As filed with the Securities and Exchange Commission on November 8, 2006
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
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)
30 Ivan Allen Jr. Boulevard, N.W.
Atlanta, Georgia 30308
404-506-5000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
PATRICIA L. ROBERTS, Assistant Secretary
THE SOUTHERN COMPANY
30 Ivan Allen Jr. Boulevard, N.W.
Atlanta, Georgia 30308
404-506-5000
(Name, address, including zip code, and 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 ERIC A. KOONTZ
Executive Vice President, Vice President and TROUTMAN SANDERS LLP
Chief Financial Officer and Treasurer Associate General Counsel 600 Peachtree Street, N.E.
THE SOUTHERN COMPANY SOUTHERN COMPANY SERVICES, INC. Suite 5200
30 Ivan Allen Jr. Boulevard, N.W. 30 Ivan Allen Jr. Boulevard, N.W. Atlanta, Georgia 30308
Atlanta, Georgia 30308 Atlanta, Georgia 30308
-----------------------------------
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If this Form is a registration statement pursuant to General Instructions
I.D. or a post-effective amendment thereto that shall become effective upon
filing with the Commission pursuant to Rule 462(e) under the Securities Act,
check the following box. |X|
If this Form is a post-effective amendment to a registration statement
filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the
Securities Act, check the following box. |_|
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 value 20,000,000 shares $35.785 $715,700,000 $76,580
$5 per share
========================== ====================== ===================== ===================== ===================
(1) Also includes such indeterminate number of shares of common stock as may be
issued as a result of adjustment by reason of a share dividend, share
split, recapitalization or other similar event.
(2) Pursuant to Rule 457(c), these figures are based upon the average of the
high and low prices paid for a share of The Southern Company's Common Stock
on November 3, 2006, as reported in the New York Stock Exchange
consolidated reporting system, and are used solely for the purpose of
calculating the registration fee.
--------------------------------------------
The within Prospectus contains information required by Rule 429 of the
Commission under the Securities Act of 1933 with respect to 4,004,733 shares
remaining unsold under Registration Statement No. 333-101349.
================================================================================
PROSPECTUS [SOUTHERN COMPANY LOGO]
THE SOUTHERN COMPANY
Southern Investment Plan
The Southern Company ("Southern Company" or "Company") is pleased to
offer the Southern Investment Plan ("Plan"), a direct stock purchase plan
designed to provide investors with a convenient method to purchase shares of
Southern Company common stock and reinvest cash dividends in the purchase of
additional shares.
This prospectus is prepared and distributed by Southern Company, the
issuer of the securities offered. This prospectus relates to 4,004,733 shares of
common stock previously registered and is part of a Registration Statement
covering an additional 20,000,000 shares of Southern Company's common stock, $5
par value, registered for purchase under the Plan.
Shares of common stock will be purchased under the Plan, at the option
of the Company, from original issue/treasury shares or shares purchased on the
open market. If purchased from the Company, the price per share will be equal to
the average of high and low market prices for the shares of the Company's common
stock shares traded on the New York Stock Exchange on the relevant investment
date. For shares purchased on the open market, the price per share will be the
weighted average price (excluding broker commissions and related fees) of all
shares acquired during an investment period by a registered broker-dealer acting
as an independent agent.
The Company will receive proceeds from the purchase of common stock
pursuant to the Plan only to the extent that such purchases are made directly
from the Company and not from open market purchases.
Proceeds received by the Company, if any, will be used for general corporate
purposes.
Southern Company common stock is listed on the New York Stock Exchange
under the symbol "SO".
See "Risk Factors" on page 4 for certain risks to consider before
participating in the Plan or before purchasing shares of Southern Company common
stock.
To the extent required by applicable law in any jurisdiction, shares of
common stock offered under the Plan to persons not presently shareholders of
record of common stock are offered only through a registered broker-dealer in
such jurisdiction.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
accuracy or adequacy of this prospectus. Any representation to the contrary is a
criminal offense.
The principal executive offices of the Company are located at 30 Ivan
Allen Jr. Blvd. N.W., Atlanta, Georgia 30308, telephone 404/506-5000.
You should read this prospectus carefully and retain it for future
reference.
The date of this prospectus is November 8, 2006.
TABLE OF CONTENTS
Southern Investment Plan
Page
Prospectus Summary.............................................1
Risk Factors...................................................2
Southern Company Overview......................................2
Administration.................................................3
Eligibility....................................................4
Enrollment.....................................................4
Dividends......................................................5
Optional Cash Payments.........................................6
Purchase of Common Stock.......................................8
Plan Shares....................................................9
Sale of Plan Shares...........................................11
Reports to Participants.......................................12
Termination of Plan Participation.............................12
Costs and Expenses............................................13
Other Information.............................................13
Interpretation of the Plan....................................14
Federal Income Tax Consequences...............................15
Use of Proceeds...............................................15
Legal Matters.................................................15
Experts.......................................................15
Where You Can Find More Information...........................16
Appendix A - Fee Schedule....................................A-1
This prospectus is not an offer to sell securities, nor is it a
solicitation of an offer to buy securities, in any state or country where the
offer or sale is not permitted.
Southern Company has not authorized any person to give you any
information that is different from, or in addition to, that contained in this
prospectus or in any information that we incorporate by reference into this
prospectus. If anyone gives you any such information, you should not rely it.
Southern Company does not imply by the delivery of this prospectus or
the sale of any shares of Southern Company common stock hereunder that there has
been no change in the affairs of Southern Company since the date of this
prospectus or that the information in this prospectus is correct as of any time
subsequent to the date of this prospectus.
i
SOUTHERN INVESTMENT PLAN
PROSPECTUS SUMMARY
Enrollment: The Plan has a direct purchase feature that enables persons
not presently owning Southern Company common stock to apply for enrollment by
submitting an enrollment form and a cash investment of at least $250 ($25 for
employees) for the purchase of common stock. There is a $10 new account fee for
non-shareholders and non-employees. Registered shareholders may apply for
enrollment in the Plan by submitting the appropriate enrollment form. If shares
of common stock are held in a brokerage account, investors may participate
directly by registering some or all of these shares in the investor's name or by
making arrangements with the broker, bank or other intermediary to participate
on the investor's behalf.
