Exhibit 1
1,200,000 Depositary Shares
Each Representing One-Fourth of a Share of
5.25% Series Preferred Stock, Cumulative
Par Value $100 Per Share
MISSISSIPPI POWER COMPANY
UNDERWRITING AGREEMENT
March 3, 2004
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan Securities Inc. 270 Park Avenue New York, New York 10017
Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
Ladies and Gentlemen:
Mississippi Power Company, a Mississippi corporation (the
"Company"), confirms its agreement (the "Agreement") with you (collectively, the
"Underwriters"), with respect to the sale by the Company and the purchase by the
Underwriters, acting severally and not jointly, of an aggregate of 1,200,000
Depositary Shares (the "Depositary Shares"), each representing one-fourth of a
share of 5.25% Series Preferred Stock, Cumulative, Par Value $100 Per Share, of
the Company (the "Preferred Stock"). The number of Depositary Shares in respect
of the Preferred Stock to be purchased by each Underwriter is identified in
Schedule I hereto.
The Company will issue and deposit 300,000 shares of Preferred
Stock against delivery of depositary receipts (the "Receipts") to be issued
under a deposit agreement (the "Deposit Agreement") to be dated as of the
Closing Date (as hereinafter defined), among the Company, SunTrust Bank, as
depositary (the "Depositary"), and the holders from time to time of the Receipts
issued thereunder. The Receipts will evidence the Depositary Shares. The Company
understands that the Underwriters propose to make a public offering of the
Depositary Shares as soon as the Underwriters deem advisable after this
Agreement has been executed and delivered.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to the Underwriters as follows:
(a) A registration statement on Form S-3 (File Nos. 333-108156, 333-108156-01
and 333-108156-02) in respect of the Preferred Stock and the Depositary
Shares and certain other securities has been prepared and filed in
accordance with the provisions of the Securities Act of 1933, as amended
(the "1933 Act"), with the Securities and Exchange Commission (the
"Commission"); such registration statement and any post-effective amendment
thereto, each in the form heretofore delivered or to be delivered to the
Underwriters, has been declared effective by the Commission in such form
(except that copies of the registration statement and any post-effective
amendment delivered to the Underwriters need not include exhibits but shall
include all documents incorporated by reference therein); and no stop order
suspending the effectiveness of such registration statement has been issued
and no proceeding for that purpose has been initiated or, to the best
knowledge of the Company, threatened by the Commission (any preliminary
prospectus included in such registration statement or filed with the
Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the 1933 Act, being hereinafter called a "Preliminary
Prospectus"); such registration statement, as it became effective,
including the exhibits thereto and all documents incorporated by reference
therein pursuant to Item 12 of Form S-3 at the time such registration
statement became effective, being hereinafter called the "Registration
Statement;" the prospectus relating to the Preferred Stock and the
Depositary Shares, in the form in which it was included in the Registration
Statement at the time it became effective, being hereinafter called the
"Prospectus;" any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
1933 Act, as of the date of such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus
or Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "1934 Act"), and incorporated by reference in such
Preliminary Prospectus or Prospectus, as the case may be; any reference to
any amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to Section 13(a) or
15(d) of the 1934 Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration Statement
and the Prospectus as amended or supplemented in final form by a prospectus
supplement relating to the Preferred Stock and the Depositary Shares in the
form in which it is filed with the Commission, pursuant to Rule 424(b)
under the 1933 Act in accordance with Section 3(g) hereof, including any
documents incorporated by reference therein as of the date of such filing,
being hereinafter called the "Final Supplemented Prospectus."
(b) The documents incorporated by reference in the Registration Statement or
Prospectus, when they were filed with the Commission, complied in all
material respects with the applicable provisions of the 1934 Act and the
rules and regulations of the Commission thereunder, and as of such time of
filing, when read together with the Prospectus, none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and any further documents so filed and incorporated
by reference in the Prospectus or any further amendment or supplement
thereto, when such documents are filed with the Commission, will comply in
all material respects with the applicable provisions of the 1934 Act and
the rules and regulations of the Commission thereunder and, when read
together with the Prospectus as it otherwise may be amended or
supplemented, will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the Company makes no warranty
or representation to the Underwriters with respect to: (A) any statements
or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by the Underwriters expressly for use
in the Final Supplemented Prospectus; or (B) any information set forth in
the Final Supplemented Prospectus under the caption "Certain Terms of the
New Stock and the Depositary Shares - Book-Entry Only Issuance - The
Depository Trust Company."
(c) The Registration Statement, the Prospectus and the Final Supplemented
Prospectus comply, and any further amendments or supplements to the
Registration Statement or the Prospectus, when any such post-effective
amendments are declared effective or supplements are filed with the
Commission, as the case may be, will comply, in all material respects with
the applicable provisions of the 1933 Act, the 1934 Act and the General
Rules and Regulations of the Commission thereunder and do not and will not,
(i) as of the applicable effective date as to the Registration Statement
and any amendment thereto, and (ii) as of the applicable filing date of the
Final Supplemented Prospectus and any Prospectus as further amended or
supplemented, contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in the case of the Registration Statement and any amendment
thereto, and, in the light of the circumstances under which they were made,
not misleading in the case of the Final Supplemented Prospectus and any
Prospectus as further amended or supplemented; except that the Company
makes no warranties or representations with respect to (A) statements or
omissions made in the Registration Statement, the Final Supplemented
Prospectus in reliance upon and in conformity with information furnished in
writing to the Company by the Underwriters expressly for use therein; or
(B) any information set forth in the Final Supplemented Prospectus under
the caption "Certain Terms of the New Stock and the Depositary Shares -
Book-Entry Only Issuance - The Depository Trust Company."
(d) With respect to the Registration Statement, the conditions for use of
Form S-3, as set forth in the General Instructions thereof, have been
satisfied.
(e) Since the respective dates as of which information is given in the
Registration Statement and the Final Supplemented Prospectus, except as
otherwise stated therein, there has been no material adverse change in
the business, properties or financial condition of the Company.
(f) The Company is a corporation duly organized and existing under the laws
of the State of Mississippi, is duly qualified to carry on its business
as a foreign corporation under the laws of the State of Alabama and has
due corporate authority to carry on the public utility business in
which it is engaged, to own and operate the properties used by it in
such business, to enter into and perform its obligations under this
Agreement and the Deposit Agreement and to issue and sell the Preferred
Stock and the Depositary Shares.
(g) This Agreement has been duly authorized, executed and delivered by the
Company.
(h) The Deposit Agreement has been duly authorized by the Company and, on the
Closing Date, will have been duly executed and delivered by the Company,
and, assuming due authorization, execution and delivery of the Deposit
Agreement by the Depositary, the Deposit Agreement will, on the Closing
Date, constitute a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms except to the extent that
enforcement thereof may be limited by (1) bankruptcy, insolvency,
reorganization, receivership, liquidation, fraudulent conveyance,
moratorium or other similar laws affecting creditors' rights generally or
(2) general principles of equity (regardless of whether enforcement is
considered in a proceeding at law or in equity) (the "Enforceability
Exceptions"); the Deposit Agreement will conform in all material respects
to all statements relating thereto contained in the Final Supplemented
Prospectus.
