-----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, QyiAfzWPgP1tJqCb1nAlsucxljqbxHvAffapakYbXLskoi0sZpvu85aDanjiidkL aNiza02A+najXXtSz/iZBg== 0000092122-96-000081.txt : 19960705 0000092122-96-000081.hdr.sgml : 19960705 ACCESSION NUMBER: 0000092122-96-000081 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19960703 EFFECTIVENESS DATE: 19960722 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: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-07539 FILM NUMBER: 96590922 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 S-8 1 As filed with the Securities and Exchange Commission on July 3, 1996 Registration No. SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 THE SOUTHERN COMPANY (Exact name of registrant as specified in its charter) Delaware 58-0690070 (State or other jurisdiction of (I.R.S. Employer Identification No.) incorporation or organization) 270 Peachtree Street, N.W. 30303 Atlanta, Georgia (Zip Code) (Address of principal executive offices) THE SOUTHERN COMPANY EMPLOYEE SAVINGS PLAN (formerly EMPLOYEE SAVINGS PLAN FOR THE SOUTHERN COMPANY SYSTEM) (Full title of the plan) TOMMY CHISHOLM, Secretary THE SOUTHERN COMPANY 270 Peachtree Street, N.W. Atlanta, Georgia 30303 (Name and address of agent for service) (404) 506-0540 (Telephone number, including area code, of agent for service) The Commission is requested to mail signed copies of all orders, notices and communications to: W. L. WESTBROOK JOHN D. McLANAHAN Financial Vice President TROUTMAN SANDERS LLP THE SOUTHERN COMPANY 600 Peachtree Street, N.E. 270 Peachtree Street, N.W. Suite 5200 Atlanta, Georgia 30303 Atlanta, Georgia 30308-2216 CALCULATION OF REGISTRATION FEE =================================================================================================================================== Proposed Proposed Title of Each Class Amount Maximum Maximum Amount of of Securities to be Aggregate Price Aggregate Registration to be Registered Registered (1) Per Unit (2) Offering Price (2) Fee - ----------------------------------------------------------------------------------------------------------------------------------- Common Stock, par 6,500,000 shares $23 1/2 $152,750,000 $52,673 value $5 per share ===================================================================================================================================
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this registration statement also covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plan described herein. (2) Pursuant to Rule 457(h)(1), these figures are based upon the average of the high ($23 5/8) and low ($23 3/8) prices paid for a share of the Company's Common Stock on June 26, 1996, as reported in the New York Stock Exchange consolidated reporting system, and are used solely for the purpose of calculating the registration fee. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The documents listed below are incorporated by reference in this registration statement; and all documents subsequently filed by The Southern Company ("SOUTHERN" or the "registrant") or The Southern Company Employee Savings Plan (the "Plan") pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be part thereof from the date of filing of such documents. (a) (1) The registrant's Annual Report on Form 10-K for the year ended December 31, 1995. (2) The Plan's Annual Report on Form 11-K for the year ended December 31, 1995. (b) (1) The registrant's Current Report on Form 8-K dated February 21, 1996. (2) The registrant's Quarterly Report on Form 10-Q for the quarter ended March 31, 1996. (c) The description of the registrant's common stock contained in Registration No. 33-51433 filed under the Securities Act of 1933. Item 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel. None. Item 6. Indemnification of Directors and Officers. Section 145 of Title 8 of the Delaware Code gives a corporation power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The same Section also gives a corporation power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of II-1 liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. Also, the Section states that, to the extent that a director, officer, employee or agent of a corporation has been successful on the merits or otherwise in defense of any such action, suit or proceeding, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith. The Bylaws of SOUTHERN provide in substance that no present or future director or officer of SOUTHERN shall be liable for any act, omission, step or conduct taken or had in good faith which is required, authorized or approved by order issued pursuant to the Public Utility Holding Company Act of 1935, the Federal Power Act, or any state statute regulating SOUTHERN or its subsidiaries by reason of their being public utility companies or public utility holding companies, or any amendment to any thereof. In the event that such provisions are found by a court not to constitute a valid defense, each such director and officer 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 such Bylaws described. The Bylaws of SOUTHERN also provide in pertinent part as follows: "Each person who is or was a director or officer of the Corporation 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 or officer of the Corporation, or is or was serving at the request of the Corporation as a 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. Expenses (including attorneys' fees) incurred by a director or officer of the Corporation 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 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 Corporation. 