Filed Pursuant to Rule 424(b)(2)
Registration
No. 333-149664
Prospectus Supplement
(To Prospectus dated March 27, 2008)
$175,000,000
Series 2010A 4.75% Senior Notes due
April 15, 2020
Gulf Power Company will pay interest
on the Series 2010A Senior Notes on April 15 and October 15 of each year,
beginning October 15, 2010.
Gulf Power Company may redeem the
Series 2010A Senior Notes, in whole or in part, at any time and from time to
time, at a price equal to the greater of 100% of the principal amount of the
Series 2010A Senior Notes to be redeemed and the make-whole amount,
together with accrued and unpaid interest to the redemption date, as described
under the caption “Description of the Series 2010A Senior Notes — Optional
Redemption.”
The Series 2010A Senior Notes will
be unsecured and will rank equally with all of Gulf Power Company’s other
unsecured indebtedness and will be effectively subordinated to all secured
indebtedness of Gulf Power Company.
See
“Risk
Factors”
on page S-3 for a description of certain risks associated with
investing in the Series 2010A Senior Notes.
The Series 2010A Senior Notes should
be delivered on or about April 13, 2010 through the book-entry facilities
of The Depository Trust Company.
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Per Senior
Note
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Total
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Initial public offering
price(1)
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99.984
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%
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$
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174,972,000
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Underwriting
discount
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0.650
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%
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$
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1,137,500
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Proceeds, before expenses, to
Gulf Power Company(1)
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99.334
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%
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$
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173,834,500
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(1)
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Plus accrued interest, if any, from the date of original issuance
of the Series 2010A Senior Notes, which is expected to be April 13, 2010.
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Neither the Securities and Exchange
Commission nor any other regulatory body has approved or disapproved of these
securities or passed upon the accuracy or adequacy of this Prospectus Supplement
or the accompanying Prospectus. Any representation to the contrary is a criminal
offense.
Joint Book-running Managers
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Citi
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UBS Investment Bank
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Wells Fargo Securities
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Co-Manager
BB&T Capital Markets
Prospectus Supplement dated April 6,
2010
In making your investment decision,
you should rely only on the information contained or incorporated by reference
in this Prospectus Supplement, the accompanying Prospectus and any written
communication from Gulf Power Company or the underwriters specifying the final
terms of the offering. We have not, and the underwriters have not, authorized
anyone to provide you with any other information. If you receive any
unauthorized information, you must not rely on it.
We are offering to sell the Series
2010A Senior Notes only in places where sales are permitted.
You should not assume that the
information contained or incorporated by reference in this Prospectus
Supplement, the accompanying Prospectus or any written communications from Gulf
Power Company or the underwriters specifying the final terms of the offering,
including information incorporated by reference, is accurate as of any date
other than its respective date.
TABLE OF CONTENTS
Prospectus Supplement
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Page
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S-3
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S-3
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S-3
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S-4
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S-5
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S-9
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S-10
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Prospectus
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2
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2
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2
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3
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3
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4
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5
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5
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7
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8
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12
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17
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18
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18
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S-2
RISK FACTORS
Investing in the Series 2010A Senior
Notes involves risk. Please see the risk factors in Gulf Power Company’s Annual
Report on Form 10-K for the fiscal year ended December 31, 2009, which is
incorporated by reference in this Prospectus Supplement and the accompanying
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 Supplement and the accompanying Prospectus. The risks and
uncertainties not presently known to Gulf Power Company or that Gulf Power
Company currently deems immaterial may also impair its business operations, its
financial results and the value of the Series 2010A Senior Notes.
THE COMPANY
Gulf Power Company (the “Company”)
is a Florida corporation that has had a continuous existence since it was
originally organized under the laws of the State of Maine on November 2, 1925.
The Company was admitted to do business in Florida on January 15, 1926, in
Mississippi on October 25, 1976 and in Georgia on November 20, 1984. The
Company became a Florida corporation after being domesticated under the laws of
the State of Florida on November 2, 2005. The principal executive offices of the
Company are located at 500 Bayfront Parkway, Pensacola, Florida 32520, and the
telephone number is (850) 444-6111.
The Company is a wholly owned
subsidiary of The Southern Company (“Southern”). The Company is engaged, within
the northwestern portion of the State of Florida, in the generation and purchase
of electricity and the transmission, distribution and sale of such electricity
at retail in 71 communities (including Pensacola, Panama City and Fort Walton
Beach), as well as in rural areas, and at wholesale to a nonaffiliated utility
and a municipality.
SELECTED FINANCIAL INFORMATION
The following selected financial
information for the years ended December 31, 2005 through December 31, 2009 has
been derived from the Company’s audited financial statements and related notes
and the unaudited selected financial data, incorporated by reference in this
Prospectus Supplement and the accompanying Prospectus. The information set forth
below is qualified in its entirety by reference to and, therefore, should be
read together with management’s discussion and analysis of results of operations
and financial condition, the financial statements and related notes and other
financial information incorporated by reference in this Prospectus Supplement
and the accompanying Prospectus. The information set forth below does not
reflect the issuance of the Series 2010A Senior Notes offered hereby or the use
of proceeds therefrom. See “Use of Proceeds.”
