Registration No.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SCANA CORPORATION
(Exact name of registrant as specified in its charter)
South Carolina
(State or other jurisdiction of incorporation or organization)
57-0784499
(I.R.S. Employer Identification No.)
1426 Main Street Columbia, South Carolina 29201 (803) 748-3000
(Address, including zip code and telephone number, including area code,
of registrant's principal executive offices)
A. H. Gibbes, Senior Vice President and General Counsel, SCANA Corporation,
1426 Main St., Columbia, SC 29201, (803) 748-3101
(Name, address,including zip code, and telephone number, including area code,
of agent for service)
With copies to:
Kevin Stacey, Esq. John W. Currie, Esq.
Reid & Priest LLP McNair Law Firm, P.A.
40 West 57th Street 1301 Gervais Street - 17th Floor
New York, New York 20019 Columbia, South Carolina 29201
(212) 603-2000 (803) 799-9800
Approximate date of commencement of proposed sale to the public: After the
effective date of the Registration Statement, as determined by market
conditions and other factors.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. ( )
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If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the
following box. [ ]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier registration statement for the same
offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If delivery of this prospectus is expected to be made pursuant to
Rule 434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Each Amount Maximum Maximum Amount of
Class of Securities to be Offering Aggregate Registration
to be Registered Registered Price Offering Fee
Per Unit* Price*
Common Stock 5,175,000 shares $23 1/8 $119,671,875 $41,267
* Estimated pursuant to Rule 457(c) under the Securities Act of
1933, as amended, solely for the purpose of calculating the
registration fee based on the average of the high and low prices of
SCANA Corporation common stock as reported on the New York Stock
Exchange, Inc., on August 31, 1995.
The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective date
until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall
become effective on such date as the Commission, acting pursuant to
said Section 8(a), may determine.
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SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED SEPTEMBER 7, 1995
4,500,000 Shares
SCANA Corporation
Common Stock
The Common Stock of SCANA Corporation (the "Company") is
listed on the New York Stock Exchange under the symbol "SCG." On
September 6, 1995, the last reported sale price of the Company's
Common Stock on the New York Stock Exchange was $22 7/8 per share.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR
ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
Underwriting Proceeds to
Price to Discounts and Company(2)
Public Commissions(1)
Per Share. . . . . . . . $ $ $
Total. . . . . . . . . . $ $ $
Total Assuming Full
Exercise of Over-Allotment
Option (3) . . . . . . . $ $ $
(1) See "Underwriting."
(2) Before deducting expenses estimated at $180,000, which are
payable by the Company.
(3) Assuming the exercise in full of the 45-day option granted by
the Company to the Underwriters to purchase up to 675,000
additional shares, on the same terms, solely to cover over-
allotments. See "Underwriting."
The shares of Common Stock are offered by the Underwriters,
subject to prior sale, when, as and if delivered to and accepted by
the Underwriters, and subject to their right to reject orders in
whole or in part. It is expected that delivery of the Common Stock
will be made in New York City on or about , 1995.
PaineWebber Incorporated The Robinson-Humphrey Company, Inc.
The date of this Prospectus is , 1995.
Information contained herein is subject to completion or amendment.
A registration statement relating to these securities has been
filed with the Securities and Exchange Commission. These
securities may not be sold nor may offers to buy be accepted prior
to the time the registration statement becomes effective. This
prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of
these securities in any State in which such offer, solicitation or
sale would be unlawful prior to registration or qualification under
the securities laws of any such State.
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IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT
OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE
OF THE COMMON STOCK OF THE COMPANY AT A LEVEL ABOVE THAT WHICH
MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY
BE EFFECTED ON THE NEW YORK STOCK EXCHANGE, IN THE OVER-THE-COUNTER
MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE
DISCONTINUED AT ANY TIME.
AVAILABLE INFORMATION
SCANA Corporation (the "Company") is subject to the
informational requirements of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and in accordance therewith files
reports and other information with the Securities and Exchange
Commission (the "Commission"). Reports, proxy and information
statements, and other information filed by the Company can be
inspected and copied at the public reference facilities maintained
by the Commission at 450 Fifth Street NW, Washington, D.C. 20549
and at the Commission's regional offices at Seven World Trade
Center, Suite 1300, New York, New York 10048, and at 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Copies
of such material can also be obtained by mail from the Public
Reference Section of the Commission at 450 Fifth Street NW,
Washington, D.C. 20549, at prescribed rates. The Company's common
stock (the "Common Stock") is listed for trading on the New York
Stock Exchange (the "NYSE"). Reports, proxy and information
statements, and other information concerning the Company may also
be inspected at the offices of the NYSE, 20 Broad Street, New York,
New York 10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, filed with the Commission by the
Company pursuant to the Exchange Act (File No. 1-8809), are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the
year ended December 31, 1994, as amended.
(b) The Company's Quarterly Reports on Form 10-Q for
the quarters ended March 31 and June 30, 1995.
(c) Current Reports of the Company on Forms 8-K dated
April 28 and September 6, 1995.
(d) Form 8-B/A of the Company filed May 26, 1995.
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All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this
Prospectus and prior to the termination of the offering made by
this Prospectus shall be deemed to be incorporated by reference in
this Prospectus and to be a part hereof from the date of filing of
such documents. Any statement contained in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other
subsequently filed document that also is or is deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a
part of this Prospectus.
The Company hereby undertakes to provide without charge to
each person, including any beneficial owner, to whom a copy of this
Prospectus has been delivered, on the written or oral request of
any such person, a copy of any or all of the documents referred to
above that have been incorporated by reference in this Prospectus,
other than exhibits to such documents, unless such exhibits are
specifically incorporated by reference into such documents.
Written or telephone requests for such copies should be directed to
H. John Winn, III, Manager-Investor Relations and Shareholder
Services, SCANA Corporation, Columbia, South Carolina 29218,
telephone number (803) 748-3240.
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PROSPECTUS SUMMARY
The following summary information is qualified in its entirety
by reference to the more detailed information and financial
statements appearing elsewhere in this Prospectus and in the
documents and information incorporated by reference in this
Prospectus. All information set forth in this Prospectus has been
adjusted to reflect a two-for-one stock split of the Common Stock
effective May 11, 1995. Unless otherwise indicated, the
information in this Prospectus assumes that the Underwriters' over-
allotment option of up to 675,000 shares will not be exercised.
The Company
Business.................................. Energy-based holding company
principally engaged through
subsidiaries in electric and
natural gas utility
operations and other energy
related businesses
Principal Operating Subsidiary............ South Carolina Electric & Gas
Company ("SCE&G")
SCE&G
Electric and Gas Service Areas............ Central, southern and southwestern
South Carolina
Population of Service Area
(at December 31, 1994).................. Approximately 2.3 million
Customers (at June 30, 1995)
Electric............................... 480,070
Gas.................................... 238,364
1994 Electric Energy Sources.............. Coal, 77%; Nuclear, 17%; Purchased
Power and Hydro, 6%
The Offering
Common Stock Offered ..................... 4,500,000 shares
Shares of Common Stock Outstanding on
August 31, 1995........................ 98,286,032 shares
Use of Proceeds........................... For reduction of short-term
indebtedness incurred by the
Company and its subsidiaries for
investment in utility plant and
non-regulated subsidiaries, and for
general corporate purposes.
Listed.................................... New York Stock Exchange
Stock Exchange Symbol..................... SCG
Price Range on New York Stock Exchange
Composite Tape from January 1, 1995
through September 6, 1995.............. High - $23 1/2 Low - $20 1/2
Closing Price on New York Stock
Exchange on September 6, 1995.......... $22 7/8
Current Indicated Annual Dividend......... $1.44 ($0.36 quarterly)
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<TABLE>
Summary Financial and Operating Information
(Dollar amounts in millions, except per share amounts)
(Unaudited)
<S> <C> <C> <C> <C> <C>
Twelve Months Ended
June 30, December 31,
1995 1994 1993 1992
Income Statement Data:
Operating Revenues:
Electric.......................... $ 984.9 $ 975.4 $ 940.1 $ 829.5
Gas............................... 345.6 342.7 320.2 305.3
Transit........................... 4.1 4.0 3.9 3.6
Total Operating Revenues........... 1,334.6 1,322.1 1,264.2 1,138.4
Operating Expenses................... 1,058.4 1,062.5 1,018.9 928.6
Operating Income..................... 276.2 259.6 245.3 209.8
Net Income (1)....................... 100.6 115.5 165.2 117.7
Earnings Per Weighted Average
Common Share (1)................... $ 1.05 $ 1.22 $ 1.83 $ 1.42
Dividends Declared Per Common
Share ............................. $ 1.43 $ 1.41 $ 1.37 $ 1.34
Weighted Average Common Shares
Outstanding ....................... 96,247,697 94,762,002 90,406,728 82,949,518
Electric Territorial Sales
(megawatt hours)................... 17,070,593 16,837,881 16,880,271 15,794,001
<S> <C> <C> <C> <C> <C>
As of June 30, 1995
Actual Percentage Adjusted(2) Percentage(2)
Capitalization:
Long-Term Debt, Net (3)............... $1,605.9 52.3 $1,605.9
Preferred Stock (not subject to
purchase or sinking funds).......... 26.0 0.8 26.0
Preferred Stock, Net (subject to
purchase or sinking funds) (4)...... 47.6 1.6 47.6
Common Shareholders' Equity........... 1,390.2 45.3
Total Capitalization......... $3,069.7 100.0
Short-Term Debt (5)................... $ 272.1 -
</TABLE>
(1) Retroactively restated for the effect of a change in accounting principle,
adopted in the second quarter of 1995, to the full cost method of
accounting for the Company's oil and gas production operations. Non-cash
charges related to reserve adjustments required by the "ceiling test" under
the full cost method of accounting for oil and gas operations at SCANA
Petroleum Resources, Inc. ("Petroleum Resources") were $.80 per share for
the twelve months ended June 30, 1995 and $.65 per share and $.01 per share
for the years ended December 31, 1994 and 1992, respectively.
(2) Adjusted to reflect the receipt of the net proceeds from the sale of the
Common Stock offered hereby.
(3) Excludes current portion of long-term debt of $101.6 million.
(4) Excludes current portion of preferred stock of $2.3 million.
(5) Includes current portion of long-term debt of $101.6 million and of
preferred stock of $2.3 million. See "Use of Proceeds."
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THE COMPANY
The Company is an energy-based holding company which, through
its subsidiaries, engages principally in electric and natural gas
utility operations and other energy related businesses.
The principal executive offices of the Company are located at
1426 Main Street, Columbia, South Carolina 29201, telephone (803)
748-3000, and its mailing address is Columbia, South Carolina
29218.
Regulated Businesses
The Company's subsidiaries, including SCE&G, South Carolina
Generating Company and South Carolina Pipeline Corporation, are
engaged in the generation, transmission, distribution and sale of
electricity, the purchase, transmission, distribution and sale at
wholesale and retail of natural gas and the provision of urban bus
service, in various areas of South Carolina. These subsidiaries
own substantially all of the Company's consolidated assets and in
1994 contributed substantially all of its consolidated net income.
Nonregulated Businesses
The Company's other subsidiaries are engaged in the businesses
of (i) acquiring, developing and operating oil and gas producing
properties, (ii) marketing natural gas and light hydrocarbons,
(iii) producing, storing, distributing and selling propane, (iv)
fiber optic, video and radio communications, (v) power plant
management and maintenance services, and (vi) real estate
development and sales, which business is currently in liquidation.
RECENT DEVELOPMENTS
On July 10, 1995, SCE&G filed an application with the Public
Service Commission of South Carolina (the "PSC") for an increase in
retail electric rates. The proposed increase of 8.35% would
produce additional revenues of approximately $76.7 million
annually, if approved. SCE&G has requested that the increase be
implemented in two phases. The first phase, an increase in
revenues of approximately $61.8 annually, or 6.73%, would commence
at the time SCE&G's 385 MW generating station currently under
construction near Cope, S.C. begins commercial operation, which is
expected in January 1996. The second phase is planned in January
1997 and would produce additional revenues of approximately $14.9
million annually, or 1.62% more than current rates. No assurance
can be given as to the adequacy or timing of the rate relief that
will be granted by the PSC. Hearings are scheduled to begin during
November 1995.
During the second quarter of 1995, Petroleum Resources changed
from the successful efforts method to the full cost method of
accounting for its oil and gas operations. The Company believes
the full cost method provides a better matching of revenues and
expenses given the change in Petroleum Resources' primary focus
from a purchaser of producing oil and gas properties to a developer
of reserves on its own or others' properties. The financial
statements of prior periods have been restated to apply the new
method retroactively.
USE OF PROCEEDS
The Company intends to use the net proceeds from the sale of
the Common Stock for the reduction of short-term indebtedness,
which totaled approximately $159.7 million at August 31, 1995,
exclusive of current maturities of long-term debt and of preferred
stock, at a weighted average interest rate per annum of 5.93%,
incurred by the Company and its subsidiaries for investment in
utility plant and non-regulated subsidiaries, and for general
corporate purposes.
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DESCRIPTION OF COMMON STOCK
The authorized capital stock of the Company comprises
150,000,000 shares of Common Stock without par value. As of August
31, 1995, 98,286,032 shares of Common Stock were issued and
outstanding.