(i) The issuance and delivery of the Preferred Stock have been duly
authorized by the Company and, on the Closing Date, the Preferred Stock
will have been duly executed by the Company and, when issued and
delivered against payment therefor as described in the Final
Supplemented Prospectus, will be validly issued, fully paid and
non-assessable and will conform in all material respects to all
statements relating thereto in the Final Supplemented Prospectus.
(j) The issuance and delivery of the Depositary Shares representing the
Preferred Stock have been duly authorized by the Company and, on the
Closing Date, assuming due authorization, execution and delivery by the
Depositary of the Deposit Agreement and the due authorization, execution
and delivery by the Depositary of the Receipts in accordance with the terms
of the Deposit Agreement and, upon the deposit by or on behalf of the
Underwriters of the Preferred Stock with the Depositary pursuant to the
Deposit Agreement, the Depositary Shares will represent legal and valid
interests in the Preferred Stock and the Receipts will constitute valid
evidence of such interests in the Preferred Stock and will be entitled to
the benefits of the Deposit Agreement; the Depositary Shares will conform
in all material respects to all statements relating thereto contained in
the Final Supplemented Prospectus.
(k) The execution, delivery and performance by the Company of this Agreement
and the Deposit Agreement, the issuance of the Preferred Stock, the
issuance and sale of the Depositary Shares and the consummation by the
Company of the transactions contemplated herein and therein and compliance
by the Company with its obligations hereunder and thereunder shall have
been duly authorized by all necessary corporate action on the part of the
Company and do not and will not result in any violation of the charter or
bylaws of the Company, and do not and will not conflict with, or result in
a breach of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company under (A) any
contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which the Company is a party or by which it may
be bound or to which any of its properties may be subject (except for
conflicts, breaches or defaults which would not, individually or in the
aggregate, be materially adverse to the Company or materially adverse to
the transactions contemplated by this Agreement and the Deposit Agreement),
or (B) any existing applicable law, rule, regulation, judgment, order or
decree of any government, governmental instrumentality or court, domestic
or foreign, or any regulatory body or administrative agency or other
governmental body having jurisdiction over the Company, or any of its
properties.
(l) No authorization, approval, consent or order of any court or
governmental authority or agency is necessary in connection with the
issuance and sale by the Company of the Preferred Stock and the
Depositary Shares or the transactions by the Company contemplated in
this Agreement, except (A) such as may be required under the 1933 Act
or the rules and regulations thereunder; (B) such as may be required
under the Public Utility Holding Company Act of 1935, as amended; and
(C) such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or "blue sky"
laws.
(m) The financial statements incorporated by reference in the Registration
Statement and the Final Supplemented Prospectus, together with the related
schedules and notes, present fairly, in all material respects, the
financial position, results of operations and cash flows of the Company as
of and for the dates indicated; said financial statements have been
prepared in conformity with accounting principles generally accepted in the
United States ("GAAP") applied on a consistent basis (except that the
unaudited financial statements may be subject to normal year-end
adjustments) throughout the periods involved and necessarily include
amounts that are based on the best estimates and judgments of management.
The selected financial data and the summary financial information included
in the Registration Statement and the Final Supplemented Prospectus present
fairly the information shown therein and have been compiled on a basis
consistent with that of the audited and unaudited financial statements
incorporated by reference in the Registration Statement.
SECTION 2. SALE AND DELIVERY TO THE UNDERWRITERS; CLOSING.
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(a) On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Company agrees to sell
to each Underwriter, and each Underwriter, severally and not jointly, agrees to
purchase from the Company, the respective number of Depositary Shares set forth
in Schedule I to this Agreement opposite the name of such Underwriter at a price
per Depositary Share of $24.50.
(b) Payment of the purchase price for the Depositary Shares and delivery of
certificates for the Depositary Shares shall be made at the offices of Troutman
Sanders LLP, Bank of America Plaza, 600 Peachtree Street, N.E., Suite 5200,
Atlanta, Georgia at 10:00 A.M., Atlanta time, on April 7, 2004 (unless postponed
in accordance with the provisions of Section 10 hereof) or such other time,
place or date as shall be agreed upon by the Underwriters and the Company (such
time and date of payment and delivery being herein called the "Closing Date").
Payment shall be made to the Company by wire transfer in federal funds at the
Closing Date against delivery of the Depositary Shares to Goldman, Sachs & Co.
It is understood that each Underwriter has authorized Goldman, Sachs & Co., for
each Underwriter's account, to accept delivery of, receipt for, and make payment
of the number of the Depositary Shares which each Underwriter has agreed to
purchase. Goldman, Sachs & Co., individually and not as a representative of the
Underwriters, may (but shall not be obligated to) make payment of the number of
the Depositary Shares to be purchased by any Underwriter whose payment has not
been received by the Closing Date, but such payment shall not relieve such
Underwriter from its obligations hereunder.
The delivery of the Depositary Shares shall be made in fully
registered form, registered in the name of CEDE & CO., to the offices of The
Depository Trust Company in New York, New York or its designee, and the
Underwriters shall accept such delivery.
The certificate(s) for the Depositary Shares will be made
available for examination by the Underwriters not later than 12:00 Noon, New
York time, on the last business day prior to the Closing Date.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with the Underwriters
as follows:
(a) The Company, on or prior to the Closing Date, will deliver to the
Underwriters conformed copies of the Registration Statement as originally
filed and of all amendments thereto, heretofore or hereafter made,
including any post-effective amendment (in each case including all exhibits
filed therewith, and including unsigned copies of each consent and
certificate included therein or filed as an exhibit thereto, except
exhibits incorporated by reference, unless specifically requested). As soon
as the Company is advised thereof, it will advise the Underwriters orally
of the issuance of any stop order under the 1933 Act with respect to the
Registration Statement, or the institution of any proceedings therefor, of
which the Company shall have received notice, and will use its best efforts
to prevent the issuance of any such stop order and to secure the prompt
removal thereof, if issued. The Company will deliver to the Underwriters
sufficient conformed copies of the Registration Statement, the Prospectus
and the Final Supplemented Prospectus and of all supplements and amendments
thereto (in each case without exhibits) for distribution to the
Underwriters and, from time to time, as many copies of the Prospectus and
the Final Supplemented Prospectus as the Underwriters may reasonably
request for the purposes contemplated by the 1933 Act or the 1934 Act.
