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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
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 number)
1426 Main Street, Columbia, South Carolina 29201
(Address of principal executive offices) (Zip code)
SCANA Corporation Stock Purchase-Savings Plan
(Full title of the plan)
H. Thomas Arthur
General Counsel and Assistant Secretary
SCANA Corporation
1426 Main Street, Columbia, South Carolina 29201
(Name and address of agent for service)
(803) 376-8547
(Telephone number, including area code, of agent for service)
Copy To:
Elizabeth B. Anders
McNair Law Firm, P.A.
1301 Gervais Street
17th Floor
Columbia, SC 29201
(803) 799-9800
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered(1) registered share(2) price(2) fee(2)
Common Stock,
no par value 3,000,000 shares $28.5938 $85,781,400 $25,306
(1) In addition, pursuant to Rule 416(c) under the Securities Act of
1933, this Registration Statement also covers an indeterminate amount of
interests to be offered and sold pursuant to the employee benefit plan
described herein.
(2) Estimated pursuant to Rule 457(h) 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 for the Common Stock of
SCANA Corporation (the "Company") as reported on the New York Stock
Exchange, Inc. Composite Transactions Reporting System on January 21,
1998.
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Part II
Item 3. Incorporation Of Documents By Reference
This Registration Statement on Form S-8 hereby incorporates the
following documents which are not presented herein:
1) Annual Report of the Company on Form 10-K for the year
ended December 31, 1996.
2) Annual Report of the Company's Stock Purchase-Savings Plan
(the "Plan") for the year ended December 31, 1996 as
filed on Form 10-K/A.
3) Quarterly Reports of the Company on Form 10-Q for the
quarters ended March 31, 1997, June 30, 1997 and September 30,
1997.
4) The Registration Statement for Common Stock of the
Company under the Exchange Act on Form 8-B dated
November 6, 1984, as amended.
5) Description of Common Stock of the Company as set
forth in Registration Statement No. 33-62421.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, prior
to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference
in this Registration Statement 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 Registration
Statement 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 Registration
Statement.
Item 4. Description of Securities.
Not Applicable
Item 5. Interests of Named Experts and Counsel.
At December 31, 1997, H. Thomas Arthur, Esquire, who is General
Counsel and Assistant Secretary, and a full-time employee of the
Company, owned beneficially 5,749 shares of the Company's Common Stock,
including shares acquired by the trustee under the Plan by use of
contributions made by Mr. Arthur and earnings thereon, and including
shares purchased by the trustee by use of Company contributions and
earnings thereon.
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Item 6. 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. 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 7. Exemption from Registration Claimed.
Not Applicable
Item 8. Exhibits
Exhibits required to be filed with this Registration Statement are
listed in the Exhibit Index following the signature pages. 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. The Registrant undertakes to submit
the Plan, and any future amendments thereto, to the Internal Revenue
Service (the "IRS") in a timely manner and to make all changes required
by the IRS in order to continue to qualify the Plan.
Item 9. Undertakings
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(A) To include any prospectus required by Section 10(a) (3)
of the Securities Act of 1933;
(B) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement; and
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(C) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the Registration
Statement;
PROVIDED, HOWEVER, that clauses (1)(A) and (1)(B) do not apply if the
information required to be included in a post-effective amendment by
those clauses is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15 (d) of the Securities Exchange Act
of 1934 that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(4) That, for 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 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 and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
The Registrant. 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-8 and
has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Columbia,
State of South Carolina, on this 26rd day of January 1998.
(REGISTRANT) SCANA Corporation
By: s/W. B. Timmerman
(Name & Title): W. B. Timmerman, Chairman of the
Board, Chief Executive Officer,
President and Director
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
(i) Principal executive officer:
By: s/W. B. Timmerman
(Name & Title): W. B. Timmerman Chairman of the
Board, Chief Executive Officer,
President and Director
Date: January 26, 1998
(ii) Principal financial and accounting officer:
By: s/K. B. Marsh
(Name & Title): K. B. Marsh, Vice President -
Finance, Chief Financial Officer
and Controller
Date: January 26, 1998
(iii) Other Directors:
* B. L. Amick, J. A. Bennett, W. B. Bookhart, Jr., W. T. Cassels, Jr.,
H. M. Chapman, E. T. Freeman, L. M. Gressette, Jr., W. Hayne Hipp, F. C.
McMaster, L. M. Miller,
J. B. Rhodes, M. K. Sloan
* Signed on behalf of each of these persons:
s/K. B. Marsh
K. B. Marsh
(Attorney-in-Fact)
None
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The Plan. Pursuant to the requirements of the Securities Act of
1933, the trustees (or other persons who administer the employee benefit
plan) have duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of
Columbia, State of South Carolina, on January 26, 1998.