The following summary of the terms of the Common Stock does
not purport to be complete and is qualified in its entirety by
reference to the terms set forth in the Restated Articles of
Incorporation as amended (the "Articles of Incorporation") and By-
Laws (the "By-Laws") of the Company included as exhibits to the
Registration Statement of which this Prospectus is a part.
Voting
Holders of Common Stock are entitled to one vote, in person or
by proxy, for each share held on the applicable record date with
respect to each matter submitted to a vote at a meeting of
stockholders, and are not entitled to cumulate their votes.
Preemptive Rights
Holders of Common Stock do not have preemptive rights to
subscribe for additional shares when additional shares are offered
for sale by the Company.
Provisions Relating to Change in Control
The Articles of Incorporation and By-Laws contain provisions
which could have the effect of delaying, deferring or preventing a
change in control of the Company. These provisions are summarized
below.
Corporate Governance Provisions
These provisions establish the classification of directors
into three classes, as nearly equal in number of directors as
possible, each class serving for three years, with one class being
elected each year. There are currently fifteen directors (four
directors in a class with a term expiring in 1996, five directors
in a class with a term expiring in 1997 and six directors in a
class with a term expiring in 1998). The Articles of Incorporation
and By-Laws provide (i) that the authorized number of directors may
range from a minimum of nine to a maximum of twenty, as determined
from time to time by the directors; (ii) that directors can be
removed only (x) for cause or (y) otherwise by the affirmative vote
of the holders of 80% of the shares of stock of the Company
entitled to vote; and (iii) that vacancies and newly created
directorships on the Board of Directors can be filled by a majority
vote of the remaining directors then in office, even though less
than a quorum, and that any new director elected to fill a vacancy
will serve until the next stockholders' meeting at which directors
of any class are elected.
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Prevention of Greenmail
The Articles of Incorporation provide that in the absence of
approval by the holders of not less than a majority of the
outstanding shares of the Common Stock (excluding shares held by
Selling Stockholders (as hereinafter defined)), the Company is
precluded from purchasing any of its outstanding Common Stock at a
price known to the Company to be more than the market price from a
Selling Stockholder, unless the purchase by the Company is pursuant
to an offer to purchase any and all of the outstanding shares of
Common Stock. "Selling Stockholder" is defined as any person who
alone or together with others is known to the Company to be the
beneficial owner (which term includes specified holdings by
affiliates or associates as defined in Rule 12b-2 under the
Exchange Act as in effect on January 1, 1985) of more than 3% of
the outstanding Common Stock and who has purchased or agreed to
purchase any shares within the most recent two-year period.
Fair Price Requirements and Consideration of All Relevant
Factors in Certain Business Combinations
The Articles of Incorporation require the approval of the
holders of at least 80% of the voting power of all outstanding
voting stock as a condition to Business Combinations (as
hereinafter defined) with or proposed by any direct or indirect
beneficial owner (as defined in Rule 13d-3 and Rule 13d-5 under the
Exchange Act, as in effect on March 1, 1987) (other than a
subsidiary of the Company or employee benefit plans of the Company)
of more than 10% of the
Company's outstanding capital stock entitled to vote for the
election of directors ( each a "Related Person") and any affiliate
or associate of such person (as defined in Rule 12b-2 under the
Exchange Act, as in effect on March 1, 1987), except in cases in
which (i) the transaction has been approved by a majority of
certain directors who are not Related Persons or affiliates or
associates or representatives of a Related Person and who were
members of the Board of Directors immediately prior to the time
that the Related Person became a Related Person (the "Continuing
Directors"), and certain successors to Continuing Directors who are
not Related Persons or affiliates or associates or representatives
of a Related Person and are recommended to succeed a Continuing
Director by a majority of Continuing Directors, (ii) the Business
Combination is solely between the Company and a subsidiary of the
Company and does not have the direct or indirect effect of
increasing the voting power of a Related Person in any class or
series of capital stock of the Company or any subsidiary of the
Company, or (iii) certain minimum price criteria and procedural
conditions are satisfied.
A "Business Combination" includes the following transactions
when entered into by the Company or a subsidiary of the Company
with, or upon a proposal by or on behalf of, a Related Person: (i)
a merger or consolidation of the Company or any subsidiaries; (ii)
the sale or other disposition other than sales of goods and
services made in the ordinary course of business by the Company or
any subsidiary of assets worth $10,000,000 or more; (iii) the
issuance or transfer by the Company or any subsidiary of any
securities of the Company or the subsidiary (except proportionately
to all stockholders of the Company or such subsidiary); (iv) the
adoption of a plan or proposal to liquidate or dissolve the
Company; (v) any reclassification of securities, recapitalization
or other transaction which has the direct or indirect effect of
increasing the voting power, whether or not then exercisable, of a
Related Person in any class or series of capital stock of the
Company or any of its subsidiaries; or (vi) any agreement or
contract or other arrangement providing directly or indirectly for
any of the foregoing.
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The Board of Directors, when evaluating any offer of another
party to (i) make a tender or exchange offer for any equity
security of the Company, (ii) merge or consolidate the Company with
another corporation, or (iii) purchase or otherwise acquire all or
substantially all of the properties and assets of the Company, may,
in connection with the exercise of its judgment in determining what
is in the best interests of the Company and its stockholders, give
due consideration to (a) all relevant factors, including, without
limitation, the social, legal, environmental and economic effects
on employees, customers, suppliers and other affected persons,
firms and corporations, and on the communities and geographical
areas in which the Company and its subsidiaries operate or are
located and any of the businesses and properties of the Company or
any of its subsidiaries, as well as such other factors as the
directors deem relevant, and (b) not only the consideration being
offered in relation to the then current market price for the
Company's outstanding shares of capital stock, but also in relation
to the then current value of the Company in a freely negotiated
transaction and in relation to the Board of Directors' estimate of
the future value of the Company (including the unrealized value of
its properties and assets) as an independent going concern.
Eighty Percent Vote Provisions
The Articles of Incorporation provisions relating to the
classification of the Board of Directors and appointment of
directors to fill vacancies, removal of an incumbent member of the
Board of Directors without cause and fair price provisions for a
Business Combination require the vote of 80% of the shares of stock
entitled to vote for amendment or repeal.
COMMON STOCK DIVIDENDS AND PRICE RANGE
The Company and its predecessor have paid cash dividends on
the Common Stock in every quarter since the Common Stock was first
publicly sold, and have increased the Common Stock dividend in 42
of the last 43 years. Future dividends will depend on future
earnings, which, in large part, are dependent upon the ability of
SCE&G and the Company's other regulated subsidiaries to obtain
regulatory approval for future rate increases, the cash position
and financial condition of the Company and other factors. At the
current dividend rate, after giving effect to the issuance of the
shares of Common Stock offered hereby, the Company's quarterly
dividend payments on its outstanding Common Stock will be
approximately $35.4 million.
The Company's Investor Plus Plan permits holders of its Common
Stock and holders of SCE&G Preferred Stock to invest optional cash
payments subject to limitations in amount and reinvest dividends in
additional shares of the Company's Common Stock. The prospectus
describing the Plan and an enrollment form are available upon
request to: SCANA Corporation, Columbia, South Carolina 29218,
Attention: Investor Relations and Shareholder Services.
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The Company's Common Stock is traded on the New York Stock
Exchange. The range of the high and low sales prices of the
Company's Common Stock, as reported by The Wall Street Journal as
New York Stock Exchange--Composite Transactions, and dividends
declared per share, are as follows for the periods indicated:
Dividends
Price Range Declared Per
High Low Share
1993
First Quarter................. $23 1/4 $20 $.3425
Second Quarter................ 24 1/8 22 1/2 .3425
Third Quarter................. 25 7/8 23 3/4 .3425
Fourth Quarter................ 26 1/8 23 7/8 .3425
1994
First Quarter................. $25 $22 3/8 $.3525
Second Quarter................ 23 1/4 21 .3525
Third Quarter................. 23 21 3/8 .3525
Fourth Quarter................ 22 1/4 20 1/2 .3525
1995
First Quarter................. $22 1/2 $20 1/2 $.36
Second Quarter................ 21 5/8 20 7/8 .36
Third Quarter (through
September 6, 1995).......... 23 1/2 21 1/8 .36
The last reported sale price of the Common Stock on the New
York Stock Exchange on September 6, 1995 was $22 7/8.
At the Board of Directors meeting held on August 23, 1995 the
Company declared a regular quarterly dividend of $.36 per share on
the Common Stock. The dividend is payable October 1, 1995 to
stockholders of record at the close of business on September 8,
1995.
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UNDERWRITING
The Underwriters named below (the "Underwriters"), for whom
PaineWebber Incorporated and The Robinson-Humphrey Company, Inc.
are acting as representatives (collectively, the
"Representatives"), have severally agreed, subject to the terms and
conditions of the Underwriting Agreement among the Company and the
Underwriters (the "Underwriting Agreement"), to purchase from the
Company, and the Company has agreed to sell to the Underwriters,
the number of shares of Common Stock set forth opposite their names
below at the price set forth on the cover page of this Prospectus.
Underwriters Number of Shares
PaineWebber Incorporated..................
The Robinson-Humphrey Company, Inc........
Total............................................ 4,500,000
The Underwriting Agreement provides that the obligations of
the Underwriters to purchase the shares of Common Stock offered
hereby are subject to certain conditions. The Underwriters are
obligated to purchase all of the shares of Common Stock offered
hereby (other than those described by the over-allotment option
described below), if any are purchased.
The Company has been advised by the Representatives that the
Underwriters propose to offer the shares of Common Stock to the
public at the offering price set forth on the cover page of this
Prospectus and to selected dealers at such price less a concession
not in excess of $ per share, and the Underwriters and such
dealers may reallow a concession not in excess of $ per
share to other dealers. After the public offering of the Common
Stock, the public offering price, concession to selected dealers
and reallowance to other dealers may be changed by the
Representatives.
The Company has agreed that it will not issue, sell, offer to
sell or otherwise dispose of any shares of Common Stock, or rights
to acquire such shares, for a period of 90 days after the date of
this Prospectus without the prior written consent of the
Underwriters, except for the issuance of shares by the Company (i)
pursuant to the Company's Investor Plus Plan, (ii) pursuant to the
Company's Stock Purchase-Savings Plan, or (iii) in connection with
other employee compensation arrangements.
The Company has granted an option to the Underwriters,
exercisable during the 45-day period after the date of the initial
public offering of the shares of Common Stock offered hereby, to
purchase up to an additional 675,000 shares of Common Stock at the
public offering price set forth on the cover page of this
Prospectus less the underwriting discount. The Underwriters may
exercise such option only to cover over-allotments, if any,
incurred in the sale of shares of Common Stock. To the extent such
option is exercised, each Underwriter will become obligated,
subject to certain conditions, to purchase approximately the same
percentage of such additional shares of Common Stock as the
percentage of firm shares it is obligated to purchase pursuant to
the Underwriting Agreement.
The Company has agreed to indemnify the Underwriters against
certain liabilities, including liabilities under the Securities Act
of 1933, as amended, or to contribute to payments that the
Underwriters may be required to make in respect thereof.
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LEGAL OPINIONS
Certain legal matters in connection with the validity of the
Common Stock offered hereby are being passed upon for the Company
by McNair Law Firm, P.A., Columbia, South Carolina and by Asbury H.
Gibbes, Esq. of Columbia, South Carolina, who is Senior Vice
President, General Counsel and Assistant Secretary and a full-time
employee of the Company, and for the Underwriters by Reid & Priest
LLP, New York, New York. Reid & Priest LLP will rely on the
opinion of Asbury H. Gibbes, Esq. with respect to matters of South
Carolina law.
At June 30, 1995, Asbury H. Gibbes, Esq. owned beneficially
8,963 shares of the Company's Common Stock, including shares
acquired by the trustee under its Stock Purchase-Savings Plan by
use of contributions made by Mr. Gibbes and earnings thereon, and
including shares purchased by the Trustee by use of Company
contributions and earnings thereon.
Reid & Priest LLP represents the Company and its subsidiaries
from time to time.
EXPERTS
The consolidated financial statements for the year ended
December 31, 1994, as restated, incorporated in this Prospectus by
reference from the Company's Current Report on Form 8-K dated
September 6, 1995, have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their report, which contains an
explanatory paragraph regarding the change in method of accounting
for the Company's oil and gas operations and is incorporated herein
by reference, and have been so incorporated in reliance upon such
report of such firm given upon their authority as experts in
accounting and auditing.
14
<PAGE>
No person has been authorized
to give any information or to
make any representations in
connection with this offering
other than those contained in
this Prospectus and, if given
or made, such other information 4,500,000 Shares
and representations must not be
relied upon as having been
authorized by the Company or
the Underwriters. Neither the SCANA CORPORATION
delivery of this Prospectus nor
any sale made hereunder shall,
under any circumstances, create Common Stock
any implication that there has
been no change in the affairs
of the Company since the date
hereof or that the information
contained herein is correct as
of any time subsequent to its
date. This Prospectus does not
constitute an offer to sell or
a solicitation of an offer to PROSPECTUS
buy any securities other than
the registered securities to
which it relates. This
Prospectus does not constitute
an offer to sell or a
solicitation of an offer to buy
such securities in any
circumstances in which such
offer or solicitation is
unlawful.
