[Federal Register Volume 69, Number 77 (Wednesday, April 21, 2004)]
[Notices]
[Pages 21588-21589]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-8964]


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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, DC 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, NW., 
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

[[Page 21589]]

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,
Deputy Secretary.
[FR Doc. 04-8964 Filed 4-20-04; 8:45 am]
BILLING CODE 8010-01-P