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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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(thousands, except
ratios)
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Operating
Revenues
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$
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1,083,622
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$
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1,203,914
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$
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1,259,808
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$
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1,387,203
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$
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1,302,229
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Earnings Before Income
Taxes
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120,951
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124,582
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135,082
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158,651
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170,461
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Net Income after Dividends on
Preferred and Preference Stock
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75,209
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75,989
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84,118
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98,345
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111,233
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Ratio of Earnings to Fixed
Charges(1)
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3.96
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3.81
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3.95
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4.37
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4.56
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S-3
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Capitalization
As of December 31,
2009
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Actual
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As
Adjusted(2)
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(thousands, except percentages)
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Common Stock
Equity
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$
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1,004,292
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$
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1,055,010
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49.5
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%
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Non-Cumulative Preference
Stock
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97,998
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97,998
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4.6
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Senior Notes
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587,486
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587,486
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27.5
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Other Long-Term
Debt
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391,428
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391,428
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18.4
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Total, excluding amounts due
within one year
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$
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2,081,204
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$
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2,131,922
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100.0
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%
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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,” “Distributions on mandatorily redeemable
preferred securities” and the debt portion of allowance for funds used
during construction, and (ii) “Fixed Charges” consist of “Interest
expense, net of amounts capitalized,” “Distributions on mandatorily
redeemable preferred securities” and the debt portion of allowance for
funds used during construction.
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(2)
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Reflects (i) the issuance in January 2010 of common stock to
Southern at an aggregate price of $50,000,000 and (ii) an increase in
common stock equity of approximately $718,000 related to contributions
from Southern in January 2010 and February 2010.
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USE OF PROCEEDS
The proceeds from the sale of the
Series 2010A Senior Notes will be used by the Company to repay at maturity the
Company’s $140,000,000 aggregate principal amount of Series 2009A Floating Rate
Senior Notes due June 28, 2010, to repay a portion of its outstanding
short-term indebtedness, which aggregated approximately $92,000,000 as of
April 5, 2010, and for general corporate purposes, including the Company’s
continuous construction program.
S-4
DESCRIPTION OF THE SERIES 2010A SENIOR
NOTES
Set forth below is a description of
the specific terms of the Series 2010A 4.75% Senior Notes due April 15, 2020
(the “Series 2010A Senior Notes”). This description supplements, and should be
read together with, the description of the general terms and provisions of the
senior notes set forth in the accompanying Prospectus under the caption
“Description 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 description in the accompanying Prospectus and the Senior Note Indenture
dated as of January 1, 1998, as supplemented (the “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 (the
“Senior Note Indenture Trustee”).
General
The Series 2010A Senior Notes will
be issued as a series of senior notes under the Senior Note Indenture. The
Series 2010A Senior Notes will initially be issued in the aggregate principal
amount of $175,000,000. The Company may, without the consent of the holders of
the Series 2010A Senior Notes, issue additional notes having the same ranking
and the same interest rate, maturity and other terms as the Series 2010A Senior
Notes, (except for the issue price and issue date and the initial interest
accrual date and initial Interest Payment Date (as defined below), if
applicable). Any additional notes having such similar terms, together with the
Series 2010A Senior Notes, will constitute a single series of senior notes under
the Senior Note Indenture.
The entire principal amount of the
Series 2010A Senior Notes will mature and become due and payable, together with
any accrued and unpaid interest thereon, on April 15, 2020. The Series 2010A
Senior Notes are not subject to any sinking fund provision. The Series 2010A
Senior Notes are available for purchase in denominations of $1,000 and any
integral multiple thereof.
Interest
Each Series 2010A Senior Note shall
bear interest at the rate of 4.75% per annum (the “Securities Rate”) from the
date of original issuance, payable semiannually in arrears on April 15 and
October 15 of each year (each an “Interest Payment Date”) to the person in whose
name such Series 2010A Senior Note is registered at the close of business on the
fifteenth calendar day prior to such payment date (whether or not a Business
Day); provided, that interest payable on the maturity date or on a redemption
date of the Series 2010A Senior Notes will be paid to the person to whom
principal is payable. The initial Interest Payment Date is October 15, 2010. The
amount of interest payable will be computed on the basis of a 360-day year of
twelve 30-day months. In the event that any date on which interest is payable on
the Series 2010A Senior Notes is not a Business Day, then payment of the
interest payable on such date will be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any such
delay), with the same force and effect as if made on such date. “Business Day”
means a day other than (i) a Saturday or Sunday, (ii) a day on which banks in
New York, New York are authorized or obligated by law or executive order to
remain closed or (iii) a day on which the Senior Note Indenture Trustee’s
corporate trust office is closed for business.
The Company will pay the principal
of the Series 2010A Senior Notes and interest payable at maturity or on
redemption in immediately available funds at the corporate trust offices of The
Bank of New York Mellon, as Paying Agent.
Ranking
The Series 2010A Senior Notes will
be direct, unsecured and unsubordinated obligations of the Company ranking
equally with all other existing and future unsecured and unsubordinated
obligations of the Company. The Series 2010A Senior Notes will be effectively
subordinated to all existing and future secured debt of the Company, aggregating
approximately $40,930,000 outstanding at December 31, 2009. The Senior Note
Indenture contains no restrictions on the amount of additional indebtedness that
may be incurred by the Company.
