Exhibit 3(b)2
Articles of Amendment to Joint Agreement Between Alabama
Power Company and Birmingham Electric Company
Prescribing the Terms and Conditions of Merger
Of Birmingham Electric Company Into and
With Alabama Power Company
STATE OF ALABAMA )
)
JEFFERSON COUNTY )
We, Elmer B. Harris and Art P. Beattie, respectively the President and
Secretary of Alabama Power Company, a corporation, do hereby certify that, at a
meeting of the Board of Directors of said corporation duly called and held at
the office of said corporation in the City of Birmingham, Alabama, on the 25th
day of July, 1997, at 10:15 o'clock A.M., Birmingham Time, a majority and quorum
of Directors being present, the following resolutions were duly adopted by said
Board of Directors:
RESOLVED, that in connection with an offer ("Offer")
to be made by Southern Company ("Southern") to purchase all or
a portion of one or more of the series of outstanding
preferred stock of Alabama Power Company (the "Company"),
there be and hereby is called a special meeting (the "Special
Meeting") of the stockholders of the Company for the purpose
of considering and acting upon any or all of the following
proposals, the final slate of proposals to be determined by
the officers of the Company in their discretion and submitted
to the stockholders of the Company for approval at the Special
Meeting:
(a) a proposal to approve an amendment of the Charter of
the Company to delete in its entirety the restriction
on the incurrence of unsecured debt by the Company;
(b) a proposal to approve an amendment to the Charter of
the Company to delete in their entirety provisions
requiring a vote of preferred stockholders for
approval of a merger, consolidation or sale of all or
substantially all of the assets of the Company; and
(c) Such other proposals, including other amendments to
the Company's Charter, as the officers shall
1
determine in their discretion and cause to be
specified in this notice of the Special Meeting; and
RESOLVED FURTHER, that the date, time and location of
the Special Meeting, and any record date with respect thereto,
shall be determined by the officers in their discretion and
caused by them to be specified in the notice of the Special
Meeting; and
RESOLVED FURTHER, that the officers of the Company be
and hereby are authorized to solicit proxies or consents from
the stockholders of the Company for use in connection with the
Special Meeting, and to employ such broker-dealers, dealers-
managers or other parties and to incur such costs and expenses
in soliciting such proxies as the officers shall consider
necessary or appropriate; and
RESOLVED FURTHER, that the officers of the Company
are hereby authorized to cause the Company to remit a cash
payment of $1.00 for each $100.00 of par value or stated
capital of the Company's Preferred Stock and Class A Preferred
Stock, respectively, or such other sum as the officers of the
Company shall consider necessary and appropriate to the
holders of such stock voting in favor of the proposal
submitted to the stockholders at the Special Meeting; and
RESOLVED FURTHER, that the officers of the Company be
and they hereby are authorized on behalf of the Company to
purchase any and all shares of preferred stock of the Company
tendered to, and accepted for payment and paid for by,
Southern pursuant to the Offer, for the purchase price and
associated expenses paid by Southern for such shares, and,
upon the purchase of such shares from Southern, to cancel and
retire all of such shares; and
RESOLVED FURTHER, that, in connection with and to
carry out the purposes and intent of the foregoing
resolutions, the officers of the Company be and they hereby
are authorized to take any and all actions on behalf of the
Company as they shall consider necessary or appropriate,
including, without limitation, the execution and filing of any
applications or other documents with the Securities and
Exchange Commission and other regulatory authorities and the
execution and delivery of agreements with brokers-dealers,
dealers-managers or any other parties as the
2
officers shall in their discretion consider necessary and
appropriate.
And we do further certify that pursuant to such resolutions so adopted
at such meeting of the Board of Directors of Alabama Power Company, a special
meeting of the stockholders of the corporation was duly held at the office of
its affiliate, Georgia Power Company, 333 Piedmont Avenue, Atlanta, Georgia, on
Wednesday, the 10th day of December, 1997, 3:30 o'clock P.M., Atlanta Time, for
the purpose of considering taking action, in the manner provided by law, upon
the aforesaid proposal and upon such other proposal or proposals as were set
forth in the notice of such and for the transaction of any and all business in
connection therewith, including the following amendment to the Joint Agreement
Between Alabama Power Company and Birmingham Electric Company Prescribing the
Terms and Conditions of Merger Of Birmingham Electric Company and Into and With
Alabama Power Company, dated as of October 21, 1952 (as amended, the "Charter"):
(1) To remove in its entirety Paragraph A.2.f.(2) of
Article IX of the Charter, a provision restricting
the amount of securities representing unsecured
indebtedness issuable by the Company;
(2) To remove in its entirety Paragraph A.2.f.(1) of
Article IX of the Charter, a provision which requires
the vote of the holders of at least a majority of the
total voting power of the outstanding preferred stock
of Alabama Power Company to approve the sale of all
or substantially all of Alabama Power Company's
property and mergers or consolidations that have not
been approved under the Public Utility Holding
Company Act of 1935, as amended;
(3) To remove in its entirety Paragraph A.2.b. (except
the first paragraph therein) of Article IX of the
Charter, a provision restricting the ability of
Alabama Power Company to pay dividends on its common
stock in the event that its common equity
capitalization falls below certain levels; and
(4) To remove the words after "January 31, 1942" of the
first paragraph of Paragraph A.2.b. of Article IX of
the Charter, a provision restricting the ability of
Alabama Power Company to pay dividends on its common
stock in the event that its retained earnings are not
at least equal to two times the annual dividends on
its outstanding preferred stock.
