As filed with the Securities and Exchange Commission on November 23, 2015
Registration No. 333- .
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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) | 58-0690070 (I.R.S. Employer Identification No.) |
30 Ivan Allen Jr. Boulevard, N.W. Atlanta, Georgia (Address of principal executive offices) | 30308 (Zip Code) |
THE SOUTHERN COMPANY EMPLOYEE SAVINGS PLAN
(Full title of the plan)
MELISSA K. CAEN, CORPORATE 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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ART P. BEATTIE Executive Vice President and Chief Financial Officer THE SOUTHERN COMPANY 30 Ivan Allen Jr. Boulevard, N.W. Atlanta, Georgia 30308 | ERIC A. KOONTZ TROUTMAN SANDERS LLP 600 Peachtree Street, N.E. Suite 5200 Atlanta, Georgia 30308-2216 |
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. (Check one):
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Large accelerated filer x | | Accelerated filer o |
Non-accelerated filer o(Do not check if a smaller reporting company) | Smaller reporting company o |
CALCULATION OF REGISTRATION FEE
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Title of Securities to be Registered |
Amount to be Registered (1) | Proposed Maximum Offering Price Per Share | Proposed Maximum Aggregate Offering Price (2) |
Amount of Registration Fee |
Common Stock, par value $5 per share | 35,000,000 shares | $44.205 | $1,547,175,000 | $155,801 |
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(1) | In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also includes an indeterminate amount of additional shares that may be offered and issued to prevent dilution resulting from stock splits, stock dividends or similar transactions, and an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plan described herein. |
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(2) | Pursuant to Rule 457(h)(1) these figures are based upon the average of the high and low prices paid for a share of the Company’s Common Stock on November 18, 2015, as reported in the New York Stock Exchange consolidated reporting system, and are used solely for the purpose of calculating the registration fee. |
EXPLANATORY NOTE
The Southern Company (the “Company” or the “registrant”) filed a registration statement on February 28, 2012 (File No. 333-179779) (the “Prior Registration Statement”) to register under the Securities Act 30,000,000 shares of the Company’s Common Stock, par value $5 per share (the “Common Stock”), related to The Southern Company Employee Savings Plan (the “Plan”). The Company is filing this registration statement on Form S-8 pursuant to and in accordance with General Instruction E of Form S-8 to register an additional 35,000,000 shares of Common Stock related to the Plan.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The contents of the Prior Registration Statement are incorporated by reference into this Registration Statement. In addition, the documents listed below are incorporated by reference in this registration statement; and all documents subsequently filed by the Company 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 filed under Item 2.02 or 7.01 of any Current Report on Form 8-K unless specifically stated otherwise.
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| (a) | (1) | | The registrant’s Annual Report on Form 10‑K for the year ended December 31, 2014. |
| | (2) | | The Plan’s Annual Report on Form 11-K for the year ended December 31, 2014. |
| (b) | (1) | | The registrant’s Current Reports on Form 8‑K dated January 29, 2015, February 9, 2015, February 12, 2015, March 6, 2015, May 15, 2015, May 20, 2015, May 27, 2015, June 9, 2015, June 25, 2015, July 10, 2015, August 12, 2015, August 23, 2015, August 23, 2015, September 29, 2015, September 30, 2015, October 1, 2015, October 27, 2015, October 27, 2015 and November 17, 2015. |
| | (2) | | The registrant’s Quarterly Reports on Form 10-Q for the quarters ended March 31, 2015, June 30, 2015 and September 30, 2015. |
| (c) | | | The description of the registrant’s Common Stock contained in Registration No. 333-202413 filed under the Securities Act of 1933, as amended. |
Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded 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 statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.
Item 8. Exhibits.