S-5
Optional Redemption
The Series 2010A Senior Notes will
be subject to redemption at the option of the Company in whole or in part at any
time and from time to time upon not less than 30 nor more than 60 days’ notice,
at redemption prices (each a “Redemption Price”) equal to the greater of (i)
100% of the principal amount of the Series 2010A Senior Notes being redeemed or
(ii) the sum of the present values of the remaining scheduled payments of
principal and interest on the Series 2010A Senior Notes being redeemed (not
including any portion of such payments of interest accrued to the redemption
date) discounted (for purposes of determining present value) to the redemption
date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day
months) at a discount rate equal to the Treasury Yield (as defined below) plus
15 basis points, plus, in each case, accrued interest on the Series 2010A Senior
Notes to the redemption date.
“Treasury Yield” means, with respect
to any redemption date, the rate per annum equal to the semiannual equivalent
yield to maturity of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such redemption date.
“Comparable Treasury Issue” means
the United States Treasury security selected by an Independent Investment Banker
as having a maturity comparable to the remaining term of the Series 2010A
Senior Notes to be redeemed that would be utilized, at the time of selection and
in accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term of the
Series 2010A Senior Notes.
“Comparable Treasury Price” means,
with respect to any redemption date, (1) the average of the Reference Treasury
Dealer Quotations for such redemption date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations, or (2) if the Company obtains
fewer than four such Reference Treasury Dealer Quotations, the average of all
such quotations.
“Independent Investment Banker”
means an independent investment banking institution of national standing
appointed by the Company.
“Reference Treasury Dealer” means a
primary U.S. Government securities dealer appointed by the Company.
“Reference Treasury Dealer
Quotation” means, with respect to each Reference Treasury Dealer and any
redemption date, the average, as determined by the Company, of the bid and asked
prices for the Comparable Treasury Issue (expressed in each case as a percentage
of its principal amount and quoted in writing to the Company by such Reference
Treasury Dealer at 5:00 p.m. on the third Business Day in New York City
preceding such redemption date).
If notice of redemption is given as
aforesaid, the Series 2010A Senior Notes as to be redeemed will, on the
redemption date, become due and payable at the Redemption Price together with
any accrued interest thereon, and from and after such date (unless the Company
has defaulted in the payment of the Redemption Price and accrued interest) such
Series 2010A Senior Notes shall cease to bear interest. If any Series 2010A
Senior Note called for redemption shall not be paid upon surrender thereof for
redemption, the principal shall, until paid, bear interest from the redemption
date at the Securities Rate. See “Description of the Senior Notes — Events of
Default” in the accompanying Prospectus.
Subject to the foregoing and to
applicable law (including, without limitation, United States federal securities
laws), the Company or its affiliates may, at any time and from time to time,
purchase outstanding Series 2010A Senior Notes by tender, in the open market or
by private agreement.
S-6
Book-Entry Only Issuance—The
Depository Trust Company
The Depository Trust Company (“DTC”)
will act as the initial securities depositary for the Series 2010A Senior Notes.
The Series 2010A Senior Notes will be issued only as fully registered securities
registered in the name of Cede & Co., DTC’s partnership nominee, or
such other name as may be requested by an authorized representative of DTC. One
or more fully registered global Series 2010A Senior Notes certificates will be
issued, representing in the aggregate the total principal amount of Series 2010A
Senior Notes, and will be deposited with the Senior Note Indenture Trustee on
behalf of DTC.
DTC is a limited-purpose trust
company organized under the New York Banking Law, a “banking organization”
within the meaning of the New York Banking Law, a member of the Federal Reserve
System, a “clearing corporation” within the meaning of the New York Uniform
Commercial Code and a “clearing agency” registered pursuant to the provisions of
Section 17A of the Securities Exchange Act of 1934, as amended (the “1934 Act”).
DTC holds and provides asset servicing for over 3.5 million issues of U.S. and
non-U.S. equity issues, corporate and municipal debt issues and money market
instruments from over 100 countries that DTC’s participants (“Direct
Participants”) deposit with DTC. DTC also facilitates the post-trade settlement
among Direct Participants of sales and other securities transactions in
deposited securities, through electronic computerized book-entry transfers and
pledges between Direct Participants’ accounts. This eliminates the need for
physical movement of securities certificates. Direct Participants include both
U.S. and non-U.S. securities brokers and dealers, banks, trust companies,
clearing corporations and certain other organizations. DTC is a wholly-owned
subsidiary of The Depository Trust & Clearing Corporation (“DTCC”). DTCC is
the holding company for DTC, National Securities Clearing Corporation and Fixed
Income Clearing Corporation, all of which are registered clearing agencies. DTCC
is owned by the users of its regulated subsidiaries. Access to the DTC system is
also available to others such as both U.S. and non-U.S. securities brokers and
dealers, banks, trust companies and clearing corporations that clear through or
maintain a custodial relationship with a Direct Participant, either directly or
indirectly (“Indirect Participants”). DTC has Standard and Poor’s, a division of
The McGraw Hill Companies, Inc., highest rating: AAA. The DTC rules applicable
to its Direct and Indirect Participants are on file with the Securities and
Exchange Commission. More information about DTC can be found at www.dtcc.com and
www.dtc.org. The contents of such websites do not constitute part of this
Prospectus Supplement.
