As filed with the Securities and Exchange Commission on August 9, 2004
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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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)
OUTSIDE DIRECTORS STOCK PLAN FOR THE SOUTHERN COMPANY AND ITS SUBSIDIARIES
(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) 506-5000
(Telephone number, including area code, of agent for service)
The Commission is requested to mail signed copies of all orders,
notices and communications to:
THOMAS A. FANNING MELISSA K. CAEN
Executive Vice President, Chief Financial TROUTMAN SANDERS LLP
Officer and Treasurer 600 Peachtree Street, N.E.
THE SOUTHERN COMPANY Suite 5200
270 Peachtree Street, N.W. Atlanta, Georgia 30308-2216
Atlanta, Georgia 30303
CALCULATION OF REGISTRATION FEE
========================== ======================== ======================== ======================== ========================
Proposed Proposed
Title of Each Class Amount Maximum Maximum Amount of
of Securities to be Offering Price Per Aggregate Registration
to be Registered Registered Share/Obligation Offering Price (1) Fee
-------------------------- ------------------------ ------------------------ ------------------------ ------------------------
Common Stock, par value 300,000 shares $29.32 $8,796,000 $1,115
$5 per share
========================== ======================== ======================== ======================== ========================
(1) Estimated solely for the purposes of determining the registration fee, in
accordance with Rule 457(h)(1) under the Securities Act of 1933, based on
the average of the high and low sales price of $29.46 and $29.17 per share
of the Common Stock as reported on the New York Stock Exchange on August
2, 2004.
The documents constituting the prospectus herein contain information required by
Rule 429 of the Commission under the Securities Act of 1933, as amended, with
respect to 849,995 shares remaining unsold Registration Statement No. 33-60427
and 818,777 shares remaining unsold under Registration Statement No. 33-54415,
each on Form S-8.
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") pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, as amended, 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 a part hereof from the date of filing of such documents.
(a) The registrant's Annual Report on Form 10-K for the year ended
December 31, 2003.
(b)(1) The registrant's Current Reports on Form 8-K dated May 7, 2004,
May 18, 2004, June 30, 2004, July 1, 2004 and August 2, 2004.
(2) The registrant's Current Report on Form 8-K/A filed on July 14,
2004, amending an earlier report on Form 8-K dated May 25, 2004.
(3) The registrant's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 2004 and June 30, 2004.
(c) The description of the registrant's Common Stock contained in
Registration No. 333-64871 filed under the Securities Act of 1933,
as amended.
Certain of SOUTHERN's financial statements incorporated by reference
in this Registration Statement have been audited by Arthur Andersen LLP
("Andersen"), independent public accountants, as indicated in their reports with
respect to the financial statements, and are incorporated by reference in this
Registration Statement, in reliance upon the authority of Andersen as experts in
giving such reports. On March 28, 2002, SOUTHERN's Board of Directors, upon
recommendation of its Audit Committee, decided not to engage Andersen as its
principal public accountants. SOUTHERN has not obtained a reissued report from
Andersen and has been unable to obtain, after reasonable efforts, Andersen's
written consent to incorporate by reference Andersen's reports on the financial
statements. Under these circumstances, Rule 437a under the Securities Act of
1933, as amended, permits this Registration Statement to be filed without a
written consent from Andersen. The absence of such written consent from Andersen
may limit a shareholder's ability to assert claims against Andersen under
Section 11(a) of the Securities Act of 1933, as amended, for any untrue
statement of a material fact contained in the financial statements audited by
Andersen or any omissions to state a material fact required to be stated in the
financial statements.
Item 4. Description of Securities.
Not applicable.
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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 the person 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 the person in
connection with such action, suit or proceeding if the person acted in good
faith and in a manner the person 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 the person's 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 the
person 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 the person in connection with the defense or settlement
of such action or suit if the person acted in good faith and in a manner the
person 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 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 present
or former director or officer 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, such person shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by such
person in connection therewith.
The By-Laws 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
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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 By-Laws
described.
The By-Laws 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."
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
4.1 - Outside Directors Stock Plan for The Southern Company
and its Subsidiaries. (Designated in Form 10-Q for the
quarter ended June 30, 2004, File No. 1-3526, as Exhibit
10(a)(2)).
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5.1 - Opinion of Troutman Sanders LLP, counsel to SOUTHERN.
23.1 - Consent of Troutman Sanders LLP (contained in Exhibit
5.1 herein).
23.2 - Consent of Deloitte & Touche 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) Undertaking related to Rule 415 offering:
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) 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 form
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 registration statement is on
Form S-3, Form S-8 or Form F-3 and the information required to
be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to
the Commission by the registrant pursuant to Section 13 or
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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) Undertaking relating to filings incorporating subsequent Securities
Exchange Act of 1934 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) Undertaking relating to 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.
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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 August 9, 2004.
THE SOUTHERN COMPANY
By: David M. Ratcliffe
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
--------- ----- ----
David M. Ratcliffe Director, Chairman of the Board,
President and Chief Executive Officer
(Principal Executive Officer)
Thomas A. Fanning Executive Vice President, Chief Financial
Officer and Treasurer (Principal Financial
Officer)
W. Dean Hudson Comptroller and Chief Accounting Officer
(Chief Accounting Officer)
Dorrit J. Bern )
Francis S. Blake )
Thomas F. Chapman )
Bruce S. Gordon ) Directors
Donald M. James )
Zack T. Pate )
J. Neal Purcell )
Gerald J. St. Pe )
By: /s/Wayne Boston August 9, 2004
Wayne Boston
Attorney-in-Fact
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