions. For the purposes of this Agreement, the capital contributions to the Company shall be deemed to include the initial capital contributions to the Company made by the Members, plus any amounts subsequently contributed to the capital of the Company by the Members. No Member shall be entitled to interest on its capital account. Section 3.4 Capital Accounts. An individual capital account shall be established and maintained for each Member. The capital account of each Member shall consist of such Member's original contribution and any additional contributions of capital, increased by (1) cash and the net fair market value of property other than cash contributed to capital by such Member (net of liabilities assumed by the Company or subject to which the Company takes such property within the meaning of section 752 of the Code), and (2) such Member's distributive share of income and gains of the Company, including items of income and gain specifically allocated to such Member or Assignee pursuant to Article IV and the Code, and decreased by (a) distributions of cash or other property to such Member (net of liabilities of the Company assumed by the Member or subject to which the Member takes such property within the meaning of section 752 of the Code), and (b) such Member's distributive share of losses of the Company, including items of expense, loss, and deduction specifically allocated to such Member pursuant to Article IV and the Code. Notwithstanding anything to the contrary contained herein, the capital account of a Member shall maintained in all events in accordance with the rules set forth in Regulation section 1.704-1(b)(2)(iv). Section 3.5 Capital Account of Assignee. In the event of a Transfer of some or all of a Member's Company Interest, the capital account of the transferor shall become the capital account of the transferee, to the extent it relates to the portion of the Company Interest transferred. ARTICLE IV PROFITS, LOSSES AND DISTRIBUTIONS Section 4.1 Profits and Losses. After giving effect to the special allocations in Sections 4.2 and 4.3, all profits and losses derived from the Company, and each item of income, gain, loss, deduction and credit entering into the computation thereof, shall be allocated among the Members in accordance with their respective Percentage Interests. A separate account shall be maintained for each Member. Company profits and losses shall be charged or credited to the separate capital account of each Member as provided. Section 4.2 Special Allocations. The following special allocations shall be made in the following order: 4 (a) Minimum Gain Chargeback. Except as otherwise provided in section 1.704-2(f) of the Regulations, notwithstanding any other provision of this Article IV, if there is a net decrease in Company Minimum Gain during any Company fiscal year, each Member shall be specially allocated items of Company income and gain for such fiscal year (and, if necessary, subsequent fiscal years) in an amount equal to such Member's share of the net decrease in Company Minimum Gain, determined in accordance with Regulation section 1.704-2(g). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with sections 1.704-(f)(6) and 1.704-2(j)(2) of the Regulations. This Section 4.2(a) is intended to comply with the minimum gain chargeback requirement in such section of the Regulations and shall be interpreted consistently therewith. (b) Member Minimum Gain Chargeback. Except as otherwise provided in section 1.704-2(i)(4) of the Regulations, notwithstanding any other provision of this Article IV, if there is a net decrease in Member Nonrecourse Debt Minimum Gain attributable to a Member Nonrecourse Debt during any Company fiscal year, each Member who has a share of the Member Nonrecourse Debt Minimum Gain attributable to such Member Nonrecourse Debt (determined in accordance with Regulation section 1.704-2(i)(5)) as of the beginning of such fiscal year, shall be specially allocated items of Company income and gain for such fiscal year (and, if necessary, subsequent fiscal years) in an amount equal to such Member's share of the net decrease in Member Nonrecourse Debt Minimum Gain attributable to such Member Nonrecourse Debt, determined in accordance with Regulation section 1.704-2(i)(4). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with sections 1.704-2(i)(4) and 1.704-2(j)(2) of the Regulations. This Section 4.2(b) is intended to comply with the minimum gain chargeback requirement in such section of the Regulations and shall be interpreted consistently therewith. (c) Qualified Income Offset. In the event that any Member unexpectedly receives any adjustments, allocations, or distributions described in sections 1.704- 1(b)(2)(ii)(d)(4)-(6) of the Regulations, items of Company income and gain shall be specially allocated to each such Member in an amount and manner sufficient to eliminate, to the extent required by the Regulations, the deficit capital account at the end of any fiscal year of such Member as quickly as possible, provided that an allocation pursuant to this Section 4.2 (c) shall be made if and only if and to the extent that such Member would have a deficit capital account at the end of any fiscal year after all other allocations provided for in this Agreement have been tentatively made as if this Section 4.2(c) were not in the Agreement. (d) Code Section 754 Adjustment. To the extent an adjustment to the adjusted tax basis of any Company asset pursuant to Code section 734(b) or Code section 743(b) is required, pursuant to Regulation section 1.704-1(b)(2)(iv)(m)(2) or Regulation section 1.704-l(b)(2)(iv)(m)(4), to be taken into account in determining capital accounts as a result of a distribution 5 to a Member in complete liquidation of its interest, the amount of such adjustment to the capital accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis) and such gain or loss shall be specifically allocated to the Members in accordance with their Percentage Interests in the event Regulation section 1.704-1(b)(2)(iv)(m)(2) applies or to the Members to whom such distribution was made in the event that Regulation section 1.704-1(b) (2)(iv)(m)(4) applies. (e) Nonrecourse Deductions. Nonrecourse Deductions for any fiscal year or other period shall be specially allocated among the Members in proportion to their Percentage Interests. (f) Member Nonrecourse Deductions. Any Member Nonrecourse Deductions for any fiscal year or other period shall be specially allocated to the Member who bears the economic risk of loss with respect to the Member Nonrecourse Debt to which such Member Nonrecourse Deductions are attributable in accordance with Regulation section 1.704-2(i)(2). Section 4.3 Other Allocation Rules. (a) The Members are aware of the income tax consequences of the allocations made by this Article IV and hereby agree to be bound by the provisions of this Article IV in reporting their shares of Company income and loss for income tax purposes. (b) For purposes of determining the profits, losses, or any other items allocable to any period, profits, losses, and any such other items shall be determined on a daily, monthly, or other basis, as determined by the Members using any permissible method under Code section 706 and the Regulations thereunder. (c) Solely for purposes of determining a Member's proportionate share of the "excess nonrecourse liabilities" of the Company within the meaning of Regulation section 1.752-3(a)(3), the Members' interests in Company profits are in proportion to their Percentage Interests. Section 4.4 Tax Allocations; Code Section 704(c). In accordance with Code section 704(c) and the Regulations thereunder, income, gain, loss, and deduction with respect to any property contributed to the capital of the Company shall, solely for tax purposes, be allocated among the Members so as to take account of any variation between the adjusted basis of such property to the Company for federal income tax purposes and its initial fair market value. In the event that the Agreed Value of any Company asset is adjusted pursuant to Regulation section 1.704-1(b)(2)(iv)(f), subsequent allocations of income, gain, loss and deduction with respect to such asset shall take account 6 of any variation between the adjusted basis to the Company at the time of the contribution for federal income tax purposes and the Agreed Value of such property. Any elections or other decisions relating to such allocations shall be made by the Manager in any manner that reasonably reflects the purpose and intention of this Agreement. Allocations pursuant to this Section 4.4 are solely for purposes of federal, state, and local taxes and shall not affect, or in any way be taken into account in computing, any Member's capital account or share of profits, losses, other items, or distributions pursuant to any provisions of this Agreement. Section 4.5 Property Distributions. The Company shall not make any distributions of property (including cash) unless the Members unanimously vote for the Company to make such distributions. ARTICLE V ACCOUNTING AND RECORDS Section 5.1 Accountant. An accountant may be selected from time to time by the Manager to perform such tax and accounting services as may from time to time be required. The accountant may be removed by the Manager without assigning any cause. Section 5.2 Legal Counsel. One or more attorney(s) at law may be selected from time to time by the Manager to review the legal affairs of the Company and to perform such other services as may be required and to report to the Manager with respect thereto. Such attorney(s) may be removed by the Manager without assigning any cause. Section 5.3 Books and Records. The Company's books and records shall be kept at the principal place of business of the Company. The Company's books of account shall show a true and accurate record of all costs and expenses incurred, all charges made, all credits made and received and all income derived in connection with the operation of the Company business in accordance with generally accepted accounting principles consistently applied. The Company shall use the accrual method of accounting in preparation of its annual reports and for tax purposes and shall keep its books accordingly. The expenses chargeable to the Company shall include only those which are reasonable and necessary for the ordinary and efficient operation of the Company business. Section 5.4 Right of Inspection. Each Member shall, at its sole expense, have the right, at any time without notice to the other Members, to examine, copy and audit the Company's books and records during normal business hours. Such inspections may be made by any agent or attorney of a Member. 7 Section 5.5 Reports. Unless otherwise agreed by the Members, annual statements showing the Company's profits and losses for the fiscal year and indicating the share of profit or loss of each Member for income tax purposes shall be prepared by the accountants of the Company and distributed to all Members within a reasonable time after the close of each fiscal year. Section 5.6 Tax Returns. The Company's accountants shall prepare all income and other tax returns of the Company and shall cause the same to be filed in a timely manner. The Company shall furnish to each Member a copy of each such return, together with any schedules or other information which each Member may require in connection with its own tax affairs. Section 5.7 Special Basis Adjustment. In connection with any Transfer of a Company Interest permitted by the terms of this Agreement and a subsequent admission of a "Transferee" (as hereinafter defined) as a Member of the Company, the Company, at the written request of the "Selling Owner" (as hereinafter defined) or Transferee, and at the time and in the manner provided in Regulation section 1.754-1(b), may in the discretion of the Manager make an election to adjust the basis of the Company's property in the manner provided in sections 734(b) and 743(b) of the Code, and such Transferee shall pay all costs incurred by the Company in connection therewith, including, without limitation, reasonable attorneys' and accountants' fees. Section 5.8 Tax Matters Partner. MESH shall be the "Tax Matters Partner" pursuant to the Code, and shall be the party designated to receive all notices from the Internal Revenue Service which pertain to the tax affairs of the Company. The Tax Matters Partner must be a Member and shall not take any action in its capacity as such without the prior approval of the other Members. Section 5.9 Fiscal Year. The fiscal year of the Company shall be the calendar year, unless otherwise approved by the Members. As used in this Agreement, a fiscal year shall include any partial fiscal year at the beginning and end of the Company term. ARTICLE VI MANAGEMENT, OFFICERS, ELECTIONS AND APPROVALS Section 6.1 Voting of Members. Where the Members have voting rights pursuant to the Act or this Agreement, the Members shall vote in accordance with their respective Percentage Interests. Section 6.2 Management. The Members hereby agree that the Manager shall manage and direct the Company's business and affairs and determine the Company's 8 policies. Without limiting the generality of the foregoing, the Manager shall have the power and authority, on behalf of the Company: (a) To acquire property from any Person as the Manager may determine. The fact that a Member is directly or indirectly affiliated or connected with any such Person shall not prohibit the Manager from dealing with that Person; (b) To borrow money for the Company from banks, other lending institutions, the Members, or affiliates of the Members on such terms as the Manager deems appropriate, and in connection therewith, to