Purchases of Series 2010A Senior
Notes under the DTC system must be made by or through Direct Participants, which
will receive a credit for the Series 2010A Senior Notes on DTC’s records. The
ownership interest of each actual purchaser of Series 2010A Senior Notes
(“Beneficial Owner”) is in turn to be recorded on the Direct and Indirect
Participants’ records. Beneficial Owners will not receive written confirmation
from DTC of their purchases. Beneficial Owners, however, are expected to receive
written confirmations providing details of the transactions, as well as periodic
statements of their holdings, from the Direct or Indirect Participants through
which the Beneficial Owners purchased Series 2010A Senior Notes. Transfers of
ownership interests in the Series 2010A Senior Notes are to be accomplished by
entries made on the books of Direct and Indirect Participants acting on behalf
of Beneficial Owners. Beneficial Owners will not receive certificates
representing their ownership interests in Series 2010A Senior Notes, except in
the event that use of the book-entry system for the Series 2010A Senior Notes is
discontinued.
To facilitate subsequent transfers,
all Series 2010A Senior Notes deposited by Direct Participants with DTC are
registered in the name of DTC’s partnership nominee, Cede & Co., or such
other name as may be requested by an authorized representative of DTC. The
deposit of Series 2010A Senior Notes with DTC and their registration in the name
Cede & Co. or such other DTC nominee do not effect any changes in beneficial
ownership. DTC has no knowledge of the actual Beneficial Owners of the
Series 2010A Senior Notes. DTC’s records reflect only the identity of the
Direct Participants to whose accounts such Series 2010A Senior Notes are
credited, which may or may not be the Beneficial Owners. The Direct and Indirect
Participants will remain responsible for keeping account of their holdings on
behalf of their customers.
Conveyance of notices and other
communications by DTC to Direct Participants, by Direct Participants to Indirect
Participants, and by Direct Participants and Indirect Participants to Beneficial
Owners will be governed
S-7
by arrangements among them, subject
to any statutory or regulatory requirements as may be in effect from time to
time.
Redemption notices will be sent to
DTC. If less than all of the Series 2010A Senior Notes are being redeemed, DTC’s
practice is to determine by lot the amount of interest of each Direct
Participant in such Series 2010A Senior Notes to be redeemed.
Although voting with respect to the
Series 2010A Senior Notes is limited, in those cases where a vote is required,
neither DTC nor Cede & Co. (nor any other DTC nominee) will consent or vote
with respect to Series 2010A Senior Notes unless authorized by a Direct
Participant in accordance with DTC’s procedures. Under its usual procedures, DTC
mails an Omnibus Proxy to the Company as soon as possible after the record date.
The Omnibus Proxy assigns Cede & Co.’s consenting or voting rights to those
Direct Participants to whose accounts the Series 2010A Senior Notes are credited
on the record date (identified in a listing attached to the Omnibus Proxy).
Payments on the Series 2010A Senior
Notes will be made to Cede & Co. or such other nominee as may be requested
by an authorized representative of DTC. DTC’s practice is to credit Direct
Participants’ accounts upon DTC’s receipt of funds and corresponding detail
information from the Company or the Senior Note Indenture Trustee on the
relevant payment date in accordance with their respective holdings shown on
DTC’s records. Payments by Direct or Indirect Participants to Beneficial Owners
will be governed by standing instructions and customary practices, as is the
case with securities held for the account of customers registered in “street
name,” and will be the responsibility of such Direct or Indirect Participant and
not of DTC or the Company, subject to any statutory or regulatory requirements
as may be in effect from time to time. Payment to Cede & Co. (or such other
nominee as may be requested by an authorized representative of DTC) is the
responsibility of the Company, disbursement of such payments to Direct
Participants is the responsibility of DTC, and disbursement of such payments to
the Beneficial Owners is the responsibility of Direct and Indirect Participants.
Except as provided herein, a
Beneficial Owner of a global Series 2010A Senior Note will not be entitled to
receive physical delivery of Series 2010A Senior Notes. Accordingly, each
Beneficial Owner must rely on the procedures of DTC to exercise any rights under
the Series 2010A Senior Notes. The laws of some jurisdictions require that
certain purchasers of securities take physical delivery of securities in
definitive form. Such laws may impair the ability to transfer beneficial
interests in a global Series 2010A Senior Note.
DTC may discontinue providing its
services as securities depositary with respect to the Series 2010A Senior Notes
at any time by giving reasonable notice to the Company. Under such
circumstances, in the event that a successor securities depositary is not
obtained, Series 2010A Senior Notes certificates will be required to be printed
and delivered to the holders of record. Additionally, the Company may decide to
discontinue use of the system of book-entry transfers through DTC (or a
successor securities depositary) with respect to the Series 2010A Senior Notes.
The Company understands, however, that under current industry practices, DTC
would notify its Direct and Indirect Participants of the Company’s decision, but
will only withdraw beneficial interests from a global Series 2010A Senior Note
at the request of each Direct or Indirect Participant. In that event,
certificates for the Series 2010A Senior Notes will be printed and
delivered to the applicable Direct or Indirect Participant.