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Exhibit Number | | |
4.1 | - | Composite Certificate of Incorporation of the Company, reflecting all amendments thereto 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.) |
4.2 | - | By-laws of the Company as amended effective May 27, 2015, and as presently in effect. (Designated in Form 8-K dated May 27, 2015, File No. 1-3526, as Exhibit 3.1.) |
4.3(a) | - | The Southern Company Employee Savings Plan, Amended and Restated Effective January 1, 2010. (Designated in Form S-8 filed February 28, 2012, File No. 333-179779, as Exhibit 4.3) |
4.3(b) | - | First Amendment to The Southern Company Employee Savings Plan, effective as of January 1, 2008. |
5.1 | - | Opinion of Troutman Sanders LLP, counsel to the Company. |
5.2(a) | - | 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). |
5.2(b) | - | Internal Revenue Service determination letter dated September 23, 2015. |
23.1 | - | Consent of Troutman Sanders LLP (included in Exhibit 5.1 above). |
23.2 | - | Consent of Deloitte & Touche LLP. |
24.1 | - | Power of Attorney and Resolution. |
Exhibits listed above which have previously been filed with the Securities and Exchange Commission and which were designated as noted above are incorporated herein by reference.
Item 9. Undertakings.
(a) Undertaking related to Rule 415 offering:
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high 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 percent change in
the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-8 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.
(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 related 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 relating to filing of registration statement on Form S-8:
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
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‑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 November 23, 2015.
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| THE SOUTHERN COMPANY |
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| By: | Thomas A. Fanning |
| | Chairman, President and Chief Executive Officer |
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| By: | /s/Melissa K. Caen |
| | Melissa K. Caen 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.
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SIGNATURE | | TITLE | DATE |
Thomas A. Fanning | | Chairman, President, Chief Executive Officer and Director (Principal Executive Officer) | |
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Art P. Beattie | | Executive Vice President and Chief Financial Officer (Principal Financial Officer) | |
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Ann P. Daiss | | Comptroller and Chief Accounting Officer (Principal Accounting Officer) | |
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Juanita Powell Baranco Jon A. Boscia Henry A. Clark III David J. Grain Veronica M. Hagen Warren A. Hood, Jr. Linda P. Hudson Donald M. James John D. Johns Dale E. Klein William G. Smith, Jr. Steven R. Specker Larry D. Thompson E. Jenner Wood III | | Directors | |
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By: | /s/Melissa K. Caen | | November 23, 2015 | |
| Melissa K. Caen Attorney-in-Fact | | | |
The Plan. Pursuant to the requirements of the Securities Act of 1933, the trustees (or other persons who administer the employee benefit plan) have 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 23, 2015.
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| THE SOUTHERN COMPANY EMPLOYEE SAVINGS PLAN
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| By: | /s/Stacy R. Kilcoyne |
| | Stacy R. Kilcoyne, Chair of The Southern Company Benefits Administration Committee |
Exhibit 4.3(b)
FIRST AMENDMENT
TO THE
SOUTHERN COMPANY
EMPLOYEE SAVINGS PLAN
WHEREAS, Southern Company Services, Inc. (“Company”) adopted the latest amendment and restatement of The Southern Company Employee Savings Plan (“Plan”), effective as of January 1, 2010; and
WHEREAS, the Company desires to amend the Plan at this time in order to meet the preconditions set by the Internal Revenue Service for the issuance of a favorable determination letter on the continuing qualified status of the Plan under the provisions of the Internal Revenue Code of 1986, as amended; and
WHEREAS, pursuant to Section 15.1 of the Plan, the Administrative Committee is authorized to amend the Plan at any time, provided that the amendment does not involve a substantial increase in cost to any Employing Company or is necessary or desirable to comply with the laws and regulations applicable to the Plan.
NOW, THEREFORE, the Administrative Committee hereby amends the Plan as follows, effective as of January 1, 2008:
1.
Section 2.18 shall be deleted in its entirety and replaced with the following:
2.18 “Common Stock” shall mean the common stock of The Southern Company, which is readily tradable on the New York Stock Exchange.
2.
Section 2.62 shall be deleted in its entirety and replaced with the following:
2.62 [Reserved.]
3.
Section 4.5(b)(2) shall be amended by deleting the last sentence of such Section in its entirety.
4.
Section 5.3(b)(2) shall be amended by deleting the last sentence of such Section in its entirety.
5.
Section 6.1 shall be amended by deleting paragraph (a) and replacing it with the following:
(a) one hundred percent (100%) of the Participant’s compensation (as defined in Code Section 415(c)(3) and any rulings and regulations thereunder and, for the avoidance of doubt, including military differential pay) in the Limitation Year; or
6.