TABLE OF CONTENTS
Page
Available Information.......... 4 PaineWebber Incorporated
Incorporation of Certain
Documents by Reference....... 4 The Robinson-Humphrey
Prospectus Summary ............ 6 Company, Inc.
The Company.................... 8
Recent Developments............ 8
Use of Proceeds................ 8
Description of Common Stock.... 9
Common Stock Dividends and
Price Range.................. 11
Underwriting................... 13
Legal Opinions................. 14
Experts........................ 14 , 1995
15
<PAGE>
PART II
INFORMATION NOT REQUIRED
IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
Securities and Exchange Commission filing fee... $ 41,267
Printing registration statement, prospectus
exhibits and miscellaneous...................... 20,000#
Blue Sky and legal fees......................... 95,000#
Accounting services............................. 15,000#
Miscellaneous................................... 8,733#
Total......................................... $180,000#
# Estimated
16
<PAGE>
Item 15. Indemnification of Directors and Officers
The South Carolina Business Corporation Act of 1988 permits,
and the Registrant's By-Laws require, indemnification of the
Registrant's directors and officers in a variety of circumstances,
which may include indemnification for liabilities under the
Securities Act of 1933, as amended (the "Securities Act"). Under
sections 33-8-510, 33-8-550 and 33-8-560 of the South Carolina
Business Corporation Act of 1988, a South Carolina corporation is
authorized generally to indemnify its directors and officers in
civil or criminal actions if they acted in good faith and
reasonably believed their conduct to be in the best interests of
the corporation and, in the case of criminal actions, had no
reasonable cause to believe that the conduct was unlawful. The
Registrant's By-Laws require indemnification of directors and
officers with respect to expenses actually and necessarily incurred
by them in connection with the defense or settlement of any action,
suit or proceeding in which they are made parties by reason of
having been a director or officer, except in relation to matters as
to which they shall be adjudged to be liable for willful misconduct
in the performance of duty and to such matters as shall be settled
by agreement predicated on the existence of such liability. In
addition, the Registrant carries insurance on behalf of directors,
officers, employees or agents that may cover liabilities under the
Securities Act. As permitted by Section 33-2-102 of the South
Carolina Business Corporation Act of 1988, the Registrant's
Restated Articles of Incorporation provide that no director of the
corporation shall be liable to the corporation or its shareholders
for monetary damages for breach of his fiduciary duty as a director
occurring after April 26, 1989, except for (i) any breach of the
director's duty of loyalty to the Registrant or its shareholders,
(ii) acts or omissions not in good faith or which involve gross
negligence, intentional misconduct or a knowing violation of law,
(iii) certain unlawful distributions or (iv) any transaction from
which the director derived an improper personal benefit.
Item 16. Exhibits
Exhibits required to be filed with this Registration Statement
are listed in the following Exhibit Index. Certain of such
exhibits which have heretofore been filed with the Securities and
Exchange Commission and which are designated by reference to their
exhibit numbers in prior filings are hereby incorporated herein by
reference and made a part hereof.
17
<PAGE>
Item 17. Undertakings
The undersigned Registrant hereby undertakes:
(1) that, for purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this registration statement in reliance
upon Rule 430A and contained in the form of a prospectus filed by
the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under
the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective;
(2) that, for the purpose of determining any liability under
the Securities Act of 1933, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof; and
(3) that, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by
reference in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed
by the final adjudication of such issue.
18
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and
has duly caused this registration statement or amendment thereto to
be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Columbia, State of South Carolina, on
September 6, 1995.
(REGISTRANT) SCANA Corporation
By: s/L. M. Gressette, Jr.
(Name & Title): L. M. Gressette, Jr., Chairman of
the Board, Chief Executive Officer,
President and Director
Pursuant to the requirements of the Securities Act of 1933,
this registration statement or amendment thereto has been signed by
the following persons in the capacities and on the dates indicated.
(i) Principal executive officer:
By: s/L. M. Gressette, Jr.
(Name & Title): L. M. Gressette, Jr., Chairman of
the Board, Chief Executive Officer,
President and Director
Date: September 6, 1995
(ii) Principal financial officer and principal accounting officer:
By: s/W. B. Timmerman
(Name & Title): W. B. Timmerman, Executive Vice
President, Chief Financial Officer,
Controller and Director
Date: September 6, 1995
(iii) Other Directors:
* B. L. Amick; W. B. Bookhart, Jr.; W. T. Cassels, Jr.; Hugh M. Chapman;
J. B. Edwards; E. T. Freeman; B. A. Hagood; W. H. Hipp; B. D. Kenyon;
F. C. McMaster; H. Ponder; J. B. Rhodes; E. C. Wall, Jr.
* Signed on behalf of each of these persons:
s/W. B. Timmerman
(W. B. Timmerman)
(Attorney-in-Fact)
Directors who did not sign:
None
19
<PAGE>
SCANA Corporation
EXHIBIT INDEX
Sequentially
Numbered
Number Pages
1. Underwriting Agreement
Form of Underwriting Agreement (filed herewith)...... 21
2. Plan of acquisition, reorganization, arrangement,
liquidation or succession
Not applicable
4. Instruments defining the rights of security holders,
including indentures
A. Restated Articles of Incorporation of SCANA
Corporation as amended and adopted on April 26,
1989 (Exhibit 3-A to Registration Statement No.
33-49145)
B. Articles of Amendment adopted on April 27, 1995
(filed herewith)................................. 48
C. Copy of By-Laws of SCANA Corporation as
revised and amended on February 15, 1994
(Exhibit 4.2 to Registration Statement 33-56923). #
5. Opinion re legality
Opinion of A. H. Gibbes (Filed herewith)............. 50
8. Opinion re tax matters
Not applicable
12. Statement Re Computation Of Ratios
Not Applicable
15. Letter re unaudited interim financial information
Not applicable
23. Consents Of Experts and Counsel
Consent of Asbury H. Gibbes (Included in his
opinion filed as Exhibit 5)
Consent of Deloitte & Touche LLP (Filed herewith).... 51
24. Power Of Attorney (Filed herewith)................... 52
25. Statement of eligibility of trustee
Not applicable
26. Invitation for competitive bids
Not applicable
27. Financial Data Schedule
Not applicable
28. Information from reports furnished to State
insurance regulatory authorities
Not applicable
99. Additional exhibits
Not applicable
# Incorporated herein by reference as indicated.
20
<PAGE>
EXHIBIT 1
4,500,000 Shares
SCANA CORPORATION
Common Stock
UNDERWRITING AGREEMENT
, 1995
PAINEWEBBER INCORPORATED
THE ROBINSON-HUMPHREY COMPANY, INC.
As Representatives of the
several Underwriters
c/o PaineWebber Incorporated
1285 Avenue of the Americas
New York, New York 10019
SCANA Corporation, a South Carolina corporation (the
"Company"), proposes to sell an aggregate of 4,500,000 shares (the
"Firm Shares") of the Company's Common Stock, no par value per
share (the "Common Stock"), to you and to the other underwriters
named in Schedule I (collectively, the "Underwriters"), for whom
you are acting as representatives (collectively, the
"Representative"). The Company has also agreed to grant to you and
the other Underwriters an option (the "Option") to purchase up to
an additional 675,000 shares of Common Stock (the "Option Shares")
on the terms and for the purposes set forth in Section 1(b). The
Firm Shares and the Option Shares are hereinafter collectively
referred to as the "Shares."
The initial public offering price per share for the
Shares and the purchase price per share for the Shares to be paid
by the several Underwriters shall be agreed upon by the Company and
the Representative, acting on behalf of the several Underwriters,
and such agreement shall be set forth in a separate written
instrument substantially in the form of Exhibit A hereto (the
"Price Determination Agreement"). The Price Determination
Agreement may take the form of an exchange of any standard form of
written telecommunication among the Company and the Representative
and shall specify such applicable information as is indicated in
Exhibit A hereto. The offering of the Shares will be governed by
this Agreement, as supplemented by the Price Determination
Agreement. From and after the date of the execution and delivery
of the Price Determination Agreement, this Agreement shall be
deemed to incorporate, and, unless the context otherwise indicates,
all references contained herein to "this Agreement" and to the
phrase "herein" shall be deemed to include, the Price Determination
Agreement.
The Company confirms as follows its agreements with the
Representative and the several other Underwriters.
21
<PAGE>
1. Agreement to Sell and Purchase.
(a) On the basis of the representations, warranties
and agreements of the Company herein contained and subject to all
the terms and conditions of this Agreement, the Company agrees to
sell to each Underwriter named below, and each Underwriter,
severally and not jointly, agrees to purchase from the Company at
the purchase price per share for the Firm Shares to be agreed upon
by the Representative and the Company in accordance with
Section 1(c) or 1(d) and set forth in the Price Determination
Agreement, the number of Firm Shares set forth opposite the name of
such Underwriter in Schedule I, plus such additional number of Firm
Shares which such Underwriter may become obligated to purchase
pursuant to Section 8 hereof. If the Company elects to rely on
Rule 430A (as hereinafter defined), Schedule I may be attached to
the Price Determination Agreement.
(b) Subject to all the terms and conditions of this
Agreement, the Company grants the Option to the several
Underwriters to purchase, severally and not jointly, up to 675,000
Option Shares from the Company at the same price per share as the
Underwriters shall pay for the Firm Shares. The Option may be
exercised only to cover over-allotments in the sale of the Firm
Shares by the Underwriters and may be exercised in whole or in part
at any time (but not more than once) on or before the 45th day
after the date of this Agreement (or, if the Company has elected to
rely on Rule 430A, on or before the 45th day after the date of the
Price Determination Agreement), upon written or telegraphic notice
(the "Option Shares Notice") by the Representative to the Company
no later than 12:00 noon, New York City time, at least two and no
more than five business days before the date specified for closing
in the Option Shares Notice (the "Option Closing Date") setting
forth the aggregate number of Option Shares to be purchased and the
time and date for such purchase. On the Option Closing Date, the
Company will issue and sell to the Underwriters the number of
Option Shares set forth in the Option Shares Notice, and each
Underwriter will purchase such percentage of the Option Shares as
is equal to the percentage of Firm Shares that such Underwriter is
purchasing, as adjusted by the Representative in such manner as it
deems advisable to avoid fractional shares.
(c) If the Company has elected not to rely on
Rule 430A, the initial public offering price per share for the Firm
Shares and the purchase price per share for the Firm Shares to be
paid by the several Underwriters shall be agreed upon and set forth
in the Price Determination Agreement, which shall be dated the date
hereof, and an amendment to the Registration Statement (as
hereinafter defined) containing such per share price information
shall be filed before the Registration Statement becomes effective.
(d) If the Company has elected to rely on Rule 430A,
the initial public offering price per share for the Firm Shares and
the purchase price per share for the Firm Shares to be paid by the
several Underwriters shall be agreed upon and set forth in the
Price Determination Agreement. In the event that the Price
Determination Agreement has not been executed by the close of
business on the fifteenth business day following the date on which
the Registration Statement becomes effective, this Agreement shall
terminate forthwith, without liability of any party to any other
party except that Section 6 shall remain in effect.
22
<PAGE>
2. Delivery and Payment. Delivery of the Firm Shares
shall be made to the Representative for the accounts of the
Underwriters against payment of the purchase price by certified or
official bank check payable in New York Clearing House (next-day)
funds to the order of the Company at the office of Reid & Priest
LLP, 40 West 57th Street, New York, New York 10019. Such payments
shall be made at 10:00 a.m., New York City time, on the fourth
business day following the date of this Agreement or, if the
Company has elected to rely on Rule 430A, the fourth business day
after the date on which the first bona fide offering of the Shares
to the public is made by the Underwriters or at such time on such
other date, not later than seven business days after the date of
this Agreement, as may be agreed upon by the Company and the
Representative (such date is hereinafter referred to as the
"Closing Date").
To the extent the Option is exercised, delivery of the
Option Shares against payment by the Underwriters (in the manner
specified above) will take place at the offices specified above for
the Closing Date at the time and date (which may be the Closing
Date) specified in the Option Shares Notice.
Certificates evidencing the Shares shall be in definitive
form and shall be registered in such names and in such
denominations as the Representative shall request at least two
business days prior to the Closing Date or the Option Closing Date,
as the case may be, by written notice to the Company. For the
purpose of expediting the checking and packaging of certificates
for the Shares, the Company agrees to make such certificates
available for inspection at least 24 hours prior to the Closing
Date or the Option Closing Date, as the case may be.
The cost of original issue tax stamps, if any, in
connection with the issuance and delivery of the Firm Shares and
Option Shares by the Company to the respective Underwriters shall
be borne by the Company. The Company will pay and save each
Underwriter and any subsequent holder of the Shares harmless from
any and all liabilities with respect to or resulting from any
failure or delay in paying Federal and state stamp and other
transfer taxes, if any, which may be payable or determined to be
payable in connection with the original issuance or sale to such
Underwriter of the Firm Shares and Option Shares.