The information in this section
concerning DTC and DTC’s book-entry system has been obtained from sources that
the Company believes to be reliable, but neither the Company nor any Underwriter
takes any responsibility for the accuracy thereof. Neither the Company nor any
Underwriter has any responsibility for the performance by DTC or its Direct or
Indirect Participants of their respective obligations as described herein or
under the rules and procedures governing their respective operations.
S-8
UNDERWRITING
Subject to the terms and conditions
of an underwriting agreement (the “Underwriting Agreement”), the Company has
agreed to sell to each of the Underwriters named below (the “Underwriters”), for
whom Citigroup Global Markets Inc., UBS Securities LLC and Wells Fargo
Securities, LLC are acting as representatives (the “Representatives”), and each
of the Underwriters severally has agreed to purchase from the Company the
principal amount of Series 2010A Senior Notes set forth opposite its name below.
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Underwriters
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Principal Amount
of
Series 2010A
Senior Notes
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Citigroup Global Markets
Inc.
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$
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54,250,000
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UBS Securities
LLC
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54,250,000
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Wells Fargo Securities,
LLC
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54,250,000
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BB&T Capital Markets, a
division of Scott & Stringfellow, LLC
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12,250,000
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Total
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$
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175,000,000
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The Underwriting Agreement provides
that the obligations of the several Underwriters to pay for and accept delivery
of the Series 2010A Senior Notes are subject to, among other things, the
approval of certain legal matters by their counsel and certain other conditions.
In the Underwriting Agreement, the Underwriters have agreed, subject to the
terms and conditions set forth therein, to purchase all of the Series 2010A
Senior Notes offered hereby, if any of the Series 2010A Senior Notes are
purchased.
The Underwriters propose to offer
the Series 2010A Senior Notes directly to the public at the initial public
offering price set forth on the cover page of this Prospectus Supplement and may
offer the Series 2010A Senior Notes to certain securities dealers at such price
less a concession not in excess of 0.40% of the principal amount per
Series 2010A Senior Note. The Underwriters may allow, and such dealers may
reallow, a concession not in excess of 0.25% of the principal amount per Series
2010A Senior Note to certain brokers and dealers. After the initial public
offering, the offering price and other selling terms may from time to time be
varied by the Underwriters.
The Series 2010A Senior Notes are a
new issue of securities with no established trading market. The Series 2010A
Senior Notes will not be listed on any securities exchange or on any automated
dealer quotation system. The Underwriters may make a market in the Series 2010A
Senior Notes after completion of the offering, but will not be obligated to do
so and may discontinue any market-making activities at any time without notice.
No assurance can be given as to the liquidity of the trading market for the
Series 2010A Senior Notes or that an active public market for the Series 2010A
Senior Notes will develop. If an active public trading market for the Series
2010A Senior Notes does not develop, the market price and liquidity of the
Series 2010A Senior Notes may be adversely affected.
The Company has agreed to indemnify
the Underwriters against certain liabilities, including liabilities under the
Securities Act of 1933, as amended.
The Company’s expenses associated
with the offer and sale of the Series 2010A Senior Notes are estimated to be
$275,000.
The Company has agreed with the
Underwriters, that during the period of 15 days from the date of the
Underwriting Agreement, it will not sell, offer to sell, grant any option for
the sale of, or otherwise dispose of any Series 2010A Senior Notes, any security
convertible into, exchangeable into or exercisable for the Series 2010A Senior
Notes or any debt securities substantially similar to the Series 2010A Senior
Notes (except for the Series 2010A Senior Notes issued pursuant to the
Underwriting Agreement), without the prior written consent of the
Representatives. This agreement does not apply to issuances of commercial paper
or other debt securities with scheduled maturities of less than one year.
In order to facilitate the offering
of the Series 2010A Senior Notes, the Underwriters may engage in transactions
that stabilize, maintain or otherwise affect the price of the Series 2010A
Senior Notes. Specifically, the Underwriters may over-allot in connection with
this offering, creating short positions in the Series 2010A
S-9
Senior Notes for their own accounts.
In addition, to cover over-allotments or to stabilize the price of the Series
2010A Senior Notes, the Underwriters may bid for, and purchase, Series 2010A
Senior Notes in the open market. The Underwriters may reclaim selling
concessions allowed to an Underwriter or dealer for distributing Series 2010A
Senior Notes in this offering, if the Underwriters repurchase previously
distributed Series 2010A Senior Notes in transactions that cover short
positions, in stabilization transactions or otherwise. Any of these activities
may stabilize or maintain the market price of the Series 2010A Senior Notes
above independent market levels. The Underwriters are not required to engage in
these activities and may end any of these activities at any time without notice.
In general, purchases of a security
for the purpose of stabilization or to reduce a short position could cause the
price of the security to be higher than it might be in the absence of such
purchases. The imposition of a penalty bid might also have an effect on the
price of a security to the extent that it were to discourage resales of the
security.
