As filed with the Securities and
Exchange Commission on March 1, 2010.
Registration No.
333-
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF
1933
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Georgia Power Company
(Exact name of registrant as
specified in its charter)
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Georgia
(State or other jurisdiction of
incorporation or organization)
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58-0257110
(I.R.S. Employer
Identification No.)
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241 Ralph McGill Boulevard,
N.E.
Atlanta, Georgia
30308-3374
(404) 506-6526
(Address, including zip code, and
telephone number, including area code, of the registrants
principal executive offices)
DANIEL M. LOWERY
Corporate Secretary
Georgia Power Company
241 Ralph McGill Boulevard,
N.E.
Atlanta, Georgia
30308-3374
(404) 506-6526
(Name, address, including zip code,
and 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. Blvd., N.W.
Atlanta, Georgia 30308
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MELISSA K. CAEN
Vice President, Associate General Counsel
and Corporate Secretary
SOUTHERN COMPANY SERVICES, INC.
30 Ivan Allen Jr. Blvd., N.W.
Atlanta, Georgia 30308
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ERIC A. KOONTZ
TROUTMAN SANDERS LLP
600 Peachtree Street, N.E.
Suite 5200
Atlanta, Georgia 30308-2216
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Approximate date of commencement of proposed sale to the
public:
From time to time after the effective date of this
registration statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box.
o
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following
box:
x
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering.
o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering.
o
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following
box.
x
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed
to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box.
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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
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Accelerated
filer
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Non-accelerated
filer
x
(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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Amount
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Proposed Maximum
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Proposed Maximum
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Amount of
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Title of Each Class of
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to be
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Offering Price
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Aggregate Offering
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Registration
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Securities to be Registered
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Registered(1)
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Per Unit(1)
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Price(1)
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Fee(2)
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Georgia Power Company Class A Preferred Stock
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Georgia Power Company Preference Stock
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Depositary Preference Shares, each representing a fraction of a
share of Preference Stock
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Georgia Power Company Senior Notes
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Georgia Power Company Junior Subordinated Notes
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(1)
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There are being registered hereunder such presently
indeterminate number of Class A Preferred Stock, Preference
Stock and Depositary Preference Shares of Georgia Power Company
and such presently indeterminate principal amount of Senior
Notes and Junior Subordinated Notes of Georgia Power Company as
may from time to time be issued at indeterminable prices.
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(2)
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In accordance with Rules 456(b) and 457(r), the registrant
is deferring payment of all the registration fee.
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PROSPECTUS
Georgia Power Company
Class A Preferred
Stock
Preference Stock
Depositary Preference
Shares,
each representing a fraction of
a share
of Preference Stock
Senior Notes
Junior Subordinated
Notes
We will provide the specific terms of these securities in
supplements to this Prospectus. You should read this Prospectus
and the applicable Prospectus Supplement carefully before you
invest.
See Risk Factors on page 2 for
information on certain risks related to the purchase of these
securities offered by this Prospectus.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this Prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
TABLE OF CONTENTS
ABOUT
THIS PROSPECTUS
This Prospectus is part of a registration statement filed with
the Securities and Exchange Commission (the
Commission) using a shelf registration
process under the Securities Act of 1933, as amended (the
1933 Act). Under the shelf process, Georgia Power
Company (the Company) may sell, in one or more
transactions,
shares of Class A preferred stock (the new
Stock),
shares of preference stock (the Preference
Stock),
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depositary preference shares, each representing a fraction of a
share of Preference Stock (the Depositary Shares),
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senior notes (the Senior Notes), or
junior subordinated notes (the Junior
Subordinated Notes).
This Prospectus provides a general description of those
securities. Each time the Company sells securities, the Company
will provide a prospectus supplement that will contain specific
information about the terms of that offering (Prospectus
Supplement). The Prospectus Supplement may also add,
update or change information contained in this Prospectus. You
should read this Prospectus and the applicable Prospectus
Supplement together with the additional information under the
heading Available Information.
RISK
FACTORS
Investing in the Companys securities involves risk. Please
see the risk factors described in the Companys Annual
Report on
Form 10-K
for the fiscal year ended December 31, 2009, which is
incorporated by reference in this Prospectus. Before making an
investment decision, you should carefully consider these risks
as well as other information contained or incorporated by
reference in this Prospectus. The risks and uncertainties
described are not the only ones facing the Company. Additional
risks and uncertainties not presently known to the Company or
that the Company currently deems immaterial may also impair its
business operations, its financial results and the value of its
securities.
AVAILABLE
INFORMATION
The Company has filed with the Commission a registration
statement on Form S-3 (the Registration
Statement, which term encompasses any amendments to the
Registration Statement and exhibits to the Registration
Statement) under the 1933 Act. As permitted by the rules and
regulations of the Commission, this Prospectus does not contain
all of the information set forth in the Registration Statement
and the exhibits and schedules to the Registration Statement, to
which reference is made.
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the 1934
Act), and in accordance with the 1934 Act files reports,
information statements and other information with the
Commission. Such reports and other information can be inspected
and copied at the Public Reference Room of the Commission at
100 F Street, N.E., Room 1580, Washington, D.C. 20549.
Information on the operation of the Public Reference Room may be
obtained by calling the Commission at 1-800-SEC-0330. The
Commission maintains a website that contains reports, proxy and
information statements and other information regarding
registrants including the Company that file electronically at
http://www.sec.gov. In addition, reports and other material
concerning the Company can be inspected at the offices of the
New York Stock Exchange, 20 Broad Street, New York, New
York 10005.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
The Companys Annual Report on Form 10-K for the
fiscal year ended December 31, 2009 has been filed with the
Commission pursuant to the 1934 Act and is incorporated in this
Prospectus by reference and made a part of this Prospectus.
2
All documents filed by the Company with the Commission pursuant
to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act
subsequent to the date of this Prospectus and prior to the
termination of this offering shall be deemed to be incorporated
by reference in this Prospectus and made a part of this
Prospectus from the date of filing of such documents; provided,
however, that the Company 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. Any
statement contained in a document incorporated or deemed to be
incorporated by reference in this Prospectus shall be deemed to
be modified or superseded for purposes of this Prospectus to the
extent that a statement contained in this Prospectus or in any
other subsequently filed document which also is or is deemed to
be incorporated by reference in this Prospectus 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 Prospectus.
The Company will provide without charge to each person,
including any beneficial owner, to whom this Prospectus is
delivered, on the written or oral request of any such person, a
copy of any or all documents incorporated by reference in this
Prospectus (other than the exhibits to such documents unless
such exhibits are specifically incorporated by reference in this
Prospectus). Such requests should be directed to Daniel M.
Lowery, Corporate Secretary, Georgia Power Company,
241 Ralph McGill Boulevard, N.E., Atlanta, Georgia
30308-3374, telephone:
(404) 506-6526.
GEORGIA
POWER COMPANY
The Company is a wholly-owned subsidiary of The Southern
Company. The Company was incorporated under the laws of the
State of Georgia on June 26, 1930, and admitted to do
business in Alabama on September 15, 1948. The Company is
engaged in the generation and purchase of electricity and the
transmission, distribution and sale of such electricity within
the State of Georgia at retail in over 600 communities
(including Athens, Atlanta, Augusta, Columbus, Macon, Rome and
Savannah), as well as in rural areas, and at wholesale currently
to Oglethorpe Power Corporation, the Municipal Electric
Authority of Georgia, the City of Dalton, the City of Hampton
and various electric membership corporations. The Company and
one of its affiliates, Alabama Power Company, each owns 50% of
the outstanding common stock of Southern Electric Generating
Company (SEGCO). SEGCO owns electric generating
units near Wilsonville, Alabama. The principal executive offices
of the Company are located at 241 Ralph McGill Boulevard,
N.E., Atlanta, Georgia
30308-3374,
and the telephone number is
(404) 506-6526.
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SELECTED
INFORMATION
The following material, which is presented in this Prospectus
solely to furnish limited introductory information regarding the
Company, has been selected from, or is based upon, the detailed
information and financial statements appearing in the documents
incorporated by reference in this Prospectus or elsewhere in
this Prospectus, is qualified in its entirety by reference to
those documents and, therefore, should be read together with
those documents.
Georgia
Power Company
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Business
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Generation, transmission, distribution and sale of electricity
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Service Area
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Approximately 59,200 square miles comprising most of the State
of Georgia
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Customers at December 31, 2009
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2,353,818
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Generating Capacity at December 31, 2009 (kilowatts)
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15,995,224
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Sources of Generation during 2009 (kilowatt-hours)
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Coal (67%), Nuclear (21%), Gas and Oil (10%), Hydro (2%)
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Certain
Ratios
The following table sets forth the Ratios of Earnings to Fixed
Charges and Earnings to Fixed Charges Plus Preferred and
Preference Dividend Requirements (Pre-Income Tax Basis) for the
periods indicated.
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Year Ended December 31,
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2005
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2006
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2007
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2008
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2009
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Ratio of Earnings to Fixed Charges(1)
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4.87
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4.72
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4.37
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4.65
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3.91
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Ratio of Earnings to Fixed Charges Plus Preferred and Preference
Dividend Requirements
(Pre-Income Tax Basis)(2)
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4.79
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4.62
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4.27
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4.35
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3.69
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(1)
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This ratio is computed as follows: (i) Earnings
have been calculated by adding to Earnings Before Income
Taxes Interest expense, net of amounts
capitalized and the debt portion of allowance for funds
used during construction and (ii) Fixed Charges
consist of Interest expense, net of amounts
capitalized and the debt portion of allowance for funds
used during construction.
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(2)
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In computing this ratio, Preferred and Preference Dividend
Requirements represent the before tax earnings necessary
to pay such dividends, computed at the effective tax rates for
the applicable periods.