(PLAN) SCANA Corporation Stock
Purchase-Savings Plan
By: (Signature and Title) s/K. B. Marsh
K. B. Marsh
Chairman of the SCANA
Corporation Stock
Purchase-Savings Plan
Committee
s/T. E. Boone, III
T. E. Boone, III
Member of the SCANA
Corporation Stock
Purchase-Savings Plan
Committee
s/L. E. Cope
L. E. Cope
Member of the SCANA
Corporation Stock
Purchase-Savings Plan
Committee
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EXHIBIT INDEX
Sequentially
Numbered
Pages
Number
4. Instruments Defining the Rights of Security
Holders, Including Indentures
4.1 Restated Articles of Incorporation of SCANA
Corporation as adopted on April 26, 1989
(Exhibit 3-A to Registration Statement No.
33-49145)........................................... #
4.2 Copy of By-Laws of SCANA Corporation as
revised and amended on June 18, 1996
(Exhibit 4-B to Registration Statement No.
333-18149).......................................... #
4.3 SCANA Corporation Stock Purchase-Savings
Plan (As amended and restated from January 1, 1989
to and as of January 1, 1997) (Filed herewith)...... 9
4.4 Trustee Agreement SCANA Corporation Stock
Purchase-Savings Plan (Dated December 16,
1991) (Filed as Exhibit 4-4.4 to Registration
Statement No. 33-56923)............................. #
5. Opinion Re Legality (Filed herewith)..................... 71
15. Letter Re Unaudited Interim Financial
Information
Not applicable
23. Consents of Experts and Counsel
(a) Consent of Deloitte & Touche LLP (Filed herewith).... 72
(b) Consent of H. Thomas Arthur (Included
in his opinion in Exhibit 5)
24. Power of Attorney (Filed herewith)....................... 73
99. Additional Exhibits
Not applicable
# Incorporated herein by reference as indicated.
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Exhibit 4.3
SCANA CORPORATION
STOCK PURCHASE-SAVINGS PLAN
As amended and restated from January 1, 1989,
to and as of January 1, 1997)
I. PURPOSE 1
I-A. MERGER 3
II. DEFINITIONS 4
2.01 Additional Contributions 4
2.02 Adjustment Factor 4
2.03 Beneficiary 4
2.04 Break in Service 4
2.05 Code 5
2.06 Committee 6
2.07 Common Stock 6
2.08 Company 6
2.09 Controlled Group 6
2.10 Date of Distribution 6
2.11 Deferrals 6
2.12 Disability 6
2.13 Eligible Earnings 6
2.14 Eligible Employee 7
2.15 Employee 7
2.16 Employee Plans Committee 7
2.17 Employer 7
2.18 Employer Contribution 8
2.19 Highly Compensated Employee 8
2.20 Inactive Participant 10
2.21 Participant 10
2.22 Plan 10
2.23 Plan Administrator 10
2.24 Plan Manager 10
2.25 Plan Year 10
2.26 Regular Contributions 10
2.27 Spouse 10
2.28 Termination of Employment 11
2.29 Trust (or Trust Fund) 11
2.30 Trustee 11
2.31 Valuation Date 11
2.32 Valuation Price 11
III. ELECTION OF PARTICIPATION 12
3.1 Election to Participate 12
3.2 Election Authorization 12
IV. EMPLOYEE DEFERRALS AND CONTRIBUTIONS 13
4.1 Deferrals 13
4.2 Regular Contributions 13
4.3 Additional Contributions 13
4.4 Timing of Contributions 13
4.5 Changes in Contributions 13
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4.6 Suspension of Contributions 13
4.7 Rounding of Amounts 14
4.8 Rollover Contributions 14
V. EMPLOYER CONTRIBUTIONS 16
5.1 Employer Contributions 16
5.2 Corrective Contributions/Reallocations 16
VI. PLAN INVESTMENTS 17
6.1 Employee Deferrals, Regular Contributions,
Additional Contributions 17
6.2 Employer Contributions 17
6.3 Investments 17
6.4 Earnings 20
6.5 Uninvested Cash 20
VII. INVESTMENT ACCOUNTS 21
7.1 Separate Accounts 21
7.2 Account Information 21
7.3 Applicable Valuation Date: 22
VIII. WITHDRAWALS/DISTRIBUTIONS 23
8.1 Withdrawals Before Termination of Employment 26
8.2 Frequency of Withdrawal 26