(b) The Company will furnish the Underwriters with copies of each amendment and
supplement to the Final Supplemented Prospectus relating to the offering of
the Depositary Shares in such quantities as the Underwriters may from time
to time reasonably request. If, during the period (not exceeding nine
months) when the delivery of a prospectus shall be required by law in
connection with the sale of any Depositary Shares by an Underwriter, any
event relating to or affecting the Company, or of which the Company shall
be advised in writing by the Underwriters, shall occur, which in the
opinion of the Company or of Underwriters' counsel should be set forth in a
supplement to or an amendment of the Final Supplemented Prospectus in order
to make the Final Supplemented Prospectus not misleading in the light of
the circumstances when it is delivered, or if for any other reason it shall
be necessary during such period to amend or supplement the Final
Supplemented Prospectus or to file under the 1934 Act any document
incorporated by reference in the Preliminary Prospectus or the Prospectus
in order to comply with the 1933 Act or the 1934 Act, the Company forthwith
will (i) notify the Underwriters to suspend solicitation of purchases of
the Depositary Shares and (ii) at its expense, make any such filing or
prepare and furnish to the Underwriters a reasonable number of copies of a
supplement or supplements or an amendment or amendments to the Final
Supplemented Prospectus which will supplement or amend the Final
Supplemented Prospectus so that, as supplemented or amended, it will not
contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances when the Final Supplemented Prospectus is
delivered, not misleading or which will effect any other necessary
compliance. In case any Underwriter is required to deliver a prospectus in
connection with the sale of any Depositary Shares after the expiration of
the period specified in the preceding sentence, the Company, upon the
request of such Underwriter, will furnish to such Underwriter, at the
expense of such Underwriter, a reasonable quantity of a supplemented or
amended prospectus, or supplements or amendments to the Final Supplemented
Prospectus, complying with Section 10(a) of the 1933 Act. During the period
specified in the second sentence of this subsection, the Company will
continue to prepare and file with the Commission on a timely basis all
documents or amendments required under the 1934 Act and the rules and
regulations thereunder; provided, that the Company shall not file such
documents or amendments without also furnishing copies thereof prior to
such filing to the Underwriters and Dewey Ballantine LLP.
(c) The Company will endeavor, in cooperation with the Underwriters, to
qualify the Preferred Stock and the Depositary Shares for offering and
sale under the applicable securities laws of such states and the other
jurisdictions of the United States as the Representative may designate;
provided, however, that the Company shall not be obligated to qualify
as a foreign corporation in any jurisdiction in which it is not so
qualified or to file a consent to service of process or to file annual
reports or to comply with any other requirements in connection with
such qualification deemed by the Company to be unduly burdensome.
(d) The Company will make generally available to its security holders as
soon as practicable but not later than 45 days after the close of the
period covered thereby, an earnings statement of the Company (in form
complying with the provisions of Rule 158 of the rules and regulations
under the 1933 Act) covering a twelve-month period beginning not later
than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in Rule 158) of the Registration
Statement.
(e) The Company will use its best efforts to effect the listing of the
Depositary Shares on the New York Stock Exchange.
(f) During a period of 15 days from the date of this Agreement, the Company
will not, without the Underwriters' prior written consent, directly or
indirectly, sell, offer to sell, grant any option for the sale of, or
otherwise dispose of, any depositary shares or shares of preferred
stock or any security convertible into or exchangeable into or
exercisable for preferred stock of the Company or any securities
substantially similar to the Depositary Shares or the Preferred Stock
(except for the Depositary Shares or the Preferred Stock issued
pursuant to this Agreement).
(g) As soon as practicable after the date of this Agreement, and in any
event within the time prescribed by Rule 424 under the 1933 Act, to
file the Final Supplemented Prospectus with the Commission and to
advise the Underwriters of such filing and to confirm such advice in
writing.
(h) The Company will file in the office of the Secretary of State of
Mississippi a charter amendment creating the Preferred Stock.
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all expenses incidental to
the performance of its obligations under this Agreement, including but not
limited to, the expenses of (i) the printing and filing of the Registration
Statement as originally filed and of each amendment thereto, (ii) the
preparation, issuance and delivery of the Depositary Shares to the Underwriters,
(iii) the fees and disbursements of the Company's counsel and accountants, (iv)
the qualification of the Preferred Stock and the Depositary Shares under
securities laws in accordance with the provisions of Section 3(c) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
of any blue sky survey (such fees and disbursements of counsel shall not exceed
$3,500), (v) the printing and delivery to the Underwriters of copies of the
Registration Statement as originally filed and of each amendment thereto and of
the Prospectus, the Final Supplemented Prospectus and any amendments or
supplements thereto, (vi) the printing and delivery to the Underwriters of
copies of any blue sky survey, (vii) the fee of the National Association of
Securities Dealers, Inc. in connection with its review of the offering
contemplated by this Agreement, if applicable, (viii) the fees and expenses of
the Depositary, (ix) any fees payable in connection with the rating of the
Preferred Stock or the Depositary Shares, (x) the fees and expenses incurred in
connection with the listing of the Depositary Shares on the New York Stock
Exchange, (xi) the cost and charges of any transfer agent or registrar and (xii)
the cost of qualifying the Depositary Shares with The Depository Trust Company.
Except as otherwise provided in Section 9 hereof, the
Underwriters shall pay all other expenses incurred by them in connection with
their offering of the Depositary Shares including fees and disbursements of
their counsel, Dewey Ballantine LLP.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters to purchase and pay for the Depositary Shares are subject to the
following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect on the Closing Date and no proceedings for
that purpose shall be pending before, or to the knowledge of the
Company threatened by, the Commission on such date. If filing of the
Final Supplemented Prospectus, or any supplement thereto, is required
pursuant to Rule 424, the Final Supplemented Prospectus, and any such
supplement, shall have been filed in the manner and within the time
period required by Rule 424.
(b) Any required orders of the Commission permitting the transactions
contemplated hereby substantially in accordance with the terms and
conditions hereof shall be in full force and effect and shall contain no
provision unacceptable to the Underwriters or the Company (but all
provisions of such order or orders heretofore entered, copies of which have
heretofore been delivered to the Underwriters, are deemed acceptable to the
Underwriters and the Company and all provisions of such order or orders
hereafter entered shall be deemed acceptable to the Underwriters and the
Company unless within 24 hours after receiving a copy of any such order any
party to this Agreement shall give notice to the other parties to the
effect that such order contains an unacceptable provision).
(c) On the Closing Date, the Underwriters shall have received:
(1) The opinion, dated the Closing Date, of Balch & Bingham LLP, general
counsel for the Company, substantially in the form attached hereto as
Schedule II-A.
(2) The opinion, dated the Closing Date, of Troutman Sanders LLP, counsel
for the Company, substantially in the form attached hereto as Schedule
II-B.
(3) The opinion, dated the Closing Date, of Dewey Ballantine LLP, counsel
for the Underwriters, substantially in the form attached hereto as
Schedule III.