Article VIII shall be amended by adding the following new Section 8.9 to the end thereof:
8.9 Diversification Requirements. For the avoidance of doubt, and notwithstanding any other provision of this Plan, the Plan shall comply with the diversification requirements under Code Section 401(a)(35) set forth in this Section 8.9; provided, that the Plan may impose a restriction or condition on the divestiture of the Company Stock Fund that is either required in order to ensure compliance with applicable securities laws or is reasonably designed to ensure compliance with applicable securities laws, and the Plan also may impose other restrictions or conditions on investments in the Company Stock Fund that are permissible under Section 1.401(a)(35)-1(e) of the Treasury Regulations.
(a) A Participant with any portion of his Account invested in the Company Stock Fund that has been purchased with Elective Employer Contributions, Catch-up Contributions, Catch-up Roth Contributions, Rollover Contributions, Roth Contributions, and/or Voluntary Participant Contributions may direct that all of his interest in the Company Stock Fund be divested and an equivalent amount be reinvested in any other Investment Fund as designated by the Participant.
(b) A Participant who has completed three (3) Years of Service shall have the right to divest any part of his Account attributable to non-elective or Employer Matching Contributions invested in the Company Stock Fund and direct that an equivalent amount be reinvested in any other Investment Fund as designated by the Participant.
(c) The Plan shall offer at least three (3) Investment Funds, other than the Company Stock Fund, each of which shall have materially different risk and return characteristics.
(d) The Plan shall allow a Participant to divest any investment in the Company Stock Fund at least quarterly.
7.
Section 12.6(b) shall be amended by deleting the second paragraph thereof in its entirety and replacing it with the following, and existing paragraph (c) of Section 12.6 is re-designated as paragraph (e):
(b) Notwithstanding any other provision of the Plan, to the extent required under Code Section 401(a)(9): (1) the entire vested Account balance of a Participant who is a five
percent (5%) owner, as determined pursuant to Code Section 416, (A) shall be distributed to him in a lump sum in cash not later than April 1 of the calendar year following the calendar year in which he attains age 70½ and, with respect to such Participants who are Employees, on December 31 of such year and each succeeding year or (B) shall commence to be distributed to him in one of the optional forms of benefit not later than the time specified in clause (A) above; and (2) the vested Account balance of any Participant who is not a five percent (5%) owner shall be distributed or commence to be distributed not later than the April 1 of the calendar year following the later of (A) the calendar year in which he attains age 70½ or (B) the calendar year in which he incurs a termination of employment. The date on which a Participant’s Account balance is distributed or commences to be distributed pursuant to this paragraph (b) shall be such Participant’s “required beginning date” for purposes of the Plan.
(c) Distributions under this Section 12.6 shall be made in accordance with the provisions of Code Section 401(a)(9) and Treasury Regulations thereunder, including Treasury Regulations Sections 1.401(a)(9)-2 through -9, which provisions are hereby incorporated herein by reference, provided that such provisions shall override the other distribution provisions of the Plan only to the extent that such other Plan provisions provide for distribution that is less rapid than required under such provisions of the Code and Treasury Regulations. Nothing contained in this Section 12.6 shall be construed as providing any optional form of payment that is not available under the other distribution provisions of the Plan.
(d) Minimum Distribution Requirements.
(1)General Rules.
(A)Precedence. The requirements of this paragraph (d) will take precedence over any inconsistent provisions of the Plan.
(B)Requirements of Treasury Regulations Incorporated. All distributions required under this paragraph (d) will be determined and made in accordance with the Treasury Regulations under Code Section 401(a)(9).
(2)Time and Manner of Distribution.
(A)Required Beginning Date. The Participant’s entire interest will be distributed, or begin to be distributed, to the Participant no later than the Participant’s required beginning date.
(B)Death of Participant Before Distributions Begin. If the Participant dies before distributions begin, the Participant’s entire interest will be distributed, or begin to be distributed, no later than as follows:
(i)If the Participant’s surviving spouse is the Participant’s sole designated Beneficiary, then, except as provided in paragraph (d)(6) below, distributions to the surviving spouse will begin by December 31 of the calendar year immediately following the calendar year in which the Participant died, or by December 31 of the calendar year in which the Participant would have attained age 70½, if later.