hypothecate, encumber and grant security interests in the assets of the Company to secure repayment of the borrowed sums; (c) To purchase liability and other insurance to protect the Company's property and business; (d) To hold and own any Company real and/or personal properties in the name of the Company; (e) To invest any Company funds temporarily (by way of example but not limitation) in time deposits, short-term governmental obligations, commercial paper or other investments; (f) To sell or otherwise dispose of all or substantially all of the assets of the Company as part of a single transaction or plan so long as such disposition is not in violation of or a cause of a default under any other agreement to which the Company may be bound; (g) To open and maintain bank accounts on behalf of the Company; (h) To employ accountants, legal counsel, managing agents or other experts to perform services for the Company and to compensate them from Company funds; (i) To enter into any and all other agreements on behalf of the Company, with any other Person for any purpose, in such forms as the Manager may approve; (j) To elect officers of the Company and grant authority to such officers to take action on behalf of the Company; and (k) To do and perform all other acts as may be necessary or appropriate to the conduct of the Company's business. Section 6.3 Officers. (a) The officers of the Company shall be chosen by the Manager and shall include at a minimum a president, secretary and controller. The Manager may also choose one or more vice-presidents, assistant secretaries and assistant controllers. Any number of offices may be held by the 9 same person. The Manager may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Manager. The salaries of all officers and agents of the Company shall be fixed by the Manager. The officers of the Company shall hold office until their successors are chosen and qualified. Any officer appointed by the Manager may be removed at any time by the Manager. Any vacancy occurring in any office of the Company may be filled by the Manager. (b) Each officer of the Company shall have the authority to execute and deliver any and all applications and filings as are necessary to be filed with federal, state and local regulatory agencies on behalf of the Company. (c) Each officer of the Company (other than an assistant secretary or assistant controller) acting alone shall be authorized to execute any and all contracts, agreements, instruments, documents, bonds and purchase orders on behalf of the Company without further act or resolution of the Manager or the Members; provided that any contracts, agreements, instruments, documents, bonds or purchase orders obligating the Company to make payments in the form of performance guarantees, liquidated damages or other contingent liabilities or payments in an amount in excess of $5,000,000 shall be subject to further act or resolution of either the Manager or the Members; and provided further that from time to time any officer may designate, in writing, another specific officer or employee of SEI to execute specific contracts, agreements, instruments, documents, bonds and purchase orders which such designating officer is otherwise authorized to execute. Without limiting the generality of the foregoing, the following officers shall have the following specific powers and duties: (i) President. The president shall be the chief executive officer of the Company, shall preside at all meetings of the Members, shall have general and active management of the business of the Company and shall see that all orders and resolutions of the Manager are carried into effect. (ii) Vice-Presidents. In the absence of the president or in the event of his inability or refusal to act, the vice-president (or in the event there be more than one vice-president, the vice-presidents in the order designated by the Manager, or in the absence of any designation, then in the order of their election) shall perform the duties of the president, and when so acting, shall have all the powers of and be subject to all the restrictions upon the president. The vice-presidents shall perform such other duties and have such other powers as the Manager may from time to time prescribe. (iii) Secretary. The secretary shall attend any meetings of the Members and record all the proceedings of the meetings of the Company and of the Members in a book to be kept for that purpose. He shall give, or 10 cause to be given, notice of any meetings of the Members, and shall perform such other duties as may be prescribed by the Manager or president, under whose supervision he shall be. (iv) Assistant Secretary. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the Manager (or if there be no such determination, then in the order of their election) shall, in the absence of the secretary or in the event of his inability or refusal to act, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the Manager may from time to time prescribe. (v) Controller. The controller shall have the custody of the Company funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit all moneys and other valuable effects in the name and to the credit of the Company in such depositories as may be designated by the Manager. The controller shall disburse the funds of the Company as may be ordered by the Manager or the president, taking proper vouchers for such disbursements, and shall render to the president and the Members, at their regular meetings, or when the Manager so requires, an account of all its transactions as controller and of the financial condition of the Company. If required by the Manager, the controller shall give the Company a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the Manager for the faithful performance of the duties of his office and for the restoration to the Company, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in its possession or under his control belonging to the Company. (vi) Assistant Controller. The assistant controller, or if there shall be more than one, the assistant controllers in the order determined by the Manager (or if there be no such determination, then in the order of their election) shall, in the absence of the controller or in the event of his inability or refusal to act, perform the duties and exercise the powers of the controller and shall perform such other duties and have such other powers as the Manager may from time to time prescribe. Section 6.4 Elections and Approvals. Except as otherwise set forth in this Agreement, any election or any matter that is subject to approval by the Members shall require the simple majority vote of the Members. Section 6.5 Independent Activities. The Manager and each Member may, notwithstanding this Agreement, engage in whatever activities it may choose, whether the same are competitive with the Company or otherwise, without having or incurring any obligation to offer any interest in such activities to the Company or any other Member. Neither this Agreement nor any activity undertaken pursuant hereto shall prevent the Manager or any Member from engaging in such activities, or require the Manager or any Member to permit the Company or any other Member to participate in any such activities, and as a material part of the consideration for the execution of this Agreement by each Member, each Member hereby waives, relinquishes and renounces any such right or claim of participation against the Manager and any other Member. 11 ARTICLE VII ADMISSION OF ADDITIONAL MEMBERS, DEATH OF A MEMBER, AND TRANSFER OF INTERESTS Section 7.1 Addition of Additional Members. No additional Members shall be admitted to the Company without the unanimous consent of the Members. Section 7.2 Restrictions on Transfer. Except as expressly provided for in this Agreement, no Member or Assignee may, without the consent of a majority in interest of the other Members, Transfer all or any portion of its Company Interest or withdraw or retire from the Company. Any such attempted Transfer, withdrawal or retirement not permitted hereunder shall be null and void. Section 7.3 Right of First Refusal. If a majority of the non-transferring Members approve a proposed Transfer or the prohibitions contained in Section 7.2 are determined by a court of competent jurisdiction to be unenforceable, then the Member or Assignee desiring to Transfer all or a portion of its Company Interest (the "Selling Owner") shall deliver a written notice ("Offering Notice") to the other Members (the "Offeree Members") of its intention to do so. The Offering Notice shall specify the nature of the Transfer, the consideration to be received therefor, the identity of the proposed purchaser, and the terms upon which it intends to undertake such Transfer. Each Offeree Member shall have the right to elect to purchase from the Selling Owner a part of the Company Interest of the Selling Owner in the proportion that such Offeree Member's Percentage Interest bears to the total Percentage Interests of all of the Offeree Members who wish to participate in the purchase of all of the Company Interest referred to in the Offering Notice, at the same price and on the same terms as specified in the Offering Notice, for a period of 60 days after the giving of the Offering Notice, by delivering in writing to the Selling Owner an offer to purchase that portion of the Company Interest of the Selling Owner covered by the Offering Notice; provided, however, that the Offeree Members may not, in the aggregate, purchase less than the entire Company Interest of the Selling Owner. Within 45 days, after notice to purchase is provided by the Offeree Members to the Selling Owner, the purchase by the Offeree Members of said Company Interest shall be consummated on the terms and conditions set forth in the Offering Notice of the Selling Owner. If within the 60-day period during which the Offeree Members have the right to elect to purchase the Selling Owner's Company Interest, they do not make such election, then the Selling Owner, within 30 days after the expiration of said 60-day period, may undertake and complete the Transfer to any person the identity of which was disclosed in the Offering Notice. The Transfer shall not be undertaken at a lower price or upon more favorable terms to the purchaser than specified in the Offering Notice. If the Selling Owner does not consummate 12 such Transfer within 90 days after the date of the Offering Notice, or within the time scheduled for closing pursuant to the Offering Notice, whichever is later, then all restrictions of this Section 7.3 shall apply as though no Offering Notice had been given. The purchaser of the Selling Owner's Company Interest (the "Transferee") shall become a substitute Member upon satisfaction of the following requirements: (a) the Transferee signs and accepts the terms and conditions of this Agreement; (b) the Transferee satisfies the Members that such Transfer does not violate any federal or state securities laws, or might cause the termination of the Company under the Code; (c) the Transferee pays all related expenses, including legal fees and recording costs as may be incurred by the Company in connection with such Transfer; and (d) the Offeree Members unanimously agree to admit the Transferee as a substitute Member. If the Offeree Members do not agree to admit the Transferee as a substitute Member, the Transferee is merely an Assignee and the Selling Owner, if a Member, remains a Member of the Company pursuant to sections 10-12-32 and 10-12-33 of the Act. As an Assignee, the Transferee is reflected in the records of the Company as the owner of financial rights in the Company, but does not have governance or management rights. Section 7.4 Additional Restrictions in MESH Transfers. Notwithstanding anything contained herein to the contrary, the Company shall be dissolved and its functions shall be wound up if MESH transfers a sufficient amount of its Company Interest in the Company such that its Company Interest following such transfer(s) is less than twenty-five percent (25%) of the total Company Interests in the Company. This provision shall automatically terminate and shall be of no further effect if any person or persons who are not Southern Affiliated Entities and who would not be deemed to be related to the Company, Southern or SEI, are admitted as Members in the Company. Nothing in this provision shall prohibit MESH from making an assignment of its economic interest in the Company to an Assignee. Section 7.5 General Transfer Provision. All Transfers shall be by instrument in form and substance satisfactory to counsel for the Company and shall contain an expression by the Transferee of its intention to accept the Transfer and to accept and adopt all of the terms and provisions of this Agreement, as the same may have been amended, and shall provide for the payment by the Transferee of all reasonable expenses incurred by the Company in connection with such Transfer, including, without limitation, the necessary amendments to this Agreement to reflect such Transfer. The Selling Owner shall execute and acknowledge all such instruments, in form and substance reasonably satisfactory to the Company's counsel, as may be necessary or desirable to 13 effectuate such Transfer. In no event shall the Company dissolve, liquidate or terminate upon the admission of any Member to the Company or upon any permitted Transfer of an interest in the Company by any Member or Assignee. Each Member hereby waives its right to dissolve, liquidate or terminate the Company in such event. Upon completion of a Transfer in compliance with this Agreement, the Selling Owner shall be released from all future obligations arising to third parties after the date of such Transfer, provided