s8defcompplan2010.htm
As filed with the Securities and Exchange Commission on May 10,
2010
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
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)
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Delaware
(State
or other jurisdiction of incorporation or organization)
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58-0690070
(I.R.S.
Employer
Identification
No.)
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30
Ivan Allen Jr. Boulevard, N.W.
Atlanta,
Georgia
(Address
of Principal Executive Offices)
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30308
(Zip
Code)
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SOUTHERN
COMPANY DEFERRED COMPENSATION PLAN
(Full
title of the plan)
MELISSA
K. CAEN, Assistant
Secretary
The
Southern Company
30 Ivan
Allen Jr. Boulevard, N.W.
Atlanta,
Georgia 30308
(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:
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W.
PAUL BOWERS
Executive
Vice President and
Chief
Financial Officer
THE
SOUTHERN COMPANY
30
Ivan Allen Jr. Boulevard, N.W.
Atlanta,
Georgia 30308
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ERIC
A. KOONTZ
TROUTMAN
SANDERS LLP
600
Peachtree Street, N.E.
Suite
5200
Atlanta,
Georgia 30308
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Indicate by check mark whether the
registrant is a large accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of “large
accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule
12b-2 of the Exchange Act.
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Large
accelerated filer R
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Accelerated
filer £
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Non-accelerated
filer £ (Do not
check if a smaller reporting company)
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Smaller
reporting company £
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CALCULATION
OF REGISTRATION FEE
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Title
of Securities to be Registered
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Amount
to be
Registered
(1)
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Proposed
Maximum Offering Price Per Share/Obligation
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Proposed
Maximum Aggregate Offering Price (2)
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Amount
of Registration Fee
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Deferred
Compensation Obligations (1)
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$100,000,000
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100%
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$100,000,000
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$7,130
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(1)
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The
Deferred Compensation Obligations are general unsecured obligations of The
Southern Company to pay deferred compensation in the future in accordance
with The Southern Company Deferred Compensation Plan.
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(2)
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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
estimate of the amount of compensation to be deferred by
participants.
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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; provided however, the registrant 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.
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(a) (1)
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The
registrant’s Annual Report on Form 10-K for the year ended December 31,
2009.
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(b) (1)
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The
registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31,
2010.
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(2)
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The
registrant’s Current Reports on Form 8-K dated February 9, 2010 and May
10, 2010.
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Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or suspended for purposes of this registration statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified
shall not be deemed to constitute a part of this registration statement except
as so modified and any statement so suspended shall not be deemed to constitute
a part of this registration statement.
Item
4. Description
of Securities.
The summary of the obligations (the
“Deferred Compensation Obligations”) arising pursuant to the Southern Company
Deferred Compensation Plan and any amendments thereto (together, the “Plan”) is
qualified in its entirety by reference to the terms and conditions of the Plan,
which is filed as an exhibit hereto. The Deferred Compensation
Obligations registered hereby are unsecured general obligations of SOUTHERN to
make future payments of compensation that a select group of management and
highly compensated employees elect to defer under the terms of the
Plan. The Plan is unfunded for purposes of Title I of the Employee
Retirement Income Security Act.
The Deferred Compensation Obligations
rank equally with any of SOUTHERN’s other unsecured and unsubordinated
indebtedness that may be outstanding from time to time, and Participants’ (as
defined below) deferrals are subject to the claims of SOUTHERN’s general
creditors in the event of bankruptcy or insolvency. An aggregate
principal amount of $100,000,000 of the Deferred Compensation Obligations is
being registered hereunder.
A committee, consisting of the Vice
President, Human Resources of SOUTHERN and other officers from subsidiaries of
SOUTHERN (the “Committee”), administers the Plan. Subject to the
terms and conditions set forth in the Plan and conditions that the Committee may
determine, each participating employee (a “Participant”) may elect to defer up
to fifty percent (50%) of his or her base annual salary, and up to one hundred
percent (100%) of his or her incentive pay as defined in the Plan, or such
greater or lesser amount as shall be determined by the Committee from time to
time.