Neither the Company nor any
Underwriter makes any representation or prediction as to the direction or
magnitude of any effect that the transactions described above may have on the
price of the Series 2010A Senior Notes. In addition, neither the Company nor any
Underwriter makes any representation that the Underwriters will engage in such
transactions or that such transactions, once commenced, will not be discontinued
without notice.
It is expected that delivery of the
Series 2010A Senior Notes will be made, against payment for the Series 2010A
Senior Notes, on or about April 13, 2010, which will be the fifth business day
following the pricing of the Series 2010A Senior Notes. Under Rule 15c6-1 under
the 1934 Act, purchases or sales of securities in the secondary market generally
are required to settle within three business days (T+3), unless the parties to
any such transactions expressly agree to otherwise. Accordingly, purchasers of
the Series 2010A Senior Notes who wish to trade the Series 2010A Senior Notes on
the date of this Prospectus Supplement or the next succeeding business day will
be required, because the Series 2010A Senior Notes initially will settle
within five business days (T+5), to specify an alternate settlement cycle at the
time of any such trade to prevent failed settlement. Purchasers of the Series
2010A Senior Notes who wish to trade on the date of this Prospectus Supplement
or the next succeeding business day should consult their own legal advisors.
Certain of the Underwriters and
their affiliates have engaged and may in the future engage in transactions with,
and, from time to time, have performed and may perform investment banking and/or
commercial banking services for, the Company and certain of its affiliates in
the ordinary course of business, for which they have received and will receive
customary compensation.
EXPERTS
The financial statements and the
related financial statement schedule as of and for the year ended
December 31, 2009 incorporated in this Prospectus Supplement and the
accompanying Prospectus by reference from the Company’s Annual Report on Form
10-K for the year ended December 31, 2009 have been audited by Deloitte &
Touche LLP, an independent registered public accounting firm, as stated in their
reports, which are incorporated in this Prospectus Supplement and the
accompanying Prospectus by reference, and have been so incorporated in reliance
upon the reports of such firm given upon their authority as experts in
accounting and auditing.
S-10
PROSPECTUS
$500,000,000
Gulf Power Company
Class A Preferred Stock
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 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.
March 27, 2008
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, Gulf Power Company
(the “Company”) may sell, in one or more transactions,
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Class A preferred stock (the “Class A Preferred
Stock”)
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preference stock (the “Preference Stock”)
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senior notes (the “Senior Notes”)
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junior subordinated notes (the “Junior Subordinated Notes”)
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in one or more offerings up to a
total dollar amount of $500,000,000. 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 additional information under the heading “Available
Information.”
RISK FACTORS
Investing in the Company’s
securities involves risk. Please see the risk factors described in the Company’s
Annual Report on Form 10-K for the fiscal year ended December 31, 2007, 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 combined registration statement on Form S-3 (the “Registration
Statement,” which term encompasses any amendments of 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 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 Web site 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.
2
INCORPORATION OF CERTAIN DOCUMENTS BY
REFERENCE
The Company’s Annual Report on Form
10-K for the fiscal year ended December 31, 2007 has been filed with the
Commission pursuant to the 1934 Act and is incorporated by reference in this
Prospectus and made a part of this Prospectus.
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, 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 to whom this Prospectus is delivered, on the written or
oral request of any such person, a copy of any or all documents incorporated in
this Prospectus by reference (other than the exhibits to such documents unless
such exhibits are specifically incorporated by reference in this Prospectus).
Such requests should be directed to Susan D. Ritenour, Secretary and Treasurer,
Gulf Power Company, One Energy Place, Pensacola, Florida 32520, telephone: (850)
444-6111.
GULF POWER COMPANY
The Company was organized under the
laws of the State of Maine on November 2, 1925, and was admitted to do business
in Florida on January 15, 1926, in Mississippi on October 25, 1976 and in
Georgia on November 20, 1984. Effective as of November 2, 2005, the Company was
domesticated as a Florida corporation. Under applicable laws of the State of
Florida and the State of Maine, the Company’s legal existence was uninterrupted,
with only its state of incorporation changed. The principal executive offices of
the Company are located at 500 Bayfront Parkway, Pensacola, Florida 32520, and
the telephone number is (850) 444-6111.
The Company is a wholly owned
subsidiary of The Southern Company. The Company is engaged, within the
northwestern portion of the State of Florida, in the generation and purchase of
electricity and the transmission, distribution and sale of such electricity at
retail in 71 communities (including Pensacola, Panama City and Fort Walton
Beach), as well as in rural areas, and at wholesale to a nonaffiliated utility
and a municipality.
3
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 in
this Prospectus by reference or elsewhere in this Prospectus, is qualified in
its entirety by reference to those documents and, therefore, should be read
together with those documents.
Gulf Power Company
Business
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Generation,
transmission, distribution and sale of electric energy
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Service Area
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Approximately 7,400
square miles within the northwestern portion of the State of Florida
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Customers at December 31, 2007
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427,663
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Generating Capacity at
December 31, 2007 (kilowatts)
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2,659,400
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Sources of Generation during
2007 (kilowatt-hours)
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Coal (86%), Gas
(14%)
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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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2003
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2004
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2005
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2006
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2007
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Ratio
of Earnings to Fixed Charges(1)
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3.86
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3.93
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3.96
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3.81
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3.95
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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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3.83
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3.90
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3.85
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3.41
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3.50
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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,” “Distributions on mandatorily redeemable
preferred securities” and the debt portion of allowance for funds used
during construction, and (ii) “Fixed Charges” consist of “Interest
expense, net of amounts capitalized,” “Distributions on mandatorily
redeemable preferred securities” and the debt portion of allowance for
funds used during construction. For the year ended December 31, 2007, this
ratio includes interest relating to Financial Accounting Standards Board
Interpretation No. 48,
Accounting for Uncertainty in
Income Taxes
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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.