3. Representations and Warranties of the Company.
The Company represents, warrants and covenants to each
Underwriter that:
(a) The Company meets the requirements for use of
Form S-3 and a registration statement (Registration No. )
on Form S-3 relating to the Shares, including a preliminary
prospectus and such amendments to such registration statement as
may have been required to the date of this Agreement, has been
prepared by the Company under the provisions of the Securities Act
of 1933, as amended (the "Act"), and the rules and regulations
(collectively referred to as the "Rules and Regulations") of the
Securities and Exchange Commission (the "Commission") thereunder,
and has been filed with the Commission. The term "preliminary
prospectus" as used herein means a preliminary prospectus as
contemplated by Rule 430 or Rule 430A ("Rule 430A") of the Rules
and Regulations included at any time as part of the registration
statement. Copies of such registration statement and amendments
and of each related preliminary prospectus have been delivered to
the Representative. If such registration statement has not become
effective, a further amendment to such registration statement,
including a form of final prospectus, necessary to permit such
registration statement to become effective will be filed promptly
by the Company with the Commission. If such registration statement
has become effective, a final prospectus containing information
permitted to be omitted at the time of
23
<PAGE>
effectiveness by Rule 430A will be filed by the Company with the
Commission in accordance with Rule 424(b) of the Rules and
Regulations promptly after execution and delivery of the Price
Determination Agreement. The term "Registration Statement" means
the registration statement as amended at the time it becomes or
became effective (the "Effective Date"), including financial
statements and all exhibits and any information deemed to be
included by Rule 430A. The term "Prospectus" means the prospectus
as first filed with the Commission pursuant to Rule 424(b) of the
Rules and Regulations or, if no such filing is required, the form
of final prospectus included in the Registration Statement at the
Effective Date. Any reference herein to the Registration
Statement, 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 which were filed
under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), on or before the Effective Date or the date of
such preliminary prospectus or the Prospectus, as the case may be.
Any reference herein to the terms "amend," "amendment" or
"supplement" with respect to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to refer
to and include the filing of any document under the Exchange Act
after the Effective Date, or the date of any preliminary prospectus
or the Prospectus, as the case may be, and deemed to be
incorporated therein by reference.
(b) On the Effective Date, the date the Prospectus
is first filed with the Commission pursuant to Rule 424(b) (if
required), at all times subsequent to and including the Closing
Date and, if later, the Option Closing Date and when any post-
effective amendment to the Registration Statement becomes effective
or any amendment or supplement to the Prospectus is filed with the
Commission, the Registration Statement and the Prospectus (as
amended or as supplemented if the Company shall have filed with the
Commission any amendment or supplement thereto), including the
financial statements included or incorporated by reference in the
Prospectus, did or will comply with all applicable provisions of
the Act, the Exchange Act, the rules and regulations thereunder
(the "Exchange Act Rules and Regulations") and the Rules and
Regulations and will contain all statements required to be stated
therein in accordance with the Act, the Exchange Act, the Exchange
Act Rules and Regulations and the Rules and Regulations. On the
Effective Date and when any post-effective amendment to the
Registration Statement becomes effective, no part of the
Registration Statement or any such amendment did or will contain
any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make
the statements therein not misleading. At the Effective Date, the
date the Prospectus or any amendment or supplement to the
Prospectus is filed with the Commission and at the Closing Date
and, if later, the Option Closing Date, the Prospectus did not or
will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading. The foregoing representations and warranties in
this Section 3(b) do not apply to any statements or omissions made
in reliance on and in conformity with information relating to any
Underwriter furnished in writing to the Company by the
Representative specifically for inclusion in the Registration
Statement or the Prospectus or any amendment or supplement thereto.
For all purposes of this Agreement, the amounts of the selling
concession and reallowance set forth under the caption
"Underwriting" set forth in the Prospectus and any information
required under the Rules and Regulations or the Exchange Act Rules
and Regulations with respect to the date of commencement of
stabilizing activities or any passive market making constitute the
only information relating to any Underwriter furnished in writing
to the Company by the Representative specifically for inclusion in
the Registration Statement, the preliminary prospectus or the
Prospectus. The Company has not distributed any offering material
in connection with the offering or sale of the Shares other than
the Registration Statement, the preliminary prospectus, the
Prospectus or any other materials, if any, permitted by the Act.
24
<PAGE>
(c) The documents which are incorporated by
reference in the preliminary prospectus and the Prospectus or from
which information is so incorporated by reference, when they became
effective or were filed with the Commission, as the case may be,
complied in all material respects with the requirements of the Act
or the Exchange Act, as applicable, the Exchange Act Rules and
Regulations and the Rules and Regulations; and any documents so
filed and incorporated by reference subsequent to the Effective
Date shall, when they are filed with the Commission, conform in all
material respects with the requirements of the Act and the Exchange
Act, as applicable, the Exchange Act Rules and Regulations and the
Rules and Regulations.
(d) The Company and each of its subsidiaries is,
and at the Closing Date, and if later, the Option Closing Date,
will be, a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation. The
Company and each of its subsidiaries has, and at the Closing Date,
and if later, the Option Closing Date, will have, full power and
authority to conduct all the activities conducted by it, to own or
lease all the assets owned or leased by it and to conduct its
business as described in the Registration Statement and the
Prospectus. The Company and each of its subsidiaries is, and at
the Closing Date, and if later, the Option Closing Date, will be,
duly licensed or qualified to do business and in good standing as
a foreign corporation in each jurisdiction which requires licensing
or qualification. The Company, either directly or indirectly, is
the sole record and beneficial owner of all of the capital stock of
each of its subsidiaries, except as disclosed in the Registration
Statement or the Prospectus.
(e) The outstanding shares of Common Stock have
been, and the Shares to be issued and sold by the Company upon such
issuance will be, duly authorized, validly issued, fully paid and
nonassessable and will not be subject to any preemptive or similar
right. The description of the Common Stock in the Registration
Statement and the Prospectus is, and at the Closing Date, and if
later, the Option Closing Date, will be, complete and accurate in
all material respects. Except as set forth in the Prospectus
for shares issuable under the Company's Investor Plus Plan and
Stock Purchase-Savings Plan, the Company does not have outstanding,
and at the Closing Date, and if later, the Option Closing Date,
will not have outstanding, any options to purchase, or any rights
or warrants to subscribe for, or any securities or obligations
convertible into, or any contracts or commitments to issue or sell,
any shares of Common Stock, any shares of capital stock of any of
its subsidiaries or any such warrants, convertible securities or
obligations.
(f) The financial statements and schedules included
or incorporated by reference in the Registration Statement or the
Prospectus present fairly the consolidated financial condition of
the Company as of the respective dates thereof and the consolidated
results of operations and cash flows of the Company for the
respective periods covered thereby, all in conformity with
generally accepted accounting principles applied on a consistent
basis throughout the entire period involved, except as otherwise
disclosed in the Prospectus. No other financial statements or
schedules of the Company are required by the Act, the Exchange Act
or the Rules and Regulations to be included in the Registration
Statement or the Prospectus. Deloitte & Touche LLP (the
"Accountants"), who have reported on such year-end financial
statements and schedules, are independent accountants with respect
to the Company as required by the Act and the Rules and
Regulations. The statements included in the Registration Statement
with respect to the Accountants pursuant to Rule 509 of Regulation
S-K of the Rules and Regulations are true and correct in all
material respects.
25
<PAGE>
(g) The Company maintains a system of internal
accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management's
general or specific authorization; (ii) transactions are recorded
as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is
permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(h) Subsequent to the respective dates as of which
information is given in the Registration Statement and the
Prospectus and prior to the Closing Date, and if later, the Option
Closing Date, except as set forth in or contemplated by the
Registration Statement and the Prospectus, (i) there has not been
and will not have been any change in the capitalization of the
Company, except for shares of Common Stock issued pursuant to the
Company's Investor Plus Plan and the Company's Stock Purchase-
Savings Plan, nor shall there have been any change which is
reasonably expected to have a materially adverse effect on the
business, properties, business prospects, condition (financial or
otherwise) or results of operations of the Company and its
subsidiaries considered as one enterprise, (ii) neither the Company
nor any of its subsidiaries has incurred nor will it incur any
liabilities or obligations, direct or contingent, nor has it
entered into nor will it enter into any transactions other than
pursuant to this Agreement and the transactions referred to herein,
other than liabilities, obligations, and transactions which are not
material to the business, properties, business prospects, condition
(financial or otherwise) or results of operations of the Company
and its subsidiaries considered as one enterprise, and (iii) the
Company has not and will not have paid or declared any dividends or
other distributions of any kind on any class of its capital stock,
except for regular quarterly dividends on the Common Stock of the
Company in an amount not exceeding $.36 per share per quarter.
(i) The Company is a "public utility holding
company" within the meaning of the Public Utility Holding Company
Act of 1935, as amended, but is exempt from registration as such
under such Act; and the Company is not subject to registration
under the Investment Company Act of 1940, as amended.
(j) Except as set forth in the Registration
Statement and the Prospectus, there are no actions, suits or
proceedings pending or threatened against or affecting the Company
or any of its subsidiaries or any of their respective officers in
their capacity as such, before or by any Federal or state court,
commission, regulatory body, administrative agency or other
governmental body, domestic or foreign, wherein an unfavorable
ruling, decision or finding would be reasonably expected to have a
materially adverse effect on the business, properties, business
prospects, condition (financial or otherwise) or results of
operations of the Company and its subsidiaries considered as one
enterprise.
(k) The Company and each of its subsidiaries have,
and at the Closing Date, and if later, the Option Closing Date,
will have, (i) all material governmental licenses, permits,
consents, orders, approvals and other authorizations necessary to
carry on its business as contemplated in the Prospectus,
(ii) complied in all material respects with all laws, regulations
and orders applicable to it or its business and (iii) performed in
all material respects the obligations required to be performed by
it, and is not, and at the Closing Date, and if later, the Option
Closing Date, will not be, in default, under any indenture,
mortgage, deed of trust, voting trust agreement, loan agreement,
bond, debenture, note agreement, lease, contract or other agreement
or instrument (collectively, a "contract or other agreement") to
which it is a party or by which its property is bound or affected,
except for such defaults as are not reasonably expected to have a
materially adverse effect on the business, properties, business
prospects, condition (financial or otherwise) or results of
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operations of the Company and its subsidiaries considered as one
enterprise. To the best knowledge of the Company and each of its
subsidiaries, no other party under any material contract or
other agreement to which it is a party is in
default in any respect thereunder. Neither the Company nor any of
its subsidiaries is, nor at the Closing Date, and if later, the
Option Closing Date, will any of them be, in violation of any
provision of its articles of incorporation or by-laws.
(l) No consent, approval, authorization or order
of, or any filing or declaration with, any court or governmental
agency or body is required for the consummation by the Company of
the transactions on its part herein contemplated, except such as
have been obtained under the Act or the Rules and Regulations and
such as may be required under state securities or Blue Sky laws or
the by-laws and rules of the National Association of Securities
Dealers, Inc. (the "NASD") in connection with the purchase and
distribution by the Underwriters of the Shares.
(m) The Company has full corporate power and
authority to enter into this Agreement. This Agreement has been
duly authorized, executed and delivered by the Company and,
assuming due authorization, execution and delivery hereof by the
Underwriters, constitutes a valid and binding agreement of the
Company enforceable against the Company in accordance with the
terms hereof. The performance of this Agreement and the
consummation of the transactions contemplated hereby will not
result in the creation or imposition of any lien, charge or
encumbrance upon any of the assets of the Company or any of its
subsidiaries pursuant to the terms or provisions of, or result in
a breach or violation of any of the terms or provisions of, or
constitute a default under, or give any other party a right to
terminate any of its obligations under, or result in the
acceleration of any obligation under, the articles of incorporation
or by-laws of the Company or any of its subsidiaries, any contract
or other agreement to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries or
any of their properties is bound or affected, or violate or
conflict with any judgment, ruling, decree, order, statute, rule or
regulation of any court or other governmental agency or body
applicable to the business or properties of the Company or any of
its subsidiaries, except for liens, charges, encumbrances,
breaches, violations, defaults or conflicts which are not
reasonably expected to have a materially adverse effect on the
business, properties, business prospects, condition (financial or
otherwise) or results of operations of the Company and its
subsidiaries considered as one enterprise.
(n) The Company and each of its subsidiaries has
good and marketable title to all properties and assets described in
the Prospectus as owned by it, free and clear of all liens,
charges, encumbrances or restrictions, except such as are described
in the Prospectus or are not material to the business, properties,
business prospects, condition (financial or otherwise) or results
of operations of the Company or its subsidiaries considered as one
enterprise. The Company and each of its subsidiaries has valid,
subsisting and enforceable leases for the properties described in
the Prospectus as leased by it, with such exceptions as are not
material and do not materially interfere with the use made and
proposed to be made of such properties by the Company and its
subsidiaries.
(o) There is no document or contract of a character
required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration
Statement which is not described or filed as required. All such
contracts to which the Company or any of its subsidiaries is a
party have been duly authorized, executed and delivered by the
Company or such of its subsidiaries, constitute valid and binding
agreements of the Company or such of its subsidiaries and are
enforceable against the Company or such of its subsidiaries in
accordance with the terms thereof.