When a Participant makes a deferral
election, an account will be established on behalf of the
Participant. The Participant then must choose one of the following
investment indices for any compensation that he or she defers: (1) SOUTHERN’s
Common Stock or (2) Prime interest rate. Contributions denominated in
SOUTHERN’s Common Stock will be credited with dividend equivalents that will be
deemed reinvested in SOUTHERN’s Common Stock and will be debited and credited
commensurate with increases and decreases in the market price of SOUTHERN Common
Stock. Contributions tied to the Prime interest rate will earn
interest that will be credited monthly. A Participant is permitted to
transfer between investment options. A Participant is always one
hundred percent (100%) vested in his or her deferral accounts.
A Participant must also select his or
her distribution method and time of distribution for his or her
account. Distributions are made only in cash and begin following a
separation from service or on a specified date, before or after a separation
from service, as elected by a Participant. A Participant electing to
receive distribution upon separation from service may choose to receive a lump
sum or annual installments. A Participant, subject to approval of the
Committee, may change this initial distribution method regarding amounts
deferred prior to January 1, 2005 at any time, but no election made less than 12
months prior to a Participant’s retirement or termination will be given
effect. For amounts deferred after December 31, 2004, a distribution
election may be modified only in compliance with Section 409A of the Internal
Revenue Code of 1986, as amended, and the regulations promulgated thereunder
(“Section 409A”). Distributions commence no later than 75 days
following a Participant’s separation from service, or as soon as
administratively possible after that date, unless a delay is required under
Section 409A.
The Committee, in its sole discretion
upon written application by a Participant, may authorize the suspension of a
Participant’s election in the event of an unforeseen emergency or hardship of
the Participant in compliance with Section 409A. Additionally, if the
Committee determines that a Participant no longer qualifies for the Plan, the
Committee shall have the right, in its sole discretion, to rescind the
eligibility of the Participant to make further deferrals under the
Plan.
The Deferred Compensation Obligations
are not subject to redemption, in whole or in part, and are not convertible into
another security of SOUTHERN. A Participant does not have any right
to commute, sell, assign, transfer or otherwise convey the right to receive any
payment of his or her Deferred Compensation Obligations.
The Plan may be amended, modified or
terminated by the Board of Directors of SOUTHERN in its sole discretion at any
time and from time to time; provided, however, that no amendment, modification
or termination shall impair any rights to any amounts which have been earned or
deferred under the Plan prior to such amendment, modification or
termination.
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
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
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 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 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.
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4.1
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Southern
Company Deferred Compensation Plan as amended and restated as of January
1, 2009 and First Amendment thereto effective January 1, 2010. (Designated
in Form 10-K for the year ended December 31, 2008, File No. 1-3526, as
Exhibit 10(a)4 and in Form 10-K for the year ended December 31, 2009, File
No. 1-3526 as Exhibit 10(a)5.)
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5.1
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Opinion
of Troutman Sanders LLP, counsel to SOUTHERN.
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23.1
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Consent
of Troutman Sanders LLP (included in Exhibit 5.1 above).
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23.2
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Consent
of Deloitte & Touche LLP.
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24.1
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Power
of Attorney and Resolution.
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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.
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(a)
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Undertaking
related to Rule 415 offering:
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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 20% change in
the
maximum
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) and (a)(1)(ii) of this section do not apply if the
registration statement is on Form S-8, 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 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 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.
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(c)
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Undertaking
relating to filing of registration statement on Form
S-8:
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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.
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 May 10,
2010.
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THE
SOUTHERN COMPANY
By: David
M. Ratcliffe
Chairman, President
and
Chief Executive
Officer
By: /s/Melissa
K. Caen
Melissa K. Caen
Attorney-in-Fact
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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.
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SIGNATURE
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TITLE
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DATE
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David
M. Ratcliffe
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Chairman,
President, Chief
Executive
Officer and Director
(Principal
Executive Officer)
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W.
Paul Bowers
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Executive
Vice President and
Chief
Financial Officer
(Principal
Financial Officer)
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W.
Ron Hinson
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Comptroller
and Chief Accounting Officer
(Principal
Accounting Officer)
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Juanita
Powell Baranco
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)
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Jon
A. Boscia
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)
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Thomas
F. Chapman
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)
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Henry
A. Clark III
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)
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H.
William Habermeyer, Jr.
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) Directors
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Veronica
M. Hagen
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)
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Warren
A. Hood, Jr.
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)
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Donald
M. James
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)
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J.
Neal Purcell
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)
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William
G. Smith, Jr.
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)
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By: /s/Melissa
K.
Caen
Melissa K. Caen
Attorney-in-Fact
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May
10, 2010
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II-8