(d) At the Closing Date, there shall not have been, since the date hereof or
since the respective dates as of which information is given in the
Registration Statement and the Final Supplemented Prospectus, any material
adverse change in the business, properties or financial condition of the
Company, whether or not arising in the ordinary course of business, and the
Underwriters shall have received a certificate of the President or any Vice
President of the Company, and dated as of the Closing Date, to the effect
that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1 hereof are true and correct
with the same force and effect as though expressly made at and as of the
Closing Date, (iii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied on or
prior to the Closing Date, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been initiated or, to the knowledge of
the Company, threatened by the Commission.
(e) On the Closing Date, the Underwriters shall have received from Deloitte &
Touche LLP a letter dated the Closing Date to the effect that: (A) they are
independent certified public accountants with respect to the Company within
the meaning of the 1933 Act and the rules and regulations under the 1933
Act; (B) in their opinion, the financial statements audited by them and
incorporated by reference in the Final Supplemented Prospectus comply as to
form in all material respects with the applicable accounting requirements
of the 1934 Act and the rules and regulations under the 1934 Act; and (C)
on the basis of certain limited procedures performed through a specified
date not more than five business days prior to the date of such letter,
namely (i) reading the minute books of the Company; (ii) performing the
procedures specified by the American Institute of Certified Public
Accountants for a review of interim financial information as described in
Statement on Auditing Standards No. 71, "Interim Financial Information" and
in Statement on Auditing Standards No. 100, "Interim Financial
Information," as applicable, on the unaudited financial statements, if any,
of the Company incorporated by reference in the Final Supplemented
Prospectus and of the latest available unaudited financial statements of
the Company, if any, for any calendar quarter subsequent to the date of
those incorporated by reference in the Final Supplemented Prospectus; and
(iii) making inquiries of certain officials of the Company who have
responsibility for financial and accounting matters regarding such
unaudited financial statements or any specified unaudited amounts derived
therefrom (it being understood that the foregoing procedures do not
constitute an audit performed in accordance with generally accepted
auditing standards and they would not necessarily reveal matters of
significance with respect to the comments made in such letter, and
accordingly that Deloitte & Touche LLP make no representations as to the
sufficiency of such procedures for the Underwriters' purposes), nothing
came to their attention that caused them to believe that: (1) any material
modifications should be made to the unaudited condensed financial
statements, if any, incorporated by reference in the Final Supplemented
Prospectus, for them to be in conformity with GAAP; (2) such unaudited
condensed financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the 1934 Act as it
applies to Form 10-Q and the related published rules and regulations
thereunder; (3) the unaudited amounts, if any, for Operating Revenues,
Earnings Before Income Taxes and Net Income After Dividends on Preferred
Stock and the unaudited Ratios of Earnings to Fixed Charges and Earnings to
Fixed Charges Plus Preferred Dividend Requirements (Pre-Income Tax Basis),
set forth in the Final Supplemented Prospectus do not agree with the
amounts set forth in or derived from the unaudited financial statements for
the same period included or incorporated by reference in the Registration
Statement; (4) as of a specified date not more than five business days
prior to the date of delivery of such letter, there has been any change in
the capital stock or long-term debt of the Company or any decrease in net
assets as compared with amounts shown in the latest balance sheet
incorporated by reference in the Final Supplemented Prospectus, except in
each case for changes or decreases which (i) the Final Supplemented
Prospectus discloses have occurred or may occur, (ii) are occasioned by the
declaration of dividends, (iii) are occasioned by draw-downs and regularly
scheduled payments of capitalized lease obligations, (iv) are occasioned by
the purchase or redemption of bonds or stock to satisfy mandatory or
optional redemption provisions relating thereto, (v) are occasioned by
reclassification of current maturities of long-term debt or (vi) are
disclosed in such letter; and (5) the unaudited amounts for Operating
Revenues, Earnings Before Income Taxes and Net Income After Dividends on
Preferred Stock and the unaudited Ratios of Earnings to Fixed Charges and
Earnings to Fixed Charges Plus Preferred Dividend Requirements (Pre-Income
Tax Basis) as of the end of any calendar quarter subsequent to those set
forth in (3) above, which, if available, shall be set forth in such letter,
do not agree with the amounts set forth in or derived from the unaudited
financial statements for the same period or were not determined on a basis
substantially consistent with that of the corresponding audited amounts or
ratios included or incorporated by reference in the Final Supplemented
Prospectus.
(f) On the Closing Date, counsel for the Underwriters shall have been
furnished with such documents and opinions as it may reasonably require
for the purpose of enabling it to pass upon the issuance and sale of
the Depositary Shares as herein contemplated and related proceedings,
or in order to evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions, herein
contained; and all proceedings taken by the Company in connection with
the issuance and sale of the Depositary Shares as herein contemplated
shall be satisfactory in form and substance to the Underwriters and
Dewey Ballantine LLP, counsel for the Underwriters.
(g) On the Closing Date, the Depositary Shares shall have been approved for
listing on the New York Stock Exchange upon notice of issuance.
(h) No amendment or supplement to the Registration Statement or the Final
Supplemented Prospectus filed subsequent to the date of this Agreement
(including any filing made by the Company pursuant to Section 13 or 14
of the 1934 Act) shall be unsatisfactory in form to Dewey Ballantine
LLP or shall contain information (other than with respect to an
amendment or supplement relating solely to the activity of the
Underwriters) which, in the reasonable judgment of the Underwriters,
shall materially impair the marketability of the Depositary Shares.
(i) The Company shall have performed its obligations when and as provided
under this Agreement and the Deposit Agreement.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Underwriters by notice to the Company at any time prior to the Closing
Date, and such termination shall be without liability of any party to any other
party except as provided in Sections 4, 7 and 9(b) hereof.
SECTION 6. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY.
--------------------------------------------
The obligations of the Company shall be subject to the
conditions set forth in the first sentence of Section 5(a) and in Section 5(b).
In case such conditions shall not have been fulfilled, this Agreement may be
terminated by the Company by mailing or delivering written notice thereof to the
Underwriters. Any such termination shall be without liability of any party to
any other party except as otherwise provided in Sections 4, 7 and 9(b) hereof.
SECTION 7. INDEMNIFICATION.