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USE OF
PROCEEDS
Except as may be otherwise described in an applicable Prospectus
Supplement, any proceeds received by the Company from the sale
of the new Stock, the Preference Stock, the Depositary Shares,
the Senior Notes or the Junior Subordinated Notes will be used
in connection with its ongoing construction program, to pay
scheduled maturities and/or refundings of its securities, to
repay short-term indebtedness to the extent outstanding and for
other general corporate purposes.
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DESCRIPTION
OF THE NEW STOCK
Set forth below is a description of the general terms of the new
Stock. The statements in this Prospectus concerning the new
Stock are an outline and do not purport to be complete. Such
statements make use of defined terms and are qualified in their
entirety by reference to the Charter of the Company (the
Charter) and the amendments thereto, a copy of which
is filed as an exhibit to the Registration Statement of which
this Prospectus forms a part. The general provisions which apply
to the preferred stock of the Company of all classes, which are
now or may at a later time be authorized or created, are set
forth in the Charter.
General
The new Stock will be issued in series of the Companys
Class A Preferred Stock to be established and designated by
an amendment to the Charter.
As of December 31, 2009, the Company had 50,000,000
authorized shares of Class A Preferred Stock, of which
1,800,000 shares ($45,000,000 aggregate liquidation amount) of
non-cumulative Class A Preferred Stock were outstanding.
The Class A Preferred Stock has a par value of $25 per
share. In addition to the Class A Preferred Stock, the
Company has authorized 5,000,000 shares of Preferred Stock,
with a par value of $100 per share. As of December 31,
2009, there were no outstanding shares of the Preferred Stock.
The new Stock will not be subject to further calls or assessment
by the Company.
Any proposed listing of the new Stock on a securities exchange
will be described in the applicable Prospectus Supplement.
Transfer
Agent and Registrar
The transfer agent for each series of the new Stock will be
named in the applicable Prospectus Supplement. Such transfer
agent will also serve as the registrar.
Dividend
Rights and Provisions
Dividends on the new Stock are payable, when and if declared by
the Board of Directors, at the rate per annum determined for
each respective series. Unless otherwise indicated in the
applicable Prospectus Supplement, dividends will be payable to
holders of record of the new Stock as they appear on the books
of the Company on the record dates fixed by the Board of
Directors.
The applicable Prospectus Supplement will set forth the dividend
rate provisions of the new Stock, including the payment dates
and the rate or rates, or the method of determining the rate or
rates (which may involve periodic dividend rate settings through
remarketing or auction procedures or pursuant to one or more
formulae, as described in the applicable Prospectus Supplement),
and whether dividends shall be cumulative and, if so, from which
date or dates.
Redemption
Provisions
The redemption provisions applicable to the new Stock will be
described in the applicable Prospectus Supplement.
Voting
Rights
The applicable Prospectus Supplement will describe the voting
rights for each series of the new Stock.
Liquidation
Rights
Upon voluntary or involuntary liquidation, the holders of the
Preferred Stock and Class A Preferred Stock of each series,
without preference among series, are entitled to receive the
amount specified to be payable on the shares of such series
before any distribution of assets may be made to the holders of
the Companys Preference Stock or Common Stock. Available
assets, if insufficient to pay such amounts to the holders of
the Preferred Stock and
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Class A Preferred Stock, are to be distributed pro rata to
the payment, first of the amount per share payable in the event
of involuntary liquidation, second of accrued dividends and
third of any premium.
Sinking
Fund
The terms and conditions of a sinking or purchase fund, if any,
for the benefit of the holders of the new Stock will be set
forth in the applicable Prospectus Supplement.
Other
Rights
The holders of the new Stock do not have any pre-emptive or
conversion rights, except as otherwise described in the
applicable Prospectus Supplement.
DESCRIPTION
OF THE PREFERENCE STOCK
Set forth below is a description of the general terms of the
Preference Stock. The statements in this Prospectus concerning
the Preference Stock are an outline and do not purport to be
complete. Such statements make use of defined terms and are
qualified in their entirety by reference to the Charter and the
amendments thereto, a copy of which is filed as an exhibit to
the Registration Statement of which this Prospectus forms a
part. The general provisions which apply to all series of the
Preference Stock, which are now or may at a later time be
authorized or created, are set forth in the Charter.
General
The Preference Stock will be issued in series to be established
and designated by an amendment to the Charter.
As of December 31, 2009, the Company had 15,000,000
authorized shares of Preference Stock, of which 2,250,000 shares
($225,000,000 aggregate liquidation amount) of non-cumulative
Preference Stock were outstanding. The Preference Stock has a
par value of $100 per share. The Preference Stock ranks junior
to the Preferred Stock and the Class A Preferred Stock with
respect to dividends and amounts payable upon liquidation,
dissolution or winding up of the Company. The Preference Stock
ranks senior to the Companys Common Stock and to any other
securities the Company may issue in the future that by their
terms rank junior to the Preference Stock with respect to
dividends and amounts payable upon liquidation, dissolution or
winding up of the Company. All shares of the Preference Stock
will rank on a parity with respect to dividends and amounts
payable upon liquidation, dissolution or winding up of the
Company.
The Preference Stock will not be subject to further calls or
assessment by the Company.
Any proposed listing of the Preference Stock on a securities
exchange will be described in the applicable Prospectus
Supplement.
Transfer
Agent and Registrar
The transfer agent for the Preference Stock will be named in the
applicable Prospectus Supplement. Such transfer agent will also
serve as the registrar.
Dividend
Rights and Provisions
Dividends on the Preference Stock are payable, when and if
declared by the Board of Directors, at the rate per annum
determined for each respective series. Unless otherwise
indicated in the applicable Prospectus Supplement, dividends
will be payable to holders of record of the Preference Stock as
they appear on the books of the Company on the record dates
fixed by the Board of Directors.
The applicable Prospectus Supplement will set forth the dividend
rate provisions of the Preference Stock, including the payment
dates and the rate or rates, or the method of determining the
rate or rates (which may involve periodic dividend rate settings
through remarketing or auction procedures or pursuant to one or
more formulae, as
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described in the applicable Prospectus Supplement), and whether
dividends shall be cumulative and, if so, from which date or
dates.
Redemption
Provisions
The redemption provisions applicable to the Preference Stock
will be described in the applicable Prospectus Supplement.
Voting
Rights
The applicable Prospectus Supplement will describe the voting
rights for each series of the Preference Stock.
Liquidation
Rights
Upon voluntary or involuntary liquidation, the holders of the
Preference Stock of each series, without preference among
series, are entitled to receive the amount specified to be
payable on the shares of such series before any distribution of
assets may be made to the holders of the Companys Common
Stock. Available assets, if insufficient to pay such amounts to
the holders of the Preference Stock, are to be distributed pro
rata to the payment, first of the amount per share payable in
the event of involuntary liquidation, second of accrued
dividends and third of any premium.
Sinking
Fund
The terms and conditions of a sinking or purchase fund, if any,
for the benefit of the holders of the Preference Stock will be
set forth in the applicable Prospectus Supplement.
Other
Rights
The holders of the Preference Stock do not have any pre-emptive
or conversion rights, except as otherwise described in the
applicable Prospectus Supplement.
DESCRIPTION
OF THE DEPOSITARY SHARES
Set forth below is a description of the general terms of the
Depositary Shares. The statements in this Prospectus concerning
the Depositary Shares and the Deposit Agreement (as defined
below) are an outline and do not purport to be complete. Such
statements make use of defined terms and are qualified in their
entirety by express reference to the Deposit Agreement (which
contains the form of Depositary Receipt (as defined below)), a
form of which is an exhibit to the Registration Statement of
which this Prospectus forms a part.
General
The Company may, at its option, elect to offer Depositary
Shares. Each Depositary Share will represent a fraction of a
share of Preference Stock as described in the Prospectus
Supplement. The shares of Preference Stock represented by the
Depositary Shares will be deposited under a Deposit Agreement
(the Deposit Agreement), among the Company, the
Depositary named in the Deposit Agreement (the
Depositary) and all holders from time to time of the
depositary receipts (the Depositary Receipts) issued
under the Deposit Agreement. Subject to the terms of the Deposit
Agreement, each owner of a Depositary Share is entitled,
proportionately, to all the rights, preferences and privileges
of the Preference Stock (including dividend, voting and
liquidation rights) and subject, proportionately, to all of the
limitations of the Preference Stock contained in the Charter
summarized under Description of the Preference Stock
in this Prospectus. The Depositary Shares are evidenced by
Depositary Receipts issued pursuant to the Deposit Agreement.
Any proposed listing of the Depositary Shares on a securities
exchange will be described in the applicable Prospectus
Supplement.
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Issuance
of Depositary Receipts
Immediately following the issuance of the Preference Stock, the
Company will deposit the Preference Stock with the Depositary,
which will then execute and deliver the Depositary Receipts to
the Company. The Company will, in turn, deliver the Depositary
Receipts to the underwriters or purchasers. Depositary Receipts
will be issued evidencing only whole Depositary Shares.
Withdrawal
of Preference Stock
Upon surrender of Depositary Receipts at the corporate trust
office of the Depositary, the owner of the Depositary Shares
evidenced by such Depositary Receipts is entitled to delivery at
such office of certificates evidencing the number of shares of
Preference Stock (but only in whole shares of Preference Stock)
represented by such Depositary Shares. If the Depositary
Receipts delivered by the holder evidence a number of Depositary
Shares in excess of the number of whole shares of Preference
Stock to be withdrawn, the Depositary will deliver to such
holder at the same time a new Depositary Receipt evidencing such
excess number of Depositary Shares. The Company does not expect
that there will be any public trading market for the Preference
Stock, except as represented by the Depositary Shares.