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<PAGE>
(p) No statement, representation, warranty or
covenant made by the Company in this Agreement or made in any
certificate or document required by this Agreement to be delivered
to the Representative was or will be, when made, inaccurate, untrue
or incorrect.
(q) Neither the Company nor any of its directors,
officers or controlling persons has taken, directly or indirectly,
any action intended, or which might reasonably be expected, to
cause or result, under the Act or otherwise, in, or which has
constituted, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Shares.
(r) No holder of securities of the Company has
rights to the registration of any securities of the Company because
of the filing of the Registration Statement.
(s) Prior to the Closing Date, the Shares will be
duly authorized for listing by the New York Stock Exchange upon
official notice of issuance.
(t) Neither the Company nor any of its subsidiaries
is involved in any material labor dispute nor, to the knowledge of
the Company, is any such dispute threatened.
(u) The Company and its subsidiaries own, or are
licensed or otherwise have the full exclusive right to use, all
material trademarks and trade names which are used in or necessary
for the conduct of their respective businesses as described in the
Prospectus. No claims have been asserted by any person to the use
of any such trademarks or trade names or challenging or questioning
the validity or effectiveness of any such trademark or trade name.
The use, in connection with the business and operations of the
Company and its subsidiaries, of such trademarks and trade names
does not, to the Company's knowledge, infringe on the rights of any
person.
(v) Neither the Company nor any of its subsidiaries
nor, to the Company's knowledge, any employee or agent of the
Company or any of its subsidiaries, has made any payment of funds
of the Company or any of its subsidiaries or received or retained
any funds in violation of any law, rule or regulation or of a
character required to be disclosed in the Prospectus.
(w) The Company has duly registered with the
Commission as a transfer agent, within the meaning of the Exchange
Act, with respect to the Common Stock, and is in compliance with
the Exchange Act Rules and Regulations with respect to its
activities as transfer agent.
4. Agreements of the Company.
The Company agrees with the several Underwriters as
follows:
(a) The Company will not, either prior to the
Effective Date or thereafter during such period as the Prospectus
is required by law to be delivered in connection with sales of the
Shares by an Underwriter or dealer, file any amendment or
supplement to the Registration Statement or the Prospectus, unless
a copy thereof shall first have been submitted to the
Representative within a reasonable period of time prior to the
filing thereof and the Representative shall not have objected
thereto in good faith.
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<PAGE>
(b) The Company will use its best efforts to cause
the Registration Statement to become effective, and will notify the
Representative promptly, and will confirm such advice in writing,
(1) when the Registration Statement has become effective and when
any post-effective amendment thereto becomes effective, (2) of any
request by the Commission for amendments or supplements to the
Registration Statement or the Prospectus or for additional
information, (3) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for that purpose or the threat
thereof, (4) of the happening of any event during the period
mentioned in the second sentence of Section 4(e) that in the
judgment of the Company makes any statement made in the
Registration Statement or the Prospectus untrue in any material
respect or that requires the making of any changes in the
Registration Statement or the Prospectus in order to make the
statements therein, in light of the circumstances in which they are
made, not misleading and (5) of receipt by the Company or any
representative or attorney of the Company of any other
communication from the Commission relating to the Company, the
Registration Statement, any preliminary prospectus or the
Prospectus. If at any time the Commission shall issue any
order suspending the effectiveness of the Registration Statement,
the Company will make every reasonable effort to obtain the
withdrawal of such order at the earliest possible moment. If the
Company has omitted any information from the Registration Statement
pursuant to Rule 430A, the Company will use its best efforts to
comply with the provisions of and make all requisite filings with
the Commission pursuant to said Rule 430A and to notify the
Representative promptly of all such filings.
(c) The Company will furnish to the Representative,
without charge, two signed copies of the Registration Statement and
of any post-effective amendment thereto, including financial
statements and schedules, and all exhibits thereto (including any
document filed under the Exchange Act and deemed to be incorporated
by reference into the Prospectus), and will furnish to the
Representative, without charge, for transmittal to each of the
other Underwriters, a copy of the Registration Statement and any
post-effective amendment thereto, including financial statements
and schedules but without exhibits.
(d) The Company will comply with all the provisions
of any undertakings contained in the Registration Statement.
(e) On the Effective Date, and thereafter from time
to time, the Company will deliver to each of the Underwriters,
without charge, as many copies of the Prospectus or any amendment
or supplement thereto as the Representative may reasonably request.
The Company consents to the use of the Prospectus or any amendment
or supplement thereto by the several Underwriters and by all
dealers to which the Shares may be sold, both in connection with
the offering or sale of the Shares and for any period of time
thereafter during which the Prospectus is required by law to be
delivered in connection therewith. If during such period of time
any event shall occur which in the judgment of the Company or
counsel to the Underwriters should be set forth in the Prospectus
in order to make any statement therein, in the light of the
circumstances under which it was made, not misleading, or if it is
necessary to supplement or amend the Prospectus to comply with law,
the Company will forthwith prepare and duly file with the
Commission an appropriate supplement or amendment thereto, and will
deliver to each of the Underwriters, without charge, such number of
copies thereof as the Representative may reasonably request. The
Company shall not file any document under the Exchange Act before
the termination of the offering of the Shares by the Underwriters
if such document would be deemed to be incorporated by reference
into the Prospectus which is not approved by the Representative
after reasonable notice thereof.
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<PAGE>
(f) Prior to any public offering of the Shares by
the Underwriters, the Company will cooperate with the
Representative and counsel to the Underwriters in connection with
the registration or qualification of the Shares for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the
Representative may request; provided, that in no event shall the
Company be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action which would
subject it to general service of process in any jurisdiction where
it is not now so subject.
(g) During the period of five years commencing on
the Effective Date, the Company will furnish to the Representative
and each other Underwriter who may so request copies of such
financial statements and other periodic and special reports as the
Company may from time to time distribute generally to the holders
of any class of its capital stock, and will furnish to the
Representative and each other Underwriter who may so request a copy
of each annual or other report it shall be required to file with
the Commission.
(h) The Company will make generally available to
holders of its securities as soon as may be practicable but in no
event later than the last day of the fifteenth full calendar month
following the calendar quarter in which the Effective Date falls,
an earning statement (which need not be audited but shall be in
reasonable detail) for a period of 12 months ended commencing after
the Effective Date, and satisfying the provisions of Section 11(a)
of the Act (including Rule 158 of the Rules and Regulations).
(i) Whether or not the transactions contemplated by
this Agreement are consummated or this Agreement is terminated, the
Company will pay, or reimburse if paid by the Representative, all
costs and expenses incident to the performance of the obligations
of the Company under this Agreement, including but not limited to
costs and expenses of or relating to (1) the preparation, printing
and filing of the Registration Statement and exhibits to it, each
preliminary prospectus, the Prospectus and any amendment or supple-
ment to the Registration Statement or the Prospectus, (2) the
preparation and delivery of certificates representing the Shares,
(3) furnishing (including costs of shipping and mailing) such
copies of the Registration Statement, the Prospectus and any
preliminary prospectus, and all amendments and supplements thereto,
as may be requested for use in connection with the offering and
sale of the Shares by the Underwriters or by dealers to whom Shares
may be sold, (4) the listing of the Shares on the New York Stock
Exchange, (5) any filings required to be made by the Underwriters
with the NASD, and the fees, disbursements and other charges of
counsel for the Underwriters in connection therewith, (6) the
registration or qualification of the Shares for offer and sale
under the securities or Blue Sky laws of such jurisdictions
designated pursuant to Section 4(f), including the fees,
disbursements and other charges of counsel to the Underwriters in
connection therewith, and the preparation and printing of
preliminary, supplemental and final Blue Sky memoranda, (7) counsel
to the Company and (8) the transfer agent for the Shares.
(j) If this Agreement shall be terminated by the
Company pursuant to any of the provisions hereof (otherwise than
pursuant to Section 8) or if for any reason the Company shall be
unable to perform its obligations hereunder, the Company will
reimburse the several Underwriters for all out-of-pocket expenses
(including the fees, disbursements and other charges of counsel to
the Underwriters) reasonably incurred by them in connection
herewith.
(k) The Company will not at any time, directly or
indirectly, take any action intended, or which might reasonably be
expected, to cause or result in, or which will constitute,
stabilization of the price of the shares of Common Stock to
facilitate the sale or resale of any of the Shares.
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<PAGE>
(l) The Company will apply the net proceeds from
the offering and sale of the Shares to be sold by the Company in
the manner set forth in the Prospectus under "Use of Proceeds."
(m) The Company will not for a period of 90 days
after the commencement of the public offering of the Shares,
without the prior written consent of the Representative, sell,
contract to sell or otherwise dispose of any shares of Common Stock
or rights to acquire such shares (other than pursuant to the
Company's Investor Plus Plan, the Company's Stock Purchase-Savings
Plan or in connection with other employee incentive compensation
arrangements).
5. Conditions of the Obligations of the Underwriters.
In addition to the execution and delivery of the
Price Determination Agreement, the obligations of each Underwriter
hereunder are subject to the following conditions:
(a) Notification that the Registration Statement
has become effective shall be received by the Representative not
later than 5:00 p.m., New York City time, on the date of this
Agreement or at such later date and time as shall be consented to
in writing by the Representative and all filings required by Rule
424 of the Rules and Regulations and Rule 430A shall have been
made.
(b) (i) No stop order suspending the effectiveness
of the Registration Statement shall have been issued and no
proceedings for that purpose shall be pending or threatened by the
Commission, (ii) no order suspending the effectiveness of the
Registration Statement or the qualification or registration of the
Shares under the securities or Blue Sky laws of any jurisdiction
shall be in effect and no proceeding for such purpose shall be
pending before or threatened or contemplated by the Commission or
the authorities of any such jurisdiction, (iii) any request for
additional information on the part of the staff of the Commission
or any such authorities shall have been complied with to the
satisfaction of the staff of the Commission or such authorities and
(iv) after the date hereof no amendment or supplement to the
Registration Statement or the Prospectus shall have been filed
unless a copy thereof was first submitted to the Representative and
the Representative did not object thereto in good faith, and the
Representative shall have received certificates, dated the Closing
Date and the Option Closing Date and signed by the Chief Executive
Officer or the Chairman of the Board of Directors of the Company
and the Chief Financial Officer of the Company (who may, as to
proceedings threatened, rely upon the best of their information and
belief), to the effect of clauses (i), (ii) and (iii).
(c) Since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, (i) there shall not have been a material adverse change
in the general affairs, business, business prospects, properties,
management, condition (financial or otherwise) or results of
operations of the Company and its subsidiaries considered as one
enterprise, whether or not arising from transactions in the
ordinary course of business, in each case other than as set forth
in or contemplated by the Registration Statement and the Prospectus
and (ii) neither the Company nor any of its subsidiaries shall have
sustained any material loss or interference with its business
or properties from fire, explosion, flood or other casualty,
whether or not covered by insurance, or from any labor dispute or
any court or legislative or other governmental action, order or
decree, which is not set forth in the Registration Statement and
the Prospectus, if in the judgment of the Representative any such
development makes it impracticable or inadvisable to consummate the
sale and delivery of the Shares by the Underwriters at the initial
public offering price.
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(d) Since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, there shall have been no litigation or other proceeding
instituted against the Company or any of its subsidiaries or any of
their respective officers or directors in their capacities as such,
before or by any Federal, state or local court, commission,
regulatory body, administrative agency or other governmental body,
domestic or foreign, in which litigation or proceeding an
unfavorable ruling, decision or finding would be reasonably
expected to have a materially adverse effect on the business,
properties, business prospects, condition (financial or otherwise)
or results of operations of the Company and its subsidiaries
considered as one enterprise.
(e) Each of the representations and warranties of
the Company contained herein shall be true and correct in all
material respects at the Closing Date and, with respect to the
Option Shares, at the Option Closing Date, as if made at the
Closing Date and, with respect to the Option Shares, at the Option
Closing Date, and all covenants and agreements herein contained to
be performed on the part of the Company and all conditions herein
contained to be fulfilled or complied with by the Company at or
prior to the Closing Date and, with respect to the Option Shares,
at or prior to the Option Closing Date, shall have been duly
performed, fulfilled or complied with.
(f) The Representative shall have received
opinions, dated the Closing Date and, with respect to the Option
Shares, the Option Closing Date, and satisfactory in form and
substance to counsel for the Underwriters, from Asbury H. Gibbes,
Esquire, and McNair Law Firm, P.A., counsel to the Company, in
substantially the respective forms set forth in Exhibit B and
Exhibit C.
(g) The Representative shall have received
opinions, dated the Closing Date and, with respect to the Option
Shares, the Option Closing Date, from Reid & Priest LLP, counsel to
the Underwriters, with respect to the Registration Statement, the
Prospectus and this Agreement, which opinion shall be satisfactory
in all respects to the Representative.
(h) Concurrently with the execution and delivery of
this Agreement, or, if the Company elects to rely on Rule 430A, on
the date of the Prospectus, the Accountants shall have furnished to
the Representative a letter, dated the date of its delivery,
addressed to the Representative and in form and substance
satisfactory to the Representative, confirming that they are
independent accountants with respect to the Company as required by
the Act and the Rules and Regulations and with respect to the
financial and other statistical and numerical information contained
in the Registration Statement or incorporated by reference therein.