---------------
(a) The Company agrees to indemnify and hold harmless each of the Underwriters
and each person, if any, who controls any such Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20(a) of the 1934 Act, against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the 1933 Act, 1934 Act or otherwise, and to
reimburse any such Underwriter and such controlling person or persons, if any,
for any legal or other expenses incurred by them in connection with defending
any actions, insofar as such losses, claims, damages, liabilities or actions
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus or the Final Supplemented Prospectus or, if the
Company shall furnish to the Underwriters any amendments or any supplements
thereto, or shall make any filings pursuant to Section 13 or 14 of the 1934 Act
which are incorporated by reference therein, in any Preliminary Prospectus, the
Registration Statement, the Prospectus or the Final Supplemented Prospectus as
so amended or supplemented, or arise out of or are based upon any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages, liabilities or actions arise out of or are based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission which was made in such Registration Statement, Preliminary
Prospectus, Prospectus or Final Supplemented Prospectus in reliance upon and in
conformity with information furnished in writing to the Company by, or through
the Underwriters on behalf of, any Underwriter for use therein and except that
this indemnity with respect to the Preliminary Prospectus, the Prospectus or the
Final Supplemented Prospectus, if the Company shall have furnished any amendment
or supplement thereto, shall not inure to the benefit of any Underwriter (or of
any person controlling such Underwriter) on account of any losses, claims,
damages, liabilities or actions arising from the sale of the Depositary Shares
to any person if a copy of the Preliminary Prospectus, the Prospectus or the
Final Supplemented Prospectus (exclusive of documents incorporated therein by
reference pursuant to Item 12 of Form S-3), as the same may then be amended or
supplemented, shall not have been sent or given by or on behalf of such
Underwriter to such person with or prior to the written confirmation of the sale
involved and the untrue statement or alleged untrue statement or omission or
alleged omission was corrected in the Preliminary Prospectus, the Prospectus or
the Final Supplemented Prospectus as supplemented or amended at the time of such
confirmation. Each Underwriter agrees, within ten days after the receipt by it
of notice of the commencement of any action in respect of which indemnity may be
sought by it, or by any person controlling it, from the Company on account of
its agreement contained in this Section 7, to notify the Company in writing of
the commencement thereof but the omission of such Underwriter so to notify the
Company of any such action shall not release the Company from any liability
which it may have to such Underwriter or to such controlling person otherwise
than on account of the indemnity agreement contained in this Section 7. In case
any such action shall be brought against an Underwriter or any such person
controlling such Underwriter and such Underwriter shall notify the Company of
the commencement thereof as above provided, the Company shall be entitled to
participate in (and, to the extent that it shall wish, including the selection
of counsel, to direct) the defense thereof, at its own expense. In case the
Company elects to direct such defense and select such counsel, any Underwriter
or controlling person shall have the right to employ its own counsel, but, in
any such case, the fees and expenses of such counsel shall be at the expense of
such Underwriter or such controlling person unless the employment of such
counsel has been authorized in writing by the Company in connection with
defending such action. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification may be sought hereunder (whether or
not the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include any statement as to, or an
admission of, fault, culpability or a failure to act, by or on behalf of any
indemnified party. In no event shall any indemnifying party have any liability
or responsibility in respect of the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim effected without its prior written consent.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors and such of its officers who have signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act to
the same extent and upon the same terms as the indemnity agreement of the
Company set forth in Section 7(a) hereof, but only with respect to alleged
untrue statements or omissions made in the Registration Statement, the
Preliminary Prospectus, the Prospectus or the Final Supplemented Prospectus, or
such documents as amended or supplemented, in reliance upon and in conformity
with information furnished in writing to the Company by such Underwriter for use
therein.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
--------------------------------------------------------------
All representations, warranties and agreements contained in
this Agreement, or contained in certificates of officers of the Company
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by, or on behalf of the Company and shall survive
delivery of the Depositary Shares to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
------------------------
(a) The Underwriters may terminate this Agreement, by notice to the Company, at
any time at or prior to the Closing Date if (i) trading in securities on the New
York Stock Exchange shall have been generally suspended or there shall have been
a material disruption in settlement of securities generally, (ii) minimum or
maximum ranges for prices shall have been generally established on the New York
Stock Exchange by the Commission or by the New York Stock Exchange, (iii) a
general banking moratorium shall have been declared by federal or New York State
authorities, or (iv) there shall have occurred any outbreak or escalation of
major hostilities in which the United States is involved, any declaration of war
by the United States Congress or any other substantial national or international
calamity, crisis or emergency (including, without limitation, acts of terrorism)
affecting the United States, in any such case provided for in clauses (i)
through (iv) with the result that, in the reasonable judgment of the
Underwriters, the marketability of the Depositary Shares shall have been
materially impaired.
(b) If this Agreement shall be terminated by the Underwriters pursuant to
subsection (a) above or because of any failure or refusal on the part of the
Company to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Company shall be unable to perform its
obligations under this Agreement, then in any such case, the Company will
reimburse the Underwriters for the reasonable fees and disbursements of Dewey
Ballantine LLP and for the out of pocket expenses (in an amount not exceeding
$10,000) reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of the Depositary Shares and, upon such
reimbursement, the Company shall be absolved from any further liability
hereunder, except as provided in Sections 4 and 7.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS
If an Underwriter shall fail on the Closing Date to purchase
the Depositary Shares that it is obligated to purchase under this Agreement (the
"Defaulted Securities"), the Underwriters shall have the right, within 24 hours
thereafter, to make arrangements for the non-defaulting Underwriters, or any
other underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth. If, however, the Underwriters shall not have completed such arrangements
within such 24-hour period, then:
(a) if the principal amount of Defaulted Securities does not exceed 10% of the
Depositary Shares, the non-defaulting Underwriters shall be obligated, severally
and not jointly, to purchase the full amount thereof in the proportion that
their respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the principal amount of Defaulted Securities exceeds 10% of the
Depositary Shares, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Underwriters or the Company shall have
the right to postpone the Closing Date for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Final
Supplemented Prospectus or in any other documents or arrangements.
SECTION 11. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall be
directed to the Underwriters at (i) Goldman, Sachs & Co., 85 Broad Street, New
York, New York, 10004, attn: Prospectus Department; (ii) J.P. Morgan Securities
Inc., 270 Park Avenue, New York, New York, 10017, attn: High Grade Syndicate
Desk - 8th Floor; and (iii) Lehman Brothers Inc., 745 Seventh Avenue, New York,
New York 10019, attn: Debt Capital Markets, Power Group (with a copy to the
general counsel at the same address); and notices to the Company shall be
delivered to 2992 West Beach, Gulfport, Mississippi, Attention: Corporate
Secretary, with a copy to Southern Company Services, Inc., 270 Peachtree Street,
N.W., Atlanta, Georgia 30303, Attention: Earl C. Long.
SECTION 12. PARTIES. This Agreement shall inure to the benefit of and be binding
upon the Underwriters, the Company and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriters and the
Company and their respective successors and the controlling persons and officers
and directors referred to in Section 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Depositary Shares from any of the Underwriters
shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State. Except as otherwise set forth
herein, specified times of day refer to New York City time.
SECTION 14. COUNTERPARTS. This Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of which shall be deemed
to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among the Underwriters and the Company in accordance with its terms.
Very truly yours,
MISSISSIPPI POWER COMPANY
By: ______________________________
Title: _____________________________
CONFIRMED AND ACCEPTED,
as of the date first above written
By: ___________________________
(Goldman, Sachs & Co.)
J.P. MORGAN SECURITIES INC.
By:
-------------------------------
Title:
LEHMAN BROTHERS INC.