Redemption
of Depositary Shares
The Depositary Shares will be redeemed, upon not less than 15
nor more than 60 days notice, using the cash proceeds
received by the Depositary resulting from the redemption, in
whole or in part, at the Companys option, but subject to
the applicable terms and conditions, of shares of Preference
Stock held by the Depositary. The redemption price per
Depositary Share will be equal to the fraction of the redemption
price per share applicable to the Preference Stock. Whenever the
Company redeems shares of the Preference Stock held by the
Depositary, the Depositary will redeem as of the same redemption
date the number of Depositary Shares representing the shares of
Preference Stock so redeemed. If less than all the outstanding
Depositary Shares are to be redeemed, the Depositary Shares to
be redeemed will be selected pro rata (as nearly as may be) or
by lot or by such other equitable method as the Depositary may
determine.
Dividends
and Other Distributions
The Depositary will distribute all cash dividends or other cash
distributions received in respect of Preference Stock to the
record holders of Depositary Receipts in proportion, insofar as
practicable, to the number of Depositary Shares owned by such
holders. In the event of a distribution other than in cash, the
Depositary will distribute property received by it to the record
holders of Depositary Receipts entitled to such property, unless
the Depositary determines that it is not feasible to make such
distribution, in which case the Depositary may, with the
approval of the Company, adopt such method as it deems equitable
and practicable for the purpose of effecting such distribution,
including the sale (at public or private sale) of such property
and distribution of the net proceeds from such sale to such
holders. The amount distributed in any of the foregoing cases
will be reduced by any amounts required to be withheld by the
Company or the Depositary on account of taxes or otherwise
required pursuant to law, regulation or court process.
Record
Date
Whenever (i) any cash dividend or other cash distribution
shall become payable, any distribution other than cash shall be
made, or any rights, preferences or privileges shall be offered
with respect to the Preference Stock or (ii) the Depositary
shall receive notice of any meeting at which holders of
Preference Stock are entitled to vote or of which holders of
Preference Stock are entitled to notice, the Depositary shall in
each such instance fix a record date (which shall be the record
date fixed by the Company with respect to the Preference Stock)
for the determination of the holders of Depositary Receipts who
shall be entitled to (y) receive such dividend,
distribution, rights, preferences or privileges or the net
proceeds of such sale or (z) give instructions for the
exercise of voting rights at such meeting or receive notice of
such meeting.
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Voting
Preference Stock
Upon receipt of notice of any meeting at which the holders of
Preference Stock are entitled to vote, the Depositary will mail
the information contained in such notice of meeting to the
record holders of Depositary Receipts. The record holders of
Depositary Receipts on the record date (which will be the same
date as the record date for the Preference Stock) will be
entitled to instruct the Depositary as to the exercise of the
voting rights pertaining to the amount of Preference Stock
represented by their respective Depositary Receipts. The
Depositary will endeavor insofar as practicable to vote or cause
to be voted the amount of Preference Stock represented by such
Depositary Receipts in accordance with such instructions, and
the Company has agreed to take all action which may be deemed
necessary by the Depositary in order to enable the Depositary to
do so. The Depositary will abstain from voting the Preference
Stock to the extent it does not receive specific instructions
from the holders of the Depositary Receipts.
Amendment
and Termination of Deposit Agreement
The form of the Depositary Receipts and any provisions of the
Deposit Agreement may at any time and from time to time be
amended or modified in any respect by agreement between the
Company and the Depositary. Any amendment which imposes any fees
or charges (other than taxes, fees and charges provided for in
the Deposit Agreement) on the holders of Depositary Receipts, or
which otherwise prejudices any substantial existing right of
holders of Depositary Receipts, will not become effective as to
outstanding Depositary Receipts until the expiration of
90 days after notice of such amendment shall have been
given to the record holders of outstanding Depositary Receipts.
Every holder of an outstanding Depositary Receipt at the time
any such amendment so becomes effective shall be deemed, by
continuing to hold such Depositary Receipt, to consent and agree
to such amendment and to be bound by the Deposit Agreement as
amended. In no event may any amendment impair the right of the
holder of any Depositary Receipt, subject to the conditions of
the Deposit Agreement, to surrender such Depositary Receipt and
receive the Preference Stock represented by such Depositary
Receipt, except in order to comply with mandatory provisions of
applicable law.
Whenever so directed by the Company, the Depositary will
terminate the Deposit Agreement by mailing notice of such
termination to the record holders of all Depositary Receipts
then outstanding at least 30 days prior to the date fixed
in such notice for such termination. The Depositary may likewise
terminate the Deposit Agreement if at any time 60 days
shall have expired after the Depositary shall have delivered to
the Company a written notice of its election to resign and a
successor depositary shall not have been appointed and accepted
its appointment. If any Depositary Receipts remain outstanding
after the date of termination, the Depositary will discontinue
the transfer of Depositary Receipts, will suspend the
distribution of dividends to the holders of Depositary Receipts
and will not give any further notices (other than notice of such
termination) or perform any further acts under the Deposit
Agreement except that the Depositary will continue to collect
dividends and other distributions pertaining to the Preference
Stock and deliver Preference Stock together with such dividends
and distributions and the net proceeds of any sale of any
rights, preferences, privileges or other property in exchange
for Depositary Receipts surrendered. At any time after the
expiration of two years from the date of termination, the
Depositary may sell the Preference Stock then held by it at
public or private sale at such place or places and upon such
terms as it deems proper and may thereafter hold the net
proceeds of any such sale, together with any other cash then
held by it, without liability for interest, for the pro rata
benefit of the holders of Depositary Receipts which have not
been surrendered. Any such moneys unclaimed by the holders of
Depositary Receipts more than two years from the date of
termination of the Deposit Agreement will, upon request of the
Company, be paid to it, and after such payment, the holders of
Depositary Receipts entitled to the funds so paid to the Company
shall look only to the Company for payment without interest. The
Company does not intend to terminate the Deposit Agreement or to
permit the resignation of the Depositary without appointing a
successor depositary.
Charges
of Depositary
The Company will pay all charges of the Depositary including
charges for the initial deposit of the Preference Stock and
delivery of Depositary Receipts and withdrawals of Preference
Stock by the holders of Depositary Receipts, except for taxes
(including transfer taxes, if any) and such charges as are
expressly provided in the Deposit Agreement to be at the expense
of the persons depositing Preference Stock or holders of
Depositary Receipts.
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Miscellaneous
The Depositary will make available for inspection by holders of
Depositary Receipts at its corporate trust office any reports
and communications received from the Company which are made
generally available to the holders of Preference Stock by the
Company.
Neither the Depositary nor the Company will be liable if it is
prevented or delayed by law or any circumstance beyond its
control in performing its obligations under the Deposit
Agreement. The obligations of the Depositary and the Company
under the Deposit Agreement are limited to performance in good
faith of their duties under the Deposit Agreement, and they are
not obligated to prosecute or defend any legal proceeding in
respect of the Preference Stock, the Depositary Receipts or the
Depositary Shares unless satisfactory indemnity is furnished.
The Depositary and the Company may rely upon advice of or
information from counsel, accountants or other persons believed
to be competent and on documents believed to be genuine.
The Depositary may at any time resign or be removed by the
Company, effective upon the acceptance by its successor of its
appointment.
DESCRIPTION
OF THE SENIOR NOTES
Set forth below is a description of the general terms of the
Senior Notes. The following description does not purport to be
complete and is subject to, and is qualified in its entirety by
reference to, the Senior Note Indenture, dated as of
January 1, 1998, between the Company and The Bank of New
York Mellon (as successor to JPMorgan Chase Bank, N.A. (formerly
known as The Chase Manhattan Bank)), as trustee (the
Senior Note Indenture Trustee), as to be
supplemented by a supplemental indenture to the Senior Note
Indenture establishing the Senior Notes of each series (the
Senior Note Indenture, as so supplemented, is referred to as the
Senior Note Indenture), the forms of which are filed
as exhibits to the Registration Statement of which this
Prospectus forms a part. The terms of the Senior Notes will
include those stated in the Senior Note Indenture and those made
a part of the Senior Note Indenture by reference to the Trust
Indenture Act of 1939, as amended (the
1939 Act). Certain capitalized terms used in
this Prospectus are defined in the Senior Note Indenture.
General
The Senior Notes will be issued as unsecured senior debt
securities under the Senior Note Indenture and will rank equally
with all other unsecured and unsubordinated debt of the Company.
The Senior Notes will be effectively subordinated to all
existing and future secured debt of the Company, aggregating
approximately $63,000,000 outstanding at December 31, 2009.
The Senior Note Indenture does not limit the aggregate principal
amount of Senior Notes that may be issued under the Senior Note
Indenture and provides that Senior Notes may be issued from time
to time in one or more series pursuant to an indenture
supplemental to the Senior Note Indenture. The Senior Note
Indenture gives the Company the ability to reopen a previous
issue of Senior Notes and issue additional Senior Notes of such
series, unless otherwise provided.
Reference is made to the Prospectus Supplement that will
accompany this Prospectus for the following terms of the series
of Senior Notes being offered by such Prospectus Supplement:
(i) the title of such Senior Notes; (ii) any limit on
the aggregate principal amount of such Senior Notes;
(iii) the date or dates on which the principal of such
Senior Notes is payable; (iv) the rate or rates at which
such Senior Notes shall bear interest, if any, or any method by
which such rate or rates will be determined, the date or dates
from which such interest will accrue, the interest payment dates
on which such interest shall be payable, and the regular record
date for the interest payable on any interest payment date;
(v) the place or places where the principal of (and
premium, if any) and interest, if any, on such Senior Notes
shall be payable; (vi) the period or periods within which,
the price or prices at which and the terms and conditions on
which such Senior Notes may be redeemed, in whole or in part, at
the option of the Company or at the option of the holder prior
to their maturity; (vii) the obligation, if any, of the
Company to redeem or purchase such Senior Notes; (viii) the
denominations in which such Senior Notes shall be issuable;
(ix) if other than the principal amount of such Senior
Notes, the portion of the principal amount of such Senior Notes
which shall be payable upon declaration of acceleration of the
maturity of such Senior Notes; (x) any deletions from,
modifications of or additions to the Events of Default or
covenants of the Company as provided in the Senior
10
Note Indenture pertaining to such Senior Notes;
(xi) whether such Senior Notes shall be issued in whole or
in part in the form of a Global Security; and (xii) any
other terms of such Senior Notes.