the Transferee assumes all such obligations of the Selling Owner. However, the Selling Owner shall remain liable for liabilities to third parties occurring on or prior to the date of such Transfer and for its obligations under this Agreement when arising. Section 7.6 Compliance. Notwithstanding anything to the contrary in this Agreement, at law or in equity, no Member shall Transfer or otherwise deal with any Company Interest in a way that would cause a default under any material agreement to which the Company is a party or by which it is bound. Section 7.7 Waiver of Partition. No Member shall either directly or indirectly take any action to require partition or appraisal of the Company or of any of its assets or properties or cause the sale of any Company property, and notwithstanding any provisions of applicable law to the contrary, each Member (and its legal representatives, successors or assigns) hereby irrevocably waives any and all right to maintain any action for partition or to compel any sale with respect to its Company Interest, or with respect to any assets or properties of the Company, except as expressly provided in this Agreement, and each Assignee shall have no such right. ARTICLE VIII DISSOLUTION AND WINDING UP Section 8.1 Dissolution. The Company shall dissolve upon the first to occur of any of the following events: (a) The election of all of the Members to dissolve the Company; and (b) An event of dissociation of a Member, as defined in section 10-12-36 of the Act, provided, however, that the business of the Company may be continued if both of the following apply: (1) there are at least two remaining Members or at least one remaining Member and a new Member is admitted; and 14 (2) the legal existence and business of the Company is continued by the written consent of all of the remaining Members within 90 days after the occurrence of the event of dissociation. Section 8.2 Winding Up. Upon a dissolution of the Company, the Members shall take full account of the Company's assets and liabilities, the Company's assets shall be liquidated as promptly as is consistent with obtaining the fair value thereof, and the proceeds therefrom, to the extent sufficient therefor, shall be applied and distributed in the following order: (a) To the payment and discharge of all of the Company's liabilities, including the establishment of any necessary reserves; and (b) The balance, if any, to the Members in accordance with their capital accounts. Section 8.3 Compliance with Timing Requirements of Regulations. In the event the Company is "liquidated" within the meaning of Regulation section 1.704-1(b)(2)(ii)(g), distributions shall be made pursuant to this Article VIII (if such liquidation constitutes a dissolution of the Company) or Article IV hereof (if it does not) to the Members who have positive capital accounts in compliance with Regulation section 1.704-1(b)(2)(ii)(b)(2). Section 8.4 Rights of Members. Except as otherwise provided in this Agreement, each Member shall look solely to the assets of the Company for the return of its capital contributions and shall have no right or power to demand or receive property other than cash from the Company. No Member shall have priority over the other Members as to the return of its capital contributions, distributions or allocations unless otherwise provided in this Agreement. Section 8.5 Negative Capital Accounts. Any Member upon liquidation of the Company or at any other time having a deficit or negative balance in its capital account shall not be required to restore such deficit capital amount or otherwise to contribute capital to the Company to restore its capital account. ARTICLE IX MISCELLANEOUS Section 9.1 Notices. Any notice, payment, demand, or communication required or permitted to be given by any provision of this Agreement shall be in writing and shall be deemed to have been delivered, given and received for all purposes (i) if delivered personally to the Member or to an officer of the Member to whom the same is directed, or (ii) whether or not the same is actually received, if sent by registered or certified mail, postage 15 and charges prepaid, addressed as follows: if to the Company, to the Company at the address set forth in Section 1.2 hereof; if to any Member, to the address set forth in Section 3.1 hereof; or to such other address as the Company or any Member may from time to time specify by notice to the Company and the Members. Any such notice shall be deemed to be delivered, given and received as of the date so delivered, if delivered personally, or as of the date on which the same was deposited in a regularly maintained receptacle for the deposit of United States mail, addressed and sent as aforesaid. Section 9.2 Waiver of Notice. Whenever any notice is required to be given pursuant to the provisions of the Act, the Articles of Organization of the Company or this Agreement, a waiver thereof, in writing, signed by the persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. Section 9.3 Indemnification by the Company. The Company shall indemnify persons who may be indemnified by the Company as follows: (a) Each person who is or was a Member, Manager, officer, employee or agent of the Company and who was or is a party or was or is threatened to be made a party to any threatened, pending or completed claim, action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that it is or was a Member, Manager, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, alternate director, officer, employee, agent or trustee of another company, partnership, joint venture, trust, employee benefit plan or other enterprise, shall be indemnified by the Company as a matter of right against any and all expenses (including attorneys' fees) actually and reasonably incurred by him and against any and all claims, judgments, fines, penalties, liabilities and amounts paid in settlement actually incurred by him in defense of such claim, action, suit or proceeding, including appeals, to the full extent permitted by applicable law. The indemnification provided by this section shall inure to the benefit of the heirs, executors and administrators of such person. (b) Expenses (including attorneys' fees) incurred by a Member, Manager, officer, employee or agent of the Company with respect to the defense of any such claim, action, suit or proceeding may be advanced by the Company prior to the final disposition of such claim, action, suit or proceeding, as authorized by the Manager in the specific case, upon receipt of an undertaking by or on behalf of such person to repay such amount unless it shall ultimately be determined that such person is entitled to be indemnified by the Company under this Agreement or otherwise; provided, however, that the advancement of such expenses shall not be deemed to be indemnification unless and until it shall ultimately be determined that such person is entitled to be indemnified by the Company. (c) The Company may purchase and maintain insurance at the expense of the Company on behalf of any person who is or was a Member, Manager, officer, employee or agent of the Company, or any person who is or was serving at the request of the Company as a director (or the equivalent), alternate 16 director, officer, employee, agent or trustee of another company, partnership, joint venture, trust, employee benefit plan or other enterprise, against any liability or expense (including attorneys' fees) asserted against him and incurred by him in any such capacity, or arising out of its status as such, whether or not the Company would have the power to indemnify him against such liability or expense under this Agreement or otherwise. (d) Without limiting the generality of the foregoing provisions, no present or future Member, Manager, officer, employee or agent of the Company, or its heirs, executors, or administrators, shall be liable for any act, omission, step, or conduct taken or had in good faith, which is required, authorized, or approved by any order or orders issued pursuant to the Public Utility Holding Company Act of 1935, the Federal Power Act, or any federal or state statute or municipal ordinance regulating the Company or its parent by reason of their being holding or investment companies, public utility companies, public utility holding companies, or subsidiaries of public utility holding companies. In any action, suit, or proceeding based on any act, omission, step, or conduct, as described in this paragraph, the provisions hereof shall be brought to the attention of the court. In the event that the foregoing provisions of this paragraph are found by the court not to constitute a valid defense on the grounds of not being applicable to the particular class of plaintiff, each such Member, Manager and officer, and its heirs, executors, and administrators, shall be reimbursed for, or indemnified against, all expenses and liabilities incurred by him or imposed on him, in connection with, or arising out of, any such action, suit, or proceeding based on any act, omission, step, or conduct taken or had in good faith as in this paragraph described. Such expenses and liabilities shall include, but shall not be limited to, judgments, court costs, and attorneys' fees. (e) The foregoing rights shall not be exclusive of any other rights to which any such Member, Manager, officer, employee or agent may otherwise be entitled and shall be available whether or not the Member, Manager, officer, employee or agent continues to be a Member, Manager, officer, employee or agent at the time of incurring any such expenses and liabilities. (f) If any word, clause or provision of the Agreement or any indemnification made under this Section 9.3 hereof shall for any reason be determined to be invalid, the provisions of the Agreement shall not otherwise be affected thereby but shall remain in full force and effect. Section 9.4 Governing Law. This Agreement shall be construed under the substantive laws of the State of Alabama as now adopted or as may hereafter be amended, and such laws shall govern the limited liability company aspects of this Agreement. Section 9.5 Construction. Every covenant, term and provision of this Agreement shall be construed simply according to its fair meaning and not strictly for or against any Member. In the event that any provision of this 17 Agreement shall be found to conflict with any term of the Articles of Organization of the Company, the Articles of Organization shall control. Section 9.6 Reimbursement of Members. Members shall receive reimbursement for expenses reasonably incurred in the performance of their duties. Section 9.7 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Members and their legal representatives, heirs, administrators, executors, successors and permitted assigns. Section 9.8 Headings. Section and other headings contained in this Agreement are for reference purposes only and are not intended to describe, interpret, define or limit the scope, extent or intent of this Agreement or any provision hereof. Section 9.9 Severability. Every provision of this Agreement is intended to be severable. If any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity or legality of the remainder of this Agreement. Section 9.10 Additional Documents. Each member agrees to perform all further acts and execute, acknowledge and deliver any documents which may be reasonably necessary, appropriate or desirable to carry out the provisions of this Agreement. Section 9.11 Variation of Pronouns. All pronouns and any variations thereof shall be deemed to refer to masculine, feminine or neuter, singular or plural, as the identity of the person or persons may require. Section 9.12 Counterpart Execution. This Agreement may be executed in one or more counterparts each of which shall be deemed an original and all of which shall constitute one and the same instrument. Section 9.13 Amendments. This Agreement may be altered, amended, restated, or repealed and a new Agreement may be adopted by a unanimous vote of the Members, after notice and opportunity for discussion of the proposed alteration, amendment, restatement, or repeal. 