(ii)If the Participant’s surviving spouse is not the Participant’s sole designated Beneficiary, then, except as provided in paragraph (d)(6) below, distributions to the designated Beneficiary will begin by December 31 of the calendar year immediately following the calendar year in which the Participant died.
(iii)If there is no designated Beneficiary as of September 30 of the year following the year of the Participant’s death, the Participant’s entire interest will be distributed by December 31 of the calendar year containing the fifth anniversary of the Participant’s death.
(iv)If the Participant’s surviving spouse is the Participant’s sole designated Beneficiary and the surviving spouse dies after the Participant but before distributions to the surviving spouse begin, this paragraph (d)(2)(B), other than paragraph (d)(2)(B)(i) above, will apply as if the surviving spouse were the Participant.
For purposes of this paragraph (d)(2)(B) and paragraph (d)(4) below, unless paragraph (d)(2)(B)(iv) applies, distributions are considered to begin on the Participant’s required beginning date. If paragraph (d)(2)(B)(iv) applies, distributions are considered to begin on the date distributions are required to begin to the surviving spouse under paragraph (d)(2)(B)(i). If distributions under an annuity purchased from an insurance company irrevocably commence to the Participant before the Participant’s required beginning date (or to the Participant’s surviving spouse before the date distributions are required to begin to the surviving spouse under paragraph (d)(2)(B)(i)), the date distributions are considered to begin is the date distributions actually commence.
(C)Forms of Distribution. Unless the Participant’s interest is distributed in the form of an annuity purchased from an insurance company or in a single sum on or before the required beginning date, as of the first distribution calendar year distributions will be made in accordance with paragraphs (d)(3) and (d)(4) below. If the Participant’s interest is distributed in the form of an annuity purchased from an insurance company, distributions thereunder will be made in accordance with the requirements of Code Section 401(a)(9) and the Treasury Regulations thereunder.
(3)Required Minimum Distributions During Participant’s Lifetime.
(A)Amount of Required Minimum Distribution For Each Distribution Calendar Year. During the Participant’s lifetime, the minimum amount that will be distributed for each distribution calendar year is the lesser of:
(i)The quotient obtained by dividing the Participant’s Account balance by the distribution period in the Uniform Lifetime Table set forth in Section 1.401(a)(9)-9 of the Treasury Regulations, using the Participant’s age as of the Participant’s birthday in the distribution calendar year; or
(ii)If the Participant’s sole designated Beneficiary for the distribution calendar year is the Participant’s spouse, the quotient obtained by dividing the Participant’s Account balance by the number in the Joint and Last Survivor Table set forth in Section 1.401(a)(9)-9 of the Treasury Regulations, using the Participant’s and spouse’s attained ages as of the Participant’s and spouse’s birthdays in the distribution calendar year.
(B)Lifetime Required Minimum Distributions Continue Through Year of Participant’s Death. Required minimum distributions will be determined under this paragraph (d)(3) beginning with the first distribution calendar year and up to and including the distribution calendar year that includes the Participant’s date of death.
(4)Required Minimum Distributions After Participant’s Death.
(A)Death On or After Date Distributions Begin.
(i)Participant Survived by Designated Beneficiary. If the Participant dies on or after the date distributions begin and there is a designated Beneficiary, the minimum amount that will be distributed for each distribution calendar year after the year of the Participant’s death is the quotient obtained by dividing the Participant’s Account balance by the longer of the remaining life expectancy of the Participant or the remaining life expectancy of the Participant’s designated Beneficiary, determined as follows:
1) The Participant’s remaining life expectancy is calculated using the age of the Participant in the year of death, reduced by one for each subsequent year.
2) If the Participant’s surviving spouse is the Participant’s sole designated Beneficiary, the remaining life expectancy of the surviving spouse is calculated for each distribution calendar year after the year of the Participant’s death using the surviving spouse’s age as of the spouse’s birthday in that year. For distribution calendar years after the year of the surviving spouse’s death, the remaining life expectancy of the surviving spouse is calculated using the age of the surviving spouse as of the spouse’s birthday in the calendar year of the spouse’s death, reduced by one for each subsequent calendar year.