The Senior Note Indenture does not contain provisions that
afford holders of Senior Notes protection in the event of a
highly leveraged transaction involving the Company.
Events of
Default
The Senior Note Indenture provides that any one or more of the
following described events with respect to the Senior Notes of
any series, which has occurred and is continuing, constitutes an
Event of Default with respect to the Senior Notes of
such series:
(a) failure for 10 days to pay interest on the Senior
Notes of such series when due on an interest payment date other
than at maturity or upon earlier redemption; or
(b) failure to pay principal or premium, if any, or
interest on the Senior Notes of such series when due at maturity
or upon earlier redemption; or
(c) failure for three Business Days to deposit any sinking
fund payment when due by the terms of a Senior Note of such
series; or
(d) failure to observe or perform any other covenant or
warranty of the Company in the Senior Note Indenture (other than
a covenant or warranty which has expressly been included in the
Senior Note Indenture solely for the benefit of one or more
series of Senior Notes other than such series) for 90 days
after written notice to the Company from the Senior Note
Indenture Trustee or the holders of at least 25% in principal
amount of the outstanding Senior Notes of such series; or
(e) certain events of bankruptcy, insolvency or
reorganization of the Company.
The holders of not less than a majority in aggregate outstanding
principal amount of the Senior Notes of any series have the
right to direct the time, method and place of conducting any
proceeding for any remedy available to the Senior Note Indenture
Trustee with respect to the Senior Notes of such series. If a
Senior Note Indenture Event of Default occurs and is continuing
with respect to the Senior Notes of any series, then the Senior
Note Indenture Trustee or the holders of not less than 25% in
aggregate outstanding principal amount of the Senior Notes of
such series may declare the principal amount of the Senior Notes
due and payable immediately by notice in writing to the Company
(and to the Senior Note Indenture Trustee if given by the
holders), and upon any such declaration such principal amount
shall become immediately due and payable. At any time after such
a declaration of acceleration with respect to the Senior Notes
of any series has been made and before a judgment or decree for
payment of the money due has been obtained as provided in
Article Five of the Senior Note Indenture, the holders of not
less than a majority in aggregate outstanding principal amount
of the Senior Notes of such series may rescind and annul such
declaration and its consequences if the default has been cured
or waived and the Company has paid or deposited with the Senior
Note Indenture Trustee a sum sufficient to pay all matured
installments of interest and principal due otherwise than by
acceleration and all sums paid or advanced by the Senior Note
Indenture Trustee, including reasonable compensation and
expenses of the Senior Note Indenture Trustee.
The holders of not less than a majority in aggregate outstanding
principal amount of the Senior Notes of any series may, on
behalf of the holders of all the Senior Notes of such series,
waive any past default with respect to such series, except
(i) a default in the payment of principal or interest or
(ii) a default in respect of a covenant or provision which
under Article Nine of the Senior Note Indenture cannot be
modified or amended without the consent of the holder of each
outstanding Senior Note of such series affected.
Registration
and Transfer
The Company shall not be required to (i) issue, register
the transfer of or exchange Senior Notes of any series during a
period of 15 days immediately preceding the date notice is given
identifying the Senior Notes of such series called for
redemption or (ii) issue, register the transfer of or
exchange any Senior Notes so selected for redemption, in whole
or in part, except the unredeemed portion of any Senior Note
being redeemed in part.
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Payment
and Paying Agent
Unless otherwise indicated in an applicable Prospectus
Supplement, payment of principal of any Senior Notes will be
made only against surrender to the Paying Agent of such Senior
Notes. Principal of and interest on Senior Notes will be
payable, subject to any applicable laws and regulations, at the
office of such Paying Agent or Paying Agents as the Company may
designate from time to time, except that, at the option of the
Company, payment of any interest may be made by wire transfer or
other electronic transfer or by check mailed to the address of
the person entitled to an interest payment as such address shall
appear in the Security Register with respect to the Senior
Notes. Payment of interest on Senior Notes on any interest
payment date will be made to the person in whose name the Senior
Notes (or predecessor security) are registered at the close of
business on the record date for such interest payment.
Unless otherwise indicated in an applicable Prospectus
Supplement, the Senior Note Indenture Trustee will act as Paying
Agent with respect to the Senior Notes. The Company may at any
time designate additional Paying Agents or rescind the
designation of any Paying Agents or approve a change in the
office through which any Paying Agent acts.
All moneys paid by the Company to a Paying Agent for the payment
of the principal of or interest on the Senior Notes of any
series which remain unclaimed at the end of two years after such
principal or interest shall have become due and payable will be
repaid to the Company, and the holder of such Senior Notes will
from that time forward look only to the Company for payment of
such principal and interest.
Modification
The Senior Note Indenture contains provisions permitting the
Company and the Senior Note Indenture Trustee, with the consent
of the holders of not less than a majority in principal amount
of the outstanding Senior Notes of each series that is affected,
to modify the Senior Note Indenture or the rights of the holders
of the Senior Notes of such series; provided, that no such
modification may, without the consent of the holder of each
outstanding Senior Note that is affected, (i) change the
stated maturity of the principal of, or any installment of
principal of or interest on, any Senior Note, or reduce the
principal amount of any Senior Note or the rate of interest on
any Senior Note or any premium payable upon the redemption of
any Senior Note, or change the method of calculating the rate of
interest of any Senior Note, or impair the right to institute
suit for the enforcement of any such payment on or after the
stated maturity of any Senior Note (or, in the case of
redemption, on or after the redemption date), or
(ii) reduce the percentage of principal amount of the
outstanding Senior Notes of any series, the consent of whose
holders is required for any such supplemental indenture, or the
consent of whose holders is required for any waiver (of
compliance with certain provisions of the Senior Note Indenture
or certain defaults under the Senior Note Indenture and their
consequences) provided for in the Senior Note Indenture, or
(iii) modify any of the provisions of the Senior Note
Indenture relating to supplemental indentures, waiver of past
defaults or waiver of certain covenants, except to increase any
such percentage or to provide that certain other provisions of
the Senior Note Indenture cannot be modified or waived without
the consent of the holder of each outstanding Senior Note that
is affected.
In addition, the Company and the Senior Note Indenture Trustee
may execute, without the consent of any holders of Senior Notes,
any supplemental indenture for certain other usual purposes,
including the creation of any new series of Senior Notes.
Consolidation,
Merger and Sale
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and
assets substantially as an entirety to any person, unless
(1) such other corporation or person is a corporation
organized and existing under the laws of the United States, any
state in the United States or the District of Columbia and such
other corporation or person expressly assumes, by supplemental
indenture executed and delivered to the Senior Note Indenture
Trustee, the payment of the principal of (and premium, if any)
and interest on all the Senior Notes and the performance of
every covenant of the Senior Note Indenture on the part of the
Company to be performed or observed; (2) immediately after
giving effect to such transaction, no Event of Default, and no
event which, after notice or lapse of time or both, would become
an Event of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Senior Note Indenture
Trustee an officers certificate and an opinion of counsel,
each stating that such transaction complies with the provisions
of the Senior Note Indenture
12
governing consolidation, merger, conveyance, transfer or lease
and that all conditions precedent to the transaction have been
complied with.
Information
Concerning the Senior Note Indenture Trustee
The Senior Note Indenture Trustee, prior to an Event of Default
with respect to Senior Notes of any series, undertakes to
perform, with respect to Senior Notes of such series, only such
duties as are specifically set forth in the Senior Note
Indenture and, in case an Event of Default with respect to
Senior Notes of any series has occurred and is continuing, shall
exercise, with respect to Senior Notes of such series, the same
degree of care as a prudent individual would exercise in the
conduct of his or her own affairs. Subject to such provision,
the Senior Note Indenture Trustee is under no obligation to
exercise any of the powers vested in it by the Senior Note
Indenture at the request of any holder of Senior Notes of any
series, unless offered reasonable indemnity by such holder
against the costs, expenses and liabilities which might be
incurred by the Senior Note Indenture Trustee. The Senior Note
Indenture Trustee is not required to expend or risk its own
funds or otherwise incur any financial liability in the
performance of its duties if the Senior Note Indenture Trustee
reasonably believes that repayment or adequate indemnity is not
reasonably assured to it.
The Bank of New York Mellon, the Senior Note Indenture Trustee,
also serves as Subordinated Note Indenture Trustee. The Company
and certain of its affiliates maintain deposit accounts and
banking relationships with The Bank of New York Mellon. The Bank
of New York Mellon and certain of its affiliates also serve as
trustee under other indentures pursuant to which securities of
the Company or certain affiliates of the Company are outstanding.
Governing
Law
The Senior Note Indenture and the Senior Notes will be governed
by, and construed in accordance with, the internal laws of the
State of New York.
Miscellaneous
The Company will have the right at all times to assign any of
its rights or obligations under the Senior Note Indenture to a
direct or indirect wholly-owned subsidiary of the Company;
provided, that, in the event of any such assignment, the Company
will remain primarily liable for all such obligations. Subject
to the foregoing, the Senior Note Indenture will be binding upon
and inure to the benefit of the parties to the Senior Note
Indenture and their respective successors and assigns.
DESCRIPTION
OF THE JUNIOR SUBORDINATED NOTES
Set forth below is a description of the general terms of the
Junior Subordinated Notes. The following description does not
purport to be complete and is subject to, and is qualified in
its entirety by reference to, the Subordinated Note Indenture,
dated as of June 1, 1997, between the Company and The Bank
of New York Mellon (as successor to JPMorgan Chase Bank, N.A.