18 CERTIFICATION THE UNDERSIGNED, being all of the Members of Mobile Energy Services Company, L.L.C., hereby evidence their adoption and ratification of the foregoing Agreement of the Company. EXECUTED by each Member on the ____ day of July, 1995. "MESH" Mobile Energy Services Holdings, Inc. ________________________________ By:_______________________________ Witness Title:__________________________ "SEI" Southern Electric International, Inc. ________________________________ By:_______________________________ Witness Title:__________________________ EX-99 12 EXHIBIT B-58 EXHIBIT B-58 CERTIFICATE OF INCORPORATION OF SEI NEWCO 1, INC. I The name of the corporation is SEI NEWCO 1, INC. (the "Corporation"). II The initial registered office of the Corporation in the State of Delaware shall be located at Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801. The initial registered agent of the Corporation at such address shall be The Corporation Trust Company. III The purpose or purposes for which the Corporation is organized is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. IV The Corporation shall be authorized to issue One Thousand (1,000) shares of One Dollar ($1.00) par value capital stock, all of which shall be designated "Common Stock". The shares of Common Stock shall have unlimited voting rights and shall be entitled to receive all of the net assets of the Corporation upon dissolution or liquidation. V The affairs of the Corporation shall be managed by a Board of Directors and as otherwise provided in the By-laws of the Corporation. The initial Board of Directors of the Corporation shall consist of one (1) member, whose name and corresponding mailing address is: c/o James A. Ward Southern Electric International, Inc. 900 Ashwood Parkway Suite 500 Atlanta, Georgia 30338 VI The Corporation shall have perpetual duration. VII The Board of Directors of the Corporation shall have the power to adopt, amend and repeal the By-laws of the Corporation. VIII To the fullest extent that the General Corporation Law of the State of Delaware, as it exists on the date hereof or as it may hereafter be amended, permits the limitation or elimination of the liability of directors, no director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of duty of care or other duty as a director. NO amendment to or repeal of this Article shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal. IX The name and address of the Incorporator of the Corporation is Jianyi Zhang, Esquire, NationsBank Plaza, 600 Peachtree Street, N.E., Suite 5200, Atlanta, GA 30308-2216. -------------------------------- Jianyi Zhang, Esquire, Incorporator 2 EX-99 13 EXHIBIT B-59 EXHIBIT B-59 BY-LAWS OF SEI NEWCO 1, INC. ARTICLE I OFFICES Section 1. The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware. Section 2. The corporation may also have offices at such other places both within and without the State of Delaware as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All meetings of the stockholders for the election of directors shall be held at such places as may be fixed from time to time by the board of directors, or at such other place either within or without the State of Delaware as shall be designated from time to time by the board of directors and stated in the notice of the meeting. Meetings of stockholders for any other purpose may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Annual meeting of stockholders shall be held at such date and time as shall be designated from time to time by the board of directors and stated in the notice of the meeting, at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten (10) nor more than sixty (60) days before the meeting. Section 4. The officer who has charge of the stock ledger of the corporation shall prepare and make , at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 5. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 6. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting, to each stockholder entitled to vote at such meeting. Section 7. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 8. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. Section 9. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the certificate of incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question. Section 10. Unless otherwise provided in the certificate of incorporation or in any agreement among shareholders as permitted under the General Corporation Law of the State of Delaware (the "Delaware Corporation Law"), each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period. - 2 - Section 11. Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall be not less than one (1) nor more than seven (7). The initial board shall consist of one (1) director. Thereafter, within the limits above specified, the number of directors shall be determined by resolution of the board of directors or by the stockholders at the annual meeting. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2 of this Article, and each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 2. Vacancies and newly created directorship resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filing any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. Section 3. The business of the corporation shall be managed by or under the direction of its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. - 3 - MEETINGS OF THE BOARD OF DIRECTORS Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board. Section 7. Special meetings of the board may be called by the president on 2 days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the board consists of only one director; in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director. Section 8. At all meetings of the board a majority of the directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 9. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee. Section 10. Unless otherwise restricted by the certificate of incorporation or these by-laws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means - 4 - of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. COMMITTEES OF DIRECTORS Section 11. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution of the board of directors, shall have and may exercise all the powers and authority of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the certificate of incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, unless the resolution or the certificate of incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock or to adopt a certificate of ownership and merger. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. Section 12. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required. COMPENSATION OF DIRECTORS Section 13. Unless otherwise restricted by the certificate of incorporation or these by-laws, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. - 5 - REMOVAL OF DIRECTORS Section 14. Unless otherwise restricted by the certificate of incorporation or by law, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of directors. ARTICLE IV NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these by-laws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice is required to be given under the provisions of the statutes or of the certificate of incorporation or of these by-laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be at a minimum a president, secretary and treasurer. The board of directors may also choose one or more vice-presidents, assistant secretaries and assistant treasurers. Any number of offices may be held by the same person, unless the certificate of incorporation or these by-laws otherwise provide. Section 2. The board of directors at its first meeting after each annual meeting of stockholders shall choose a president, one or more vice-presidents, a secretary and a treasurer. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board. - 6 - Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualified. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the stockholders and the board of directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. The president shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE-PRESIDENTS Section 8. In the absence of the president or in the event of his inability or refusal to act, the vice-president (or in the event there be more than one vice-president, the vice-presidents in the order designated by the directors, or in the absence of any designation, then in the order of their election) shall perform the duties of the president, and when so acting, shall have all the powers of and be subject to all the restrictions upon the president. The vice-presidents shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARY Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, - 7 - or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 10. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the secretary or in the event of his inability or refusal to act, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 12. The treasurer shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 13. If required by the board of directors, he shall give the corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 14. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. - 8 - ARTICLE VI CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by a certificate or shall be uncertificated. Certificates shall be signed by, or in the name of the corporation by, the chairman or vice-chairman of the board of directors, or the president or a vice-president and the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation. Within a reasonable time after the issuance or transfer of uncertificated stock, the corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to the Delaware Corporate Law Sections 151, 156, 202(a) or 218(a) or a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Section 2. Any of or all the signatures on a certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates or uncertificated shares, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed. - 9 - TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Upon receipt of proper transfer instructions from the registered owner of uncertificated shares such uncertificated shares shall be cancelled and issuance of new equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the books of the corporation. FIXING RECORD DATE Section 5. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board of directors may fix, in advance, a record date, which shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting: provided, however, that the board of directors may fix a new record date for the adjourned meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. ARTICLE VII INDEMNIFICATION Section 1. Each person who is or was a director of the corporation or officer or employee of the corporation holding one or more positions of management through and inclusive - 10 - of Project Managers and Business Development Managers (but not positions below the level of such managers) (such positions being hereinafter referred to as "Management Positions") and who was or is a party or was or is threatened to be made a party to any threatened, pending or completed claim, action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director of the corporation or officer or employee of the corporation holding one or more Management Positions, or is or was serving at the request of the corporation as a director, alternate director, officer, employee, agent or trustee of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall be indemnified by the corporation as a matter of right against any and all expenses (including attorneys' fees) actually and reasonably incurred by him and against any and all claims, judgments, fines, penalties, liabilities and amounts paid in settlement actually incurred by him in defense of such claim, action, suit or proceeding, including appeals, to the full extent permitted by applicable law. The indemnification provided by this section shall inure to the benefit of the heirs, executors and administrators of such person. Section 2. Expenses (including attorneys' fees) incurred by a director of the corporation or officer or employee of the corporation holding one or more Management Positions with respect to the defense of any such claim, action, suit or proceeding may be advanced by the corporation prior to the final disposition of such claim, action, suit or proceeding, as authorized by the board of directors in the specific case, upon receipt of an undertaking by or on behalf of such person to repay such amount unless it shall ultimately be determined that such person is entitled to be indemnified by the corporation under these by-laws or otherwise; provided, however, that the advancement of such expenses shall not be deemed to be indemnification unless and until it shall ultimately be determined that such person is entitled to be indemnified by the corporation. Section 3. The corporation may purchase and maintain insurance at the expense of the corporation on behalf of any person who is or was a director, officer, employee or agent of the corporation, or any person who is or was serving at the request of the corporation as a director (or the equivalent), alternate director, officer, employee, agent or trustee of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against any liability or expense (including attorneys' fees) asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liability or expense under these by-laws or otherwise. Section 4. Without limiting the generality of the foregoing provisions, no present or future director or officer of the corporation, or his heirs, executors, or administrators, shall be liable for any act, omission, step, or conduct taken or had in good faith, which is required, authorized, or approved by any order or orders issued pursuant to the Public Utility Holding Company Act of 1935, the Federal Power Act, or any federal or state statute or municipal ordinance regulating the corporation or its parent by reason of their being holding or investment companies, public utility companies, public utility holding companies, or subsidiaries of public - 11 - utility holding companies. In any action, suit, or proceeding based on any act, omission, step, or conduct, as in this paragraph described, the provisions hereof shall be brought to the attention of the court. In the event that the foregoing provisions of this paragraph are found by the court not to constitute a valid defense on the grounds of not being applicable to the particular class of plaintiff, each such director and officer, and his heirs, executors, and administrators, shall be reimbursed for, or indemnified against, all expenses and liabilities incurred by him or imposed on him, in connection with, or arising out of, any such action, suit, or proceeding based on any act, omission, step, or conduct taken or had in good faith as in this paragraph described. Such expenses and liabilities shall include, but shall not be limited to, judgments, court costs, and attorneys' fees. Section 5. The foregoing rights shall not be exclusive of any other rights to which any such director or officer or employee may otherwise be entitled and shall be available whether or not the director or officer or employee continues to be a director or officer or employee at the time of incurring any such expenses and liabilities. Section 6. If any word, clause or provision of the by-laws or any indemnification made under Article VII hereof shall for any reason be determined to be invalid, the provisions of the by-laws shall not otherwise be affected thereby but shall remain in full force and effect. The masculine pronoun, as used in the by-laws, means the masculine and feminine wherever applicable. ARTICLE VIII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. - 12 - ANNUAL STATEMENT Section 3. The board of directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation. CHECKS Section 4. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 5. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 6. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. ARTICLE IX AMENDMENTS Section 1. These by-laws may be altered, amended or repealed or new by-laws may be adopted by the stockholders or by the board of directors, when such power is conferred upon the board of directors by the certificate of incorporation at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration, amendment, repeal or adoption of new by-laws be contained in the notice of such special meeting. If the power to adopt, amend or repeal by-laws is conferred upon the board of directors by the certificate of incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal by-laws. - 13 - I hereby certify that the foregoing By-Laws were duly adopted by the Board of Directors of the Corporation on _________________, 1995. Sam H. Dabbs, Jr. Assistant Secretary - 14 - EX-99 14 EXHIBIT B-60 EXHIBIT B-60 CERTIFICATE OF INCORPORATION OF SEI NEWCO 2, INC. I The name of the corporation is SEI NEWCO 2, INC. (the "Corporation"). II The initial registered office of the Corporation in the State of Delaware shall be located at Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801. The initial registered agent of the Corporation at such address shall be The Corporation Trust Company. III The purpose or purposes for which the Corporation is organized is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. IV The Corporation shall be authorized to issue One Thousand (1,000) shares of One Dollar ($1.00) par value capital stock, all of which shall be designated "Common Stock". The shares of Common Stock shall have unlimited voting rights and shall be entitled to receive all of the net assets of the Corporation upon dissolution or liquidation. V The affairs of the Corporation shall be managed by a Board of Directors and as otherwise provided in the By-laws of the Corporation. The initial Board of Directors of the Corporation shall consist of one (1) member, whose name and corresponding mailing address is: c/o James A. Ward Southern Electric International, Inc. 900 Ashwood Parkway Suite 500 Atlanta, Georgia 30338 VI The Corporation shall have perpetual duration. VII The Board of Directors of the Corporation shall have the power to adopt, amend and repeal the By-laws of the Corporation. VIII To the fullest extent that the General Corporation Law of the State of Delaware, as it exists on the date hereof or as it may hereafter be amended, permits the limitation or elimination of the liability of directors, no director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of duty of care or other duty as a director. NO amendment to or repeal of this Article shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal. IX The name and address of the Incorporator of the Corporation is Jianyi Zhang, Esquire, NationsBank Plaza, 600 Peachtree Street, N.E., Suite 5200, Atlanta, GA 30308-2216. -------------------------------- Jianyi Zhang, Esquire, Incorporator 2 EX-99 15 EXHIBIT B-61 EXHIBIT B-61 BY-LAWS OF SEI NEWCO 2, INC. ARTICLE I OFFICES Section 1. The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware. Section 2. The corporation may also have offices at such other places both within and without the State of Delaware as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All meetings of the stockholders for the election of directors shall be held at such places as may be fixed from time to time by the board of directors, or at such other place either within or without the State of Delaware as shall be designated from time to time by the board of directors and stated in the notice of the meeting. Meetings of stockholders for any other purpose may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Annual meeting of stockholders shall be held at such date and time as shall be designated from time to time by the board of directors and stated in the notice of the meeting, at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten (10) nor more than sixty (60) days before the meeting. Section 4. The officer who has charge of the stock ledger of the corporation shall prepare and make , at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 5. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 6. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting, to each stockholder entitled to vote at such meeting. Section 7. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 8. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. Section 9. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the certificate of incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question. Section 10. Unless otherwise provided in the certificate of incorporation or in any agreement among shareholders as permitted under the General Corporation Law of the State of Delaware (the "Delaware Corporation Law"), each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period. - 2 - Section 11. Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall be not less than one (1) nor more than seven (7). The initial board shall consist of one (1) director. Thereafter, within the limits above specified, the number of directors shall be determined by resolution of the board of directors or by the stockholders at the annual meeting. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2 of this Article, and each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 2. Vacancies and newly created directorship resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filing any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. Section 3. The business of the corporation shall be managed by or under the direction of its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. - 3 - MEETINGS OF THE BOARD OF DIRECTORS Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board. Section 7. Special meetings of the board may be called by the president on 2 days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the board consists of only one director; in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director. Section 8. At all meetings of the board a majority of the directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 9. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee. Section 10. Unless otherwise restricted by the certificate of incorporation or these by-laws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means - 4 - of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. COMMITTEES OF DIRECTORS Section 11. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution of the board of directors, shall have and may exercise all the powers and authority of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the certificate of incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, unless the resolution or the certificate of incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock or to adopt a certificate of ownership and merger. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. Section 12. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required. COMPENSATION OF DIRECTORS Section 13. Unless otherwise restricted by the certificate of incorporation or these by-laws, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. - 5 - REMOVAL OF DIRECTORS Section 14. Unless otherwise restricted by the certificate of incorporation or by law, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of directors. ARTICLE IV NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these by-laws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice is required to be given under the provisions of the statutes or of the certificate of incorporation or of these by-laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be at a minimum a president, secretary and treasurer. The board of directors may also choose one or more vice-presidents, assistant secretaries and assistant treasurers. Any number of offices may be held by the same person, unless the certificate of incorporation or these by-laws otherwise provide. Section 2. The board of directors at its first meeting after each annual meeting of stockholders shall choose a president, one or more vice-presidents, a secretary and a treasurer. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board. - 6 - Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualified. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the stockholders and the board of directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. The president shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE-PRESIDENTS Section 8. In the absence of the president or in the event of his inability or refusal to act, the vice-president (or in the event there be more than one vice-president, the vice-presidents in the order designated by the directors, or in the absence of any designation, then in the order of their election) shall perform the duties of the president, and when so acting, shall have all the powers of and be subject to all the restrictions upon the president. The vice-presidents shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARY Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, - 7 - or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 10. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the secretary or in the event of his inability or refusal to act, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 12. The treasurer shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 13. If required by the board of directors, he shall give the corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 14. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. - 8 - ARTICLE VI CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by a certificate or shall be uncertificated. Certificates shall be signed by, or in the name of the corporation by, the chairman or vice-chairman of the board of directors, or the president or a vice-president and the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation. Within a reasonable time after the issuance or transfer of uncertificated stock, the corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to the Delaware Corporate Law Sections 151, 156, 202(a) or 218(a) or a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Section 2. Any of or all the signatures on a certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates or uncertificated shares, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed. - 9 - TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Upon receipt of proper transfer instructions from the registered owner of uncertificated shares such uncertificated shares shall be cancelled and issuance of new equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the books of the corporation. FIXING RECORD DATE Section 5. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board of directors may fix, in advance, a record date, which shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting: provided, however, that the board of directors may fix a new record date for the adjourned meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. ARTICLE VII INDEMNIFICATION Section 1. Each person who is or was a director of the corporation or officer or employee of the corporation holding one or more positions of management through and inclusive - 10 - of Project Managers and Business Development Managers (but not positions below the level of such managers) (such positions being hereinafter referred to as "Management Positions") and who was or is a party or was or is threatened to be made a party to any threatened, pending or completed claim, action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director of the corporation or officer or employee of the corporation holding one or more Management Positions, or is or was serving at the request of the corporation as a director, alternate director, officer, employee, agent or trustee of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall be indemnified by the corporation as a matter of right against any and all expenses (including attorneys' fees) actually and reasonably incurred by him and against any and all claims, judgments, fines, penalties, liabilities and amounts paid in settlement actually incurred by him in defense of such claim, action, suit or proceeding, including appeals, to the full extent permitted by applicable law. The indemnification provided by this section shall inure to the benefit of the heirs, executors and administrators of such person. Section 2. Expenses (including attorneys' fees) incurred by a director of the corporation or officer or employee of the corporation holding one or more Management Positions with respect to the defense of any such claim, action, suit or proceeding may be advanced by the corporation prior to the final disposition of such claim, action, suit or proceeding, as authorized by the board of directors in the specific case, upon receipt of an undertaking by or on behalf of such person to repay such amount unless it shall ultimately be determined that such person is entitled to be indemnified by the corporation under these by-laws or otherwise; provided, however, that the advancement of such expenses