8.3 Form of Withdrawal 26
8.4 Notice of Withdrawal 26
8.5 Distribution on Termination of Employment
or Disability 27
8.6 Distribution on Death 27
8.7 Promptness of Distribution 27
8.8 Amount of Distribution 28
8.9 Form of Distribution 28
8.10 Fractional Shares 28
8.11 Limitations on Commencement of Benefits 28
8.12 Employee Transfers from the Employer to a
Controlled Group Member 30
8.13 Distributions with Respect to Qualified Domestic
Relations Orders 30
8.14 Direct Rollover Distributions 30
8.15 Definitions 31
IX. LOANS TO PARTICIPANTS 33
9.1 Amount of Loan 33
9.2 Terms of Loan 33
9.3 Commencement of Loans 38
9.4 Employee Transfers from the Employer to a
Controlled Group Member 38
9.5 Specific Information 38
X. VESTING 39
10.1 Vesting 39
10.2 Employee Transfers from the Employer to a
Controlled Group Member 39
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XI. FORFEITURES 40
11.1 Termination of Employment 40
11.2 Repayments 40
11.3 Lost Participants or Beneficiaries 40
11.4 Application of Forfeitures 40
XII. LIMITATIONS ON CONTRIBUTIONS AND BENEFITS 41
12.1 Definition of Annual Additions 41
12.2 Maximum Annual Addition 41
12.3 Limitation on Annual Additions 41
12.4 Definitions 42
12.5 Special Rules 42
12.6 Limitation of Benefits and Contributions 43
12.7 Transitional Rule 44
12.8 Effective Date 44
12.9 Maximum Amount of Deferrals 44
12.10 Non-Discrimination Limitation on
Deferral Contributions 46
12.11 Nondiscrimination Limitations on Regular
Contributions and Employer Contributions 48
12.12 Definitions 50
XIII. TOP HEAVY PROVISIONS 56
13.1 General Rule 56
13.2 Vesting Provisions 56
13.3 Minimum Benefit Provisions 56
13.4 Limitation on Benefits 56
13.5 Coordination with Other Plans 57
13.6 Top-Heavy Plan Definition 57
13.7 Key Employee 59
13.8 Non-Key Employee 59
13.9 Collective Bargaining Rules 59
13.10 Distribution to Key Employees 60
13.11 Effective Date 60
XIV. VOTING OF STOCK 61
14.1 Voting of Stock 61
14.2 Tender Offer Rights With Respect to Stock 61
XV. ADMINISTRATION 63
15.1 Plan Administrator 63
15.2 Powers and Duties of the Committee 63
15.3 Claims Procedure 64
15.4 Claims Review Procedure 64
15.5 Plan Expenses 65
XVI. TRUSTEE 66
XVII. FIDUCIARY LIABILITIES 67
XVIII. AMENDMENT OR TERMINATION 68
18.1 General Provision 68
18.2 Special Provision 68
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XIX. GENERAL PROVISIONS 69
19.1 Source of Distributions 69
19.2 Non-Alienation of Benefits 69
19.3 Merger or Consolidation 69
19.4 No Right to Employment 69
19.5 Controlling Law 69
19.6 Military Service 67
SIGNATURES 70
APPENDIX I 71
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SCANA CORPORATION
STOCK PURCHASE-SAVINGS PLAN
(As amended and restated from January 1, 1989,
to and as of January 1, 1997)
ARTICLE I. PURPOSE
SCANA Corporation, as successor corporation to South Carolina
Electric & Gas Company, pursuant to a Plan of Exchange effective
December 31, 1984, adopted the South Carolina Electric & Gas
Company Stock Purchase-Savings Plan for Employees (effective
July 1, 1964, as amended through September 1, 1984) on behalf of
itself and as agent for each subsidiary which elects to have its
employees participate in this Plan in order to provide an
opportunity for employees to become shareholders of SCANA
Corporation and to encourage them to save on a regular basis by
setting aside part of their earnings. Such Plan was further
amended, effective December 31, 1984 and was amended and restated,
effective July 1, 1985, and subsequently amended effective June 10,
1986 and July 1, 1986 with a restatement as of the latter date.