(formerly known as The Chase Manhattan Bank)), as trustee (the
Subordinated Note Indenture Trustee), as to be
supplemented by a supplemental indenture to the Subordinated
Note Indenture establishing the Junior Subordinated Notes of
each series (the Subordinated Note Indenture, as so
supplemented, is referred to as the Subordinated Note
Indenture), the forms of which are filed as exhibits to
the Registration Statement of which this Prospectus forms a
part. The terms of the Junior Subordinated Notes will include
those stated in the Subordinated Note Indenture and those made a
part of the Subordinated Note Indenture by reference to the 1939
Act. Certain capitalized terms used in this Prospectus are
defined in the Subordinated Note Indenture.
General
The Junior Subordinated Notes will be issued as unsecured junior
subordinated debt securities under the Subordinated Note
Indenture. The Subordinated Note Indenture does not limit the
aggregate principal amount of Junior Subordinated Notes that may
be issued under the Subordinated Note Indenture and provides
that Junior Subordinated Notes may be issued from time to time
in one or more series pursuant to an indenture supplemental to
13
the Subordinated Note Indenture. The Subordinated Note Indenture
gives the Company the ability to reopen a previous issue of
Junior Subordinated Notes and issue additional Junior
Subordinated Notes of such series, unless otherwise provided.
Reference is made to the Prospectus Supplement that will
accompany this Prospectus for the following terms of the series
of Junior Subordinated Notes being offered by such Prospectus
Supplement: (i) the title of such Junior Subordinated
Notes; (ii) any limit on the aggregate principal amount of
such Junior Subordinated Notes; (iii) the date or dates on
which the principal of such Junior Subordinated Notes is
payable; (iv) the rate or rates at which such Junior
Subordinated Notes shall bear interest, if any, or any method by
which such rate or rates will be determined, the date or dates
from which such interest will accrue, the interest payment dates
on which such interest shall be payable, and the regular record
date for the interest payable on any interest payment date;
(v) the place or places where the principal of (and
premium, if any) and interest, if any, on such Junior
Subordinated Notes shall be payable; (vi) the period or
periods within which, the price or prices at which and the terms
and conditions on which such Junior Subordinated Notes may be
redeemed, in whole or in part, at the option of the Company or
at the option of the holder prior to their maturity;
(vii) the obligation, if any, of the Company to redeem or
purchase such Junior Subordinated Notes; (viii) the
denominations in which such Junior Subordinated Notes shall be
issuable; (ix) if other than the principal amount of the
Junior Subordinated Notes, the portion of the principal amount
of such Junior Subordinated Notes which shall be payable upon
declaration of acceleration of the maturity of such Junior
Subordinated Notes; (x) any deletions from, modifications
of or additions to the Events of Default or covenants of the
Company as provided in the Subordinated Note Indenture
pertaining to such Junior Subordinated Notes; (xi) whether
such Junior Subordinated Notes shall be issued in whole or in
part in the form of a Global Security; (xii) the right, if
any, of the Company to extend the interest payment periods of
such Junior Subordinated Notes; and (xiii) any other terms
of such Junior Subordinated Notes.
The Subordinated Note Indenture does not contain provisions that
afford holders of Junior Subordinated Notes protection in the
event of a highly leveraged transaction involving the Company.
Subordination
The Junior Subordinated Notes are subordinated and junior in
right of payment to all Senior Indebtedness (as defined below)
of the Company. No payment of principal of (including redemption
payments, if any), or premium, if any, or interest (including
Additional Interest (as defined below)) on the Junior
Subordinated Notes may be made if (a) any Senior
Indebtedness is not paid when due and any applicable grace
period with respect to such default has ended with such default
not being cured or waived or otherwise ceasing to exist, or
(b) the maturity of any Senior Indebtedness has been
accelerated because of a default, or (c) notice has been
given of the exercise of an option to require repayment,
mandatory payment or prepayment or otherwise of the Senior
indebtedness. Upon any payment or distribution of assets of the
Company to creditors upon any liquidation, dissolution,
winding-up, reorganization, assignment for the benefit of
creditors, marshalling of assets or liabilities, or any
bankruptcy, insolvency or similar proceedings of the Company,
the holders of Senior Indebtedness shall be entitled to receive
payment in full of all amounts due or to become due on or in
respect of all Senior Indebtedness before the holders of the
Junior Subordinated Notes are entitled to receive or retain any
payment or distribution. Subject to the prior payment of all
Senior Indebtedness, the rights of the holders of the Junior
Subordinated Notes will be subrogated to the rights of the
holders of Senior Indebtedness to receive payments and
distributions applicable to such Senior Indebtedness until all
amounts owing on the Junior Subordinated Notes are paid in full.
The term Senior Indebtedness means, with respect to
the Company, (i) any payment due in respect of indebtedness
of the Company, whether outstanding at the date of execution of
the Subordinated Note Indenture or incurred, created or assumed
after such date, (a) in respect of money borrowed
(including any financial derivative, hedging or futures contract
or similar instrument) and (b) evidenced by securities,
debentures, bonds, notes or other similar instruments issued by
the Company that, by their terms, are senior or senior
subordinated debt securities including, without limitation, all
obligations under its indentures with various trustees;
(ii) all capital lease obligations; (iii) all
obligations issued or assumed as the deferred purchase price of
property, all conditional sale obligations and all obligations
of the Company under any title retention agreement (but
excluding trade accounts payable arising in the ordinary course
of business and long-term purchase obligations); (iv) all
obligations for the reimbursement of any letter of credit,
bankers acceptance, security purchase facility or similar
credit transaction;
14
(v) all obligations of the type referred to in clauses (i)
through (iv) above of other persons the payment of which the
Company is responsible or liable as obligor, guarantor or
otherwise; and (vi) all obligations of the type referred to
in clauses (i) through (v) above of other persons secured
by any lien on any property or asset of the Company (whether or
not such obligation is assumed by the Company), except for
(1) any such indebtedness that is by its terms subordinated
to or that ranks equally with the Junior Subordinated Notes and
(2) any unsecured indebtedness between or among the Company
or its affiliates. Such Senior Indebtedness shall continue to be
Senior Indebtedness and be entitled to the benefits of the
subordination provisions contained in the Subordinated Note
Indenture irrespective of any amendment, modification or waiver
of any term of such Senior Indebtedness.
The Subordinated Note Indenture does not limit the aggregate
amount of Senior Indebtedness that may be issued by the Company.
As of December 31, 2009, Senior Indebtedness of the Company
aggregated approximately $8,369,000,000.
Additional
Interest
Additional Interest is defined in the Subordinated
Note Indenture as any interest due and not paid on an interest
payment date, together with interest on such interest due from
such interest payment date to the date of payment, compounded
quarterly, on each interest payment date.
Certain
Covenants
The Company covenants in the Subordinated Note Indenture, for
the benefit of the holders of each series of Junior Subordinated
Notes, that, if at such time the Company shall have given notice
of its election to extend an interest payment period for such
series of Junior Subordinated Notes and such extension shall be
continuing, or if at such time an Event of Default under the
Subordinated Note Indenture with respect to such series of
Junior Subordinated Notes shall have occurred and be continuing,
(a) the Company shall not declare or pay any dividend or
make any distributions with respect to, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of
its capital stock and (b) the Company shall not make any
payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities (including guarantees)
issued by the Company which rank equally with or junior to the
Junior Subordinated Notes. None of the foregoing, however, shall
restrict (i) any of the actions described in the preceding
sentence resulting from any reclassification of the
Companys capital stock or the exchange or conversion of
one class or series of the Companys capital stock for
another class or series of the Companys capital stock or
(ii) the purchase of fractional interests in shares of the
Companys capital stock pursuant to the conversion or
exchange provisions of such capital stock or the security being
converted or exchanged.
Events of
Default
The Subordinated Note Indenture provides that any one or more of
the following described events with respect to the Junior
Subordinated Notes of any series, which has occurred and is
continuing, constitutes an Event of Default with
respect to the Junior Subordinated Notes of such series:
(a) failure for 10 days to pay interest on the Junior
Subordinated Notes of such series, including any Additional
Interest in respect of the Junior Subordinated Notes of such
series, when due on an interest payment date other than at
maturity or upon earlier redemption; provided, however, that a
valid extension of the interest payment period by the Company
shall not constitute a default in the payment of interest for
this purpose; or
(b) failure to pay principal or premium, if any, or
interest, including Additional Interest, on the Junior
Subordinated Notes of such series when due at maturity or upon
earlier redemption; or
(c) failure for three Business Days to deposit any sinking
fund payment when due by the terms of a Junior Subordinated Note
of such series; or
(d) failure to observe or perform any other covenant or
warranty of the Company in the Subordinated Note Indenture
(other than a covenant or warranty which has expressly been
included in the Subordinated Note Indenture solely for the
benefit of one or more series of Junior Subordinated Notes other
than such series) for 90 days after written notice to the
Company from the Subordinated Note Indenture Trustee or the
holders of at least 25% in principal amount of the outstanding
Junior Subordinated Notes of such series; or
15
(e) certain events of bankruptcy, insolvency or
reorganization of the Company.
The holders of not less than a majority in aggregate outstanding
principal amount of the Junior Subordinated Notes of any series
have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the
Subordinated Note Indenture Trustee with respect to the Junior
Subordinated Notes of such series. If a Subordinated Note
Indenture Event of Default occurs and is continuing with respect
to the Junior Subordinated Notes of any series, then the
Subordinated Note Indenture Trustee or the holders of not less
than 25% in aggregate outstanding principal amount of the Junior
Subordinated Notes of such series may declare the principal
amount of the Junior Subordinated Notes due and payable
immediately by notice in writing to the Company (and to the
Subordinated Note Indenture Trustee if given by the holders),
and upon any such declaration such principal amount shall become
immediately due and payable. At any time after such a
declaration of acceleration with respect to the Junior
Subordinated Notes of any series has been made and before a
judgment or decree for payment of the money due has been
obtained as provided in Article Five of the Subordinated Note
Indenture, the holders of not less than a majority in aggregate
outstanding principal amount of the Junior Subordinated Notes of
such series may rescind and annul such declaration and its
consequences if the default has been cured or waived and the
Company has paid or deposited with the Subordinated Note
Indenture Trustee a sum sufficient to pay all matured
installments of interest (including any Additional Interest) and
principal due otherwise than by acceleration and all sums paid
or advanced by the Subordinated Note Indenture Trustee,
including reasonable compensation and expenses of the
Subordinated Note Indenture Trustee.