By:
-------------------------------
Title:
SCHEDULE I
NAME OF UNDERWRITER
Number of
Depositary Shares
Goldman, Sachs & Co. 400,000
J.P. Morgan Securities Inc. 400,000
Lehman Brothers Inc. 400,000
Total 1,200,000
Schedule II-A
[Letterhead of Balch & Bingham LLP]
________, 2004
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10172
Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
MISSISSIPPI POWER COMPANY
1,200,000 Depositary Shares
Each Representing One-Fourth of a Share of
5.25% Series Preferred Stock, Cumulative
Par Value $100 Per Share
Ladies and Gentlemen:
We have acted as general counsel to Mississippi Power Company
(the "Company") in connection with the purchase by you of an aggregate of
1,200,000 Depositary Shares (the "Depositary Shares"), each representing
one-fourth of a share of 5.25% Series Preferred Stock, Cumulative, Par Value
$100 Per Share, of the Company (the "Preferred Stock") pursuant to the terms of
an Underwriting Agreement dated March 3, 2004 (the "Underwriting Agreement"),
among the Company and the underwriters named in Schedule I thereto (the
"Underwriters"). This opinion is being delivered to you pursuant to Section
5(c)(1) of the Underwriting Agreement.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (Nos. 333-108156, 333-108156-01 and
333-108156-02) pertaining to the Preferred Stock and the Depositary Shares and
certain other securities (the "Registration Statement") filed under the
Securities Act of 1933, as amended (the "Act"), and the prospectus of the
Company dated September 3, 2003 as supplemented by a final prospectus supplement
dated March 3, 2004 (the "Final Supplemented Prospectus"), which pursuant to
Form S-3 incorporates by reference the Annual Report on Form 10-K of the Company
for the fiscal year ended December 31, 2003 (the "Form 10-K") and the Current
Reports on Form 8-K of the Company dated ________, 2004 and _______, 2004 (the
"Exchange Act Documents"), each as filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
certificate representing the Depositary Shares, of which we have examined a
specimen), and we have made such other and further investigations as we deemed
necessary to express the opinions hereinafter set forth. In such examination, we
have assumed the genuineness of all signatures, other than those of the Company,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents.
We have also examined the opinion of Troutman Sanders LLP to
you of even date with respect to matters relating to the Securities Act of 1933,
as amended; the Securities Exchange Act of 1934, as amended; and to the
applicable rules and regulations of the Commission under said Acts and in
expressing the opinions stated herein, with respect to such matters, we are
relying on such opinion.
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as to matters of
New York law upon the opinion dated the date hereof rendered to you by Dewey
Ballantine LLP, that:
1. The Company has been duly organized and is validly existing
and in good standing as a corporation under the laws of the State of
Mississippi, is duly qualified to carry on its business as a foreign corporation
under the laws of the State of Alabama and has due corporate authority to carry
on the public utility business in which it is engaged, to own and operate the
properties used by it in such business and to enter into and perform its
obligations under the Underwriting Agreement and the Deposit Agreement.
2. The execution, delivery and performance by the Company of
the Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents or other authorizations or approvals
of the Commission legally required for the issuance and sale of the Preferred
Stock and the Depositary Shares have been obtained; such orders are sufficient
for the issuance and sale of the Preferred Stock and the Depositary Shares; the
issuance and sale of the Preferred Stock and the Depositary Shares conform in
all material respects with the terms of such orders; and no other order, consent
or other authorization or approval of any Mississippi or United States
governmental body (other than in connection or in compliance with the provisions
of the securities or "blue sky" laws of any jurisdiction, as to which we express
no opinion) is legally required for the issuance and sale of the Preferred Stock
and the Depositary Shares in accordance with the terms of the Underwriting
Agreement.
4. The Deposit Agreement has been duly authorized, executed
and delivered by the Company and, assuming the due authorization, execution and
delivery thereof by the Depositary, constitutes a valid and legally binding
instrument of the Company, enforceable against the Company in accordance with
its terms, subject to the qualifications that the enforceability of the
Company's obligations thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
and the Deposit Agreement conforms as to legal matters in all material respects
to the description thereof in the Final Supplemented Prospectus.
5. The Preferred Stock and the Depositary Shares have been
duly authorized by the Company.
6. The Preferred Stock has been duly executed by the Company
and, upon payment and delivery in accordance with the Underwriting Agreement and
the Deposit Agreement, will be validly issued, fully-paid and non-assessable.
7. The Depositary Shares, assuming the due authorization,
execution and delivery by the Depositary of the Deposit Agreement and the due
authorization, execution and delivery by the Depositary of the Receipts in
accordance with the terms of the Deposit Agreement and upon the deposit by or on
behalf of the Underwriters of the Preferred Stock with the Depositary pursuant
to the Deposit Agreement, the Depositary Shares will represent legal and valid
interests in the Preferred Stock and the Receipts will constitute valid evidence
of such interests in the Preferred Stock and will be entitled to the benefits of
the Deposit Agreement.
8. The statements made in the Final Supplemented Prospectus
under the captions "Description of the New Stock," "Description of Depositary
Shares" and "Certain Terms of the New Stock and the Depositary Shares"
constitute accurate summaries of the terms of the articles of incorporation of
the Company, the Preferred Stock and the Depositary Shares in all material
respects.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 8 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with other counsel for the Company, with your counsel and with representatives
of Deloitte & Touche LLP. Based upon our examination of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, our
investigations made in connection with the preparation of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents and
our participation in the conferences referred to above, (i) we are of the
opinion that the Registration Statement, as of its effective date, and the Final
Supplemented Prospectus, as of March 3, 2004, complied as to form in all
material respects with the requirements of the Act and the applicable rules and
regulations of the Commission thereunder and that the Exchange Act Documents, as
of their respective dates of filing with the Commission, complied as to form in
all material respects with the relevant requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, except that in
each case we express no opinion as to the financial statements or other
financial or statistical data contained or incorporated by reference in the
Registration Statement, the Final Supplemented Prospectus or the Exchange Act
Documents, and (ii) nothing came to our attention which gives us reason to
believe that the Registration Statement, as of the date of filing of the Form
10-K (including the Form 10-K), contained any untrue statement of a material
fact or omitted to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading, or that the
Final Supplemented Prospectus (including the Exchange Act Documents) contained,
as of its date, or contains, on the date hereof, any untrue statement therein of
a material fact or omitted, as of its date, or omits, on the date hereof, to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, except
that in each case we express no opinion or belief with respect to the financial
statements or other financial or statistical data contained or incorporated by
reference in the Registration Statement, the Final Supplemented Prospectus or
the Exchange Act Documents and with respect to information set forth in the
Final Supplemented Prospectus under the caption "Certain Terms of the New Stock
and the Depositary Shares - Book-Entry Only Issuance - The Depository Trust
Company."
We are members of the State Bars of Mississippi and Alabama
and we do not express any opinion herein concerning any law other than the law
of such States and the federal law of the United States and, to the extent set
forth herein, the laws of the State of New York.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by you for any
other purpose, or relied upon by or furnished to any other person without our
prior written consent, except that Troutman Sanders LLP and Dewey Ballantine LLP
may rely on this opinion in giving their opinions pursuant to the Underwriting
Agreement insofar as such opinions relate to matters of Mississippi and Alabama
law.