Dividends: Participants in the Plan ("Participants") have the option of
receiving or reinvesting the dividends on all shares. Dividends received can be
electronically deposited to a bank account. Accounts will be credited with
dividends on all whole and fractional shares.
Optional Investments: Participants can invest additional funds through
optional cash payments ("Optional Cash Payments") of at least $25 per single
investment up to a maximum total amount of $300,000 per calendar year. Optional
investments can be made occasionally or at regular intervals. In addition to
sending in checks, Participants can also make monthly Optional Cash Payments via
electronic withdrawals (direct debit) from their bank accounts. Shares will be
purchased with cash payments twice a month.
Direct Registration Shares: Direct registration enables an investor to
be registered directly on the books of the Company without the need for physical
certificates. Direct registration shares can be enrolled in the Plan. The Direct
Registration System ("DRS") is managed by The Depository Trust Clearing
Corporation ("DTCC") and enables its participants to electronically move
securities between street-name ownership and the books of the Company.
Certificates: Stock certificates can be deposited into an account as
Plan shares if the account is enrolled in the Plan.
Sale of Plan Shares: Only Plan shares may be sold through the Plan,
subject to certain restrictions and limitations. A brokerage and service fee
(currently $0.06 per share) and any required tax withholdings and regulatory
fees will be deducted from the proceeds of the sale. Sales requests are
aggregated and generally processed within five business days of receipt of the
sales request. A check for the proceeds will be made payable to the registered
account owner(s) and mailed via First Class mail three business days after the
sale when the trade settles.
Transfer of Shares: Participants may direct the transfer of all or a
portion of their Plan shares, subject to standard transfer rules and
requirements.
Plan Participation: Participants may change the terms of their
participation in the Plan, except as described in this prospectus, by providing
written instructions to SCS Stockholder Services.
Account Statement: Following the end of each calendar quarter,
Participants will be sent a quarterly statement of account that will reflect the
shares in the account and provide a record of dividends reinvested and/or paid,
shares purchased with optional investments, Plan shares sold or transferred and
quarter ending account value.
Fees: Participants are not charged fees for the purchase of shares
through the Plan. A one-time new account fee of $10 is deducted from the initial
cash payment provided with each Participant's enrollment form ("Initial Cash
Payment"). Currently, a fee/commission of $0.06 per share is deducted from the
proceeds of any sale of Plan shares.
Use of Proceeds: To the extent that shares for the Plan are purchased
from the Company, the funds will be used for general corporate purposes.
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RISK FACTORS
Investing in Southern Company's common stock involves risk. Please see
the risk factors described in Item 1A. of Southern Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 2005, along with the
disclosures related to risk factors contained in the Company's Quarterly Reports
on Form 10-Q for the quarters ended March 31, 2006, June 30, 2006 and September
30, 2006, which are all incorporated by reference in this prospectus. Before
making an investment decision, you should carefully consider these risks as well
as other information contained or incorporated by reference in this prospectus.
The risks and uncertainties described are not the only ones facing Southern
Company. Additional risks and uncertainties not presently known to Southern
Company or that Southern Company deems immaterial may also impair its business
operations, its financial results and the value of its securities.
SOUTHERN COMPANY OVERVIEW
Southern Company (NYSE: SO) was incorporated under the laws of Delaware
on November 9, 1945. Southern Company is domesticated under the laws of Georgia
and is qualified to do business as a foreign corporation under the laws of
Alabama. The principal executive offices of Southern Company are located at 30
Ivan Allen Jr. Blvd., N.W., Atlanta, Georgia 30308, and the telephone number is
(404) 506-5000.
Southern Company owns all of the outstanding common stock of Alabama
Power Company ("Alabama Power"), Georgia Power Company ("Georgia Power"), Gulf
Power Company and Mississippi Power Company, each of which is an operating
public utility company. The retail operating companies supply electric service
in the states of Alabama, Georgia, Florida and Mississippi. Effective July 1,
2006, Savannah Electric and Power Company, which was an operating public utility
company and a wholly-owned subsidiary of Southern Company, was merged with and
into Georgia Power. In addition, Southern Company owns all of the common stock
of Southern Power Company ("Southern Power"), which is also an operating public
utility company. Southern Power constructs, owns and manages Southern Company's
competitive generation assets and sells electricity at market-based rates in the
wholesale market.
Southern Company also owns all the outstanding common stock or
membership interests of Southern Communications Services, Inc. ("SouthernLINC
Wireless"), Southern Nuclear Operating Company, Inc. ("Southern Nuclear"),
Southern Company Services, Inc. ("SCS"), Southern Telecom, Inc. ("Southern
Telecom"), Southern Company Holdings, Inc. ("Southern Holdings") and other
direct and indirect subsidiaries. SouthernLINC Wireless provides digital
wireless communications services to the retail operating companies and also
markets these services to the public within the Southeast. Southern Nuclear
provides services to Alabama Power's and Georgia Power's nuclear plants. SCS is
the system service company providing, at cost, specialized services to the
Company and its subsidiary companies. Southern Telecom provides wholesale fiber
optic solutions to telecommunications providers in the Southeast. Southern
Holdings is an intermediate holding subsidiary for Southern Company's
investments in synthetic fuels and leveraged leases and various other
energy-related businesses.