At the Closing Date and, as to the Option Shares, the Option
Closing Date, the Accountants shall have furnished to the
Representative a letter, dated the date of its delivery, which
shall confirm, on the basis of a review in accordance with the
procedures set forth in the letter from the Accountants, that
nothing has come to their attention during the period from the
date of the letter referred to in the prior sentence to a date
(specified in the letter) not more than five days prior to the
Closing Date and the Option Closing Date which would require any
change in their letter dated the date hereof, or, if the Company
elects to rely on Rule 430A, dated the date of the Prospectus, if
it were required to be dated and delivered at the Closing Date and
the Option Closing Date.
(i) Concurrently with the execution and delivery of
this Agreement or, if the Company elects to rely on Rule 430A, on
the date of the Prospectus, and at the Closing Date and, as to the
Option Shares, the Option Closing Date, there shall be furnished to
the Representative an accurate certificate, dated the date of its
delivery, signed by each of the Chief Executive Officer and the
Chief Financial Officer of the Company, in form and substance
satisfactory to the Representative, to the effect that:
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<PAGE>
(i) Each signer of such certificate has
carefully examined the Registration Statement and the Prospectus
(including any documents filed under the Exchange Act and deemed to
be incorporated by reference into the Prospectus) and (A) as of the
date of such certificate, such documents are true and correct in
all material respects and do not omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein not untrue or misleading and (B) in the case of
the certificate delivered at the Closing Date and the Option
Closing Date, since the Effective Date no event has occurred as
a result of which it is necessary to amend or supplement the Pro-
spectus in order to make the statements therein not untrue or
misleading in any material respect and there has been no document
required to be filed under the Exchange Act and the Exchange Act
Rules and Regulations that upon such filing would be deemed to be
incorporated by reference into the Prospectus that has not been so
filed.
(ii) Each of the representations and
warranties of the Company contained in this Agreement were, when
originally made, and are, at the time such certificate is
delivered, true and correct in all material respects.
(iii) Each of the covenants required
herein to be performed by the Company on or prior to the delivery
of such certificate has been duly, timely and fully performed and
each condition herein required to be complied with by the Company
on or prior to the date of such certificate has been duly, timely
and fully complied with.
(j) The Shares shall be qualified for sale in such
states as the Representative may reasonably request, each such
qualification shall be in effect and not subject to any stop order
or other proceeding on the Closing Date and the Option Closing
Date.
(k) Prior to the Closing Date, the Shares shall
have been duly authorized for listing by the New York Stock
Exchange upon official notice of issuance.
(l) The Company shall have furnished to the
Representative such certificates, in addition to those specifically
mentioned herein, as the Representative may have reasonably
requested as to the accuracy and completeness at the Closing Date
and the Option Closing Date of any statement in the Registration
Statement or the Prospectus or any documents filed under the
Exchange Act and deemed to be incorporated by reference into the
Prospectus, as to the accuracy at the Closing Date and the Option
Closing Date of the representations and warranties of the Company
herein, as to the performance by the Company of its obligations
hereunder, or as to the fulfillment of the conditions concurrent
and precedent to the obligations hereunder of the Representative.
6. Indemnification.
(a) The Company will indemnify and hold harmless
each Underwriter, the directors, officers, employees and agents of
each Underwriter and each person, if any, who controls each
Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act from and against any and all losses, claims,
liabilities, expenses and damages (including any and all
investigative, legal and other expenses reasonably incurred in
connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claim asserted), to which they, or any of
them, may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, liabilities, expenses or
damages arise out of or are based on any untrue statement or
alleged untrue statement of a material fact contained in any
33
<PAGE>
preliminary prospectus, the Registration Statement or the
Prospectus or any amendment or supplement to the Registration
Statement or the Prospectus or in any documents filed under the
Exchange Act and deemed to be incorporated by reference into the
Prospectus, or the omission or alleged omission to state in such
document a material fact required to be stated in it or necessary
to make the statements in it not misleading, provided that the
Company will not be liable to the extent that such loss, claim,
liability, expense or damage arises from the sale of the Shares in
the public offering to any person by an Underwriter and is based on
an untrue statement or omission or alleged untrue statement or
omission made in reliance on and in conformity with information
relating to any Underwriter furnished in writing to the Company by
the Representative on behalf of any Underwriter expressly for
inclusion in the Registration Statement, any preliminary prospectus
or the Prospectus, and provided further that the Company will not
be liable to any Underwriter, the directors, officers, employees or
agents of such Underwriter or any person controlling such
Underwriter with respect to any loss, claim, liability, expense,
charge or damage arising out of or based on any untrue statement or
alleged untrue statement or omission or alleged omission to state
a material fact in any preliminary prospectus which is corrected in
the Prospectus if the person asserting any such loss, claim,
liability, charge or damage purchased Shares from such Underwriter
but was not sent or given a copy of the Prospectus at or prior to
the written confirmation of the sale of such Shares to such Person.
This indemnity agreement will be in addition to any liability that
the Company might otherwise have.
(b) Each Underwriter will indemnify and hold
harmless the Company, each person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, each director, officer, employee or agent of the
Company to the same extent as the foregoing indemnity from the
Company to each Underwriter, but only insofar as losses, claims,
liabilities, expenses or damages arise out of or are based on any
untrue statement or omission or alleged untrue statement or
omission made in reliance on and in conformity with information
relating to any Underwriter furnished in writing to the Company by
the Representative on behalf of such Underwriter expressly for use
in the Registration Statement, any preliminary prospectus or the
Prospectus. This indemnity will be in addition to any liability
that each Underwriter might otherwise have.
(c) Any party that proposes to assert the right to
be indemnified under this Section 6 will, promptly after receipt of
notice of any threatened claim or the commencement of any action
against such party in respect of which a claim is to be made
against an indemnifying party or parties under this Section 6,
notify each such indemnifying party of such threatened claim or the
commencement of such action, enclosing a copy of all papers served,
but the omission so to notify such indemnifying party will not
relieve it from any liability that it may have to any indemnified
party under the foregoing provisions of this Section 6 unless, and
only to the extent that, such omission results in actual prejudice
to the indemnifying party caused by such omission. If any such
action is brought against any indemnified party and it notifies the
indemnifying party of its commencement, the indemnifying party will
be entitled to participate in and, to the extent that it elects by
delivering written notice to the indemnified party promptly after
receiving notice of the commencement of the action from the
indemnified party, jointly with any other indemnifying party
similarly notified, to assume the defense of the action, with
counsel satisfactory to the indemnified party, and after notice
from the indemnifying party to the indemnified party of its
election to assume the defense, the indemnifying party will not be
liable to the indemnified party for any legal or other expenses
except as provided below and except for the reasonable costs of
investigation subsequently incurred by the indemnified party in
connection with the defense. The indemnified party will have the
right to employ its own counsel in any such action, but the fees,
expenses and other charges of such counsel will
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<PAGE>
be at the expense of such indemnified party unless (1) the
employment of counsel by the indemnified party has been authorized
in writing by the indemnifying party, (2) the indemnified party has
reasonably concluded (based on advice of counsel) that there may be
legal defenses available to it or other indemnified parties that
are different from or in addition to those available to the
indemnifying party, (3) a conflict or potential conflict exists
(based on advice of counsel to the indemnified party) between the
indemnified party and the indemnifying party (in which case the
indemnifying party will not have the right to direct the defense of
such action on behalf of the indemnified party) or (4) the
indemnifying party has not in fact employed counsel to assume the
defense of such action within a reasonable time after receiving
notice of the commencement of the action, in each of which cases
the reasonable fees, disbursements and other charges of counsel
will be at the expense of the indemnifying party or parties. It is
understood that the indemnifying party or parties shall not, in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees, disbursements and
other charges of more than one separate firm admitted to practice
in such jurisdiction at any one time for all such indemnified party
or parties. All such fees, disbursements and other charges will be
reimbursed by the indemnifying party promptly as they are incurred.
An indemnifying party will not be liable for any settlement of any
action or claim effected without its written consent (which consent
will not be unreasonably withheld). Notwithstanding anything in
this Agreement to the contrary, if an indemnified party withholds
its consent to any settlement arranged by an indemnifying party
involving only the payment of money and the asserted liability is
ultimately determined to be greater than the amount of the arranged
settlement, the damages to be paid by the indemnifying party with
respect to such liability shall not exceed the amount of such
arranged settlement plus the amount of all expenses incurred
with respect to such asserted liability through the date on which
such arrangement of settlement was made and communicated to the
indemnified party, with the indemnified party being responsible for
all expenses incurred with respect to such asserted liability
thereafter.
(d) In order to provide for just and equitable
contribution in circumstances in which the indemnification provided
for in the foregoing paragraphs of this Section 6 is applicable in
accordance with its terms but for any reason is held to be
unavailable from the Company or the Underwriters, the Company and
the Underwriters will contribute to the total losses, claims,
liabilities, expenses and damages (including any investigative,
legal and other expenses reasonably incurred in connection with,
and any amount paid in settlement of, any action, suit or
proceeding or any claim asserted, but after deducting any
contribution received by the Company from persons other than the
Underwriters, such as persons who control the Company within the
meaning of the Act, officers of the Company who signed the
Registration Statement and directors of the Company, who also may
be liable for contribution) to which the Company and any one or
more of the Underwriters may be subject in such proportion as shall
be appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other. The
relative benefits received by the Company on the one hand and the
Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover
page of the Prospectus. If, but only if, the allocation provided
by the foregoing sentence is not permitted by applicable law, the
allocation of contribution shall be made in such proportion as is
appropriate to reflect not only the relative benefits referred to
in the foregoing sentence but also the relative fault of the
Company, on the one hand, and the Underwriters, on the other, with
respect to the statements or omissions which resulted in such loss,
claim, liability, expense or damage, or action in respect thereof,
as well as any other relevant equitable considerations with
respect to
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such offering. Such relative fault shall be determined by
reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or the
Representative on behalf of the Underwriters, the intent of the
parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 6(d) were to be
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, liability,
expense or damage, or action in respect thereof, referred to above
in this Section 6(d) shall be deemed to include, for purpose of
this Section 6(d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions
of this Section 6(d), no Underwriter shall be required to
contribute any amount in excess of the underwriting discounts
received by it, and no person found guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act)
will be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The Underwriters'
obligations to contribute as provided in this Section 6(d) are
several in proportion to their respective underwriting obligations
and not joint. For purposes of this Section 6(d), any person who
controls a party to this Agreement within the meaning of the Act
will have the same rights to contribution as that party, and each
director, officer, agent or employee of the Company will have the
same rights to contribution as the Company, subject in each case to
the provisions hereof. Any party entitled to contribution,
promptly after receipt of notice of any threatened claim or the
commencement of any action against such party in respect of which
a claim for contribution may be made under this Section 6(d), will
notify any such party or parties from whom contribution may be
sought, but the omission so to notify will not relieve the party or
parties from whom contribution may be sought from any other
obligation it or they may have under this Section 6(d). No party
will be liable for contribution with respect to any action or claim
settled without its written consent (which consent will not be
unreasonably withheld).
(e) The indemnity and contribution agreements
contained in this Section 6 and the representations and warranties
of the Company contained in this Agreement shall remain operative
and in full force and effect regardless of (i) any investigation
made by or on behalf of the Underwriters, (ii) acceptance of any of
the Shares and payment therefor or (iii) any termination of this
Agreement.
7. Termination.
The obligations of the several Underwriters under this
Agreement may be terminated at any time on or prior to the Closing
Date (or, with respect to the Option Shares, on or prior to the
Option Closing Date), by notice to the Company from the
Representative, without liability on the part of any Underwriter to
the Company, if, prior to delivery and payment for the Shares (or
the Option Shares, as the case may be), in the sole judgment of the
Representative, (i) trading in any of the equity securities of the
Company shall have been suspended by the Commission, by an exchange
that lists the Shares or by the National Association of Securities
Dealers Automated Quotation National Market System, (ii) trading in
securities generally on the New York Stock Exchange shall have been
suspended or limited or minimum or maximum prices shall have been
generally established on such exchange, or additional material
governmental restrictions, not in force on the date of this
Agreement, shall have been imposed upon trading in securities
generally by such exchange or by order of the Commission or any
court or other governmental authority, (iii) a general banking
moratorium shall
have been declared by either Federal or New York State authorities
or (iv) any
36
<PAGE>
material adverse change in the financial or securities markets in
the United States or in political, financial or economic conditions
in the United States or any outbreak or material escalation of
hostilities or declaration by the United States of a national
emergency or war or other calamity or crisis shall have occurred
the effect of any of which is such as to make it, in the sole
judgment of the Representative, impracticable or inadvisable to
market the Shares on the terms and in the manner contemplated by
the Prospectus.
8. Substitution of Underwriters.
If any one or more of the Underwriters shall fail or
refuse to purchase any of the Firm Shares which it or they have
agreed to purchase hereunder, and the aggregate number of Firm
Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the
aggregate number of Firm Shares, the other Underwriters shall be
obligated, severally, to purchase the Firm Shares which such
defaulting Underwriter or Underwriters agreed but failed or refused
to purchase, in the proportions which the number of Firm Shares
which they have respectively agreed to purchase pursuant to Section
1 bears to the aggregate number of Firm Shares which all such non-
defaulting Underwriters have so agreed to purchase, or in such
other proportions as the Representative may specify; provided that
in no event shall the maximum number of Firm Shares which any
Underwriter has become obligated to purchase pursuant to Section 1
be increased pursuant to this Section 8 by more than one-ninth of
the number of Firm Shares agreed to be purchased by such
Underwriter without the prior written consent of such Underwriter.