We do further certify that notice in compliance with applicable laws
and the Bylaws of Alabama Power Company of the time, place and purpose of said
meeting of stockholders was given to each stockholder of Alabama Power Company
as follows: to those stockholders of record at the close of business on November
7, 1997 with respect to the Class A Preferred Stock of Alabama Power Company (as
defined herein) listed on the New York Stock Exchange, and
3
to those stockholders of record at the close of business on November 6, 1997
with respect to all other classes of preferred stock and common stock of Alabama
Power Company, in each case addressed to each stockholder at his, her or its
address as it appeared on the stock transfer books of the corporation, with
postage thereon prepaid and deposited in the United States mail; and that at
said meeting the holders of more than two-thirds of the total value of the
outstanding shares of preferred stock and of the larger amount in total value of
the outstanding shares of capital stock of the corporation having voting powers
on such proposal were present in person or represented by proxy; and
We do further certify that at the close of business on each of November
6, 1997 and November 7, 1997, Alabama Power Company had 704,000 shares of $100
Preferred Stock, par value $100 per share (the "$100 Preferred Stock"), issued
and outstanding, and 6,020,200 shares of Class A Preferred Stock, par value $1
per share (the "Class A Preferred Stock"), issued and outstanding (collectively,
the "Preferred Stock"), and 5,608,955 shares of common stock issued and
outstanding (the "Common Stock"). All of such outstanding shares of Preferred
Stock were entitled to vote on the above proposal as a single class, each share
of $100 Preferred Stock and each share of Class A Preferred Stock with a stated
value of $100 per share being counted as one, each share of Class A Preferred
Stock with a stated value of $25 per share being counted as one-quarter, and
each share of Class A Preferred Stock with a stated value of $100,000 per share
being counted as 1,000. The adoption of the above proposal required the
affirmative vote in favor thereof of (i) the holders of record of a majority of
the shares of the issued and outstanding Common Stock of Alabama Power Company
and (ii) the holders of two-thirds of the total number of shares of Preferred
Stock outstanding, voting as a single class; and
We do further certify that at said meeting all of the 5,608,955 shares
of common stock outstanding voted affirmatively for the adoption of the
proposal, and of the total votes of Preferred Stock (counting shares of
Preferred Stock as described above) 2,159,146 shares voted affirmatively for the
adoption of the proposal and 33,594 shares voted against the proposal or
abstained from voting thereon; such affirmative votes being sufficient for the
adoption of the proposal.
We, Elmer B. Harris and Art P. Beattie, as President and Secretary,
respectively, of Alabama Power Company, do hereby make this report of such
meeting and certify that such amendment, as set forth in the above resolutions,
was duly adopted in accordance with the applicable provisions of the Alabama
Business Corporation Act; and we do further certify that the proceedings of said
meeting of the Board of Directors and said special meeting of stockholders were
reduced to writing and that the same are hereby certified by Elmer B. Harris,
the President, and Art P. Beattie, the Secretary, of Alabama Power Company,
under its corporate seal.
4
IN WITNESS WHEREOF, we, Elmer B. Harris, and Art P. Beattie, as
President and Secretary, respectively, of Alabama Power Company, do hereunto set
our hands and seal of such corporation on the 10th day of December, 1997.
ELMER B. HARRIS
President, Alabama Power Company
ART P. BEATTIE
Secretary, Alabama Power Company
5
UNITED STATES OF AMERICA )
STATE OF ALABAMA )
MONTGOMERY COUNTY )
I, Jim Bennett, Secretary of State of the State of Alabama, do hereby
certify that the foregoing pages numbered 1 to 5, both inclusive, to which this
certificate is attached, contain a full, true and correct copy of the
Certificate of Resolutions of Board of Directors and Stockholders of Alabama
Power Company, as the same was certified by the President and Secretary of such
Alabama Power Company under its corporation seal and filed in this, the office
of Secretary of State of Alabama, on the ____ day of December, 1997.
In Testimony Whereof, I have hereunto set my hand and caused the Great
Seal of the State of Alabama to be hereunto affixed at the Capitol in the City
of Montgomery, on this the _____ day of December in the year of our Lord,
Nineteen Hundred and Ninety-Seven.
(Seal) JIM BENNETT
Secretary of State of the
State of Alabama
6