The Plan was amended and restated effective January 1, 1989, to
comply with the Internal Revenue Code of 1986 and Treasury
Department Regulations with the effective dates of certain
subsequent provisions otherwise indicated. The Plan was amended on
June 26, 1991 at Section4
4.3 to increase from 5% to 9% the maximum allowable unmatched
Employee contributions, and at sections 8.3A and 8.9A to permit
withdrawals and distributions to be in cash, all such amendments
effective as of October 11, 1991. The Plan was amended on
October 15, 1991 by adding "Date of Distribution" as a defined term
under Article II; Plan Sections 4.1, 4.1A, 4.2, 6.3, 8.1, 8.6, 8.7,
8.10, 9.1, 9.1A, 9.2, 15.2, 15.3, 15.4, 15.5, and Articles I, V,
XVI, and XVIII were also amended. The Plan was amended effective
March 7, 1992 regarding the admission of South Carolina Real Estate
Development Company, Inc. and MPX Systems, Inc. as participating
Employers. The Plan was amended on June 16, 1992 with respect to
loans, minimum required distributions after age 70 1/2, the withdrawal
by Participants of Employer contributions, the admission of SCANA
Petroleum Resources, Inc. and SCANA Hydrocarbons, Inc. as
participating Employers, and the Plan restated. The Plan was
amended effective January 1, 1995 regarding the admission of
ServiceCare, Inc. as a participating employer.
The Plan was amended and restated as of July 1, 1994 to
incorporate various amendments, including the amendments necessary
to comply with the Unemployment Compensation Amendments of 1993
(effective January 1, 1993), the merger of the SCANA Corporation
Employee Stock Ownership Plan with and into the Plan (effective
April 30, 1993), the creation of the Employee Plans Committee as
the entity with general Plan amendment authority (effective
December 15, 1993), and various other clarifying or compliance-
related matters.
The Plan was amended effective December 1, 1995 to prohibit
the borrowing of additional amounts through Plan loan refinancings.
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The Plan was amended and restated as of January 1, 1997 with
respect to allowing for rollover contributions; to incorporate
various amendments necessary to comply with the Uniformed Services
Employment and Reemployment Act of 1994 and the Small Business Job
Protection Act of 1996; and to include certain other amendments
related to the Trustee's responsibility.
The rights of any Employee who terminated employment with an
adopting Employer before the effective date of each applicable
amendment included in the restated Plan will be governed by that
provision as it was in effect on the Employee's termination date.
This Plan is intended to be a profit sharing plan.
ARTICLE I-A. MERGER
Merger of Carolina Pipeline Company, Inc. Employee Stock
Purchase Thrift Plan into the SCANA Corporation Stock Purchase-
Savings Plan. On April 22, 1982, Carolina Pipeline Company, Inc.,
was acquired by South Carolina Electric & Gas Company. Effective
April 22, 1982, contributions to the Carolina Pipeline Company,
Inc., Employee Stock Purchase Thrift Plan amended as of April 22,
1979 (hereinafter referred to as the "CPC Plan") were suspended and
Participants in the CPC Plan became eligible to participate in the
South Carolina Electric & Gas Company Stock Purchase-Savings Plan.
As a result of the above, former employees of Carolina Pipeline
Company, Inc., were Participants in the CPC Plan by virtue of
account balances in the CPC Plan Trust and also Participants in
this Plan by virtue of meeting the eligibility requirements and
making appropriate contributions to this Plan. Effective June 10,
1986, the CPC Plan was merged into this Plan. All Participants
with account balances in the CPC Plan Trust Fund on June 9, 1986,
had such account balances transferred to this Plan on June 10,
1986, and will be eligible to receive benefits as set forth in the
provisions of this Plan, as amended by the applicable provisions of
Appendix I.
Merger of SCANA Corporation Employee Stock Ownership Plan into
the SCANA Corporation Stock Purchase-Savings Plan. Effective April
30, 1993, the SCANA Corporation Employee Stock Ownership Plan was
merged with and into the SCANA Corporation Stock Purchase-Savings
Plan. As a result of this merger, all account balances held under
the ESOP were transferred to this Plan and became eligible to
receive benefits as set forth in the provisions of this Plan, as
amended by the applicable provisions of Appendix I.
ARTICLE II. DEFINITIONS
For the purpose of this Plan the following terms shall have
the meanings as set forth below unless the context requires
otherwise:
2.01 Additional Contributions: Eligible Earnings which a
Participant elects to contribute to the Plan in accordance with
Section 4.3.
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2.02 Adjustment Factor: The cost of living adjustment
factor prescribed by the Secretary of the Treasury under Section
415(d) of the Code for years beginning after December 31, 1987, as
applied to such items and in such manner as the Secretary shall
provide.
2.03 Beneficiary: The surviving Spouse of the
Participant, unless such surviving Spouse has previously consented
to the designation of another person, estate, trust, or
organization as Beneficiary in a writing acknowledging the effect
of such designation, which writing is witnessed by a notary public.