Yours very truly,
BALCH & BINGHAM LLP
Schedule II-B
[Letterhead of TROUTMAN SANDERS LLP]
________, 2004
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan Securities Inc. 270 Park Avenue New York, New York 10172
Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
MISSISSIPPI POWER COMPANY
1,200,000 Depositary Shares
Each Representing One-Fourth of a Share of
5.25% Series Preferred Stock, Cumulative
Par Value $100 Per Share
Ladies and Gentlemen:
We have acted as counsel to Mississippi Power Company (the
"Company") in connection with the purchase by you of an aggregate of 1,200,000
Depositary Shares (the "Depositary Shares"), each representing one-fourth of a
share of 5.25% Series Preferred Stock, Cumulative, Par Value $100 Per Share, of
the Company (the "Preferred Stock") pursuant to the terms of an Underwriting
Agreement dated March 3, 2004 (the "Underwriting Agreement"), among the Company
and the underwriters named in Schedule I thereto (the "Underwriters"). This
opinion is being delivered to you pursuant to Section 5(c)(2) of the
Underwriting Agreement.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (Nos. 333-108156, 333-108156-01 and
333-108156-02) pertaining to the Preferred Stock and the Depositary Shares and
certain other securities (the "Registration Statement") filed under the
Securities Act of 1933, as amended (the "Act"), and the prospectus of the
Company dated September 3, 2003 as supplemented by a final prospectus supplement
dated March 3, 2004 (the "Final Supplemented Prospectus"), which pursuant to
Form S-3 incorporates by reference the Annual Report on Form 10-K of the Company
for the fiscal year ended December 31, 2003 (the "Form 10-K") and the Current
Reports on Form 8-K of the Company dated _________, 2004 and _______, 2004 (the
"Exchange Act Documents"), each as filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
certificate representing the Depositary Shares, of which we have examined a
specimen), and we have made such other and further investigations as we deemed
necessary to express the opinions hereinafter set forth. In such examination, we
have assumed the genuineness of all signatures, other than those of the Company,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents.
Based on the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion, relying as to matters of
Mississippi and Alabama law upon the opinion dated the date hereof rendered to
you by Balch & Bingham LLP and relying as to matters of New York law upon the
opinion dated the date hereof rendered to you by Dewey Ballantine LLP, that:
1. The Company has been duly organized and is validly existing
and in good standing as a corporation under the laws of the State of
Mississippi, is duly qualified to carry on its business as a foreign corporation
under the laws of the State of Alabama and has due corporate authority to carry
on the public utility business in which it is engaged, to own and operate the
properties used by it in such business and to enter into and perform its
obligations under the Underwriting Agreement and the Deposit Agreement.
2. The execution, delivery and performance by the Company of
the Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents or other authorizations or approvals
of the Commission legally required for the issuance and sale of the Preferred
Stock and the Depositary Shares have been obtained; such orders are sufficient
for the issuance and sale of the Preferred Stock and the Depositary Shares; the
issuance and sale of the Preferred Stock and the Depositary Shares conform in
all material respects with the terms of such orders; and no other order, consent
or other authorization or approval of any Mississippi or United States
governmental body (other than in connection or in compliance with the provisions
of the securities or "blue sky" laws of any jurisdiction, as to which we express
no opinion) is legally required for the issuance and sale of the Preferred Stock
and the Depositary Shares in accordance with the terms of the Underwriting
Agreement.
4. The Deposit Agreement has been duly authorized, executed
and delivered by the Company and, assuming the due authorization, execution and
delivery thereof by the Depositary, constitutes a valid and legally binding
instrument of the Company, enforceable against the Company in accordance with
its terms, subject to the qualifications that the enforceability of the
Company's obligations thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
and the Deposit Agreement conforms as to legal matters in all material respects
to the description thereof in the Final Supplemented Prospectus.
5. The Preferred Stock and the Depositary Shares have been
duly authorized by the Company.
6. The Preferred Stock has been duly executed by the Company
and, upon payment and delivery in accordance with the Underwriting Agreement and
the Deposit Agreement, will be validly issued, fully-paid and non-assessable.
7. The Depositary Shares, assuming the due authorization,
execution and delivery by the Depositary of the Deposit Agreement and the due
authorization, execution and delivery by the Depositary of the Receipts in
accordance with the terms of the Deposit Agreement and upon the deposit by or on
behalf of the Underwriters of the Preferred Stock with the Depositary pursuant
to the Deposit Agreement, the Depositary Shares will represent legal and valid
interests in the Preferred Stock and the Receipts will constitute valid evidence
of such interests in the Preferred Stock and will be entitled to the benefits of
the Deposit Agreement.
8. The statements made in the Final Supplemented Prospectus
under the captions "Description of New Stock," "Description of Depositary
Shares" and "Certain Terms of the New Stock and the Depositary Shares"
constitute accurate summaries of the terms of the articles of incorporation of
the Company, the Preferred Stock and the Depositary Shares in all material
respects.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 8 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with other counsel for the Company, with representatives of Deloitte & Touche
LLP and with your counsel. Based upon our examination of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, our
investigations made in connection with the preparation of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents and
our participation in the conferences referred to above, (i) we are of the
opinion that the Registration Statement, as of its effective date, and the Final
Supplemented Prospectus, as of March 3, 2004, complied as to form in all
material respects with the relevant requirements of the Act and the applicable
rules and regulations of the Commission thereunder and that the Exchange Act
Documents, as of their respective dates of filing with the Commission, complied
as to form in all material respects with the relevant requirements of the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, except that in each case we express no opinion as to the financial
statements or other financial or statistical data contained or incorporated by
reference in the Registration Statement, the Final Supplemented Prospectus or
the Exchange Act Documents, and (ii) nothing came to our attention which gives
us reason to believe that the Registration Statement, as of the date of filing
of the Form 10-K (including the Form 10-K), contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading, or
that the Final Supplemented Prospectus (including the Exchange Act Documents)
contained, as of its date, or contains, on the date hereof, any untrue statement
of a material fact or omitted, as of its date, or omits, on the date hereof, to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, except
that in each case we express no opinion or belief with respect to the financial
statements or other financial or statistical data contained or incorporated by
reference in the Registration Statement, the Final Supplemented Prospectus or
the Exchange Act Documents and with respect to information set forth in the
Final Supplemented Prospectus under the caption "Certain Terms of the New Stock
and the Depositary Shares - Book-Entry Only Issuance - The Depository Trust
Company."
We are members of the State Bar of Georgia and we do not
express any opinion herein concerning any law other than the law of the State of
Georgia and the federal law of the United States and, to the extent set forth
herein, the laws of the States of Alabama, Mississippi and New York.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by you for any
other purpose, or relied upon by or furnished to any other person without our
prior written consent, except that Balch & Bingham LLP may rely on this opinion
in giving its opinion pursuant to Section 5(c) of the Underwriting Agreement,
insofar as such opinion relates to matters of federal securities law.