Southern Company has paid a dividend to its shareholders for 235
consecutive quarters - dating back to 1948. The dividend rate for June 6, 2006
and September 6, 2006 was $.3875 per share. The dividend rate for March 6, 2006
was $.3725 per share. See "Dividends" on page 5 for additional information.
Southern Company's common stock has been listed on the New York Stock
Exchange ("NYSE") since September 30, 1949.
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ADMINISTRATION
1. Who administers the Plan?
The Plan is administered by SCS, through the Company's stock transfer
agent, registrar and dividend disbursing agent, SCS Stockholder Services. SCS
Stockholder Services acts as agent for Participants and keeps records, sends
statements and performs other duties relating to the Plan. If SCS resigns as
Administrator, Southern Company would designate a new administrator.
2. How do I contact SCS Stockholder Services?
Mail Courier
SCS Stockholder Services SCS Stockholder Services
P. O. Box 54250 30 Ivan Allen Jr. Blvd., N. W.
Atlanta, Georgia 30303-0250 11th Floor - Bin SC1100
Atlanta, Georgia 30308
Phone E-Mail
Toll-free 800/554-7626 stockholders@southerncompany.com
FAX 404/506-0945
When communicating with SCS Stockholder Services, Participants should
provide their account number and a daytime telephone number. Participants may
also be required to provide the account taxpayer identification number in order
to receive account information. Plan documents and transaction request forms can
be downloaded from the Southern Company web site at www.southerncompany.com.
3. In what form are instructions given to SCS Stockholder Services?
Generally, instructions from a Participant to SCS Stockholder Services
must be in writing. In the future, SCS Stockholder Services may allow certain
instructions to be given in other forms.
4. Is it important that I stay in contact with the SCS Stockholder Services?
Yes. Each state has unclaimed property laws that typically specify that
if an account owner does not initiate "active contact" with a plan agent during
any three-year period, the property in the account may be deemed "abandoned."
For accounts that meet a state's definition of "abandoned," the plan agent is
legally required to transfer the property in the account, including shares and
dividends, to the state of the account's last known residence. To prevent this
from occurring, Participants should immediately notify SCS Stockholder Services
of any change of address and respond as directed to mailings requesting they
contact SCS Stockholder Services.
5. What happens upon a Participant's death or legal incapacitation?
The Participant's legal representative should notify SCS Stockholder
Services as soon as possible for specific information regarding the disposition
of the assets.
3
6. May the Plan be amended, suspended or terminated?
Yes. Southern Company reserves the right to suspend, modify or
terminate the Plan at any time. All Participants will receive notice of any such
suspension, substantive modification or termination.
7. Who purchases and sells stock for the Plan?
SCS appoints a registered broker-dealer or bank as independent agent to
purchase and sell stock on the open market on behalf of the Plan. SCS reserves
the right to change the independent agent without notice.
ELIGIBILITY
8. Who is eligible to participate in the Plan?
Any person or legal entity residing in the United States, whether or
not a common stock shareholder of record, is eligible to participate in the
Plan. Citizens or residents of a country other than the United States, its
territories and possessions are eligible to participate if such participation
would not violate laws applicable to the Company or the Participant.
ENROLLMENT
9. How does an investor apply for enrollment in the Plan?
o New Investors
New investors may apply by completing all required sections of the New
Investor Enrollment Form and sending it to SCS Stockholder Services. The Form
can be downloaded from the Company's web site. The Form must be accompanied by
an Initial Cash Payment in the form of a check drawn on the payer's own account
made payable in U.S. dollars to Southern Company. The minimum amount for an
Initial Cash Payment is $250 and the amount can not exceed $300,000. A $10
enrollment fee will be deducted from the Initial Cash Payment. Do not send cash
or third party checks.
If the account will be registered in more than one name, all potential
Participants must sign the New Investor Enrollment Form. SCS Stockholder
Services reserves the right to limit or combine accounts with identical taxpayer
identification numbers and/or legal registrations.
o Shareholders of Record - Registered
Shareholders who have a current account but are not enrolled in the
Plan may apply by sending a completed Current Shareholder Enrollment Form to SCS
Stockholder Services. To request a Form, call SCS Stockholder Services or
download the Form from the Company's web site. There is no enrollment fee for
shareholders of record.
o Employees
Full or part-time employees of the Company or any of its subsidiaries
may apply by returning a completed Employee Enrollment Form and a check drawn on
the payer's own account made payable in U.S. dollars to Southern Company for at
least $25. The Form is available from SCS Stockholder Services. There is no new
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account fee. Accounts established through the employee enrollment process must
contain the employee's name in the registration.
o Beneficial Owners
Beneficial owners of common stock whose shares are held in
"street-name" brokerage accounts can make arrangements with their brokers to
participate on their behalf if such service is offered by the brokers.
10. When will enrollment take effect?
Investors applying for enrollment will become Participants after a
properly completed enrollment form has been received and accepted by SCS
Stockholder Services.
11. Will interest be paid on Initial Cash Payments held for investment pending
the purchase of shares?
No.
DIVIDENDS
12. When are dividends paid?
The dividend record date is the date on which you must be registered as
a shareholder in order to receive a declared dividend. Historically, record
dates generally have been the first Monday of February, May, August and
November. The payment date is the day when the dividend is payable to
shareholders of record. Payment dates generally have been the sixth day of
March, June, September and December.
Dividends and associated record and payment dates are subject to
declaration by the Southern Company Board of Directors. The timing and amount of
future dividends will depend on earnings, cash requirements, the financial
condition of Southern Company and its subsidiaries, applicable government
regulations and other factors deemed relevant by the Southern Company Board of
Directors.
13. What is the deadline for designating a dividend option?
When a Participant chooses or changes a dividend option, written
instructions must be received by SCS Stockholder Services before a dividend
record date to be effective for the related dividend payment date. A Participant
may change a dividend option at any time by sending written instructions or a
signed transaction form to SCS Stockholder Services.