shall not be deemed to be indemnification unless and until it shall ultimately be determined that such person is entitled to be indemnified by the corporation. Section 3. The corporation may purchase and maintain insurance at the expense of the corporation on behalf of any person who is or was a director, officer, employee or agent of the corporation, or any person who is or was serving at the request of the corporation as a director (or the equivalent), alternate director, officer, employee, agent or trustee of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against any liability or expense (including attorneys' fees) asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liability or expense under these by-laws or otherwise. Section 4. Without limiting the generality of the foregoing provisions, no present or future director or officer of the corporation, or his heirs, executors, or administrators, shall be liable for any act, omission, step, or conduct taken or had in good faith, which is required, authorized, or approved by any order or orders issued pursuant to the Public Utility Holding Company Act of 1935, the Federal Power Act, or any federal or state statute or municipal ordinance regulating the corporation or its parent by reason of their being holding or investment companies, public utility companies, public utility holding companies, or subsidiaries of public - 11 - utility holding companies. In any action, suit, or proceeding based on any act, omission, step, or conduct, as in this paragraph described, the provisions hereof shall be brought to the attention of the court. In the event that the foregoing provisions of this paragraph are found by the court not to constitute a valid defense on the grounds of not being applicable to the particular class of plaintiff, each such director and officer, and his heirs, executors, and administrators, shall be reimbursed for, or indemnified against, all expenses and liabilities incurred by him or imposed on him, in connection with, or arising out of, any such action, suit, or proceeding based on any act, omission, step, or conduct taken or had in good faith as in this paragraph described. Such expenses and liabilities shall include, but shall not be limited to, judgments, court costs, and attorneys' fees. Section 5. The foregoing rights shall not be exclusive of any other rights to which any such director or officer or employee may otherwise be entitled and shall be available whether or not the director or officer or employee continues to be a director or officer or employee at the time of incurring any such expenses and liabilities. Section 6. If any word, clause or provision of the by-laws or any indemnification made under Article VII hereof shall for any reason be determined to be invalid, the provisions of the by-laws shall not otherwise be affected thereby but shall remain in full force and effect. The masculine pronoun, as used in the by-laws, means the masculine and feminine wherever applicable. ARTICLE VIII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. - 12 - ANNUAL STATEMENT Section 3. The board of directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation. CHECKS Section 4. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 5. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 6. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. ARTICLE IX AMENDMENTS Section 1. These by-laws may be altered, amended or repealed or new by-laws may be adopted by the stockholders or by the board of directors, when such power is conferred upon the board of directors by the certificate of incorporation at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration, amendment, repeal or adoption of new by-laws be contained in the notice of such special meeting. If the power to adopt, amend or repeal by-laws is conferred upon the board of directors by the certificate of incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal by-laws. - 13 - I hereby certify that the foregoing By-Laws were duly adopted by the Board of Directors of the Corporation on _________________, 1995. Sam H. Dabbs, Jr. Assistant Secretary - 14 - EX-99 16 EXHIBIT E-2 EXHIBIT E-2 Corporate Guideline [GRAPHIC OMITTED] - ---------------------------------------------------------------------------- SUBJECT NUMBER 051-006 ----------------------------------- ENERGY LOAN PROGRAM ORIGINAL ISSUE DATE REVISION DATE 01-15-79 06-02-95 ----------------- ----------------- PAGE 1 of 3 - ---------------------------------------- ----------------------------------- PURPOSE: This procedure provides guidelines for participating in the Energy Efficiency Loan Program, which provides low-interest loans for the installation of energy efficient facilities and improvements at employees' residences (new or existing). PROCEDURES: I. ELIGIBILITY REQUIREMENTS The Company will finance all or part of the installation of major appliances, wiring, and insulating materials where required to make the home conform to the prevailing energy efficient performance standards. Company financing under this program is not available for the replacement of existing electric appliances in an employee's home. A. Qualified Borrowers 1. Regular full-time or regular part-time employees with at least one year of service. 2. Retirees or surviving spouse of retiree. B. Qualified Homes Borrowers or their spouses must own or be purchasing the residence. Financing is limited to primary homes (including mobile homes located on the land owned or being purchased by the employee) and does not include an employee's second home (summer or recreational home). A copy of the employee's warranty deed will be needed for legal description on home to file second mortgage. 1. New homes must be certified Good Cents and utilize electricity for the whole house heating, cooling, water heating, cooking, and clothes drying requirements. A new home up to two years old is eligible for the loan. 2. Existing homes are eligible for the financing of energy efficient home improvements as identified in the Energy Loan Information Packet. II. TERMS OF LOAN A. A full-time employee may finance up to $20,000.00 at 3 percent annual percentage rate (APR) for a maximum of ten years. A regular part-time employee may finance up to $10,000.00 at 3 percent annual percentage rate (APR) for a maximum of five years. The minimum monthly payment is $20.00. No down payment is required. The loan, less unearned interest, may be paid in full at any time without penalty. A lien cancellation fee will be assessed on all loans paid off. Borrowers are responsible for the payment of recording fees, documentary stamp tax, intangible taxes, and cancellation fees. A second mortgage will be placed on the home for the term of the loan. The mortgage cannot be assumed; the unpaid balance, less unearned interest, is due upon sale of the home. Corporate Guideline [GRAPHIC OMITTED] - ---------------------------------------------------------------------------- SUBJECT NUMBER 051-006 ----------------------------------- ENERGY LOAN PROGRAM ORIGINAL ISSUE DATE REVISION DATE 01-15-79 06-02-95 ----------------- ----------------- PAGE 2 of 3 - ---------------------------------------- ----------------------------------- B. The employee's Manager will approve the loan application provided the employee has no known financial problems, is not on probationary period, and has not received a performance rating less than satisfactory. The General Manager of Employee Relations will approve a retiree's application. C. Partial payments may be made to employees if the installation of major components is separated by approximately 30 days. D. Employee payments are made through payroll deduction on the first pay period of the month. Retiree and surviving spouse payments are made through the Customer Accounting Billing System. An employee on leave of absence or long-term disability will make payments through the Customer Accounting Billing System. E. Should an active employee with a current loan die while employed, the spouse will have the option of maintaining the loan by making payments or by paying off the loan less any unearned interest. F. An employee transferring to another company within the Southern electric system will be required to pay the loan in full when the home is sold. Payments can be made through the Customer Accounting Billing System until the home is sold or the loan is paid. G. Upon termination of employment, the employee will have the option of paying the loan in full less the unearned interest or refinancing at 18 percent per annum. Payments can be made through the Customer Accounting Billing System. The balance of the loan will also be due upon sale of the home. H. An employee request for a Subordination of Lien on the property or other revisions to the current loan should be directed to the Secretary and Treasurer for evaluation and approval. III. ELIGIBLE ENERGY EFFICIENCY INSTALLATIONS The Energy Loan Program is intended for the financing of approved qualified energy efficient home improvements in an existing home or a new home that is certified Good Cents. A detailed list of energy efficiency items eligible for financing is contained in the Energy Loan Information Packet. To request an information packet, prospective borrowers should contact their District Marketing Department. IV. APPLICATION FOR ENERGY LOAN To submit application for an Energy Loan, prospective borrowers should request an Energy Loan Information Packet from District Marketing. This packet contains all necessary forms as well as other relevant information. Corporate Guideline [GRAPHIC OMITTED] - ---------------------------------------------------------------------------- SUBJECT NUMBER 051-006 ----------------------------------- ENERGY LOAN PROGRAM ORIGINAL ISSUE DATE REVISION DATE 01-15-79 06-02-95 ----------------- ----------------- PAGE 3 of 3 - ---------------------------------------- ----------------------------------- V. RESPONSIBILITY A. The Residential/Commercial Marketing Manager is responsible for the approval of energy efficiency specifications. B. The Secretary and Treasurer is responsible for final approval and processing of energy loans and for determining action to be taken relative to delinquencies on loans. /s/ John E. Hodges, Jr. ------------------------------- Vice President - Customer Operations /s/ Arlan Scarborough ------------------------------- Vice President - Finance Corporate Guideline [GRAPHIC OMITTED] - ------------------------------------------- ----------------------------------- SUBJECT NUMBER 6.1 ----------------------------------- EMPLOYEE ENERGY ISSUE REVISION 10-01-81 01-01-96 ----------------- ----------------- EFFICIENT HOME IMPROVEMENTS PAGE 1 of 4 - ------------------------------------------- ----------------------------------- This guideline sets forth eligibility requirements and provides specific procedures to be followed in financing employee energy efficient home improvements. I. DESCRIPTION OF IMPROVEMENTS The Company finances for employees, through payroll deduction, approved energy efficient home improvements. Improvements in existing homes include complete heat pump installations or replacements, and energy conservation measures such as insulation, attic ventilation, shading devices, storm windows, insulated doors, water heaters, and other improvements approved by the General Office Residential Marketing Department. The improvements must make the home total electric. In new construction of a total electric home, eligible employees may finance heat pumps and their installation, including duct work. II. ELIGIBILITY To be eligible, an employee must be a regular, full-time or regular, part-time employee of Mississippi Power with at least one year of continuous service and must own or be purchasing his/her home. Employees of Southern Company Services that are located in Mississippi are also eligible as nominal employees of Mississippi Power Company. Retired employees and members of the Board of Directors are also eligible for this financing. Homes include mobile homes if located on land owned or being purchased by the employee, but secondary residences such as recreational homes are excluded. The structure must be the primary residence of the employee to qualify. III. TERMS AND MATURITIES A. No down payment is required. B. Mississippi Power will pay 25% of the invoice total for all approved improvements. The following electric appliances may also be financed along with energy improvements, but will not have 25% of the invoice paid. o electric fireplaces (not inserts) o electric stove o electric grills o electric fryer o electric lawnmowers o electric range Corporate Guideline [GRAPHIC OMITTED] - ------------------------------------------- ----------------------------------- SUBJECT NUMBER 6.1 ----------------------------------- EMPLOYEE ENERGY ISSUE REVISION 10-01-81 01-01-96 ----------------- ----------------- EFFICIENT HOME IMPROVEMENTS PAGE 2 of 4 - ------------------------------------------- ----------------------------------- C. The remaining 75% of the invoice total will be financed at an optional percentage based on the following scale:
0%: up to 5 1/2 Years 1 1/2%: 7 Years 3%: 8 Years 1/2%: 6 Years 2%: 7 1/2 Years 3 1/2%: 9 and 9 1/2 Years 1%: 6 1/2 Years 2 1/2%: 8 Years 4%: 10 Years