If any Underwriter or Underwriters shall fail or refuse to purchase
any Firm Shares and the aggregate number of Firm Shares which such
defaulting Underwriter or Underwriters agreed but failed or refused
to purchase exceeds one-tenth of the aggregate number of the Firm
Shares and arrangements satisfactory to the Representative and the
Company for the purchase of such Firm Shares are not made within 48
hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the
Company for the purchase or sale of any Shares under this
Agreement. In any such case either the Representative or the
Company shall have the right to postpone the Closing Date, but in
no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be
effected. Any action taken pursuant to this Section 8 shall not
relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
9. Miscellaneous.
Notice given pursuant to any of the provisions of this
Agreement shall be in writing and, unless otherwise specified,
shall be mailed or delivered (a) if to the Company, at the office
of the Company, 1426 Main Street, Columbia, South Carolina 29201,
Attention: Corporate Secretary, or (b) if to the Underwriters, to
the Representative at the offices of PaineWebber Incorporated, 1285
Avenue of the Americas, New York, New York 10019, Attention:
Corporate Finance Department. Any such notice shall be effective
only upon receipt. Any notice under Section 7 or 8 may be made by
telex or telephone, but if so made shall be subsequently confirmed
in writing.
This Agreement has been and is made solely for the
benefit of the several Underwriters and the Company and of the
controlling persons, directors and officers referred to in Section
6, and their respective successors and assigns, and no other person
shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" as used in this
Agreement shall not include a purchaser, as such purchaser, of
Shares from any of the several Underwriters.
Any action required or permitted to be taken by the
Representative under this Agreement may be taken by them jointly or
by PaineWebber Incorporated.
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<PAGE>
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
This Agreement may be signed in two or more counter-
parts with the same effect as if the signatures thereto and hereto
were upon the same instrument.
In case any provision in this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
The Company and the Underwriters each hereby
irrevocably waive any right they may have to a trial by jury in
respect of any claim based upon or arising out of this Agreement or
the transactions contemplated hereby.
Please confirm that the foregoing correctly sets forth
the agreement among the Company and the several Underwriters.
Very truly yours,
SCANA CORPORATION
By: _____________________
Title:
Confirmed as of the date first
above mentioned:
PAINEWEBBER INCORPORATED
THE ROBINSON-HUMPHREY COMPANY, INC.
Acting on behalf of
themselves and as the
Representatives of the
other several Underwriters.
By: PAINEWEBBER INCORPORATED
By: ____________________________
Title:
38
<PAGE>
SCHEDULE I
UNDERWRITERS
Number of
Name of Firm Shares
Underwriters to be Purchased
PaineWebber Incorporated.............................
The Robinson-Humphrey Company, Inc...................
Total................................................. 4,500,000
39
<PAGE>
EXHIBIT A
SCANA CORPORATION
_____________________
PRICE DETERMINATION AGREEMENT
, 1995
PAINEWEBBER INCORPORATED
THE ROBINSON-HUMPHREY COMPANY, INC.
As Representatives of the
several Underwriters
c/o PaineWebber Incorporated
1285 Avenue of the Americas
New York, New York 10019
Reference is made to the Underwriting Agreement, dated
______, 1995 (the "Underwriting Agreement"), among SCANA
Corporation, a South Carolina corporation (the "Company"), and the
several Underwriters named in Schedule I thereto or hereto (the
"Underwriters"), for whom you are acting as representatives
(collectively, the "Representative"). The Underwriting Agreement
provides for the purchase by the Underwriters from the Company,
subject to the terms and conditions set forth therein, of an
aggregate of 4,500,000 shares (the "Firm Shares") of the Company's
common stock, no par value per share. This Agreement is the Price
Determination Agreement referred to in the Underwriting Agreement.
Pursuant to Section 1 of the Underwriting Agreement, the
undersigned agree with the Representative as follows:
I. The initial public offering price per share for
the Firm Shares shall be $_______.
II. The purchase price per share for the Firm
Shares to be paid by the several Underwriters shall be $_______
representing an amount equal to the initial public offering price
set forth above, less $______ per share.
The Company represents and warrants to each of the
Underwriters that the representations and warranties of the Company
set forth in Section 3 of the Underwriting Agreement are accurate
as though expressly made at and as of the date hereof.
40
<PAGE>
As contemplated by the Underwriting Agreement, attached
as Schedule I is a completed list of the several Underwriters,
which shall be a part of this Agreement and the Underwriting
Agreement.
This Agreement shall be governed by the law of the State
of New York.
If the foregoing is in accordance with your understanding
of the agreement among the Underwriters and the Company, please
sign and return to the Company a counterpart hereof, whereupon this
instrument along with all counterparts and together with the
Underwriting Agreement shall be a binding agreement among the
Underwriters and the Company in accordance with its terms and the
terms of the Underwriting Agreement.
Very truly yours,
SCANA CORPORATION
By:_________________________
Title:
Confirmed as of the date
first above mentioned:
PAINEWEBBER INCORPORATED
THE ROBINSON-HUMPHREY COMPANY, INC.
Acting on behalf of themselves
and as the Representatives
of the other several Underwriters.
By: PAINEWEBBER INCORPORATED
By: ____________________________
Title:
41
<PAGE>
Exhibit B
Form of Opinion of
Asbury H. Gibbes, Esq.,
Counsel to the Company
1. The Company and each of its subsidiaries is a
corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, is duly
licensed or qualified to do business and is in good standing as a
foreign corporation under the laws of each jurisdiction which
requires such license or qualification wherein it owns or leases
material properties or conducts material business, has full power
and authority to conduct all the activities conducted by it, to own
or lease all the assets owned or leased by it and to conduct its
business as described in the Registration Statement or the
Prospectus. The Company is the sole record and beneficial owner,
directly or indirectly, of all of the capital stock of each of its
subsidiaries, except as disclosed in the Registration Statement or
the Prospectus.
2. The outstanding shares of Common Stock have been, and
the Shares, when paid for by the Underwriters in accordance with
the terms of the Agreement, will be, duly authorized, validly
issued, fully paid and nonassessable and will not be subject to any
preemptive or similar right.
3. No consent, approval, authorization or order of, or
any filing or declaration with, any court or governmental agency or
body is required in connection with the consummation by the Company
of the transactions contemplated by the Agreement, except such as
have been obtained under the Act and the Rules and Regulations and
such as may be required under state securities or Blue Sky laws or
such as may be required by the by-laws and rules of the NASD in
connection with the purchase and distribution by the Underwriters
of the Shares. All references in this opinion to the Agreement
shall include the Price Determination Agreement.
4. The authorized and outstanding capital stock of the
Company is as set forth in the Registration Statement and the
Prospectus except to the extent that additional shares of the
Company's Common Stock have been issued subsequently through the
Company's Investor Plus Plan and the Company's employee benefit
plans. The description of the Common Stock contained in the
Prospectus conforms to the terms thereof contained in the Company's
articles of incorporation.
5. The Registration Statement and the Prospectus comply,
and any document incorporated by reference into the Prospectus at
the time it was filed complied, in all material respects as to form
with the requirements of the Act, the Exchange Act, the Exchange
Act Rules and Regulations and the Rules and Regulations (except
that I express no opinion as to financial statements, schedules and
other financial and statistical data contained in the Registration
Statement or the Prospectus or incorporated by reference therein).
42
<PAGE>
6. I have participated in the preparation of the
Registration Statement and the Prospectus and nothing has come to
my attention which has caused me to believe that, both as of the
Effective Date and as of the Closing Date [and the Option Closing
Date], the Registration Statement, or any amendment thereto,
contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading
or that any Prospectus or any amendment or supplement thereto
including any documents incorporated by reference into the
Prospectus, at the time such Prospectus was issued, at the time any
such amended or supplemented Prospectus was issued, and at the
Closing Date [and the Option Closing Date], contained or contains
any untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances in which they were made,
not misleading (except that I express no opinion as to financial
statements, schedules and other financial or statistical data
contained in the Registration Statement or the Prospectus or
incorporated by reference therein).
7. The Registration Statement has become effective under
the Act and, to the best of my knowledge, no order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or is threatened,
pending or contemplated.
8. I have reviewed all contracts, instruments or other
documents referred to in the Registration Statement and the
Prospectus and such contracts or other documents are fairly
summarized or disclosed therein, and filed as exhibits thereto as
required, and, after due inquiry, I do not know of any contracts,
instruments or other documents required to be so summarized or
disclosed or filed or required to be filed under the Exchange Act
if upon such filing they would be incorporated, in whole or in
part, by reference therein which have not been so summarized or
disclosed or filed.
9. All descriptions in the Prospectus of statutes,
regulations or legal or governmental proceedings are accurate and
fairly present the information required to be shown.
10. The Company has full corporate power and authority
to enter into the Agreement, and the Agreement has been duly
authorized, executed and delivered by the Company, is a valid and
binding agreement of the Company and, except for the
indemnification and contribution provisions thereof as to which I
express no opinion and assuming, with your permission, that the
provisions of New York law (under which the Agreement is governed)
are identical in all respects to those of South Carolina law, is
enforceable in accordance with its terms, subject as to
enforceability to applicable bankruptcy, insolvency, reorganization
or other laws of general applicability relating to or affecting
creditors' rights generally and by general equitable principles.
11. The execution and delivery of the Agreement by the
Company, the consummation by the Company of the transactions
therein contemplated and the compliance by the Company with the
terms of the Agreement do not and will not result in the creation
or imposition of any lien, charge or encumbrance upon any of the
assets of the Company or any of its subsidiaries pursuant to the
terms or provisions of, or result in a breach or violation of any
of the terms or provisions of, or constitute a default or result in
the acceleration of any obligation under, the articles of incorpo-
ration or by-laws of the Company or any of its subsidiaries, any
indenture, mortgage, deed of trust, voting trust agreement, loan
agreement, bond, debenture, note agreement or other evidence of
indebtedness, lease, contract or other agreement or instrument
known to me to which the Company or any of its subsidiaries is a
party or by which it or any of its properties is bound or
affected, or any judgment, ruling, decree, order,
43
<PAGE>
statute, rule or regulation of any court or other governmental
agency or body applicable to the business or properties of the
Company or any of its subsidiaries (except that I express no
opinion as to the securities or Blue Sky laws of any jurisdiction
other than the United States) except for liens, charges,
encumbrances, breaches, violations, defaults or conflicts which
would not reasonably be expected to have a materially adverse
effect on the business, properties, business prospects, condition
(financial or otherwise) or results of operations of the Company
and its subsidiaries considered as one enterprise.
12. Delivery of certificates for the Shares will
transfer valid and marketable title thereto to each Underwriter
that has purchased such Shares in good faith and I am not aware,
after due inquiry, of any adverse claim with respect thereto, and,
assuming the Underwriters have taken no action to create any lien,
encumbrance or claim with respect to the Shares, such Shares are
free and clear of all liens, encumbrances and claims.
13. I know of no actions, suits or proceedings pending
or threatened against or affecting the Company or any of its
subsidiaries or the business, properties, business prospects,
condition (financial or otherwise) or results of operations of the
Company or any of its subsidiaries, or any of their respective
officers in their capacities as such, before or by any Federal or
state court, commission, regulatory body, administrative agency or
other governmental body, wherein an unfavorable ruling, decision or
finding would be reasonably expected to have a materially adverse
effect on the business, properties, business prospects, condition
(financial or otherwise) or results of operations of the Company
and its subsidiaries considered as one enterprise, except as set
forth in or contemplated by the Registration Statement and the
Prospectus.
14. To the best of my knowledge, neither the Company nor
any of its subsidiaries is in violation of its articles of
incorporation, by-laws or other charter documents or in default
(nor has an event occurred which with notice or lapse of time or
both would constitute a default or acceleration) in the performance
of any obligation, agreement or condition contained in any
indenture, mortgage, deed of trust, voting trust agreement, loan
agreement, bond, debenture, note agreement or other evidence of
indebtedness, lease, contract or other agreement or instrument
known to me to which the Company or any of its subsidiaries is a
party or by which it or its properties is bound or affected, except
for defaults which are not reasonably expected to have a
materially adverse effect on the business, properties,
business prospects, condition (financial or otherwise) or results
of operations of the Company and its subsidiaries considered as one
enterprise, and neither the Company nor any of its subsidiaries is
in violation of any judgment, ruling, decree, order, franchise,
license or permit known to me or any statute, rule or regulation of
any court or other governmental agency or body applicable to the
business or properties of the Company or any of its subsidiaries,
which violation or default would be reasonably expected to have a
materially adverse effect on the business, properties, business
prospects, condition (financial or otherwise) or results of
operations of the Company or any of its subsidiaries considered as
one enterprise.
15. The Company is a "public utility holding company"
within the meaning of the Public Utility Holding Company Act of
1935, as amended, but is exempt from registration as such under
such Act; and the Company is not subject to registration under the
Investment Company Act of 1940, as amended.