The Beneficiary of an unmarried participant or of a married
Participant with consenting Spouse shall mean any person(s) who, or
estate, trust, or organization which becomes entitled to receive
benefits upon the death of a Participant. A Participant shall file
with the Plan Manager a written designation of Beneficiary. Such
a designation may be changed or revoked by a written notice filed
with the Plan Manager; however, such a change must be properly
consented to by the Participant's Spouse, if the Spouse is not
named as Beneficiary. In the case of a Participant with no Spouse,
any designation of a non-Spouse Beneficiary shall automatically be
revoked upon the marriage or remarriage of the Participant. Any
individual who is designated as an alternate payee in a qualified
domestic relations order (as defined in Section 414(p) of the Code)
relating to a Participant's benefits under this Plan shall be
treated as a Beneficiary hereunder, to the extent provided by such
order.
2.04 Break in Service: For periods of service occurring
before July 1, 1989 (the date as of which all Employer
Contributions became fully vested pursuant to Article X):
(a) A "Break in Service" means a 12-consecutive month
period (Computation Period) during which an
Employee does not have more than 500 hours of
Service with the Employer.
(b) An "Hour of Service" means each hour for which an
Employee is directly or indirectly paid, or
entitled to payment, by the Employer. Hours in
which duties are performed shall be credited to
the Computation Period in which the duties are
performed. Hours in which no duties are performed
but for which payment is made for reasons such as
vacations, holidays, illness, incapacity
(including disability), layoff, jury duty,
military duty, or leave of absence and hours for
which back pay is awarded or agreed to shall be
credited to the Computation Period to which the
payment pertains. No duplicate credit shall be
given on account of an award or agreement for
back pay.
(c) A "Year of Service" is a Computation Period
during which the Employee completes at least
1,000 Hours of Service.
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(d) "Computation Period" is the 12-consecutive month
period beginning with the day the Employee first
performs an Hour of Service for the Employer and
each anniversary thereof.
(e) "Break in Service" shall have the following
consequences:
(1) Employee with Vested Benefit: The pre-break
and post-break Years of Service of an
Employee who had satisfied the requirements
of Article X for a vested benefit before
commencement of a Break in Service shall be
added together for the purpose of
determining his or her rights and benefits.
(2) Employee with no Vested Benefit: The pre-
break Years of Service of an Employee who
had not earned a vested benefit before
commencement of a Break in Service shall be
lost unless (1) the Employee acquires at
least 1,000 Hours of Service in a 12 -
consecutive month period (Computation
Period) which follows the Break in Service
and (2) the number of consecutive one-year
Breaks in Service is less than the number of
earlier Years of Service or five, whichever
is greater.
(3) Solely for purposes of determining whether
a Break in Service has occurred, an
individual who is absent from work for
maternity or paternity reasons shall receive
credit for the Hours of Service which would
otherwise have been credited to such
individual but for such absence, or in any
case in which such hours cannot be
determined, eight hours of service per day
of such absence. For purposes of this
paragraph, an absence from work for
maternity or paternity reasons means an
absence (1) by reason of the pregnancy of
the individual, (2) by reason of a birth of
a child of the individual, (3) by reason of
the placement of a child with the individual
in connection with the adoption of such
child by such individual, or (4) for
purposes of caring for such child for a
period beginning immediately following such
birth or placement. The Hours of Service
credited under this paragraph shall be
credited (1) in the Computation Period in
which the absence begins if the crediting is
necessary to prevent a Break in Service in
that period, or (2) in all other cases, in
the following Computation Period.
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2.05 Code: The Internal Revenue Code of 1986, as amended
from time to time.
2.06 Committee: The SCANA Corporation Stock Purchase-Savings
Plan Committee appointed by the Chief Executive Officer of the
Company is the administrator of the Plan. The members of the
Committee shall serve at the pleasure of the Chief Executive
Officer.
2.07 Common Stock: The common stock of SCANA Corporation,
also referred to as "shares" or "stock" allocated or to be
allocated to Participants' accounts.
2.08 Company: The term "Company" shall mean SCANA
Corporation.
2.09 Controlled Group: All corporations or other trades or
businesses which are affiliated with the Company to the extent
required pursuant to the provisions of Section 414(b), (c), (m), or
(o) of the Code.
2.10 Date of Distribution: The date on which the Plan
Manager processes the distribution from the Participant's account,
with shares valued for purposes of such Date of Distribution at the
Valuation Price.
2.11 Deferrals: Contributions made to the Plan during the
Plan Year by the Employer, at the election of the Participant, in
lieu of cash compensation and shall include contributions made
pursuant to a salary reduction agreement on a pre-tax basis.
2.12 Disability: A disability of the Participant that causes
the Participant to be incapable of performing his customary duties
and entitles the Participant to benefits under the SCANA Long Term
Disability Plan.