3) If the Participant’s surviving spouse is not the Participant’s sole designated Beneficiary, the designated Beneficiary’s remaining life expectancy is calculated using the age of the beneficiary in the year following the year of the Participant’s death, reduced by one for each subsequent year.
(ii)No Designated Beneficiary. If the Participant dies on or after the date distributions begin and there is no designated Beneficiary as of September 30 of the year after the year of the Participant’s death, the minimum amount that will be distributed for each distribution calendar year after the year of the Participant’s death is the quotient obtained by dividing the Participant’s Account balance by the Participant’s remaining life expectancy calculated using the age of the Participant in the year of death, reduced by one for each subsequent year.
(B)Death Before Date Distributions Begin.
(i)Participant Survived by Designated Beneficiary. Except as provided in paragraph (d)(6) below, if the Participant dies before the date distributions begin and there is a designated Beneficiary, the minimum amount that will be distributed for each distribution calendar year after the year of the Participant’s death is the quotient obtained by dividing the Participant’s Account balance by the remaining life expectancy of the Participant’s designated Beneficiary, determined as provided in paragraph (d)(4)(A) above.
(ii)No Designated Beneficiary. If the Participant dies before the date distributions begin and there is no designated Beneficiary as of September 30 of the year following the year of the Participant’s death, distribution of the Participant’s entire interest will be completed by December 31 of the calendar year containing the fifth anniversary of the Participant’s death.
(iii)Death of Surviving Spouse Before Distributions to Surviving Spouse Are Required to Begin. If the Participant dies before the date distributions begin, the Participant’s surviving spouse is the Participant’s sole designated Beneficiary, and the surviving spouse dies before distributions are required to begin to the surviving spouse under paragraph (d)(2)(B)(i) above, this paragraph (d)(2)(B) will apply as if the surviving spouse were the Participant.
(5)Definitions.
(A)Designated Beneficiary. The individual who is designated as the Beneficiary under Section 12.4 of the Plan and is the designated Beneficiary under Code Section 401(a)(9) and Section 1.401(a)(9)-1, Q&A-4 of the Treasury Regulations.
(B)Distribution calendar year. A calendar year for which a minimum distribution is required. For distributions beginning before the Participant’s death, the first distribution calendar year is the calendar year immediately preceding the calendar year which contains the Participant’s required beginning date. For distributions beginning after the Participant’s death, the first distribution calendar
year is the calendar year in which distributions are required to begin under paragraph (d)(2)(B) above. The required minimum distribution for the Participant’s first distribution calendar year will be made on or before the Participant’s required beginning date. The required minimum distribution for other distribution calendar years, including the required minimum distribution for the distribution calendar year in which the Participant’s required beginning date occurs, will be made on or before December 31 of that distribution calendar year.
(C)Life expectancy. Life expectancy as computed by use of the Single Life Table in Section 1.401(a)(9)-9 of the Treasury Regulations.
(D)Participant’s account balance. The Account balance as of the last Valuation Date in the calendar year immediately preceding the distribution calendar year (valuation calendar year) increased by the amount of any contributions made and allocated or forfeitures allocated to the Account balance as of dates in the valuation calendar year after the Valuation Date and decreased by distributions made in the valuation calendar year after the Valuation Date. The Account balance for the valuation calendar year includes any amounts rolled over or transferred to the Plan either in the valuation calendar year or in the distribution calendar year if distributed or transferred in the valuation calendar year.
(E)Required beginning date. The date specified in Section 12.6(b) of the Plan.
(6)Participants or Beneficiaries May Elect 5-Year Rule. Participants or Beneficiaries may elect on an individual basis whether the 5-year rule or the life expectancy rule in paragraphs (d)(2)(B) and (d)(4)(B) above applies to distributions after the death of a Participant who has a designated Beneficiary. The election must be made no later than the earlier of September 30 of the calendar year in which distribution would be required to begin under paragraph (d)(2)(B) above, or by September 30 of the calendar year which contains the fifth anniversary of the Participant’s (or, if applicable, surviving spouse’s) death. If neither the Participant nor beneficiary makes an election under this paragraph (d)(6), distributions will be made in accordance with paragraphs (d)(2)(B) and (d)(4)(B) above.