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), 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 this Section or otherwise. The foregoing rights shall not be exclusive of any other rights to which any such director or officer may otherwise be entitled and shall be available whether or not the director or officer continues to be a director or officer at the time of incurring any such expenses and liabilities." II-2 SOUTHERN has an insurance policy covering its liabilities and expenses which might arise in connection with its lawful indemnification of its directors and officers for certain of their liabilities and expenses and also covering its officers and directors against certain other liabilities and expenses. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. Exhibit Number 4(a) - Composite Certificate of Incorporation of SOUTHERN reflecting all amendments to date. (Designated in Registration No. 33-3546 as Exhibit 4(a), in Certificate of Notification, File No. 70-7341, as Exhibit A and in Certificate of Notification, File No. 70-8181, as Exhibit A.) 4(b) - Bylaws of SOUTHERN as amended effective October 21, 1991 and presently in effect. (Designated in Form U-1, File No. 70-8181, as Exhibit A-2.) 4(c) - Amended and Restated Plan Agreement for The Southern Company Employee Savings Plan. (Designated in Form 10-K for the year ended December 31, 1995, File No. 1-3526, as Exhibit 10(a)63.) 4(d) - Trust Agreement between Southern Company Services, Inc. and Merrill Lynch Trust Company of Florida, as Trustee under the Plan. (Designated in Form 11-K for the year ended December 31, 1995, File No. 1-3526, as Exhibit C.) 5(a) - Opinion of Troutman Sanders LLP, counsel to SOUTHERN. 5(b) - Internal Revenue Service determination letters dated March 5, 1996 and June 10, 1996. (Designated in Form 11-K for the year ended December 31, 1995, File No. 1-3526, as Exhibit B.) 23(a)- The consent of Troutman Sanders LLP is contained in Exhibit 5(a). 23(b)- Consent of Arthur Andersen LLP. 24 - Powers of Attorney and resolution. Exhibits listed above which have heretofore been filed with the Securities and Exchange Commission 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. Item 9. Undertakings. (a) Rule 415 offerings. The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; II-3 (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high and of the estimated maximum offering range may be reflected in the from of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; (iii)To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) Filings incorporating subsequent Exchange Act documents by reference. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and each filing of the Plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Filing of registration statement on Form S-8. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. II-4 SIGNATURES The Registrant. Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Atlanta, State of Georgia, on July 3, 1996. THE SOUTHERN COMPANY By: A. W. Dahlberg Chairman of the Board, President and Chief Executive Officer By: /s/Wayne Boston Wayne Boston Attorney-in-Fact Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the date indicated. SIGNATURE TITLE DATE A. W. Dahlberg Director, Chairman of the Board, President and Chief Executive Officer (Principal Executive Officer) W. L. Westbrook Financial Vice President, Chief Financial Officer and Treasurer (Principal Financial and Accounting Officer) John C. Adams ) A. D. Correll ) Paul J. DeNicola ) Jack Edwards ) H. Allen Franklin ) L.G. Hardman III ) Directors Elmer B. Harris ) William J. Rushton, III ) Gloria M. Shatto ) Gerald J. St. Pe ) Herbert Stockham ) By: /s/ Wayne Boston________ July 3, 1996 Wayne Boston Attorney-in-Fact II-5 The Plan. Pursuant to the requirements of the Securities Act of 1933, the trustees (or other persons who administer the employee benefit plan) have duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Atlanta, State of Georgia, on July 3, 1996. THE SOUTHERN COMPANY EMPLOYEE SAVINGS PLAN By: /s/C. Alan Martin Chairman Savings Plan Committee II-6 EX-5 2 EXHIBIT 5(A) TROUTMAN SANDERS LLP 600 PEACHTREE STREET, NE, SUITE 5200 ATLANTA, GA 30308-2216 July 3, 1996 The Southern Company 270 Peachtree Street, N.W. Atlanta, Georgia 30303 Re: The Southern Company Registration Statement on Form S-8 Ladies and Gentlemen: We have examined the above-captioned registration statement proposed to be filed by The Southern Company ("Southern") with the Securities and Exchange Commission under the Securities Act of 1933, as amended, for the registration of additional shares of its common stock, par value $5 per share (the "Stock"), pursuant to The Southern Company Employee Savings Plan (the "Plan"). We have