2.13 Eligible Earnings: An Eligible Employee's regular
annual base wages or salary plus amounts deferred under Sections
4.1 and 4.3 of the Plan and pre-tax amounts deferred under Code
Section 401(k) under any other plan of the Employer and amounts
contributed by the Eligible Employee on a pre-tax basis under a
cafeteria plan maintained by the Employer under Code Section 125.
The term "Eligible Earnings" shall not include commissions, drawing
accounts, bonuses, overtime, or any other special payments, fees
and allowances. For Plan Years beginning after December 31, 1988,
Eligible Earnings in excess of $200,000 shall be disregarded. For
Plan Years beginning after December 31, 1993, Eligible Earnings in
excess of $150,000 shall be disregarded. Such dollar limitations
on Eligible Earnings shall be adjusted at the same time and in such
manner as permitted under Code Section 401(a)(17) and the
regulations and other guidance issued thereunder.
2.14 Eligible Employee: An Employee who has attained age 18
and who receives Eligible Earnings from an Employer or would be
receiving Eligible Earnings except for a leave of absence
authorized by the Employer under the Employer's established
personnel practices; provided, however, that any Employee otherwise
eligible to become an Eligible Employee may voluntarily waive
participation in the Plan. Notwithstanding the foregoing, the term
Eligible Employee shall not include:
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(a) a leased employee as defined in Section 414(n) of
the Code;
(b) employees who do not receive payment for services
directly from the Company's payroll; employees of
employment agencies which are not members of the
Controlled Group; and persons whose services are
rendered pursuant to written arrangements which
expressly recite that the service provider is not
eligible for participation in the Plan.
2.15 Employee: A common law employee of the Company or any
member of the Controlled Group including employees covered by a
collective bargaining agreement and a leased employee, as defined
in Section 414(n) of the Code; provided, however, that the term
"Employee" shall not include any leased employee (as defined in
Section 414(n) of the Code) covered by a plan described in Section
414(n)(5) of the Code unless all leased employees constitute more
than 20 percent of the total workforce of the Company and the
Controlled Group.
2.16 Employee Plans Committee: The Employee Plans Committee
established by the Company's Board of Directors.
2.17 Employer: The term "Employer" shall mean SCANA
Corporation, South Carolina Electric & Gas Company, and South
Carolina Pipeline Corporation. The term "Employer" shall also mean
any other direct or indirect subsidiary corporation of SCANA
Corporation the Board of Directors of which shall elect to have its
Employees participate in this Plan, and as to which such election
is also approved by the Board of Directors of SCANA Corporation; in
this regard:
(a) effective as to Eligible Earnings earned on and
after March 7, 1992, South Carolina Real Estate
Development Company, Inc. (SCANA Development
Corporation following a name change authorized by
the Board on August 25, 1993 and filed with the
Secretary of State on August 26, 1993) and SCANA
Communications, Inc. (formerly MPX Systems, Inc.)
are participating Employers in the Plan for
purposes of the participation of their Employees;
(b) effective as to Eligible Earnings earned on and
after July 16, 1992, SCANA Petroleum Resources,
Inc. and SCANA Energy Marketing, Inc. (formerly
SCANA Hydrocarbons, Inc.) are participating
Employers in the Plan for purposes of the
participation of their Employees;
(c) effective as to Eligible Earnings earned on and
after January 1, 1995, ServiceCare, Inc. is a
participating Employer in the Plan for purposes of
the participation of its Employees.
2.18 Employer Contribution: A contribution made by an
Employer pursuant to Article V.
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2.19 Highly Compensated Employee: "Highly Compensated
Employees" include those Employees who meet the definition of
"Highly Compensated Employee" as determined under Section 414(q) of
the Code and the regulations issued thereunder, as set forth
herein. The term "Highly Compensated Employee" includes "Highly
Compensated Active Employees" and "Highly Compensated Former
Employees" and shall be determined as follows:
(a) A "Highly Compensated Active Employee" means an
Employee of the Company or a member of the
Controlled Group who during the current Plan Year
performs services for the Company or a member of
the Controlled Group and:
(1) received Compensation for the preceding Plan
Year in excess of $80,000 (adjusted at the
same time and in the same manner as under
Section 415(d) of the Code), or
(2) the Employee was at any time during the
current Plan Year or the preceding Plan Year
a five percent (5%) owner of the Employer as
defined in Section 416(i)(1) of the Code.
(b) For purposes of determining Highly Compensated
Employees, "Compensation" for a Plan Year shall be
determined in the same manner as "Compensation" in
Section 12.4 of the Plan, increased by Deferrals
under this Plan and any pre-tax elective
contributions under a cafeteria plan (as defined in
Section 125 of the Code) maintained by the Company
or similar contributions under a plan maintained by
a member of the Controlled Group.