The holders of not less than a majority in aggregate outstanding
principal amount of the Junior Subordinated Notes of any series
may, on behalf of the holders of all the Junior Subordinated
Notes of such series, waive any past default with respect to
such series, except (i) a default in the payment of
principal or interest or (ii) a default in respect of a
covenant or provision which under Article Nine of the
Subordinated Note Indenture cannot be modified or amended
without the consent of the holder of each outstanding Junior
Subordinated Note of such series affected.
Registration
and Transfer
The Company shall not be required to (i) issue, register
the transfer of or exchange Junior Subordinated Notes of any
series during a period of 15 days immediately preceding the date
notice is given identifying the Junior Subordinated Notes of
such series called for redemption or (ii) issue, register
the transfer of or exchange any Junior Subordinated Notes so
selected for redemption, in whole or in part, except the
unredeemed portion of any Junior Subordinated Note being
redeemed in part.
Payment
and Paying Agent
Unless otherwise indicated in an applicable Prospectus
Supplement, payment of principal of any Junior Subordinated
Notes will be made only against surrender to the Paying Agent of
such Junior Subordinated Notes. Principal of and interest on
Junior Subordinated Notes will be payable, subject to any
applicable laws and regulations, at the office of such Paying
Agent or Paying Agents as the Company may designate from time to
time, except that, at the option of the Company, payment of any
interest may be made by wire transfer or other electronic
transfer or by check mailed to the address of the person
entitled to an interest payment as such address shall appear in
the Security Register with respect to the Junior Subordinated
Notes. Payment of interest on Junior Subordinated Notes on any
interest payment date will be made to the person in whose name
the Junior Subordinated Notes (or predecessor security) are
registered at the close of business on the record date for such
interest payment.
Unless otherwise indicated in an applicable Prospectus
Supplement, the Subordinated Note Indenture Trustee will act as
Paying Agent with respect to the Junior Subordinated Notes. The
Company may at any time designate additional Paying Agents or
rescind the designation of any Paying Agents or approve a change
in the office through which any Paying Agent acts.
All moneys paid by the Company to a Paying Agent for the payment
of the principal of or interest on the Junior Subordinated Notes
of any series which remain unclaimed at the end of two years
after such principal or interest shall have become due and
payable will be repaid to the Company, and the holder of such
Junior Subordinated Notes will from that time forward look only
to the Company for payment of such principal and interest.
16
Modification
The Subordinated Note Indenture contains provisions permitting
the Company and the Subordinated Note Indenture Trustee, with
the consent of the holders of not less than a majority in
principal amount of the outstanding Junior Subordinated Notes of
each series that is affected, to modify the Subordinated Note
Indenture or the rights of the holders of the Junior
Subordinated Notes of such series; provided, that no such
modification may, without the consent of the holder of each
outstanding Junior Subordinated Note that is affected,
(i) change the stated maturity of the principal of, or any
installment of principal of or interest on, any Junior
Subordinated Note, or reduce the principal amount of any Junior
Subordinated Note or the rate of interest (including Additional
Interest) of any Junior Subordinated Note or any premium payable
upon the redemption of any Junior Subordinated Note, or change
the method of calculating the rate of interest on any Junior
Subordinated Note, or impair the right to institute suit for the
enforcement of any such payment on or after the stated maturity
of any Junior Subordinated Note (or, in the case of redemption,
on or after the redemption date), or (ii) reduce the
percentage of principal amount of the outstanding Junior
Subordinated Notes of any series, the consent of whose holders
is required for any such supplemental indenture, or the consent
of whose holders is required for any waiver (of compliance with
certain provisions of the Subordinated Note Indenture or certain
defaults under the Subordinated Note Indenture and their
consequences) provided for in the Subordinated Note Indenture,
or (iii) modify any of the provisions of the Subordinated
Note Indenture relating to supplemental indentures, waiver of
past defaults or waiver of certain covenants, except to increase
any such percentage or to provide that certain other provisions
of the Subordinated Note Indenture cannot be modified or waived
without the consent of the holder of each outstanding Junior
Subordinated Note that is affected, or (iv) modify the
provisions of the Subordinated Note Indenture with respect to
the subordination of the Junior Subordinated Notes in a manner
adverse to such holder.
In addition, the Company and the Subordinated Note Indenture
Trustee may execute, without the consent of any holders of
Junior Subordinated Notes, any supplemental indenture for
certain other usual purposes, including the creation of any new
series of Junior Subordinated Notes.
Consolidation,
Merger and Sale
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and
assets substantially as an entirety to any person, unless
(1) such other corporation or person is a corporation
organized and existing under the laws of the United States, any
state of the United States or the District of Columbia and such
other corporation or person expressly assumes, by supplemental
indenture executed and delivered to the Subordinated Note
Indenture Trustee, the payment of the principal of (and premium,
if any) and interest (including Additional Interest) on all the
Junior Subordinated Notes and the performance of every covenant
of the Subordinated Note Indenture on the part of the Company to
be performed or observed; (2) immediately after giving
effect to such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an
Event of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Subordinated Note
Indenture Trustee an officers certificate and an opinion
of counsel, each stating that such transaction complies with the
provisions of the Subordinated Note Indenture governing
consolidation, merger, conveyance, transfer or lease and that
all conditions precedent to the transaction have been complied
with.
Information
Concerning the Subordinated Note Indenture Trustee
The Subordinated Note Indenture Trustee, prior to an Event of
Default with respect to Junior Subordinated Notes of any series,
undertakes to perform, with respect to Junior Subordinated Notes
of such series, only such duties as are specifically set forth
in the Subordinated Note Indenture and, in case an Event of
Default with respect to Junior Subordinated Notes of any series
has occurred and is continuing, shall exercise, with respect to
Junior Subordinated Notes of such series, the same degree of
care as a prudent individual would exercise in the conduct of
his or her own affairs. Subject to such provision, the
Subordinated Note Indenture Trustee is under no obligation to
exercise any of the powers vested in it by the Subordinated Note
Indenture at the request of any holder of Junior Subordinated
Notes of any series, unless offered reasonable indemnity by such
holder against the costs, expenses and liabilities which might
be incurred by the Subordinated Note Indenture Trustee. The
Subordinated Note Indenture Trustee is not required to expend or
risk its own funds or otherwise incur any financial liability in
the
17
performance of its duties if the Subordinated Note Indenture
Trustee reasonably believes that repayment or adequate indemnity
is not reasonably assured to it.
The Bank of New York Mellon, the Subordinated Note Indenture
Trustee, also serves as Senior Note Indenture Trustee. The
Company and certain of its affiliates maintain deposit accounts
and banking relationships with The Bank of New York Mellon, and
certain of its affiliates also serve as trustee under other
indentures pursuant to which securities of the Company or
certain affiliates of the Company are outstanding.
Governing
Law
The Subordinated Note Indenture and the Junior Subordinated
Notes will be governed by, and construed in accordance with, the
internal laws of the State of New York.
Miscellaneous
The Company will have the right at all times to assign any of
its rights or obligations under the Subordinated Note Indenture
to a direct or indirect wholly-owned subsidiary of the Company;
provided, that, in the event of any such assignment, the Company
will remain primarily liable for all such obligations. Subject
to the foregoing, the Subordinated Note Indenture will be
binding upon and inure to the benefit of the parties to the
Subordinated Note Indenture and their respective successors and
assigns.
PLAN OF
DISTRIBUTION
The Company may sell the new Stock, the Preference Stock, the
Depositary Shares, the Senior Notes and the Junior Subordinated
Notes in one or more of the following ways from time to time:
(i) to underwriters for resale to the public or to
institutional investors; (ii) directly to institutional
investors; or (iii) through agents to the public or to
institutional investors. The Prospectus Supplement with respect
to each series of new Stock, Preference Stock, Depositary
Shares, Senior Notes or Junior Subordinated Notes will set forth
the terms of the offering of such new Stock, Preference Stock,
Depositary Shares, Senior Notes or Junior Subordinated Notes,
including the name or names of any underwriters or agents, the
purchase price of such new Stock, Preference Stock, Depositary
Shares, Senior Notes or Junior Subordinated Notes and the
proceeds to the Company from such sale, any underwriting
discounts or agency fees and other items constituting
underwriters or agents compensation, any initial
public offering price, any discounts or concessions allowed or
reallowed or paid to dealers and any securities exchange on
which such new Stock, Preference Stock, Depositary Shares,
Senior Notes or Junior Subordinated Notes may be listed.
If underwriters participate in the sale, such new Stock,
Preference Stock, Depositary Shares, Senior Notes or Junior
Subordinated Notes will be acquired by the underwriters for
their own accounts and may be resold from time to time in one or
more transactions, including negotiated transactions, at a fixed
public offering price or at varying prices determined at the
time of sale.
Unless otherwise set forth in the Prospectus Supplement, the
obligations of the underwriters to purchase any series of new
Stock, Preference Stock, Depositary Shares, Senior Notes or
Junior Subordinated Notes will be subject to certain conditions
precedent and the underwriters will be obligated to purchase all
of such series of new Stock, Preference Stock, Depositary
Shares, Senior Notes or Junior Subordinated Notes, if any are
purchased.