For the year ended December 31, 2007, this ratio includes interest
relating to Financial Accounting Standards Board Interpretation No. 48,
Accounting for
Uncertainty in Income Taxes
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4
USE OF PROCEEDS
Except as may be otherwise described
in an applicable Prospectus Supplement, the proceeds received by the Company
from the sale of the Class A Preferred Stock, the Preference Stock, 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.
DESCRIPTION OF THE CLASS A PREFERRED
STOCK
Set forth below is a description of
the general terms of the Class A Preferred Stock. The statements in this
Prospectus concerning the Class A Preferred 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 Amended and Restated Articles of
Incorporation 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 for complete statements and for the definitions of
various terms. 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
Each series of the Class A Preferred
Stock, par value $25 per share, is to be created by the Board of Directors of
the Company (the “Board of Directors”) through an amendment to the Charter, a
copy of which will be filed as an exhibit to the Registration Statement of which
this Prospectus forms a part.
As of December 31, 2007, there were
no outstanding shares of the Class A Preferred Stock or the Company’s Preferred
Stock, par value $100 per share (the “Preferred Stock”). The Class A Preferred
Stock ranks equally with the Preferred Stock with respect to dividends and
amounts payable upon liquidation, dissolution or winding up of the Company. The
Class A Preferred Stock and the Preferred Stock rank senior to the Preference
Stock, the Company’s common stock and any other securities the Company may issue
in the future that by their terms rank junior to the Class A Preferred Stock and
the Preferred Stock, with respect to dividends and amounts payable upon
liquidation, dissolution or winding up of the Company. All shares of the Class A
Preferred Stock will rank on a parity with respect to dividends and amounts
payable upon liquidation, dissolution or winding up of the Company.
The Class A Preferred Stock will not
be subject to further calls or assessment by the Company.
Any proposed listing of the Class A
Preferred Stock on a securities exchange will be described in the applicable
Prospectus Supplement.
Transfer Agent and Registrar
Unless otherwise indicated in the
applicable Prospectus Supplement, the transfer agent for the Class A Preferred
Stock will be Southern Company Services, Inc., 30 Ivan Allen Jr. Blvd., N.W.,
Atlanta, Georgia 30308, which will also serve as the registrar.
Dividend Rights and Provisions
Dividends on the Class A Preferred
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 Class A Preferred Stock as they appear on the books of the Company
on the record dates fixed by the Board of Directors.
5
So long as any shares of the
Preferred Stock or the Class A Preferred Stock are outstanding, no dividends may
be declared or paid upon or set apart for the Preference Stock, the Company’s
common stock or any other class of stock of the Company over which the Preferred
Stock and the Class A Preferred Stock have a preference as to the payment of
dividends, unless: (1) full dividends on all shares of cumulative Preferred
Stock and cumulative Class A Preferred Stock for all past dividend periods have
been paid or declared and a sum sufficient for the payment thereof has been set
apart and full dividends on such Preferred Stock and Class A Preferred Stock for
the then current dividend period have been or concurrently are declared; and (2)
full dividends for the then current dividend period on all shares of
non-cumulative Preferred Stock and non-cumulative Class A Preferred Stock have
been or contemporaneously are paid or declared and a sum sufficient for the
payment thereof is set aside.
The applicable Prospectus Supplement
will set forth the dividend rate provisions of the Class A Preferred 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 Class A Preferred 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 Class A Preferred Stock.
Liquidation Rights
Upon voluntary or involuntary
liquidation, the holders of the Preferred Stock and the 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 Preference Stock and
the Company’s common stock. Available assets, if insufficient to pay such
amounts to the holders of the Preferred Stock and the 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, if
any, 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 Class A
Preferred Stock will be set forth in the applicable Prospectus Supplement.
Other Rights
The holders of the Class A Preferred
Stock do not have any pre-emptive or conversion rights, except as otherwise
described in the applicable Prospectus Supplement.
6
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 or incorporated by reference in the Registration Statement, for
complete statements and for the definitions of various terms. The general
provisions which apply to the Preference Stock of the Company of all classes,
which are now or may later be authorized or created, are set forth in the
Charter.
General
Each series of the Preference Stock,
par value $100 per share, is to be created by the Board of Directors through an
amendment to the Charter, a copy of which will be filed as an exhibit to the
Registration Statement of which this Prospectus forms a part.
As of December 31, 2007, there were
1,000,000 outstanding shares of the Preference Stock. In addition, as of
December 31, 2007, there were no outstanding shares of the Preferred Stock or
the Class A Preferred Stock. 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 Company’s 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 to 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
Unless otherwise indicated in the
applicable Prospectus Supplement, the transfer agent for the Preference Stock
will be Southern Company Services, Inc., 30 Ivan Allen Jr. Blvd., N.W., Atlanta,
Georgia 30308, which 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
date fixed by the Board of Directors.