14. Will interest be paid on dividends held for investment pending the purchase
of shares?
No.
5
15. What are the options for reinvesting or receiving dividends?
Participants have three options regarding how their dividends can be
treated under the Plan. Optional Cash Payments can be made under any option.
A. Full Dividend Reinvestment: Reinvest all dividends payable on
Southern Company shares including certificated, Plan and DRS shares.
Unless otherwise specified, all Plan shares will be treated as Full
Dividend Reinvestment.
B. Partial Dividend Reinvestment:
1. Reinvest the dividends on a specified number of whole
shares and receive dividends on the remaining shares. Shares
specified to reinvest dividends may be made up of a
combination of certificated, Plan and DRS shares.
2. Receive dividends on a specified number of whole shares and
reinvest dividends on the remaining shares. Shares specified
to receive dividends may be made up of a combination of
certificated, Plan and DRS shares.
C. Cash Dividends: Receive all dividends payable on Southern Company
shares including certificated, Plan and DRS shares.
16. Can I have my cash dividends electronically deposited?
Yes. Participants may request that cash dividends be transmitted to a
Participant's pre-designated bank account. No third party accounts can be
utilized. The account must be at a financial institution that is a member of the
National Automated Clearing House Association. To initiate this service,
Participants should send a completed Electronic Dividend Deposit Form along with
a voided check or savings deposit slip to SCS Stockholder Services. The Form can
be found on a dividend check stub or can be downloaded from the Company's web
site. Initial set-up or changes to electronic deposit instructions will be made
as soon as practicable.
OPTIONAL CASH PAYMENTS
17. What are the minimum and maximum amounts for Optional Cash Payments?
The minimum Optional Cash Payment is $25 per payment and the maximum is
$300,000. The total amount of Optional Cash Payments that can be credited to any
individual account during a calendar year is $300,000, which includes the
Initial Cash Payment. There is no obligation to make an Optional Cash Payment in
any period, and the same amount need not be sent each time.
18. How do I make an Optional Cash Payment?
Participants should send a check drawn on the payer's own account made
payable, in U.S. dollars, to Southern Company. The check should be accompanied
by the Optional Cash Payment portion of an account statement and mailed to SCS
Stockholder Services. If the check representing an Optional Cash Payment does
not have the Participant's account number written on it, the check may be
returned.
6
19. Are there deadlines for receipt of Optional Cash Payments?
Yes. Optional Cash Payments must be received at SCS Stockholder
Services no later than three business days prior to the 10th and 25th of each
month. Payments received after the deadline will be credited to the
Participant's account and may not be used to purchase shares until the next
investment period.
20. Can I have Optional Cash Payments automatically withdrawn from my bank
account?
Yes. You can authorize monthly electronic withdrawals (direct debit)
from your account at a financial institution that is a member of the National
Automated Clearing House Association. No third party accounts can be utilized.
The minimum amount for monthly direct debit is $25. To initiate this service,
Participants must send a completed Direct Debit Form to SCS Stockholder
Services. The Form can be downloaded from the Company's web site.
Funds will be withdrawn from the Participant's account on the last
banking day of each month and will be used to purchase common stock during the
investment period following the date of such debit. To change any aspect of the
instruction, Participants must send a revised Direct Debit /Change Form or
written instructions to SCS Stockholder Services. Initial set-up or changes to
direct debit instructions will be made as soon as practicable.
21. Will interest be paid on Optional Cash Payments held for investment pending
the purchase of shares?
No.
22. Can a cash payment be refunded?
Yes, if shares have not yet been purchased and credited to the account.
A written request to refund a cash payment must be received by SCS Stockholder
Services no later than three business days prior to the start of an Investment
Period (10th and 25th of each month). Refund checks will be issued only after
confirmation that the monies representing the payment to be refunded have been
received by SCS Stockholder Services. This process will take up to 10 days.
23. How are payments with "insufficient funds" handled?
If SCS Stockholder Services does not receive credit for a cash payment
because of insufficient funds or incorrect draft information, SCS Stockholder
Services will consider the request for such purchase null and void and will
immediately remove from the Participant's account any shares already purchased
upon the prior credit of such funds. SCS Stockholder Services is entitled to
place a "hold" on the account until an "insufficient funds" fee is received from
the Participant or to sell any such shares to satisfy any uncollected amounts.
(See Appendix A -- Fee Schedule).
In the event the net proceeds of the sale of such shares are
insufficient to satisfy the balance of such uncollected amounts, SCS Stockholder
Services may sell such additional shares from the Participant's account as are
necessary to satisfy the uncollected balance. At SCS Stockholder Services'
discretion, the Participant may be prohibited from submitting future Optional
Cash Payments.
7
PURCHASE OF COMMON STOCK
24. What is the source of stock purchased through the Plan?
At the Company's discretion, stock for the Plan will be purchased on
the open market or purchased directly from the Company.
25. How is stock purchased on the open market?
SCS Stockholder Services will separately aggregate Participants'
dividends for reinvestment and Initial or Optional Cash Payments and notify the
independent agent of the amount available for purchase for the relevant
Investment Period. The independent agent has sole control over the time and
price at which it purchases common stock for the Plan.
26. How is the purchase price determined?
The price per share for shares purchased on the open market will be the
weighted average price paid by the independent agent to acquire the shares,
excluding broker commissions and related fees.
The price per share for shares purchased from the Company with
dividends will be equal to the average of the high and low market prices on the
dividend payment date. For shares purchased from the Company with cash payments,
the price per share will be equal to the average of the high and low market
prices on the 10th or 25th of the month, as applicable. The price for shares
purchased from the Company will be calculated based on market prices as reported
by the NYSE for composite transactions or other authoritative source reporting
NYSE composite transactions.