Underwriters and agents may be entitled under agreements entered
into with the Company to indemnification against certain civil
liabilities, including liabilities under the 1933 Act.
Underwriters and agents may engage in transactions with, or
perform services for, the Company in the ordinary course of
business.
Each series of new Stock, Preference Stock, Depositary Shares,
Senior Notes or Junior Subordinated Notes will be a new issue of
securities and will have no established trading market. Any
underwriters to whom new Stock, Preference Stock, Depositary
Shares, Senior Notes or Junior Subordinated Notes are sold for
public offering and sale may make a market in such new Stock,
Preference Stock, Depositary Shares, Senior Notes or Junior
Subordinated Notes, but such underwriters will not be obligated
to do so and may discontinue any market making
18
at any time without notice. The new Stock, the Preference Stock,
the Depositary Shares, the Senior Notes or the Junior
Subordinated Notes may or may not be listed on a national
securities exchange.
LEGAL
MATTERS
The validity of the new Stock, the Preference Stock, the
Depositary Shares, the Senior Notes and the Junior Subordinated
Notes and certain matters relating to such securities will be
passed upon on behalf of the Company by Troutman
Sanders LLP, Atlanta, Georgia. Certain legal matters will
be passed upon for the underwriters by Dewey & LeBoeuf LLP,
New York, New York. From time to time, Dewey & LeBoeuf LLP
acts as counsel to affiliates of the Company for some matters.
EXPERTS
The financial statements and the related financial statement
schedule, incorporated in this Prospectus by reference from the
Companys Annual Report on
Form 10-K,
have been audited by Deloitte & Touche LLP, an independent
registered public accounting firm, as stated in their reports.
Such financial statements and financial statement schedule have
been so incorporated in reliance upon the reports of such firm
given upon their authority as experts in accounting and auditing.
19
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
|
|
Item 14.
|
Other
Expenses of Issuance and Distribution.
|
The estimated expenses of issuance and distribution, other than
underwriting discounts and commissions, to be borne by the
Company are as follows:
|
|
|
|
|
Securities and Exchange Commission registration fee
|
|
$
|
|
*
|
Fees and expenses of trustees and/or Transfer Agent and Registrar
|
|
|
55,000
|
**
|
Listing fees of New York Stock Exchange
|
|
|
88,600
|
**
|
Printing expenses
|
|
|
220,000
|
**
|
Rating Agency fees
|
|
|
1,595,000
|
**
|
Services of Southern Company Services, Inc.
|
|
|
220,000
|
**
|
Fees and expenses of counsel
|
|
|
770,000
|
**
|
Blue sky fees and expenses
|
|
|
55,000
|
**
|
Fees of accountants
|
|
|
650,000
|
**
|
Miscellaneous expenses
|
|
|
246,400
|
**
|
|
|
|
|
|
Total
|
|
$
|
3,900,000
|
***
|
|
|
|
|
|
|
|
|
*
|
|
Under Rules 456(b) and 457(r) under the Securities Act, the
Commission registration fee will be paid at the time of any
particular offering of securities under this Registration
Statement and is therefore not currently determinable.
|
|
**
|
|
Because an indeterminate amount of securities is covered by this
Registration Statement, the expenses in connection with the
issuance and distribution of the securities is therefore not
currently determinable. The amounts shown are estimates of
expenses for the amount of securities which the registrants are
currently authorized to issue but do not limit the amount of
securities that may be offered.
|
|
***
|
|
Each Prospectus Supplement will reflect estimated expenses of
the Company based upon the amount of the related offering.
|
Item 15.
Indemnification
of Directors and Officers.
The applicable statutes of the State of Georgia provide that a
corporation may indemnify an individual who is a party to a
proceeding because he or she is or was a director of the
corporation or who, while a director of the corporation, is or
was serving at the corporations request as a director,
officer, partner, trustee, employee or agent of another domestic
or foreign corporation, partnership, joint venture, trust,
employee benefit plan or other entity against liability incurred
in the proceeding if such individual conducted himself or
herself in good faith and such individual reasonably believed,
in the case of conduct in his or her official capacity, that
such conduct was in the best interest of the corporation, in all
other cases, that such conduct was at least not opposed to the
best interest of the corporation and, in the case of any
criminal proceeding, that the individual had no reasonable cause
to believe his or her conduct was unlawful. However, a
corporation may not indemnify a director in connection with a
proceeding by or in the right of the corporation except for
reasonable expenses incurred in connection with the proceeding
if it is determined that the director has met the relevant
standard of conduct or in connection with any proceeding with
respect to conduct for which he or she was adjudged liable on
the basis that personal benefit was improperly received by him
or her, whether or not involving action in his or her official
capacity. In addition, a corporation shall indemnify a director
who was wholly successful, on the merits or otherwise, in the
defense of any proceeding to which he or she was a party because
he or she was a director of the corporation against reasonable
expenses incurred by the director in connection with the
proceeding. A corporation may, before final disposition of a
proceeding, advance funds to pay for or reimburse the reasonable
expenses incurred by a director who is a party to a proceeding
because he or she is a director if he or she delivers to the
corporation: a written affirmation of his or her good faith
belief that he or she has met the relevant standard of conduct
or that the proceeding involves conduct for which liability has
been eliminated under a provision of its articles of
incorporation; and his or her written undertaking to
II-1
repay any funds advanced if it is ultimately determined that the
director is not entitled to indemnification under this part.
Also, a corporation may indemnify and advance expenses to an
officer of the corporation who is a party to a proceeding
because he or she is an officer of the corporation to the same
extent as a director and, if he or she is not a director, to
such further extent as may be provided by the articles of
incorporation, the by-laws, a resolution of the board of
directors, or contract, except for liability arising out of
conduct that constitutes: appropriation, in violation of his or
her duties, of any business opportunity of the corporation; acts
or omissions which involve intentional misconduct or a knowing
violation of law; unlawful distributions; or receipt of an
improper personal benefit, and a corporation may also indemnify
and advance expenses to an employee or agent who is not a
director to the extent, consistent with public policy, that may
be provided by its articles of incorporation, by-laws, general
or specific action of its board of directors, or contract.
Section 41 of the By-laws of the Company provides in pertinent
part as follows:
Each person who is or was a director or officer of the Company
or is or was an employee of the Company holding one or more
positions of management through and inclusive of department
managers (but not positions below the level of department
managers) (such positions being hereinafter referred to as
Management Positions) 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 Company
or is or was an employee of the Company holding one or more
Management Positions, or is or was serving at the request of the
Company 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
Company 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 Company or employee of the Company holding one
or more Management Positions with respect to the defense of any
such claim, action, suit or proceeding may be advanced by the
Company 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 under taking 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 Company 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 Company.
The Company may purchase and maintain insurance at the expense
of the Company on behalf of any person who is or was a director,
officer, employee or agent of the Company, or any person who is
or was serving at the request of the Company as a director (or
the equivalent), officer, employee, agent or trustee of another
corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise, against any liability or expense
(including attorneys fees) asserted against him and
incurred by him in any such capacity, or arising out of his
status as such, whether or not the Company would have the power
to indemnify him against such liability or expense under this
Section or otherwise.
Without limiting the generality of the foregoing provisions, no
present or future director or officer of the Company, or his
heirs, executors or administrators, shall be liable for any act,
omission, step or conduct taken or had in good faith, which is
required, authorized, or approved by any order or orders issued
pursuant to the Public Utility Holding Company Act of 1935, the
Federal Power Act, or any federal or state statute or municipal
ordinance regulating the Company or its parent by reason of
their being holding or investment companies, public utility
companies, public utility holding companies or subsidiaries of
public utility holding companies. In any action, suit or
proceeding based on any act, omission, step or conduct, as in
this paragraph described, the provisions hereof shall be brought
to the attention of the court. In the event that the foregoing
provisions of this paragraph are found by the court not to
constitute a valid defense on the grounds of not being
applicable to the particular class of plaintiff, each such
director and officer, and his heirs, executors and
II-2
administrators, shall be reimbursed for, or indemnified against,
all expenses and liabilities incurred by him or imposed on him,
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 this paragraph described. Such expenses
and liabilities shall include, but shall not be limited to,
judgments, court costs, and attorneys fees.
The foregoing rights shall not be exclusive of any other rights
to which any such director or officer or employee may otherwise
be entitled and shall be available whether or not the director
or officer or employee continues to be a director or officer or
employee at the time of incurring any such expenses and
liabilities.
The Company 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 16.
Exhibits.