(c) Notwithstanding the foregoing, the determination of
Highly Compensated Employees may be made under the
"top-paid group" election under the regulations or
any other guidance issued pursuant to Code Section
414(q).
2.20 Inactive Participant: Any Eligible Employee or former
Eligible Employee who is not an active Participant in the Plan and
who has amounts credited to his account under the Plan.
2.21 Participant: An Eligible Employee who is an active
Participant in the Plan and who has amounts credited to his account
under the Plan.
2.22 Plan: The SCANA Corporation Stock Purchase-Savings
Plan, the Plan set forth herein, as amended from time to time.
2.23 Plan Administrator: The SCANA Corporation Stock
Purchase-Savings Plan Committee ("Committee").
2.24 Plan Manager: The person appointed by the Committee to
have primary responsibility for management of the regular
operations of the Plan. The Plan Manager shall report to the
Committee.
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2.25 Plan Year: Effective January 1, 1989, the term "Plan
Year" shall mean the twelve (12) month period commencing
January 1st and ending on the last day of December next following.
For purposes of this Plan, the plan year shall also constitute the
"Limitation Year" for purposes of Section 415 of the Code.
2.26 Regular Contributions: Eligible Earnings which a
Participant elects to contribute to the Plan on an after-tax basis
in accordance with Section 4.2.
2.27 Spouse: That person who is legally married to the
Employee according to the law of the Employee's residence.
2.28 Termination of Employment: The ending of the employment
relationship between the Employer and an Employee for a cause other
than death. A leave of absence authorized by the Employer under
the Employer's established and nondiscriminatory personnel
practices is not a termination of employment. Notwithstanding the
above, a transfer by a Participant from the Employer to another
Controlled Group member which has not adopted this Plan shall not
be deemed to be a Termination of Employment.
2.29 Trust (or Trust Fund): The fund or funds maintained
under the trust agreement executed between the Company and the
Trustee to receive and invest the amounts contributed on behalf of
Participants, and from which distributions will be made.
2.30 Trustee: The individual(s) or corporation(s) appointed
by the Company, pursuant to a trust agreement, to hold and manage
the Trust Fund.
2.31 Valuation Date: The last day of each calendar month, or
any other date designated from time to time by the Plan Manager
(including bi-weekly valuations, to the extent practicable), for
determining the value of a Participant's account for all purposes
under the Plan, including the determination of amounts available
for loans, withdrawals, and distributions.
2.32 Valuation Price: The average weekly sales price for
Common Stock allocated to Participants' accounts sold on the New
York Stock Exchange (NYSE) preceding the Date of Distribution for
such shares. When no sales of Participant shares has occurred, the
Valuation Price is the closing NYSE market price immediately
preceding the Date of Distribution.
ARTICLE III. ELECTION OF PARTICIPATION
3.1 Election to Participate: An Eligible Employee may elect
to participate in the Plan by giving written notice to the Plan
Manager on or before the day on which such Eligible Employee's
participation is to commence. Such Eligible Employee's
participation will commence as of the first day of the pay period
which begins following the date the Employer receives the notice.
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3.2 Election Authorization: The notice of election to
participate under Section 3.1 shall authorize either (a) an
Eligible Earnings deferral election as permitted under Section 4.1
or (b) a payroll deduction election as permitted under Section 4.2.
Such notice may also authorize additional contributions under the
provisions of Section 4.3.
ARTICLE IV. EMPLOYEE DEFERRALS AND CONTRIBUTIONS
4.1 Deferrals: Subject to the applicable limitations of
Article XII, a Participant may elect on a form provided by the
Employer to defer receipt on a pre-tax basis of 1, 2, 3, 4, 5 or 6
percent of Eligible Earnings under the Plan, such amount to be
contributed to his account under the Plan.
4.2 Regular Contributions: Subject to the applicable
limitations of Article XII, instead of electing to defer receipt of
a portion of his Eligible Earnings under Section 4.1, a Participant
may elect on a form provided by the Employer to contribute to the
Plan, by means of payroll deductions on an after-tax basis, 1, 2,
3, 4, 5 or 6 percent of Eligible Earnings, such amount to be
contributed to his account under the Plan.
4.3 Additional Contributions: Subject to the applicable
limitations of Article XII, if a Participant has elected to defer
receipt of a portion of his Eligible Earnings under Section 4.1 or
has elected to make Regular Contributions under Section 4.2, he may
authorize, on a form provided by the Employer, Additional
Contributions of whole percentages from 1 percent to 9 percent of
Eligible Earnings, which Additional Contributions may be made in
the form of Deferrals on a pre-tax basis under Section 4.1 or
Regular Contributions on an after-tax basis under Section 4.2.