When shares are purchased from the Company and the stock is not traded
on the NYSE on the days specified above, the price for shares purchased with
dividends will be equal to the average of the high and low market prices on the
trading days immediately preceding and following the dividend payment date. For
shares purchased with cash payments, the price will be the average of the high
and low market prices on the trading day immediately following the 10th or 25th.
27. Who pays brokerage commissions on share purchases?
The Company will pay the brokerage commission on shares purchased on
the open market. These commissions will be considered as additional income to
Participants for tax purposes and will be reported on Internal Revenue Service
("IRS") Form 1099-DIV year-end tax statements. There are no commissions on
shares purchased from the Company.
28. When are the Investment Periods for the purchase of shares?
For Dividends
There is one Investment Period per quarter for dividends. If shares are
to be purchased on the open market, purchases may begin up to three business
days before the dividend payment date and will be completed no later than 30
days after the dividend payment date, except where beginning at an earlier date
or completion at a later date is necessary or advisable under applicable federal
regulations and securities laws.
8
For Cash Payments
There are two Investment Periods each month for cash payments which
start on the 10th or 25th of each month. If shares are to be purchased on the
open market, purchases can begin at the start of the Investment Period or, if
the NYSE is closed, the next business day. Purchases will usually be completed
before the next Investment Period begins, but no longer than 30 days after
receipt of cash payments. However, the independent agent in its sole discretion
may extend the purchase period if completion at a later date is necessary or
advisable under applicable federal regulations and securities laws.
29. When will purchased shares be credited to my account?
Shares purchased on the open market will be credited to accounts in
book-entry form on the date the last purchase of shares has settled.
Shares purchased from the Company with dividends will be credited to
accounts in book-entry form on or about the dividend payment date. Shares
purchased from the Company with cash payments will be credited to accounts in
book-entry form on or about the 10th or 25th of the month.
30. Can I request the purchase of a specific number of shares, a specific
purchase price or a specific purchase date?
No. To avail yourself of these options, shares are typically purchased
through a broker-dealer.
PLAN SHARES
31. How do I transfer my Plan shares?
A Participant may transfer the ownership of all or a portion of Plan
shares by sending SCS Stockholder Services a written transfer request or
properly executed "stock power". Transfer instructions and stock powers can be
downloaded from the Company's web site.
Generally, the signatures of all account owners on a stock power or
transfer instruction must be "medallion guaranteed" by a guarantor. Guarantors
are commercial banks and NYSE member brokers who participate in the Securities
Transfer Agents Medallion Program or other recognized signature guarantee
programs.
Shares will be transferred in book-entry form. For transfers to an
existing account, the transfer instructions should specify the recipient's
account number. If the transfer results in the establishment of a new account,
all transferred shares will automatically be enrolled as Full Dividend
Reinvestment. New Plan Participants will be sent Plan information and forms
through which they may make elections with regard to Plan options and services,
including the reinvestment of dividends.
32. Can Plan shares be pledged or assigned?
No.
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33. Can I obtain a stock certificate for my Plan shares?
Yes. At present, Participants can obtain a single certificate for any
or all of their whole Plan shares by sending a written request to SCS
Stockholder Services. A single certificate will be issued within two business
days of receipt of the written request if no sale of shares is involved.
Requests for multiple certificates may entail a service fee.
The issuance of Plan shares in certificate form will not change a
Participant's dividend reinvestment instructions unless otherwise directed.
Shares issued from an account in certificate form will be produced in the
name(s) in which the account is registered. A certificate for a fraction of a
share cannot be issued.
34. Can I "gift" shares to others?
Yes. To "gift" Plan shares requires a legal transfer to or the purchase
of shares for another person. No provision is available for delaying
confirmation of the transaction to the recipient of either a transfer or
purchase. Shares of stock may be provided in three ways:
A. Submit a completed New Investor Enrollment Form with a minimum
Initial Cash Payment of $250 to establish an account in the
recipient's name.
B. Submit an Optional Cash Payment of at least $25 on behalf of a
person who is currently a Participant and provide the Participant's
account number.
C. Transfer shares from an existing Participant's account to another
person.
Shares purchased or transferred will be credited to the recipient's
account in book-entry form. All Plan provisions relating to the establishment of
a new account, processing of cash payments and the transfer of shares apply to
the above.
35. Can I have my stock certificates deposited in my account as Plan shares?
Yes. Participants may send SCS Stockholder Services their stock
certificate(s) and request in writing that they be deposited as Plan shares into
their accounts. It is suggested that stock certificates be sent by "registered
and insured" mail or by some other safe means as the Participant bears the risk
of loss in transit. The certificate(s) should not be endorsed and the package
should be insured for two percent of the market value.
A completed Current Shareholder Enrollment Form must also be provided
if the account is not already enrolled in the Plan. The Form can be downloaded
from the Company's web site. Deposited shares will be enrolled as Full Dividend
Reinvestment unless otherwise instructed.
36. Can DRS shares participate in the Plan?
Yes. If not already enrolled in the Plan, send SCS Stockholder Services
an Enrollment Form which is available by calling SCS Stockholder Services or
downloading the form from the Company's web site. If already enrolled, provide
instructions to SCS Stockholder Services on whether to reinvest dividends from
DRS shares.
10
SALE OF PLAN SHARES
37. How do I request that my Plan shares be sold?
Participants should send a completed Sell portion of an account
statement or a written sales request to SCS Stockholder Services. Any sales
request must be signed by all account owners.
38. What are the options for selling Plan shares?
Upon receipt of a written request signed by ALL account owners, SCS
Stockholder Services can:
A. Issue a certificate for the whole Plan shares and sell any
fractional share;
B. Issue a certificate for a portion of the whole Plan shares and
sell all remaining Plan shares;
C. Sell all or a portion of whole Plan shares.
If and when the Company eliminates paper certificates, shares will be
issued in DRS form.