D. To retire the loan, monthly payments are deducted from the employee's paycheck on the first pay period of the month in accordance with the terms of the Installment Promissory Note. E. A maximum repayment period of ten years is allowed, provided no monthly payment is less than $30.00. F. The maximum principal amount that may be loaned to an employee must be under $10,000. G. The entire indebtedness of the Installment Promissory Note is due and collectible if the employee (1) terminates his/her employment with the Company; (2) ceases to reside at the house wherein the energy efficient improvements occurred; or (3) becomes in default. IV. APPROVAL PROCESS A. Tentative Approval 1. The individual first secures tentative approval of financing from the immediate supervisor or responsible manager. Tentative approval signifies there are no known reasons why the employee should not be considered a candidate for a loan. 2. Eligible individuals then contact the appropriate district Marketing Department representative to determine if the improvements planned will improve their home's efficiency and/or lower the energy use, using the Company's "Good Cents Home" standards as a guide. 3. The individual then obtains a bid price for the improvements. The complete installation, including all parts, material, and labor, must be done through a dealer or contractor that has been approved as a Total Comfort Pledge Dealer. It is suggested that the employee obtain more than one bid price for the specified improvements. Corporate Guideline [GRAPHIC OMITTED] - ------------------------------------------- ----------------------------------- SUBJECT NUMBER 6.1 ----------------------------------- EMPLOYEE ENERGY ISSUE REVISION 10-01-81 01-01-96 ----------------- ----------------- EFFICIENT HOME IMPROVEMENTS PAGE 3 of 4 - ------------------------------------------- ----------------------------------- 4. If the individual wishes to purchase his/her own material and either subcontract or furnish the necessary labor, he/she obtains price quotes from suppliers and/or subcontractors for the material and labor to be purchased. B. Application for Improvement Loan 1. The employee submits an Employee Application for Energy Efficient Home Improvement Loan (Form 687), with accompanying bids, plans, and specifications from contractors, to the immediate supervisor or responsible manager for approval. Retirees and members of the Board of Directors submit their applications, with accompanying documents, to the office of the Vice President Finance for approval. 2. Upon approval of the loan application, the employee is notified by the Residential Marketing Department to proceed with dealer negotiations. 3. An employee may choose to receive the 25% discount paid by the Company without utilizing the financing portion of the program. C. Promissory Note 1. Upon satisfactory completion of all work and receipt of the applicable invoice(s), the employee or retiree executes an Installment Promissory Note, Form 614. Members of the Board of Directors execute a Heat Pump Installment Contract, Form 648, and Additional Terms and Conditions, Form 647. 2. The invoice or invoices and the Installment Promissory Note or Heat Pump Installment Contract are submitted to the office of the Vice President - Finance for his/her approval for payment by the Company on all invoices. D. Final Approval and Processing of Payment 1. The District Marketing Department forwards all documents to the office of the Vice President Finance for review of procedure compliance. 2. For employees, the office of the Vice President - Finance establishes payroll deduction of monthly installments. For members of the Board of Directors, the Heat Pump Installment Contract is forwarded to Revenue Accounting to initiate monthly billing. The office of the Vice President - Finance also forwards the Miscellaneous Payment Request to Disbursement Accounting for processing. Corporate Guideline [GRAPHIC OMITTED] - ------------------------------------------- ----------------------------------- SUBJECT NUMBER 6.1 ----------------------------------- EMPLOYEE ENERGY ISSUE REVISION 10-01-81 01-01-96 ----------------- ----------------- EFFICIENT HOME IMPROVEMENTS PAGE 4 of 4 - ------------------------------------------- ----------------------------------- 3. A check payable to the individual and the contractor/dealer is issued in the amount agreed upon and is forwarded to the district Marketing Department representative. V. EMPLOYEE TERMINATION PRIOR TO LOAN REPAYMENT A. The entire indebtedness of the Installment Promissory Note is due and collectible upon termination of active service. However, an employee terminating active service prior to repayment of the Installment Promissory Note may request renegotiation of the terms of the original agreement, which, if approved by the office of the Vice President - Finance, would allow for continued installment payments. Renegotiation of the Installment Promissory Note and rate of interest to be computed on the remaining balance are at the sole discretion of the office of the Vice President - Finance. Requests for renegotiation are directed to the office of the Vice President - Finance. B. If an employee is required to relocate within the Southern electric system prior to complete repayment of the loan, the Company will pay off the loan for the employee. The move must be considered eligible under the system's relocation program. For a new home, the loan will not be paid off by the Company at the time of relocation. Installation of a heat pump system would be considered "standard" equipment to the new home. C. The Company reserves the right to deny a loan for any reason. D. The Company reserves the right to modify or terminate the program at any time. VI. RESPONSIBILITY The Director - Marketing/Sales and the Vice President - Finance are responsible for ensuring compliance with this procedure. /s/ Michael W. Southern Vice President - Finance EMPLOYEE COMPUTER SKILLS PROMOTION POLICY SOUTHERN COMPANY SERVICES, INC. EMPLOYEE COMPUTER SKILLS PROMOTION POLICY The Employee Computer Skills Promotion Policy encourages productivity and enhanced use of personal computers by providing loans to employees at an annual interest rate of three percent for purchase of personal computer hardware, software, and instructional materials for home use. A. Eligibility Requirements All regular full-time and part-time employees of Southern Company Services are eligible to participate in the program. B. Responsibilities The Information Resources Department is responsible for administration of the Policy including establishing and approving all employee loan applications and security agreements, initiating payroll deduction, maintaining loan files, providing on-going communications with employees, maintaining procedures to execute the Policy, and resolving questions arising pursuant to the Policy. The Payroll Department is responsible for processing payroll and pension deductions and the Accounting Department is responsible for billing and collecting delinquent loans. The borrower is responsible for reading and understanding all terms and conditions of the Program and for repayment of the loan as agreed. The borrower is responsible for securing licensing rights to all software of his or her personal home computer. Southern Company Services does not permit the duplication of SCS-licensed software for use at home under any condition. The borrower is responsible for ordering all approved hardware and software within 10 days of the receipt of the loan proceeds, and must promptly provide Information Resources PC Loan Administration with a copy of paid receipts for valid purchases. C. Eligible Hardware, Software, and Instructional Materials The loan may be used to purchase products from any manufacturer or retail outlet. Eligible hardware is defined as hardware consistent with Information Resources standards which is business-related (i.e., word processing, spread sheet, database management, etc.). Eligibility of any non-standard items will be determined by Information Resources PC Loan Administration. D. Cost of Loans Loans under the Program are made at an annual interest rate of three percent. E. Loan Application Procedure Employees should contact Information Resources PC Loan Administration for a loan application. Upon determining the products to be purchased, employees should obtain an invoice from the manufacturer or the retailer specifying the hardware, software, and materials to be purchased and the corresponding price of each invoice item. If the vendor is unable to provide a bid or invoice prior to purchase, the employee will be required to provide a copy of the paid invoice within 20 working days of the loan date. The invoice and loan application then are submitted to Information Resources PC Loan Administration. If the loan is approved, an installment promissory note is completed and a check is issued to the employee. F. Loan Maximum, Minimum, and Repayment Procedures At any time, the combined outstanding balance on all loans extended by SCS (whether originating from SCS or assigned to SCS by another company in the Southern electric system) to an employee may not exceed $20,000 (e.g., energy loans, relocation loans, etc.). All loans under this Policy are made subject to the $20,000 corporate maximum. Phase 1 Loans Employees may borrow a maximum of $4,000 for their initial purchase, unless an exception is approved by a Manager in the Information Resources Department. The minimum loan amount is $250. Exceptions to the $4,000 maximum may be granted to employees seeking to match their home and their office workstations configurations. For loans in excess of $4,000, Southern Company Services will retain a first priority lien on the hardware, software, and instructional materials purchased through the program. Additional loans are available to employees 90 days from the date of the most current loan provided that the consolidated Phase 1 loan amount does not exceed $4,000 and the borrower has not breached any terms of the existing loan contract. The employee may obtain one loan of up to $4,000 if all hardware and software are purchased in a single transaction, or the employee may secure several loans during a 36 month period if hardware and software are purchased incrementally as knowledge and experience increase. However, if incremental loans are made, the balance from the previous loan(s), if any, is added to the new loan amount, and the maximum number of months available for repayment will be determined by subtracting from 36 months the number of months that have elapsed since the initial date of purchase. If several loans are obtained, the maximum total amount loaned cannot exceed the established loan limit. Loans are repaid through monthly payroll deductions with a minimum payment of $20 per month. The maximum repayment period is 36 months. Phase 2 Loans Upon repayment of the initial loan in Phase 1 of the program, the employee may secure additional loan(s) of up to $1,500 to be repaid within 24 months for the purpose of enhancing or upgrading the employee's personal computer. Loans are repaid through monthly payroll deduction with a minimum payment of $20 per month. Phase 3 Loans Upon repayment of Phase 1 loans and any loans that may have been granted under Phase 2, the employee may secure loans of up to $4,000 to replace an obsolete PC. The terms and conditions of Phase 3 loans will be on the same basis as Phase 1 loans. G. Employee Termination Prior to Loan Payout Loans must be repaid in full upon termination of employment. Southern Company Services reserves the right to deduct any loan balance due from a terminated employee's final payout (final regular pay, severance pay, ESP, ESOP, etc.) to the full extent permitted by law. If termination of employment is the result of planned staff reductions and the balance due on the loan is greater than 25 percent of the employee's final total payout, the employee may initiate a new loan agreement prior to separation for the balance due allowing continued payment of the loan for a period of time no greater than the period remaining on the original loan. If the balance of any such new loan is $3,000 or less, interest shall be charged at a rate no greater than 8 percent per annum. If the balance of such loan is greater than $3,000, the interest rate on such loan shall be no greater than the prevailing prime interest rate at the time of termination plus three percent but in no event shall exceed the maximum amount permitted by law. Should an active employee with a current loan choose to retire, the loan may remain in effect and the employee may choose to have loan payments deducted from pension payments or may after retirement make payments directly to the Company. The spouse of a deceased borrower may maintain an outstanding loan by continuing to make payments under the terms and conditions of the loan agreement in effect at the time of death. H. Other Considerations Southern Company Services corporate discounts may be available to employees who choose to purchase hardware and software from vendors with whom the company has negotiated agreements. Information about these discounts and the Company's current standard products list is available from Information Resources Contract Administration. Information Resources personnel are not available to assist employees in the purchase process beyond providing information regarding discounts and the standard products list. Additionally, Information Resources personnel are not available to provide technical assistance, unless the problem is work-related. An employee of another company in the Southern electric system having a current computer loan with that company may upon transferring to Southern Company Services, transfer the computer loan to Southern Company Services. All loans may be paid in full at any time without an interest prepayment penalty. Pursuant to authority authorized by the Board of Directors on February 19, 1996, the above stated Employee Computer Skills Promotion Policy is hereby approved to be effective May 1, 1996. Paul J. DeNicola, President Southern Company Services, Inc. EMPLOYEE ENERGY LOANS POLICY SOUTHERN