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Exhibit
|
|
|
|
|
Number
|
|
|
|
|
|
|
1
|
.1
|
|
|
|
Form of Underwriting Agreement relating to new Stock.*
|
|
1
|
.2
|
|
|
|
Form of Underwriting Agreement relating to Preference Stock.*
|
|
1
|
.3
|
|
|
|
Form of Underwriting Agreement relating to Depositary Shares.*
|
|
1
|
.4
|
|
|
|
Form of Underwriting Agreement relating to Senior Notes.*
|
|
1
|
.5
|
|
|
|
Form of Underwriting Agreement relating to Junior Subordinated
Notes.*
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|
4
|
.1
|
|
|
|
Senior Note Indenture between the Company and The Bank of New
York Mellon (as successor to JPMorgan Chase Bank, N.A. (formerly
known as The Chase Manhattan Bank)), as Trustee and indentures
supplemental thereto through December 15, 2009. (Designated
in Form 8-K dated January 21, 1998, File
No. 1-6468, as Exhibits 4.1 and 4.2, in Forms 8-K
each dated November 19, 1998, File No. 1-6468, as
Exhibit 4.2, in Form 8-K dated March 3, 1999,
File No. 1-6469 as Exhibit 4.2, in Form 8-K dated
February 15, 2000, File No. 1-6469 as
Exhibit 4.2, in Form 8-K dated January 26, 2001,
File No. 1-6469 as Exhibits 4.2(a) and 4.2(b), in
Form 8-K dated February 16, 2001, file No. 1-6469
as Exhibit 4.2, in Form 8-K dated May 1, 2001,
File No. 1-6468, as Exhibit 4.2, in Form 8-K
dated June 27, 2002, File
No. 1-6468,
as Exhibit 4.2, in Form 8-K dated November 15,
2002, File No. 1-6468, as Exhibit 4.2, in
Form 8-K dated February 13, 2003, File
No. 1-6468, as Exhibit 4.2, in Form 8-K dated
February 21, 2003, File No. 1-6468, as
Exhibit 4.2, in Form 8-K dated April 10, 2003,
File No. 1-6468, as Exhibits 4.1, 4.2 and 4.3, in
Form 8-K dated September 8, 2003, File
No. 1-6468, as Exhibit 4.1, in Form 8-K dated
September 23, 2003, File No. 1-6468, as
Exhibit 4.1, in Form 8-K dated January 12, 2004,
File
No. 1-6468,
as Exhibits 4.1 and 4.2, in Form 8-K dated
February 12, 2004, File No. 1-6468, as
Exhibit 4.1, in Form 8-K dated August 11, 2004,
File No. 1-6468, as Exhibits 4.1 and 4.2 in
Form 8-K
dated January 13, 2005, File
No. 1-6468,
as Exhibit 4.1, in
Form 8-K
dated April 12, 2005, File
No. 1-6468,
as Exhibit 4.1, in
Form 8-K
dated November 30, 2005, File
No. 1-6468,
as Exhibit 4.1, in
Form 8-K
dated December 8, 2006,
File No. 1-6468,
as Exhibit 4.2, in
Form 8-K
dated March 6, 2007, File
No. 1-6468,
as Exhibit 4.2, in
Form 8-K
dated June 4, 2007, File
No. 1-6468,
as Exhibit 4.2, in
Form 8-K
dated June 18, 2007, File
No. 1-6468,
as Exhibit 4.2, in
Form 8-K
dated July 10, 2007, File
No. 1-6468,
as Exhibit 4.2, in
Form 8-K
dated August 24, 2007, File
No. 1-6468,
as Exhibit 4.2, in Form
8-K
dated
November 29, 2007, File
No. 1-6468,
as Exhibit 4.2, in
Form 8-K
dated March 12, 2008, File
No. 1-6468,
as Exhibit 4.2, in
Form 8-K
dated June 5, 2008, File
No. 1-6468,
as Exhibit 4.2, in
Form 8-K
dated November 12, 2008, File
No. 1-6468,
as Exhibits 4.2(a) and 4.2(b), in
Form 8-K
dated February 4, 2009, File
No. 1-6468,
as Exhibit 4.2 and in
Form 8-K
dated December 8, 2009, File
No. 1-6468,
as Exhibit 4.2.)
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4
|
.2
|
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Form of Supplemental Indenture to Senior Note Indenture to be
used in connection with the issuance of Senior Notes.*
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4
|
.3
|
|
|
|
Subordinated Note Indenture between the Company and The Bank of
New York Mellon (as successor to JPMorgan Chase Bank, N.A.
(formerly known as The Chase Manhattan Bank)), as Trustee and
indentures supplemental thereto through January 23, 2004.
(Designated in Certificate of Notification, File
No. 70-8461, as Exhibits D and E, in Form 8-K
dated February 17, 1999, File
No. 1-6468,
as Exhibit 4.4, in Form 8-K dated June 13, 2002,
File No. 1-6468, as Exhibit 4.4, in Form 8-K
dated October 30, 2002, File No. 1-6468, as
Exhibit 4.4 and in Form 8-K dated January 15,
2004, File No. 1-6468, as Exhibit 4.4.)
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4
|
.4
|
|
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Form of Supplemental Indenture to Subordinated Note Indenture to
be used in connection with the issuance of Junior Subordinated
Notes.*
|
II-3
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Exhibit
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Number
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|
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4
|
.5
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Charter of the Company and amendments thereto through
October 9, 2007. (Designated in Registration
Nos. 2-63392 as Exhibit 2(a)-2, 2-78913 as
Exhibits 4(a)-(2) and 4(a)-(3), 2-93039 as
Exhibit 4(a)-(2), 2096810 as Exhibit 4(a)-2, 33-141 as
Exhibit 4(a)-(2),
33-1359
as
Exhibit 4(a)(2), 33-5405 as Exhibit 4(b)(2), 33-14367
as Exhibits 4(b)-(2) and 4(b)-(3), 33-22504 as
Exhibits 4(b)-(2), 4(b)-(3) and 4(b)-(4), in the
Companys Form 10-K for the year ended
December 31, 1991, File No. 1-6468, as
Exhibits 4(a)(2) and 4(a)(3), in Registration
No. 33-48895 as Exhibits 4(b)-(2) and 4(b)-(3), in
Form 8-K
dated December 10, 1992, File No. 1-6468 as
Exhibit 4(b), in Form 8-K dated June 17, 1993,
File No. 1-6468, as Exhibit 4(b), in Form 8-K
dated October 20, 1993, File
No. 1-6468,
as Exhibit 4(b), in the Companys Form 10-K for
the year ended December 31, 1997, File No. 1-6468, as
Exhibit 3(c)2, in the Companys Form 10-K for the
year ended December 31, 2000, File No. 1-6468, as
Exhibit 3(c)2, in
Form 8-K
dated June 27, 2006, File
No. 1-6468,
as Exhibit 3.1 and in
Form 8-K
dated October 3, 2007, File
No. 1-6468,
as Exhibit 4.5.)
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4
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.6
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Form of petition of the Company for amendment to its Charter
relating to the new Stock.*
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4
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.7
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Form of petition of the Company for amendment to its Charter
relating to the Preference Stock.*
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4
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.8
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By-laws of the Company as amended effective May 20, 2009,
and as presently in effect. (Designated in
Form 8-K
dated May 20, 2009, File No. 1-6468, as
Exhibit 3(c)2.)
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4
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.9
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Form of Senior Note (included in Exhibit 4.2 above).
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4
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.10
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Form of Junior Subordinated Note (included in Exhibit 4.4
above).
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4
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.11
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Form of Deposit Agreement with respect to the Depositary Shares
(including the form of Depositary Receipt to be issued
thereunder).*
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5
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.1
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Opinion of Troutman Sanders LLP.
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12
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.1
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Computation of ratio of earnings to fixed charges.
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12
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.2
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Computation of ratio of earnings to fixed charges plus preferred
dividend requirements (pre-income tax basis).
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23
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.1
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Consent of Deloitte & Touche LLP.
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23
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.2
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Consent of Troutman Sanders LLP (included in Exhibit 5.1
above).
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24
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.1
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Powers of Attorney and Resolution.
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25
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.1
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Statement of Eligibility under Trust Indenture Act of 1939, as
amended, of The Bank of New York Mellon (as successor to
JPMorgan Chase Bank, N.A. (formerly known as The Chase Manhattan
Bank)), as Senior Note Indenture Trustee.
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25
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.2
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Statement of Eligibility under Trust Indenture Act of 1939, as
amended, of The Bank of New York Mellon (as successor to
JPMorgan Chase Bank, N.A. (formerly known as The Chase Manhattan
Bank)), as Subordinated Note Indenture Trustee.
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Exhibits listed above which have heretofore been filed with the
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.
* To be subsequently filed or incorporated by reference.
Item 17.
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
II-4
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),
(a)(1)(ii) and (a)(1)(iii) do not apply if the registration
statement is on
Form S-3
or
Form F-3
and the information is 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, or is contained in a
form of prospectus filed pursuant to Rule 424(b) that is
part of 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.
(4) That, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser:
(A) Each prospectus filed by the registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(B) Each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii), or (x) for
the purpose of providing the information required by
section 10(a) of the Securities Act of 1933 shall be deemed
to be part of and included in the registration statement as of
the earlier of the date such form of prospectus is first used
after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date
shall be deemed to be a new effective date of the registration
statement relating to the securities in the registration
statement to which that prospectus relates, and the offering of
such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
Provided, however,
that no statement made in a
registration statement or prospectus that is part of the
registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will,
as to a purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made
in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such effective date.
(5) That, for the purpose of determining liability of the
registrant under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities:
The undersigned registrant undertakes that in a primary offering
of securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method
used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a
seller to the purchaser and will be considered to offer or sell
such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned registrant relating to the offering required to be
filed pursuant to Rule 424;
II-5
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrant or used
or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned registrant or its securities provided by or on
behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the
offering made by the undersigned registrant to the purchaser.
(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 registrants 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 related to the registration statement
becoming effective upon filing:
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.
II-6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
Georgia Power Company certifies that it has reasonable grounds
to believe that it meets all of the requirements for filing on
Form S-3
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 the
1
st
day
of March, 2010.
GEORGIA POWER COMPANY
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By:
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Michael D. Garrett
President and Chief Executive Officer
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By:
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/s/
Melissa K.
Caen
Attorney-in-fact
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II-7
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following
directors and officers of Georgia Power Company 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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Michael D. Garrett
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President, Chief Executive Officer and Director (Principal
Executive Officer)
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Ronnie R. Labrato
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Executive Vice President, Treasurer and Chief Financial
Officer
(Principal Financial Officer)
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Ann P. Daiss
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Vice President, Comptroller and Chief Accounting Officer
(Principal Accounting Officer)
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Robert L.
Brown, Jr.
Anna R. Cablik
Stephen S. Green
David M. Ratcliffe
Jimmy C. Tallent
Beverly Daniel Tatum
D. Gary Thompson
Richard W. Ussery
W. Jerry Vereen
E. Jenner Wood III
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Directors
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By /s/
Melissa K.
Caen
(Melissa K. Caen,
Attorney-in-fact)
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March 1, 2010
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II-8