39. Can certificate and DRS shares be sold through the Plan?
No. Certificate and DRS shares must first be deposited to a properly
enrolled account. To sell Plan shares outside of the Plan, Participants should
request a certificate be issued or request a broker to initiate a DRS
transaction to deliver the shares.
40. How and when are Plan shares sold?
Sales requests are aggregated and generally processed within five
business days of receipt. SCS Stockholder Services forwards sales instructions
to the independent agent who will place the order on the open market. The
Participant will receive the proceeds of the sale, less any applicable broker
commission and related service and regulatory fees (see Appendix A --Fee
Schedule).
41. When will I receive a check?
A check for the sale proceeds, made payable to the registered account
owner(s), will be mailed First Class by SCS Stockholder Services three business
days after the sale date when the trade settles.
42. Is there a time when I cannot sell Plan shares?
Yes. Shares will not be sold during the dividend posting period which
extends from ex-dividend date, as established by the NYSE, to four business days
after dividend record date. Any sales requests received during this period will
be held, then processed after the dividend posting period ends.
43. Can I request the sale of my shares at a specific price or on a specific
date?
No. To avail yourself of these options, shares are typically sold
through a broker-dealer.
11
44. Can sale proceeds be electronically deposited to a bank account?
No.
45. What is the cost basis of shares sold through the Plan?
The cost basis is generally the original purchase price including
commissions and other fees. If you acquired a security other than by purchasing
it, the cost basis may be the value at the time you receive it. Participants are
advised to consult their own tax or financial advisor with respect to the tax
consequences of participation in the Plan (including federal, state, local and
other tax laws and U.S. withholding laws).
46. How can the cost basis be determined for shares purchased through the Plan
if I don't have all the original purchase information?
Copies of annual account statements are available from SCS Stockholder
Services from 1998 forward at no cost. Information from 1988 through 1997 can
obtained from the SCS Stockholder Services for a service fee.
REPORTS TO PARTICIPANTS
47. What reports will I receive as a Participant?
Following the end of each calendar quarter, SCS Stockholder Services
will send statements to account owners. These statements will be placed in the
mail within five to seven business days after the end of the quarter. The
statement will reflect the shares in the account and provide a record of
dividends paid and/or reinvested, shares purchased with Initial and Optional
Cash Payments, certificates deposited, shares sold or transferred and quarter
ending account value. Participants can also view account information online (see
Q. 57).
Participants will also receive a year-end statement summarizing Plan
activity during the year and IRS Form 1099-DIV showing total dividends paid. If
applicable, IRS Form 1099-B will be provided separately representing the
proceeds of any stock sale. Each Participant will also receive any
communications sent to record holders of common stock, including the Annual
Report and Proxy Statement.
Participants should retain all statements. These statements provide
cost basis information which is necessary for certain tax calculations. Requests
for replacement account activity information may entail a service fee.
TERMINATION OF PLAN PARTICIPATION
48. Can SCS Stockholder Services terminate my participation in the Plan?
Yes. If the Plan share balance in an account is less than 10 shares and
there are no certificate or DRS shares in the account, SCS Stockholder Services
reserves the right to terminate the account without advance notice. The shares
will be sold and a check for the value (based on the then current market price,
less applicable broker commissions and service fees) will be sent to the
Participant. SCS Stockholder Services reserves the right to waive certain sales
fees when terminating participation of accounts. Further, SCS Stockholder
12
Services reserves the right to modify, suspend or terminate participation in the
Plan by otherwise eligible persons in order to eliminate practices which are
inconsistent with the purpose of the Plan.
COSTS AND EXPENSES
49. Are there any costs to open a new Plan account through which to purchase
shares?
Yes. There is a one time fee for eligible investors other than
shareholders of record and employees of the Company or any of its subsidiaries
(see Appendix A -- Fee Schedule).
50. After payment of the one-time fee, are there any costs to participate or
purchase stock under the Plan?
No. All costs of administration of the Plan and purchase commissions
and fees are paid by the Company.
51. Is there a cost to sell shares through the Plan?
Yes. Participants pay a broker commission/service fee on each share of
stock sold through the Plan (see Appendix A -- Fee Schedule).
52. Can the Fee Schedule be changed?
Yes. SCS Stockholder Services reserves the right to impose or modify
any or all fees in the future. Changes in the Fee Schedule will be announced to
Participants approximately 60 days prior to the effective date. Any such change
will be deemed to be accepted by Participants who do not terminate participation
in the Plan prior to the effective date of the change. Participants should
contact SCS Stockholder Services to obtain current fee information.
OTHER INFORMATION
53. What impact will a stock dividend or stock split have?
Any dividends payable in common stock or common stock split shares
distributed by the Company on Plan shares will be added to the account in DRS
form.
54. How do I vote my Plan shares?
All Plan shares are voted in the same manner as certificate and DRS
shares registered in a shareholder of record's name. Participants will receive
proxy materials from the Company for each stockholder meeting, including a form
of proxy that includes all Plan shares as of the proxy record date. If no
instructions are received on a returned and signed form of proxy with respect to
any item thereon, all of a Participant's whole and fractional shares will be
voted in accordance with the recommendations of the Company's Board of
Directors. If the form of proxy is not returned or is returned unsigned, none of
the Participant's shares will be voted unless the Participant votes in person or
appoints another person as proxy to vote his or her shares.
13
55. How will my Plan account be impacted if Southern Company has a rights
offering?
If the Company has a rights offering, warrants representing the rights
on all Plan shares registered in the name of SCS (or its nominee) will be issued
to SCS who will sell such rights, credit each Participant's account in
proportion to the full and fractional shares held on the record date for such
rights and treat the proceeds as an Optional Cash Payment. The proceeds will not
be subject to the annual $300,000 cash maximum. Any Participant who wishes to
exercise stock purchase rights on his or her Plan shares must request, prior to
the record date for any such rights, that SCS forward to him or her a
certificate or DRS statement for full shares. Warrants representing rights on
shares held directly by Participants will be mailed directly to them in the same
manner as to shareholders not participating in the Plan.