COMPANY SERVICES, INC. EMPLOYEE ENERGY LOANS POLICY The Energy Loan Program is intended to encourage participation in the product promotion programs of the Southern electric system by providing low-interest loans for the installation of energy efficient facilities and improvements at participants' residences (new or existing). A. Responsibilities The Marketing Department is responsible for providing technical assistance (e.g., advice on insulation levels and EERs), identifying the energy efficient equipment that qualifies for the program, establishing and approving all employee loan applications and security agreements, providing loan amortization tables, maintaining loan files, providing on-going communications with employees, establishing and maintaining procedures to execute the policy, initiating payroll deductions, and resolving questions arising pursuant to the policy. The Payroll Department is responsible for processing payroll and pension deductions and the Accounting Department is responsible for billing and collecting delinquent loans. The borrower is responsible for reading and understanding all terms and conditions of the assistance loan application and applicable security agreement and for repayment of the loan as agreed. B. Eligibility Requirements Energy loans are available to regular full-time and part-time employees with at least one year of service, surviving spouses of deceased full time employees, and retirees of Southern Company Services. Borrowers must be installing heat pumps or have an existing electric heating system. Borrowers or their spouses must be the owners of the residence in which the improvements are installed. Financing is limited to primary and secondary residences. Secondary residences qualify provided that electrical service is provided to the property by a company in the Southern electric system. Primary residence qualifies without regard to electrical service provider. C. Amount to be Financed Itemized bids for equipment and improvements that are to be installed should be communicated to the Marketing Department for initial approval. Application forms will be sent to the borrower to be signed and returned with invoices for completed installations. Borrowers may have more than one energy loan; however, the total outstanding balance of all loans from SCS obtained by an employee (whether originating from SCS or assigned to SCS by another company in the Southern electric system) may not exceed $20,000 (e.g., computer loans, relocation loans, etc.). All loans under this Policy are made subject to the $20,000 corporate maximum. Loans may be obtained for the following items: Heat pump with backup system and installation Insulation Storm windows and/or double pane windows Storm doors and/or insulated entry doors Electric water heating system with heat pump water heater or heat recovering unit Solar water heating system with electric backup Humidifier Dehumidifier Electric Air Cleaner Weather stripping Caulking Vapor barrier Other energy-efficient items approved by the Marketing Department D. Cost of Loans Loans are available for amounts up to $20,000 at an annual interest rate of three percent for a maximum of ten years. The minimum monthly payment is $20.00. There is a no minimum loan amount. Employee payments are made through payroll deduction. Retiree payments are made through pension deductions or payments submitted to the Accounting Department. Loans must be repaid in full upon termination of employment or sale of the residence. Southern Company Services reserves the right to deduct any loan balance due from a terminated employee's final payout (final regular pay, severance pay, ESP, ESOP, etc.) to the full extent permitted by law. If termination of employment is the result of planned staff reductions and the balance due on the loan is greater than 25 percent of the employee's final total payout, the employee may initiate a new loan agreement prior to separation for the balance due allowing continued payment of the loan for a period of time no greater than the period remaining on the original loan. If the balance of any such new loan is $3,000 or less, interest shall be charged at a rate no greater than 8 percent per annum. If the balance of such loan is greater than $3,000, the interest rate on such loan shall be no greater than the prevailing prime interest rate at the time of termination plus three percent but in no event shall exceed the maximum amount permitted by law. If the borrower should default on the loan, Southern Company Services reserves the right to deduct the balance from any funds due the borrower to the full extent permitted by law. Should an active employee with a current loan choose to retire, the loan may remain in effect and the employee may choose to have loan payments deducted from pension payments or may, after retirement, make payments directly to the Company. H. Other Considerations The spouse of a deceased borrower may maintain an outstanding loan by continuing to make payments under the terms and conditions of the loan agreement in effect at the time of death, provided that if such spouse is not a co-borrower, he or she executes documentation establishing him or her as a borrower. An employee of another company in the Southern electric system having a current energy loan with the other company may upon transferring to Southern Company Services, transfer the energy loan to Southern Company Services. All loans may be paid in full at any time without an interest prepayment penalty. Pursuant to authority authorized by the Board of Directors on February 19, 1996, the above stated Employee Energy Loan Policy is approved to be effective May 1, 1996. Paul J. DeNicola, President Southern Company Services, Inc. SOUTHERN COMPANY SERVICES, INC. TRANSFERRED EMPLOYEE LOAN POLICY In those instances where an employee of another company in the Southern electric system is to be transferred to Southern Company Services and at the time of transfer such employee will have an outstanding employee loan extended by his or her former employer, Southern Company Services may, at its sole discretion, elect to extend to such transferred employee the same type of employee loan, even though the particular type of employee loan is not of a type generally available to employees of Southern Company Services. I. Applicability This Policy is applicable only to regular full-time or part-time employees transferred to Southern Company Services from another Southern electric system company and only with respect to those employee loans of any such employee which are outstanding at the time of his or her transfer to Southern Company Services. II. Responsibilities A. The Accounting Department is responsible for administration of the Policy, including communications with the company extending the employee loan, obtaining documentation evidencing the transfer of such loan to Southern Company Services, processing payroll and pension deductions, processing loan payments, collecting delinquent loans, maintaining loan files, providing on-going communications with such transferred employees, maintaining procedures to execute the Policy, and resolving questions arising pursuant to the Policy. B. The borrower is responsible for repayment of the loan as agreed in accordance with the original loan documentation. III. Terms of Loans Loans extended to employees pursuant to this Policy shall be subject to the terms and conditions of the original loan documentation, unless otherwise required by law. At any time, the combined outstanding balance on all loans extended by Southern electric system companies to an employee may not exceed $20,000 (e.g., energy loans, relocation loans, etc.). All loans covered by this Policy are subject to the $20,000 corporate maximum. IV. Employee Termination Prior to Loan Payout A. Employee payments are made through payroll deduction. Retiree payments are made through pension deductions or payments submitted to the Accounting Department. B. Unless otherwise required by the loan documents, loans must be repaid in full upon any termination of employment. Southern Company Services reserves the right to deduct any loan balance due from a terminated employee's final payout (final regular pay, severance pay, ESP, ESOP, etc.) to the full extent permitted by law. C. If termination of employment is the result of general staff reductions and the balance due on the loan is greater than 25 percent of all funds payable to the employee within 30 days of the last day of employment, the employee may initiate a new loan agreement prior to separation for the balance due allowing continued payment of the loan for a period of time no greater than the period remaining on the original loan. If the balance of any such new loan is $3,000 or less, interest shall be charged on such loan at the rate of 8 percent per annum. If the balance of such loan is greater than $3,000, the interest rate on such loan shall be equal to the lesser of the prevailing prime interest rate at the time of termination plus three percent or the maximum amount permitted by law. D. If the borrower should default on a loan, Southern Company Services reserves the right to deduct the balance from any funds due the borrower to the full extent permitted by law. E. Should an active employee with a current loan choose to retire, the loan may remain in effect and the employee may choose to have loan payments deducted from pension payments or may after retirement make payments directly to the Company. F. The spouse of a deceased borrower may maintain an outstanding loan by continuing to make payments under the terms and conditions of the loan agreement in effect at the time of death, provided that if such spouse is not a co-borrower, he or she executes documentation establishing him or her as a borrower. V. Other Considerations All loans may be paid in full at any time without an interest prepayment penalty. Approved - April ____, 1996 Paul J. DeNicola, President Southern Company Services, Inc. EX-99 17 EXHIBIT H -ORGANIZATIONAL CHART EXHIBIT H - ORGANIZATION CHART - SEI UMBRELLA COMPANIES
Southern Electric International, Inc. (Project Development) (100% - The Southern Company) SEI Operadora de Argentina, S.A. (FUCO) (99.99% - Southern Electric International, Inc.; .01% - SEI Holdings, Inc.) SEI Holdings, Inc. (PP) (100% - The Southern Company) Asociados de Electricidad, S.A. (PP) (99.99% - SEI Holdings, Inc.; .01% - Foreign Corporation) SEI y Asociados de Argentina, S.A. (PP) (14% - Asociados de Electricidad, S.A.; 80% - SEI Holdings, Inc.: 5% - Foreign Corporation; 1% - Domestic Company) Hidroelectrica Alicura, S.A. (FUCO) (59% - SEI y Asociados de Argentina, S.A.; 41% - Foreign Government) Southern Electric, Inc. (EWG) (100% - SEI Holdings, Inc.) Southern Electric Wholesale Generators, Inc. (EWG) (100% - SEI Holdings, Inc.) Southern Energy Marketing, Inc. (EWG) (100% - Southern Electric Wholesale Generators, Inc.) SEI Birchwood, Inc. (EWG) (95% - Southern Electric Wholesale Generators, Inc.; 5% - Southern Energy Marketing, Inc.) Birchwood Power Partners, LP (EWG) (50% - SEI Birchwood, Inc.; 50% - Domestic Corporation) SEI Hawaiian Cogenerators, Inc. (EWG) (100% - Southern Electric Wholesale Generators, Inc.) Kalaeloa Partners, LP (QF) (33 1/3% - SEI Hawaiian Cogenerators, Inc.; 66 2/3% - Domestic Corporations) EXHIBIT H - ORGANIZATION CHART - SEI UMBRELLA COMPANIES SEI Holdings, Inc. - CONTINUED SEI Newco 1, Inc. (PP) (100% - SEI Holdings, Inc.) Southern Electric International - Europe, Inc. (PP) (100% - SEI Newco 1, Inc.) Tesro Holding, BV (PP) (100% - Southern Electric International - Europe, Inc.) Southern Energy Investments Australia Pty, Ltd (PP) (100% - Southern Electric International - Europe, Inc.) Solaris Holding Company Pty, Ltd (PP) (90% - Southern Energy Investments Australia Pty, Ltd; 10% - Foreign Corporation) Southern Investment UK Holdings, Ltd (PP) (100% - Southern Electric International - Europe, Inc.) Southern Investment UK PLC (PP) (100% - Southern Investment UK Holdings, Ltd) South Western Electricity PLC (FUCO) (100% - Southern Investment UK PLC) SEI Newco 2, Inc. (PP) (100% - SEI Newco I, Inc.) SEI Chile, SA (PP) (100% - SEI Newco 2, Inc.) Inversiones SEI Chile Limitada (PP) (99% - SEI Chile, SA; 1% - SEI Holdings, Inc.) Electrica SEI Chile Limitada (PP) (97.05% - SEI Chile, SA; 2.95% - SEI Holdings, Inc.) Energia del Pacifica, SA (PP) (99.9% - SEI Chile, SA; .1% - Inversiones SEI Chile Limitada) Empressa Electrica del Norte Grande, SA (FUCO) (26.63% - Inversiones SEI Chile Limitada; 38.35% - Electrica SEI Chile Limitada; 10.67% - Foreign Government; 24.35% - Natural Persons) Sitranor, SA (Transmission Subsidiary) (60% - Empressa Electrica del Norte Grande, SA; 40% - Foreign Government) EXHIBIT H - ORGANIZATION CHART - SEI UMBRELLA COMPANIES SEI Holdings, Inc. - CONTINUED SEI Newco 1, Inc. - CONTINUED SEI Newco 2, Inc. - CONTINUED Southern Electric Bahamas Holdings, Ltd (PP) (100% - SEI Newco 2, Inc.) Southern Electric Bahamas Ltd (PP) (100% - Southern Electric Bahamas Holdings, Ltd.) Freeport Power Company Ltd (FUCO) (50% - Southern Electric Bahamas Ltd; 50% - Foreign Company) SEI Beteilligungs, GmbH (PP) (100% - SEI Newco 2, Inc.) Southern Electric Brasil Participacoes, Limitada (PP) (99% - SEI Newco 2, Inc.; 1% - SEI Holdings, Inc.) Southern Electric International Trinidad, Inc. (EWG) (100% - SEI Newco 1, Inc.) The Power Generation Company of Trinidad & Tobago Ltd (EWG) (39% - Southern Electric International Trinidad, Inc.; 51% - Foreign Government; 10% - Domestic Corporation) Energia de Neuvo Leon, SA De CV (FUCO) (33 1/3% - The Southern Company; 33 1/3% Foreign Corporations; 33 1/3% - Foreign Government)
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