also examined certified copies of Southern's Certificate of Incorporation, as amended, and of its by-laws and are familiar with all proceedings relating to the issuance and sale of the Stock. We are of the opinion that: (a) Southern is a corporation duly organized and existing under the laws of the State of Delaware, is domesticated under the laws of the State of Georgia and is qualified to do business as a foreign corporation under the laws of the State of Alabama. (b) Upon compliance with the relevant provisions of the Securities Act of 1933, as amended, and upon compliance with the securities or "Blue Sky" laws of any jurisdiction applicable thereto, Southern may legally issue and sell the Stock without obtaining the consent or approval of any other governmental authority. (c) When the necessary consents or approvals as referred to in paragraph (b) hereinabove have been obtained, and when certificates for the Stock have been executed by Southern, countersigned and registered by the transfer agent and registrar and delivered in accordance with the Plan, the Stock will be valid and legally issued, fully paid and non-assessable shares of Southern, and the holders thereof will be entitled to the rights and privileges appertaining thereto as set forth in Southern's Certificate of Incorporation, as amended. We hereby consent to the filing of this opinion as an exhibit to the registration statement. Very truly yours, /s/Troutman Sanders LLP TROUTMAN SANDERS LLP EX-23 3 EXHIBIT 23(B) EXHIBIT 23(b) Arthur Anderson LLP Consent of Independent Public Accountants As independent public accountants, we hereby consent to the incorporation by reference in this registration statement on Form S-8, related to The Southern Company Employee Savings Plan, of our reports dated February 21, 1996 on the financial statements of The Southern Company and the related financial statement schedule included in The Southern Company's Form 10-K for the year ended December 31, 1995, our report dated May 2, 1996, included in The Southern Company Employee Savings Plan's Form 11-K for the year ended December 31, 1995 and to all references to our Firm included in this registration statement. /s/Arthur Anderson LLP Atlanta, Georgia July 1, 1996 EX-24 4 Exhibit 24 April 15, 1996 A. W. Dahlberg, W. L. Westbrook, Tommy Chisholm, and Wayne Boston Dear Sirs: The Southern Company proposes to file registration statements under the Securities Act of 1933, as amended, with the Securities and Exchange Commission with respect to the issuance and sale of additional shares of common stock of this Company, pursuant to and in accordance with (1) a Rule 415 shelf registration program and (2) the Employee Savings Plan, in amounts of up to 40 million and 6,500,000 additional shares, respectively. The Southern Company and the undersigned directors and officers of said Company, individually as a director and/or as an officer of the Company, hereby make, constitute and appoint each of you our true and lawful Attorney for each of us and in each of our names, places and steads to sign and cause to be filed with the Securities and Exchange Commission in connection with each of the foregoing such registration statements and appropriate amendment or amendments (including post-effective amendments) thereto, each to be accompanied by a prospectus and any appropriately amended or supplemented prospectus and any necessary exhibits. Yours very truly, THE SOUTHERN COMPANY By /s/A. W. Dahlberg Chairman, President and Chief Executive Officer - 2 - ----------------------------- /s/John C. Adams William A. Parker, Jr. /s/A. D. Correll /s/William J. Rushton, III /s/A. W. Dahlberg /s/Gloria M. Shatto /s/Paul J. DeNicola /s/Gerald J. St. Pe' /s/Jack Edwards /s/Herbert Stockham /s/H. Allen Franklin /s/W. L. Westbrook ----------------------------- Bruce S. Gordon /s/Tommy Chisholm /s/L. G. Hardman III /s/W. Dean Hudson /s/Elmer B. Harris -3- Extract from minutes of meeting of the board of directors of The Southern Company. - - - - - - - - - - - - RESOLVED: That for the purpose of signing the registration statement or statements under the Securities Act of 1933, as amended, to be filed with the Securities and Exchange Commission with respect to the issuance and sale by the Company of additional shares of its common stock under the Employee Savings Plan and of remedying any deficiencies with respect thereto by appropriate amendment or amendments (including post-effective amendments), the Company, the members of its board of directors, and its officers are authorized to give their several powers of attorney to A. W. Dahlberg, W. L. Westbrook, Tommy Chisholm, and Wayne Boston. - - - - - - - - - - - - The undersigned officer of The Southern Company does hereby certify that the foregoing is a true and correct copy of a resolution duly and regularly adopted at a meeting of the board of directors of The Southern Company, duly held on April 15, 1996, at which a quorum was in attendance and voting throughout, and that said resolution has not since been rescinded but is still in full force and effect. Dated July 3, 1996 THE SOUTHERN COMPANY By /s/Tommy Chisholm Secretary -----END PRIVACY-ENHANCED MESSAGE-----