56. What are the responsibilities of the Company and SCS Stockholder Services
under the Plan?
The Company and SCS, in administering the Plan, will not be liable for
any act performed in good faith or for any good faith omission to act,
including, without limitation, any claim of liability arising out of failure to
close a Participant's account upon such Participant's death prior to receipt of
notice in writing of such death. However, the Company remains liable for
violations of the federal securities laws.
57. What information is available about the Plan through the Internet?
Extensive information about the Company and the Plan is available
through the Company's web site at http://www.southerncompany.com. Within the
Investor Relations/SCS Stockholder Services section, you can download various
transaction request forms, review responses to Frequently Asked Questions and
obtain on-line access to stockholder account information, including shares and
transactions associated with the Plan.
58. Am I protected against losses by participating in the Plan?
No. Participants should recognize that neither the Company nor SCS can
assure them of profit or protect them against a loss on the shares purchased or
sold under the Plan. See "Risk Factors" on page 4 for additional information.
INTERPRETATION OF THE PLAN
The Company may in its absolute discretion interpret and regulate the
Plan as deemed necessary or desirable in connection with the operation of the
Plan and direct SCS Stockholder Services with respect to resolving questions or
ambiguities concerning the various provisions of the Plan.
14
FEDERAL INCOME TAX CONSEQUENCES
Participants are advised to consult their own tax or financial advisor
with respect to the tax consequences of participation in the Plan (including
federal, state, local and other tax laws and U. S. withholding laws).
In general, the dividends paid on common stock are considered taxable
income, whether the shares are held in certificate, in DRS or through the Plan
and whether the dividends are received in cash or reinvested through the Plan.
The information sent to you and reported to the IRS after each year-end will
provide the information required to complete your income tax return.
The basis of shares acquired through the reinvestment of dividends will
be equal to the value of dividends reinvested. The basis of shares purchased
with cash investments will be equal to the amount of such investments.
Upon the sale of either a portion or all shares from the Plan, a
Participant may, in general, recognize a capital gain or loss based on the
difference between the sales proceeds and the tax basis in the shares sold,
including any fractional share. The capital gain or loss will be long-term if
the shares were held for more than one year.
For Participants who are subject to U.S. withholding or foreign taxes,
the Company will withhold the required taxes from the gross dividends or
proceeds from the sale of shares. The dividends or proceeds received by the
Participant, or dividends reinvested on behalf of the Participant, will be net
of the required taxes. Voluntary tax withholding is not an option.
Participants should retain all statements. These statements provide
cost basis information which is necessary for certain tax calculations. Requests
for replacement account activity information may entail a service fee.
USE OF PROCEEDS
Southern Company will receive proceeds from purchases of common stock
under the Plan only if the purchases are made directly from Southern Company,
rather than by the independent agent on the open market. Southern Company will
use any such proceeds for general corporate purposes.
LEGAL MATTERS
The validity of the shares of Southern Company common stock being
offered through this prospectus is being passed upon by Troutman Sanders LLP,
Atlanta, Georgia.
EXPERTS
The consolidated financial statements, the related consolidated
financial statement schedule, and management's report on the effectiveness of
internal control over financial reporting incorporated in this prospectus by
reference from the Company's Annual Report on Form 10-K for the year ended
December 31, 2005, have been audited by Deloitte & Touche LLP, an independent
registered public accounting firm, as stated in their reports, which are
incorporated herein by reference, and have been so incorporated in reliance upon
the reports of such firm given upon their authority as experts in accounting and
auditing.
15
WHERE YOU CAN FIND MORE INFORMATION
Southern Company has filed a registration statement on Form S-3 to
register with the Securities and Exchange Commission ("SEC") the shares of
Southern Company's common stock to be offered for purchase by Participants. This
prospectus is part of that registration statement. The registration statement,
including the exhibits to the registration statement, contains additional
information about Southern Company and its common stock. As allowed by SEC
rules, this prospectus does not contain all of the information you can find in
the registration statement or the exhibits thereto.
Southern Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
accordingly files annual, quarterly and current reports and other information
with the SEC. Such reports, proxy statements and other information can be
inspected and copied at the SEC Public Reference Room at 100 F Street, N.E.,
Room 1580, Washington, D.C. 20549. Information on the operation of the Public
Reference Room may be obtained by calling the SEC at 800/SEC-0330. The SEC
maintains a web site that contains reports, proxy and information statements and
other information regarding registrants including Southern Company that file
electronically at http://www.sec.gov. The common stock of Southern Company is
listed on the NYSE and reports, proxy statements and other information
concerning Southern Company can be inspected at 20 Broad Street, New York, New
York 10005.
The SEC allows the Company to "incorporate by reference" the
information we file with it, which means that we can disclose important
information to you by referring to these documents. The information incorporated
by reference is an important part of this prospectus and should be read with the
same care. The following documents are incorporated in and made part of this
prospectus by reference:
1. Annual Report on Form 10-K for the year ended December 31, 2005.
2. Quarterly Reports on Form 10-Q for the quarters ended March 31, 2006,
June 30, 2006 and September 30, 2006.
3. Current Reports on Form 8-K dated January 4, 2006, February 20, 2006,
March 16, 2006, March 17, 2006, June 15, 2006, June 27, 2006, October
17, 2006, October 18, 2006 and October 27, 2006.
4. The description of Southern Company's common stock contained in
Registration No.333-138503 filed under the Securities Act of 1933, as
amended.