So long as any shares of the
Preferred Stock or the Class A Preferred Stock are outstanding, no dividends may
be declared or paid upon or set apart for the Preference Stock, the Company’s
common stock or any other class of stock of the Company over which the Preferred
Stock and the Class A Preferred Stock have a preference as to the payment of
dividends, unless: (1) full dividends on all shares of cumulative Preferred
Stock and cumulative Class A Preferred Stock for all past dividend periods
have been paid or declared and a sum sufficient for the payment thereof has been
set apart and full dividends on such Preferred Stock and Class A Preferred Stock
for the then current dividend period have been or concurrently are declared; and
(2) full dividends for the then current dividend period on all shares of
non-cumulative Preferred Stock and non-cumulative Class A Preferred Stock have
been or contemporaneously are paid or declared and a sum sufficient for the
payment thereof is set aside.
7
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 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, out of the Company’s assets
available for distribution to the holders of the Preference Stock following the
satisfaction of all claims ranking senior to the Preference Stock, including the
claims of the holders of any outstanding shares of the Preferred Stock or the
Class A Preferred Stock, the amount specified as payable on the shares of such
series before any distribution of assets may be made to the holders of the
Company’s 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, if any, 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 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 (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 and
not defined 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
8
effectively subordinated to all
secured debt of the Company, aggregating approximately $41,000,000 outstanding
at December 31, 2007. 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 the
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 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
9
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.
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
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
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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 thereof, or change the method of calculating the
rate of interest on 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 transactions, 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 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, 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. The Bank of New York and certain of its
affiliates also serve as trustee under other indentures pursuant to which
securities of the Company and certain of its affiliates are outstanding.
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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 of
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 January
1, 1997, between the Company and The Bank of New York (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 and not defined 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 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
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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 on (including Additional
Interest (as defined below)) 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. 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 the execution
of the Subordinated Note Indenture, (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 such 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, banker’s
acceptance, security purchase facility or similar credit transaction; (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, 2007, Senior Indebtedness of the Company aggregated
approximately $792,000,000.
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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 reclassifications of the Company’s capital
stock or the exchange or conversion of one class or series of the Company’s
capital stock for another class or series of the Company’s capital stock, or
(ii) the purchase of fractional interests in shares of the Company’s 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, 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
(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
14
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 had 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) 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 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.
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
15
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)
on any Junior Subordinated Note or any premium payable upon the redemption
thereof, 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
transactions, 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 performance of its duties if the Subordinated Note Indenture Trustee
reasonably believes that repayment or adequate indemnity is not reasonably
assured to it.
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The Bank of New York, 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. The Bank of New York and
certain of its affiliates also serve as trustee under other indentures pursuant
to which securities of the Company and certain of its affiliates 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 Class A
Preferred Stock, the Preference Stock, 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 Class A Preferred Stock, Preference Stock, Senior Notes or Junior
Subordinated Notes will set forth the terms of the offering of such Class A
Preferred Stock, Preference Stock, Senior Notes or Junior Subordinated Notes,
including the name or names of any underwriters or agents, the purchase price of
such Class A Preferred Stock, Preference Stock, 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 Class A Preferred Stock, Preference Stock, Senior Notes or Junior
Subordinated Notes may be listed.
If underwriters participate in the
sale, such Class A Preferred Stock, Preference Stock, Senior Notes or Junior
Subordinated Notes will be acquired by the underwriters for their own account
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 Class A Preferred Stock, Preference Stock, 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 Class A
Preferred Stock, Preference Stock, 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 and their affiliates may engage in transactions with, or
perform services for, the Company in the ordinary course of business.
Each series of Class A Preferred
Stock, Preference Stock, Senior Notes or Junior Subordinated Notes will be a new
issue of securities and will have no established trading market. Any
underwriters to whom Class A Preferred Stock, Preference Stock, Senior Notes or
Junior Subordinated Notes are sold for public offering and sale may make a
market in such Class A Preferred Stock, Preference Stock, Senior Notes or Junior
Subordinated Notes, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. The Class A Preferred
Stock, the Preference Stock, the Senior Notes or the Junior Subordinated Notes
may or may not be listed on a national securities exchange.
17
LEGAL MATTERS
The validity of the Class A
Preferred Stock, the Preference Stock, the Senior Notes, the Junior Subordinated
Notes and certain matters relating to such securities will be passed upon on
behalf of the Company by Beggs & Lane, a Registered Limited Liability
Partnership, Pensacola, Florida, and 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 Company’s Annual Report on Form 10-K have been audited by
Deloitte & Touche LLP, an independent registered public accounting firm, as
stated in their reports, which are incorporated herein by reference, and have
been so incorporated in reliance upon the reports of such firm given upon their
authority as experts in accounting and auditing.
18
$175,000,000
Series 2010A 4.75% Senior Notes
due April 15, 2020
PROSPECTUS SUPPLEMENT
April 6, 2010
Joint Book-running Managers
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Citi
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UBS Investment Bank
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Wells Fargo Securities
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Co-Manager
BB&T Capital Markets
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