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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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ART P. BEATTIE
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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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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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 (2)
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Proposed
Maximum
Aggregate
Offering Price (2)
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Amount of
Registration
Fee
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Common Stock, par value $5 per share
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30,000,000 shares
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$44.05
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$1,321,500,000
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$151,444
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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, 2011.
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(2)
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The Plan’s Annual Report on Form 11-K for the year ended December 31, 2010.
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(b) The registrant’s Current Report on Form 8-K dated February 9, 2012.
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(c) The description of the registrant’s common stock contained in the registrant’s registration statement on Form S-3 filed on February 28, 2012, Registration No. 333- 179766 filed under the Securities Act of 1933, as amended.
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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.”
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Exhibit
Number
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4.1
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Composite Certificate of Incorporation of SOUTHERN reflecting all amendments through May 27, 2010. (Designated in Registration No. 33-3546 as Exhibit 4(a), in Certificate of Notification, File No. 70-7341, as Exhibit A, in Certificate of Notification, File No. 70-8181, as Exhibit A and in Form 8-K dated May 26, 2010, File No 1-3526, as Exhibit 3.1.)
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4.2
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By-Laws of SOUTHERN as amended effective May 26, 2010, and as presently in effect. (Designated in Form 8-K, dated May 26, 2010, File No. 1-3526, as Exhibit 3.2.)
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4.3
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The Southern Company Employee Savings Plan, Amended And Restated Effective January 1, 2010.
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5.1
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Opinion of Troutman Sanders LLP, counsel to SOUTHERN.
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5.2
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Internal Revenue Service determination letters dated March 5, 1996, June 10, 1996, February 24, 2000 and January 31, 2003. (Designated in Form 11-K for the year ended December 31, 1995, File No. 1-3526, as Exhibit B, in Registration No. 333-96883 as Exhibit 5(c) and in Registration No. 333-110559 as Exhibit 5.3).
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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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(a)
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Undertaking related to Rule 415 offering
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The undersigned registrant hereby undertakes:
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(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
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(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;
(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;
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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.
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(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.
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The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and each filing of the Plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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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.
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THE SOUTHERN COMPANY
By: Thomas A. Fanning
Chairman, President and
Chief Executive Officer
By: /s/ Melissa K. Caen
Melissa K. Caen
Attorney-in-Fact
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SIGNATURE
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TITLE
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DATE
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Thomas A. Fanning
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Director, Chairman, President
and Chief Executive Officer
(Principal Executive Officer)
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Art P. Beattie
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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
Jon A. Boscia
Henry A. Clark III
H. William Habermeyer, Jr.
Veronica M. Hagen
Warren A. Hood, Jr.
Donald M. James
Dale E. Klein
J. Neal Purcell
William G. Smith, Jr.
Steven R. Specker
Larry D. Thompson
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)
)
)
)
)
)
) Directors
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)
)
)
)
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By: /s/ Melissa K. Caen
Melissa K. Caen
Attorney-in-Fact
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February 28, 2012
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THE SOUTHERN COMPANY EMPLOYEE SAVINGS PLAN
By: /s/ Stacy R. Kilcoyne
Stacy R. Kilcoyne, Chair of
The Southern Company Benefits
Administration Committee
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