All documents filed by the Company with the SEC pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
prospectus and prior to the termination of this offering shall be deemed to be
incorporated in this prospectus by reference and made a part of this prospectus
from the date of filing of such documents; provided, however, the Company is not
incorporating any information furnished under Items 2.02 or 7.01 of any Current
Report on Form 8-K unless specifically stated otherwise. Any statement contained
in a document incorporated or deemed to be incorporated by reference in this
prospectus shall be deemed to be modified or superseded for purposes of this
prospectus to the extent that a statement contained in this prospectus or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference in this prospectus modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this prospectus.
Southern Company hereby undertakes to provide without charge to each
person to whom a copy of this prospectus has been delivered, on the written or
oral request of any such person, a copy of any or all of the documents referred
to herein under the caption "Where You Can Find More Information" which have
been or may be incorporated by reference in this prospectus, other than exhibits
to such documents unless such exhibits are specifically incorporated by
reference. You may request a copy of these filings by writing or calling at the
following address or telephone number:
SCS Stockholder Services
P.O. Box 54250
Atlanta, GA 30308-0250
800/554-7626
16
APPENDIX A
SOUTHERN INVESTMENT PLAN
Fee Schedule*
ITEM FEE/COMMISSION
New Account Fee $10.00 - deducted from
Initial Cash Payment
Purchase of Shares No charge
Sale of Shares $0.06 per share
Insufficient Funds - Check or Direct Debit $30 per item
Replacement Documents
- IRS Form No charge
- Check No charge
- Account Statements (1998 to current year) No charge
- Check copy (2001 to current year) No charge
Plan Information from 1988 through 1997 Requiring $30 per account per
Research request
Transaction Information Prior to 1988 - Not Available
Not Available
*Subject to Revision -- See Question 52
Contact SCS Stockholder Services at 800/554-7626 to obtain
current fee information.
A-1
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The estimated expenses of issuance and distribution to be borne by
Southern are as follows:
Securities and Exchange Commission Registration Fee.................$ 74,900
Listing on New York Stock Exchange.................................. 100,300
Charges of Plan Administrator....................................... 25,000
Charges of Transfer Agent and Registrar............................. 25,000
Printing and Preparation of Registration Statement, Prospectus, etc. 60,000
Fees of Counsel..................................................... 30,000
Fees of Accountants................................................. 35,000
Services of Southern Company Services, Inc.......................... 20,000
Miscellaneous....................................................... 29,800
---------
Total......................................................$ 400,000
---------
Item 15. 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 proceedings, 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, the person shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by the
person in connection therewith.
The By-Laws of Southern Company provide in substance that no present or
II-1
future director or officer of Southern Company 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 Company 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 her or imposed on him
or her, 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 Company 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 Company 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.
II-2
Item 16. Exhibits.
Exhibit
Number
4.1 Composite Certificate of Incorporation of Southern Company reflecting
all amendments 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.)
4.2 By-Laws of Southern Company as amended effective February 17, 2003,
and as presently in effect. (Designated in Form 10-Q for the quarter
ended June 30, 2003, File No. 1-3526, as Exhibit 3(a)1.)
4.3 Form of Certificate of Common Stock of Southern Company (Designated in
Registration No. 333-101349, as Exhibit 4.3)
5.1 Opinion of Troutman Sanders LLP.
23.1 Consent of Troutman Sanders LLP is contained in Exhibit 5.1.
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 17. 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 end 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 a 20 percent change in the maximum
II-3
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement; and
(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), (a)(1)(ii) and
(a)(1)(iii) do not apply if the registration statement is on Form S-3 or Form
F-3 and the information required to be included in a post-effective amendment by
those paragraphs is contained in reports filed with or furnished to the
Commission 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, or is contained in a form of prospectus filed pursuant
to Rule 424(b) that is part of 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.
(4) That, for the purpose of determining liability under the
Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant
to Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the
purpose of providing the information required by Section 10(a)
of the Securities Act of 1933 shall be deemed to be part of
and included in the registration statement as of the earlier
of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date
shall be deemed to be a new effective date of the registration
statement relating to the securities in the registration
statement to which that prospectus relates, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof. Provided, however, that no
statement made in a registration statement or prospectus that
is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration
statement or prospectus that was part of the registration
statement or made in any such document immediately prior to
such effective date.
(5) That, for the purpose of determining liability of the
registrant under the Securities Act of 1933 to any purchaser in the
initial distribution of the securities:
II-4
The undersigned registrant undertakes that in a primary
offering of securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method used to
sell the securities to the purchaser, if the securities are offered and
sold to such purchaser by means of the following communications, the
undersigned registrant will be a seller to the purchaser and will be
considered to offer or sell securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the
offering prepared by or on behalf of the undersigned
registrant or used or referred to by the undersigned
registrant;
(iii) The portion of any other free writing
prospectus relating to the offering containing material
information about the undersigned registrant or its securities
provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the
offering made by the undersigned registrant to the purchaser.
(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 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 related to registration statement becoming
effective upon filing:
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 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 of 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
Pursuant to the requirements of the Securities Act of 1933, The
Southern Company certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 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 November 8, 2006.
THE SOUTHERN COMPANY
By: David M. Ratcliffe
Chairman, 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, President
and Chief Executive Officer
(Principal Executive Officer)
Thomas A. Fanning Executive Vice President, Chief
Financial Officer and
Treasurer (Principal Financial Officer)
W. Ron Hinson Comptroller and Chief Accounting
Officer (Principal Accounting Officer)
Juanita Powell Baranco )
Dorrit J. Bern )
Francis S. Blake )
Thomas F. Chapman ) Directors
Donald M. James )
Zack T. Pate )
J. Neal Purcell )
William G. Smith, Jr. )
Gerald J. St. Pe )
By: /s/ Wayne Boston November 8, 2006
---------------------
Wayne Boston
Attorney-in-Fact
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