Yours very truly,
TROUTMAN SANDERS LLP
Schedule III
[Letterhead of DEWEY BALLANTINE LLP]
________, 2004
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10172
Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
MISSISSIPPI POWER COMPANY
1,200,000 Depositary Shares
Each Representing One-Fourth of a Share of
5.25% Series Preferred Stock, Cumulative
Par Value $100 Per Share
Ladies and Gentlemen:
We have represented you in connection with the purchase by you
of an aggregate of 1,200,000 Depositary Shares (the "Depositary Shares"), each
representing one-fourth of a share of 5.25% Series Preferred Stock, Cumulative,
Par Value $100 Per Share, of the Company (the "Preferred Stock") pursuant to the
terms of an Underwriting Agreement dated March 3, 2004 (the "Underwriting
Agreement"), among the Company and the underwriters named in Schedule I thereto
(the "Underwriters"). This opinion is being delivered to you pursuant to Section
5(c)(3) of the Underwriting Agreement.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (Nos. 333-108156, 333-108156-01 and
333-108156-02) pertaining to the Preferred Stock and the Depositary Shares and
certain other securities (the "Registration Statement"), filed under the
Securities Act of 1933, as amended (the "Act"), and the prospectus of the
Company dated September 3, 2003, as supplemented by a final prospectus
supplement dated March 3, 2004 (the "Final Supplemented Prospectus"), which
pursuant to Form S-3 incorporates by reference the Annual Report on Form 10-K of
the Company for the fiscal year ended December 31, 2003 (the "Form 10-K") and
the Current Reports on Form 8-K of the Company, dated ___________, 2004 and
__________, 2004 (the "Exchange Act Documents"), each as filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
certificate representing the Depositary Shares, of which we have examined a
specimen), and we have made such other and further investigations as we deemed
necessary to express the opinions hereinafter set forth. In such examination, we
have assumed the genuineness of all signatures, the legal capacity of natural
persons, the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as certified
or photostatic copies, and the authenticity of the originals of such latter
documents.
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as aforesaid and
as to all matters covered hereby which are governed by or dependent upon the
laws of the States of Mississippi and Alabama upon the opinion of Balch &
Bingham LLP dated the date hereof and addressed to you, that:
1. The Company has been duly organized and is validly existing
and in good standing as a corporation under the laws of the State of
Mississippi, is duly qualified to carry on its business as a foreign corporation
under the laws of the State of Alabama and has due corporate authority to carry
on the public utility business in which it is engaged, to own and operate the
properties used by it in such business and to enter into and perform its
obligations under the Underwriting Agreement and the Deposit Agreement.
2. The execution, delivery and performance by the Company of
the Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents or other authorizations or approvals
of the Commission legally required for the issuance and sale of the Preferred
Stock and the Depositary Shares have been obtained; such orders are sufficient
for the issuance and sale of the Preferred Stock and the Depositary Shares; the
issuance and sale of the Preferred Stock and the Depositary Shares conform in
all material respects with the terms of such orders; and no other order, consent
or other authorization or approval of any Mississippi or United States
governmental body (other than in connection or in compliance with the provisions
of the securities or "blue sky" laws of any jurisdiction, as to which we express
no opinion) is legally required for the issuance and sale of the Preferred Stock
and the Depositary Shares in accordance with the terms of the Underwriting
Agreement.
4. The Deposit Agreement has been duly authorized, executed
and delivered by the Company and, assuming the due authorization, execution and
delivery thereof by the Depositary, constitutes a valid and legally binding
instrument of the Company, enforceable against the Company in accordance with
its terms, subject to the qualifications that the enforceability of the
Company's obligations thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
and the Deposit Agreement conforms as to legal matters in all material respects
to the description thereof in the Final Supplemented Prospectus.
5. The Preferred Stock and the Depositary Shares have been
duly authorized by the Company.
6. The Preferred Stock has been duly executed by the Company
and, upon payment and delivery in accordance with the Underwriting Agreement and
the Deposit Agreement, will be valid, issued, fully-paid and non-assessable.
7. The Depositary Shares, assuming the due authorization,
execution and delivery by the Depositary of the Deposit Agreement and the due
authorization, execution and delivery by the Depositary of the Receipts in
accordance with the terms of the Deposit Agreement and upon the deposit by or on
behalf of the Underwriters of the Preferred Stock with the Depositary pursuant
to the Deposit Agreement, will represent legal and valid interests in the
Preferred Stock and the Receipts will constitute valid evidence of such
interests in the Preferred Stock and will be entitled to the benefits of the
Deposit Agreement.
8. The statements made in the Final Supplemented Prospectus
under the captions "Description of New Stock," "Description of Depositary
Shares" and "Certain Terms of the New Stock and the Depositary Shares"
constitute accurate summaries of the terms of the articles of incorporation of
the Company, the Preferred Stock and the Depositary Shares in all material
respects.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 8 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with representatives of Deloitte & Touche LLP and with counsel to the Company.
Based upon our examination of the Registration Statement, the Final Supplemented
Prospectus and the Exchange Act Documents, our investigations made in connection
with the preparation of the Registration Statement and the Final Supplemented
Prospectus and our participation in the conferences referred to above (i) we are
of the opinion that the Registration Statement, as of its effective date, and
the Final Supplemented Prospectus, as of March 3, 2004, complied as to form in
all material respects with the requirements of the Act and the applicable rules
and regulations of the Commission thereunder and that the Exchange Act
Documents, as of their respective dates of filing with the Commission, complied
as to form in all material respects with the relevant requirements of the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, except that in each case we express no opinion as to the financial
statements or other financial or statistical data contained or incorporated by
reference in the Registration Statement, the Final Supplemented Prospectus or
the Exchange Act Documents, and (ii) nothing came to our attention which gives
us reason to believe that the Registration Statement, as of the date of filing
of the Form 10-K (including the Form 10-K), contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading, or
that the Final Supplemented Prospectus (including the Exchange Act Documents)
contained, as of its date, or contains, on the date hereof, any untrue statement
of a material fact or omitted, as of its date, or omits, on the date hereof, to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, except
that in each case we express no opinion or belief with respect to the financial
statements or other financial or statistical data contained or incorporated by
reference in the Registration Statement, the Final Supplemented Prospectus or
the Exchange Act Documents and with respect to information set forth in the
Final Supplemented Prospectus under the caption "Description of the Depositary
Shares - Book-Entry Only Issuance - The Depository Trust Company."
We are members of the State Bar of New York and we do not
express any opinion herein concerning any law other than the law of the State of
New York and the federal law of the United States and, to the extent set forth
herein, the law of the States of Mississippi and Alabama.
This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other purpose
or relied upon by or furnished to any other person without our prior written
consent.
Very truly yours,
DEWEY BALLANTINE LLP