16. The Shares have been duly authorized for listing by
the New York Exchange, subject to official notice of issuance.
44
<PAGE>
In rendering this opinion, such counsel may rely upon the
representations contained in the Underwriting Agreement, upon
certificates of state officials as to the Company's good standing,
and upon certificates of officers of the Company as to matters of
fact relevant to this opinion.
45
<PAGE>
Exhibit C
Form of Opinion of
McNair Law Firm, P.A.,
Counsel to the Company
1. The Company and each of South Carolina Electric & Gas
Company, South Carolina Pipeline Corporation and South Carolina
Generating Company, Inc. (the "Significant Subsidiaries") is a
corporation duly incorporated, validly existing and in good
standing under the laws of the jurisdiction of its incorporation,
is duly licensed or qualified to do business and is in good
standing as a foreign corporation under the laws of each
jurisdiction which requires such license or qualification wherein
it owns or leases material properties or conducts material
business, has full power and authority to conduct all the
activities conducted by it, to own or lease all the assets owned or
leased by it and to conduct its business as described in the
Registration Statement or the Prospectus.
2. The Shares when paid for by the Underwriters in
accordance with the terms of the Agreement, will be duly
authorized, validly issued, fully paid and nonassessable and will
not be subject to any preemptive or similar right.
3. The authorized and outstanding capital stock of the
Company is as set forth in the Registration Statement and the
Prospectus except to the extent that additional shares of the
Company's Common Stock have been issued subsequently pursuant to
the Company's Investor Plus Plan and employee benefit plans of the
Company. The description of the Common Stock contained in the
Prospectus conforms to the terms thereof contained in the Company's
articles of incorporation.
4. The Registration Statement and the Prospectus comply,
and any document incorporated by reference into the Prospectus at
the time it was filed complied, in all material respects as to form
with the requirements of the Act, the Exchange Act, the Exchange
Act Rules and Regulations and the Rules and Regulations (except
that we express no opinion as to financial statements, schedules
and other financial and statistical data contained in the Regis-
tration Statement or the Prospectus or incorporated by reference
therein).
5. We have participated in the preparation of the
Registration Statement and the Prospectus and nothing has come to
our attention which has caused us to believe that, both as of the
Effective Date and as of the Closing Date [and the Option Closing
Date], the Registration Statement, or any amendment thereto,
contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading
or that any Prospectus or any amendment or supplement thereto
including any documents incorporated by reference into the
Prospectus, at the time such Prospectus was issued, at the time any
such amended or supplemented Prospectus was issued, at the Closing
Date [and the Option Closing Date], contained or contains any
untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances in which they were made, not
misleading (except that we express no opinion as to financial
statements, schedules and other financial or statistical data
contained in the Registration Statement or the Prospectus or
incorporated by reference therein).
6. The Registration Statement has become effective under
the Act and, to the best of our knowledge, no order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or is threatened,
pending or contemplated.
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<PAGE>
7. The Company has full corporate power and authority to
enter into the Agreement, and the Agreement has been duly
authorized, executed and delivered by the Company.
8. The execution and delivery of the Agreement by the
Company, the consummation by the Company of the transactions
therein contemplated and the compliance by the Company with the
terms of the Agreement do not and will not result in the creation
or imposition of any lien, charge or encumbrance upon any of the
assets of the Company or any Significant Subsidiary pursuant to the
terms or provisions of, or result in a breach or violation of any
of the terms or provisions of, or constitute a default or result in
the acceleration of any obligation under, the articles of incorpo-
ration or by-laws of the Company or any Significant Subsidiary, any
indenture, mortgage, deed of trust, voting trust agreement, loan
agreement, bond, debenture, note agreement or other evidence of
indebtedness, lease, contract or other agreement or instrument
known to us to which the Company or any Significant Subsidiary is
a party or by which it or any of its property is bound or affected,
or any judgment, ruling, decree, order, statute, rule or regulation
of any court or other governmental agency or body applicable to the
business or properties of the Company or any Significant Subsidiary
(except that we express no opinion in this paragraph as to Federal
securities laws (certain aspects of which are addressed elsewhere
in this opinion) or Blue Sky laws of any jurisdiction) except for
liens, charges, encumbrances, breaches, violations, defaults or
conflicts which are not reasonably expected to have a materially
adverse effect on the business, properties, business prospects,
condition (financial or otherwise) or results of operations of the
Company and its subsidiaries considered as one enterprise.
9. The Company is a "public utility holding company"
within the meaning of the Public Utility Holding Company Act of
1935, as amended, but is exempt from registration as such under
such Act; and the Company is not subject to registration under the
Investment Company Act of 1940, as amended.
In rendering the foregoing opinion, counsel may rely, to the
extent they deem such reliance proper, on the opinions (in form and
substance reasonably satisfactory to Underwriters' counsel) of
other counsel reasonably acceptable to Underwriters' counsel as to
matters governed by the laws of jurisdictions other than the United
States and the State of South Carolina, and as to matters of fact,
upon certificates of officers of the Company and of government
officials; provided that such counsel shall state that the opinion
of any other counsel is in form satisfactory to such counsel and,
in such counsel's opinion, such counsel and the Representative are
justified in relying on such opinions of other counsel. Copies of
any such opinions shall be furnished to counsel to the Underwriters
on the Closing Date.
47
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Exhibit 4-A
STATE OF SOUTH CAROLINA
SECRETARY OF STATE
ARTICLES OF AMENDMENT
Pursuant to Section 33-10-106 of the 1976 South Carolina Code, as
amended, the undersigned corporation adopts the following Articles of
Amendment to its Articles of Incorporation:
1. The name of the corporation is SCANA Corporation .
2. On April 27, 1995 , the corporation adopted the
following Amendment of its Articles of Incorporation:
Article 3 of the Restated Articles of Incorporation
of SCANA Corporation is amended by deleting therefrom in
its entirety the current Article 3 and substituting in
lieu thereof the following:
"Article 3. Effective as of the close of business
on May 11, 1995, the number of authorized shares of stock
of the Corporation shall be increased from 75,000,000
shares of common stock without par value to 150,000,000
shares of common stock without par value and each share
of the Corporation's common stock then issued and
outstanding shall be converted into two shares of such
common stock."
3. The manner, if not set forth in the amendment, in which any
exchange, reclassification, or cancellation of issued shares
provided for in the Amendment shall be effected, is as
follows:
N/A
4. Complete either a or b, whichever is applicable.
a. Amendment(s) adopted by shareholder action.
At the date of adoption of the amendment, the
number of outstanding shares of each voting group
entitled to vote separately on the Amendment, and
the vote of such shares was:
Number of Number of Votes Number of Votes Number of Undisputed*
Voting Outstanding Entitled to be Represented at Shares Voted
Group Shares Cast the meeting For Against
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<PAGE>
NOTE: Pursuant to Section 33-10-106(6)(i), the corporation can
alternatively state the total number of undisputed votes
cast for the amendment by each voting group together with
a statement that the number cast for the amendment by
each voting group was sufficient for approval by that
voting group.
b. X The Amendment was duly adopted by the
incorporators or board of directors without
shareholder approval pursuant to 33-6-102(d),
33-10-102 and 33-10-105 of the 1976
South Carolina Code, as amended, and
shareholder action was not required.
5. Unless a delayed date is specified, the effective date of
these Articles of Amendment shall be the date of acceptance
for filing by the Secretary of State (See 33-1-230(b)): The
amendment shall be effective as of the close of business on
May 11, 1995.
DATE: April 27, 1995 SCANA CORPORATION
(Name of Corporation)
By: s/Kevin B. Marsh
(Signature)
Kevin B. Marsh, Secretary
(Type or Print Name and Office)
FILING INSTRUCTIONS
1. Two copies of this form, the original and either a duplicate
original or a conformed copy, must be filed.
2. If the space in this form is insufficient, please attach
additional sheets containing a reference to the appropriate
paragraph in this form.
3. Filing fees and taxes payable to the Secretary of State at
time of filing application.
Filing Fee $ 10.00
Filing tax 100.00
Total $110.00
Form Approved by South Carolina
Secretary of State
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EXHIBIT 5
SCANA Corporation
1426 Main Street
Columbia, South Carolina 29201
Securities and Exchange Commission
450 Fifth Street, NW
Washington, DC 20549
Gentlemen:
SCANA Corporation (the "Company") has filed with the
Securities and Exchange Commission a Registration Statement on Form
S-3 for the registration under the Securities Act of 1933, as
amended, of a proposed public offering of up to 5,175,000 shares of
the Company's Common Stock, without par value (the "Stock").
I am familiar with the preparation of the aforesaid
Registration Statement and the Preliminary Prospectus forming a
part thereof and am familiar with the proceedings of the Company in
connection with the proposed issuance and sale of the Stock. I
have also made such further investigation as I have deemed
pertinent and necessary as a basis for this opinion.
Based on the foregoing, I hereby advise you that it is my
opinion, upon (a) the aforesaid Registration Statement, as it may
be amended, becoming effective; (b) the authorization by the
Company's Board of Directors or the Ad Hoc Committee thereof of the
initial public price for and the underwriting discount with respect
to the issuance and sale of the Stock; and (c) the due execution,
registration and delivery of the Stock to the purchaser or
purchasers thereof against receipt of the purchase price therefor;
the Stock will have been duly authorized and legally and validly
issued and will be fully paid and non-assessable.
I hereby consent to the use of this opinion in connection with
the aforesaid Registration Statement and I also consent to the
making of the statements with reference to me under the heading
"Legal Opinions" in the aforesaid Prospectus and Registration
Statement.
Very truly yours,
s/Asbury H. Gibbes
Asbury H. Gibbes
General Counsel
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Exhibit 23
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of SCANA Corporation on Form S-3 of our report dated
February 6, 1995 (September 6, 1995 as it relates to the restated
financial statements discussed in Note 1A), appearing in the
Current Report on Form 8-K of SCANA Corporation dated September 6,
1995 and to the reference to us under the heading "Experts" in the
Prospectus, which is part of this Registration Statement.
s/DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
Columbia, South Carolina
September 6, 1995
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Exhibit 24
POWER OF ATTORNEY
The undersigned directors of SCANA Corporation (the
"Company"), hereby appoint L. M. Gressette, Jr., W. B. Timmerman,
and Kevin B. Marsh, and each of them severally, as the attorney-in-
fact of the undersigned, to sign in the name(s) and behalf of the
undersigned, in any and all capacities stated therein, and to file
with the Securities and Exchange Commission under the Securities
Act of 1933, as amended, a Registration Statement on Form S-3, and
any and all amendments thereto, with respect to the issuance and
sale of up to 3,000,000* shares of such Company's Common Stock.
Dated June 15, 1993
Columbia, South Carolina
s/B. L. Amick s/W. Hayne Hipp
B. L. Amick W. Hayne Hipp
Director Director
s/W. B. Bookhart, Jr. s/B. D. Kenyon
W. B. Bookhart, Jr. B. D. Kenyon
Director Director
s/W. T. Cassels s/F. C. McMaster
W. T. Cassels F. C. McMaster
Director Director
s/H. M. Chapman s/Henry Ponder
H. M. Chapman Henry Ponder
Director Director
s/J. B. Edwards s/J. B. Rhodes
J. B. Edwards J. B. Rhodes
Director Director
s/E. T. Freeman s/E. C. Wall, Jr.
E. T. Freeman E. C. Wall, Jr.
Director Director
s/B. A. Hagood
B. A. Hagood
Director
* Does not reflect effect of the two-for-one stock split approved
by the Board of Directors on April 27, 1995 and related resolution
increasing the above power of attorney by 1,533,000 shares.
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Exhibit 24
POWER OF ATTORNEY
The undersigned directors of SCANA Corporation (the
"Company"), hereby appoint L. M. Gressette, Jr., W. B. Timmerman,
and Kevin B. Marsh, and each of them severally, as the attorney-in-
fact of the undersigned, to sign in the name(s) and behalf of the
undersigned, in any and all capacities stated therein, and to file
with the Securities and Exchange Commission under the Securities
Act of 1933, as amended, a Registration Statement on Form S-3, and
any and all amendments thereto, with respect to the issuance and
sale of up to 2,500,000* shares of such Company's Common Stock.
Dated February 15, 1994
Columbia, South Carolina
s/B. L. Amick s/W. Hayne Hipp
B. L. Amick W. Hayne Hipp
Director Director
s/W. B. Bookhart, Jr. s/B. D. Kenyon
W. B. Bookhart, Jr. B. D. Kenyon
Director Director
s/W. T. Cassels s/F. C. McMaster
W. T. Cassels F. C. McMaster
Director Director
s/H. M. Chapman s/Henry Ponder
H. M. Chapman Henry Ponder
Director Director
s/J. B. Edwards s/J. B. Rhodes
J. B. Edwards J. B. Rhodes
Director Director
s/E. T. Freeman s/E. C. Wall, Jr.
E. T. Freeman E. C. Wall, Jr.
Director Director
s/B. A. Hagood
B. A. Hagood
Director
* Does not reflect effect of the two-for-one stock split approved
by the Board of Directors on April 27, 1995 and related resolution
increasing the above power of attorney by 2,500,000 shares.
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