8.
Section 16.2(b) shall be deleted in its entirety and replaced with the following:
(b) [Reserved.]
9.
Section 16.2(d) shall be amended by deleting such Section in its entirety and replacing it with the following:
(c)For purposes of this Article XVI, if any Employee is a non-Key Employee for any Plan Year, but such Employee was a Key Employee for any prior Plan Year, such Employee’s
Present Value of Accrued Retirement Income and/or Aggregate Account balance shall not be taken into account for purposes of determining if this Plan is a top-heavy plan (or whether any Aggregation Group which includes this Plan is a Top-Heavy Group). In addition, if an Employee or former Employee has not performed any services for any Employing Company maintaining the Plan at any time during the one-year period ending on the Determination Date, the Aggregate Account and/or Present Value of Accrued Retirement Income shall be excluded in determining if this Plan is a top-heavy plan.
10.
Except as amended by this First Amendment, the Plan shall remain in full force and effect.
IN WITNESS WHEREOF, Southern Company Services, Inc., through the duly authorized members of the Plan’s Administrative Committee, has adopted this First Amendment to The Southern Company Employee Savings Plan this 13th day of October, 2015.
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ATTEST: | | CHAIR, BENEFITS ADMINISTRATION COMMITTEE |
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/s/Melissa K. Caen | | /s/Stacy R. Kilcoyne |
Secretary | | |
Exhibit 5.1
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| | TROUTMAN SANDERS LLP Attorneys at Law Bank of America Plaza 600 Peachtree Street, NE, Suite 5200 Atlanta, Georgia 30308-2216 404.885.3000 telephone troutmansanders.com |
November 23, 2015
The Southern Company
30 Ivan Allen Jr. Boulevard, N.W.
Atlanta, Georgia 30308
Ladies and Gentlemen:
We have acted as counsel to The Southern Company, a Delaware corporation (the “Company”), in connection with the filing with the Securities and Exchange Commission (the “Commission”) of a registration statement on Form S-8 (the “Registration Statement”) relating to the registration pursuant to the provisions of the Securities Act of 1933, as amended (the “Securities Act”), of 35,000,000 shares (the “Shares”) of the Company’s common stock, par value $5 per share (the “Common Stock”), for issuance pursuant to The Southern Company Employee Savings Plan (the “Plan”). This opinion is being provided at your request for inclusion in the Registration Statement.
In rendering this opinion, we have examined the Registration Statement and copies of the Company’s Certificate of Incorporation, as amended, and Bylaws each as certified to us by an officer of the Company. We also have reviewed minutes of proceedings of the Board of Directors of the Company relating to the issuance and sale of the Shares and such other documents as we have deemed necessary for purposes of this opinion. In such examinations, we have assumed the genuineness of all signatures on all original documents, the authenticity of all documents submitted to us as originals, the conformity to the original documents of all copies submitted to us, the authenticity of the originals of documents submitted to us as copies and the due execution and delivery of all documents where due execution and delivery are prerequisite to the effectiveness thereof.
Based upon the foregoing examination, we are of the opinion that, subject to compliance with the pertinent provisions of the Securities Act and to compliance with such securities or “Blue Sky” laws of any jurisdiction as may be applicable, when the Shares have been issued against the payment of consideration therefor in accordance with the terms of the Plan, the Shares will be duly and validly issued, fully paid and non-assessable.
The attorneys in this firm that are rendering this opinion letter are members of the Bar of the State of Georgia. In expressing the opinions set forth above, we are not passing on the laws of any jurisdiction other than the General Corporation Law of the State of Delaware and the Federal law of the United States of America.
Atlanta Beijing Charlotte Chicago Hong Kong New York Orange County Portland Raleigh
Richmond San Diego San Francisco Shanghai Tysons Corner Virginia Beach Washington, DC
The Southern Company
November 23, 2015
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We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving the foregoing consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
This opinion may not be relied upon, furnished or quoted by you for any other purpose, without our prior written consent.
