SECURITIES AND EXCHANGE COMMISSION
(Release No. 35-27834)
Filings Under the Public Utility Holding Company Act of 1935, as amended ("Act")
April 14, 2004
Notice is hereby given that the following filing(s) has/have been made with the Commission pursuant to provisions of the Act and rules promulgated under the Act. All interested persons are referred to the application(s) and/or declaration(s) for complete statements of the proposed transaction(s) summarized below. The application(s) and/or declaration(s) and any amendment(s) is/are available for public inspection through the Commission's Branch of Public Reference.
Interested persons wishing to comment or request a hearing on the application(s) and/or declaration(s) should submit their views in writing by May 10, 2004, to the Secretary, Securities and Exchange Commission, Washington, D.C. 20549-0609, and serve a copy on the relevant applicant(s) and/or declarant(s) at the address(es) specified below. Proof of service (by affidavit or, in the case of an attorney at law, by certificate) should be filed with the request. Any request for hearing should identify specifically the issues of facts or law that are disputed. A person who so requests will be notified of any hearing, if ordered, and will receive a copy of any notice or order issued in the matter. After May 10, 2004, the application(s) and/or declaration(s), as filed or as amended, may be granted and/or permitted to become effective.
The Southern Company (70-10215)
Notice of Proposal to Issue Securities; Order Authorizing Solicitation of Proxies
The Southern Company ("Southern"), 270 Peachtree Street, N.W., Atlanta, Georgia 30303, a holding company registered under the Public Utility Holding Company Act of 1935, as amended ("Act"), has filed a declaration under sections 6(a), 7 and 12(e) of the Act and rules 54, 62 and 65 under the Act.
Southern proposes, from time to time through May 26, 2014, to issue shares of its common stock, par value $5.00 per share ("Common Stock"), in accordance with the Outside Directors Stock Plan for The Southern Company and Certain of its Subsidiaries ("Plan"). The Plan is a consolidation of the Outside Directors Stock Plan for The Southern Company ("Southern Stock Plan") and the Outside Directors Stock Plan for Subsidiaries of The Southern Company ("Subsidiaries Stock Plan").
The Board of Directors of Southern has adopted the Plan, subject to stockholder approval. The Plan is intended to provide a mechanism for non-employee directors to increase their ownership of Common Stock automatically and thereby further align their interests with those of Southern's stockholders.
The Plan will be administered by Southern's Governance Committee ("Committee"), which will have exclusive authority to interpret the Plan. The Plan provides for a portion of the retainer fee for non-employee directors of Southern and any subsidiary of Southern that the Board of Directors of Southern determines to bring under the Plan and that adopts the Plan ("Subsidiaries") to be paid in unrestricted shares of Common Stock and permits each non-employee director to elect to have all or a portion of the remainder of the director fee to be paid in shares of Common Stock instead of cash. Southern expects that the initial Subsidiaries will be Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi Power Company and Savannah Electric and Power Company and that the approximate number of participants under the Plan will initially be 50. The portion of the director fee paid in Common Stock to Southern's non-employee directors in accordance with the Plan will automatically be deferred in accordance with the terms of the deferred compensation plan maintained by Southern. The non-employee directors of each Subsidiary may elect to have the portion of the director fee paid in Common Stock in accordance with the Plan deferred in accordance with the terms of the deferred compensation plan maintained by each Subsidiary for its directors.
One million shares of Common Stock and the unissued shares of Common Stock previously authorized and registered for issuance under the Southern Stock Plan and Subsidiaries Stock Plan (approximately 1,700,000 shares) will be available for payment to the participants under the Plan.
The Board of Directors of Southern may terminate or amend the Plan at any time except that without shareholder approval no amendment may be made that would, absent that shareholder approval, disqualify the Plan for coverage under rule 16b-3, as promulgated by the Commission under the Securities and Exchange Act of 1934, as amended. The Plan will terminate May 26, 2014, unless terminated sooner by the Board of Directors.
Southern further proposes to submit the Plan for consideration and action by its stockholders at the annual meeting of such stockholders to be held on May 26, 2004, and to solicit proxies from its stockholders in anticipation of that meeting. In addition, in the event that Southern considers it desirable to do so, it may employ professional proxy solicitors to assist in the solicitation of proxies and pay their expenses and compensation for that assistance, which, it is estimated, will not exceed $10,000.
Approval of the Plan requires the affirmative vote of the holders of a majority of the shares of Common Stock represented in person or by proxy at the annual meeting.
The proposed transactions are subject to rule 53 under the Act, which provides that in determining whether to approve the issue or sale of a security for purposes of financing the acquisition of an exempt wholesale generator ("EWG") or foreign utility company ("FUCO"), the Commission shall not make certain adverse findings if the conditions set forth in rule 53(a)(1) through (a)(4) are met, and are not otherwise made inapplicable by the existence of any of the circumstances described in rule 53(b).
Southern currently meets all of the conditions of rule 53(a), except for clause (1). At December 31, 2003, Southern's "aggregate investment," as defined in rule 53(a)(1), in EWGs and FUCOs was approximately $304 billion, or approximately 5.83% of Southern's "consolidated retained earnings," also as defined in rule 53(a)(1), as of December 31, 2003 ($5.213 billion). With respect to rule 53(a)(1), however, the Commission has determined that Southern's financing of investments in EWGs and FUCOs in an amount greater than the amount that would otherwise be allowed by rule 53(a)(1) would not have either of the adverse effects set forth in rule 53(c). (See The Southern Company, HCAR No. 16501, (April 1, 1996); and HCAR No. 26646, (January 15, 1997).
In addition, Southern has complied and will continue to comply with the record-keeping requirements of rule 53(a)(2), the limitation of rule 53(a)(3) on the use of operating company personnel to render services to EWGs and FUCOs and the requirements of rule 53(a)(4) concerning the submission of copies of certain filings under the Act to retail rate regulatory commissions. Further, none of the circumstances described in rule 53(b) has occurred. Finally, rule 53(c) is, by its terms, inapplicable since the requirements of paragraphs 53(a) and 53(b) are satisfied.
It appears to the Commission that the declaration, to the extent that it relates to the proposed solicitation of proxies, should be permitted to become effective immediately under rule 62(d).
IT IS ORDERED, that the declaration, to the extent that it relates to the proposed solicitation of proxies be, and hereby is, permitted to become effective immediately under rule 62 and subject to the terms and conditions prescribed in rule 24 under the Act.
For the Commission, by the Division of Investment Management, under delegated authority.
Margaret H. McFarland
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