Very truly yours,
/s/ Troutman Sanders LLP
Exhibit 5.2(b)
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports relating to the financial statements and financial statement schedules of The Southern Company and Subsidiary Companies and the effectiveness of The Southern Company and Subsidiary Companies’ internal control over financial reporting dated March 2, 2015, appearing in the Annual Report on Form 10-K of The Southern Company for the year ended December 31, 2014.
/s/DELOITTE & TOUCHE LLP
Atlanta, GA
November 23, 2015
Exhibit 24.1
October 19, 2015
Thomas A. Fanning, Art P. Beattie and Melissa K. Caen
Gentlemen and Ms. Caen:
The Southern Company (the “Company”) proposes to file with the Securities and Exchange Commission a registration statement or statements under the Securities Act of 1933, as amended, with respect to the issuance and sale by the Company of additional shares of its common stock under The Southern Company Employee Savings Plan, in an amount not to exceed 35,000,000 shares, and any necessary or appropriate amendments (including post-effective amendments) to such registration statement or statements.
The Company and the undersigned directors and officers of the Company, individually as a director and/or as an officer of the Company, hereby make, constitute and appoint each of you our true and lawful Attorney (with full power of substitution) for each of us and in each of our names, places and steads to sign and cause to be filed with the Securities and Exchange Commission the aforementioned registration statement or statements and any necessary or appropriate amendment or amendments (including post-effective amendments) thereto and any necessary exhibits.
The Company hereby authorizes you or any one of you to execute said registration statement or statements and any amendments (including post-effective amendments) thereto on its behalf as attorney-in-fact for it and its authorized officers, and to file the same as aforesaid.
The undersigned directors and officers of the Company hereby authorize you or any of you to sign said registration statement or statements on their behalf as attorney-in-fact and any necessary or appropriate amendment or amendments (including post-effective amendments) thereto and to file the same as aforesaid.
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| Yours very truly, | |
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| THE SOUTHERN COMPANY | |
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| By | /s/Thomas A. Fanning | |
| | Thomas A. Fanning Chairman, President and Chief Executive Officer | |
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/s/Juanita Powell Baranco Juanita Powell Baranco | /s/John D. Johns John D. Johns |
/s/Jon A. Boscia Jon A. Boscia |
/s/Dale E. Klein Dale E. Klein |
/s/Henry A. Clark III Henry A. Clark III |
/s/William G. Smith, Jr. William G. Smith, Jr. |
/s/Thomas A. Fanning Thomas A. Fanning |
/s/Steven R. Specker Steven R. Specker |
/s/David J. Grain David J. Grain |
/s/Larry D. Thompson Larry D. Thompson |
/s/Veronica M. Hagen Veronica M. Hagen |
/s/E. Jenner Wood III E. Jenner Wood III |
/s/Warren A. Hood, Jr. Warren A. Hood, Jr. |
/s/Art P. Beattie Art P. Beattie |
/s/Linda P. Hudson Linda P. Hudson |
/s/Ann P. Daiss Ann P. Daiss |
/s/Donald M. James Donald M. James | |
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Extract from minutes of meeting of the board of directors of The Southern Company.
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RESOLVED FURTHER: That for the purpose of signing the registration statement or statements under the Securities Act of 1933, as amended, to be filed with the Securities and Exchange Commission with respect to the issuance and sale by the Company of additional shares of Common Stock under the Employee Savings Plan and any amendment or amendments (including post-effective amendments) thereto, the Company, the members of its Board of Directors and its officers are hereby authorized to give their several powers of attorney to Thomas A. Fanning, Art P. Beattie and Melissa K. Caen;
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The undersigned officer of The Southern Company does hereby certify that the foregoing is a true and correct copy of a resolution duly and regularly adopted at a meeting of the board of directors of The Southern Company, duly held on October 19, 2015, at which a quorum was in attendance and voting throughout, and that said resolution has not since been rescinded but is still in full force and effect.
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Dated: November 23, 2015 | | THE SOUTHERN COMPANY
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| By | /s/Melissa K. Caen | |
| | Melissa K. Caen Secretary | |
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