Such Additional Contributions shall not be considered in
determining the amount of Employer Contributions.
4.4 Timing of Contributions: All Deferrals, Regular
Contributions, and Additional Contributions shall be contributed to
the Trust by the Employer as soon as practical after amounts are
subject to payroll deduction, but in all events all such Deferrals
and Contributions shall be contributed to the Trust by the Employer
in accordance with the requirements set forth in regulations and
other guidance issued by the Department of Labor.
4.5 Changes in Contributions: Effective January 1, 1989, a
Participant may change his contribution election under Sections
4.1, 4.2, and 4.3 as of the first day of the Plan Year which begins
following the date the Plan Administrator receives a notice of
change. Notice of any such change shall be given on a form to be
provided by the Employer, signed by the Participant, and delivered
to the Employer at least sixty (60) days before the first Plan Year
affected by the change.
4.6 Suspension of Contributions: A Participant may suspend
Deferrals, Regular Contributions or Additional Contributions by
giving written notice on a form provided by the Employer at least
ten days before the start of the first payroll period affected by
the suspension. On any pay day on which a deduction would normally
be made from a Participant's Eligible Earnings, the deduction will
be automatically suspended without notice if his net
Eligible Earnings due on such pay day is insufficient to permit the
deduction to be made in full.
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A Participant whose Deferrals, Regular Contributions or
Additional Contributions have been suspended may resume
contributions by executing a new authorization with his Employer.
The authorization shall be effective as soon as it is
administratively feasible.
4.7 Rounding of Amounts: Amounts of payroll deductions may
be rounded or determined on a bracket basis in a manner determined
by the Plan Manager for the purpose of facilitating administration
of the Plan.
4.8 Rollover Contributions:
(a) An Employee, without regard to whether the Employee
is an Eligible Employee or whether the Employee has
elected to participate in the Plan, may, with the
approval of the Committee, make a Rollover
Contribution. Such Employee's Rollover Contribution
shall be paid to the Trustee as soon as practicable
and shall be credited to his Account, in accordance
with his designation, as of the date the Rollover
Contribution is made. An Employee may make a
Rollover Contribution no more frequently than once
every six months.
(b) The term "Rollover Contribution" means the
contribution of an "eligible rollover distribution"
to the Trustee by the eligible Employee on or before
the 60th day immediately following the day such
Employee receives the "eligible rollover
distribution" or a contribution of an "eligible
rollover distribution" to the Trustee by the
Employee or the trustee of another "eligible
retirement plan" (as defined in Section 402(c)(8) of
the Code) in the form of a direct transfer under
Section 401(a)(31) of the Code.
(c) The term "eligible rollover distribution" means:
(1) part or all of a distribution to the Employee
from an individual retirement account or
individual retirement annuity (as defined in
Section 408 of the Code) maintained for the
benefit of the Employee making the Rollover
Contribution, the funds of which are solely
attributable to an eligible rollover
distribution from an employee plan and trust
described in Section 401(a) of the Code which
is exempt from tax under Section 501(a) of the
Code, (a "conduit IRA"); or
(2) part or all of the amount (other than
nondeductible employee contributions) received
by such Employee or distributed directly to
this Plan on such Employee's behalf from an
employee plan and trust described in Code
Section 401(a) which is exempt from tax under
Code Section 501(a).
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In all events, such amount shall constitute an
"eligible rollover distribution" only if such
amount qualifies as such under Code Section
402(c) and the regulations and other guidance
thereunder and is a distribution of all or any
portion of the balance to the credit of the
Employee from the distributing plan or conduit
IRA other than any distribution: (i) that is
one of a series of substantially equal periodic
payments (not less frequently than annually)
made for the life (or life expectancy) of the
distributee or for a specified period of ten
years or more; (ii) to the extent such
distribution is required under Code Section
401(a)(9); (iii) to the extent such
distribution is not includible in gross income
(determined without regard to the exclusion for
net unrealized appreciation with respect to
employer securities); or (iv) that is made to
a non-spouse beneficiary.
(d) Once accepted by the Trust, an amount rolled
over pursuant to this Section 4.8 shall be
credited to the Employees's "Rollover
Contribution Account" under his Accounts, and
thereafter, such Rollover Contributions shall
be administered and invested in accordance with
Article VI and subject to the distribution
provisions set forth in Articles VIII. The
limitations of Article XII shall not apply to
Rollover Contributions. All Rollover
Contributions shall be made in cash and shall
be fully vested. No Employer Contributions
shall be made with respect to Rollover
Contributions.
ARTICLE V. EMPLOYER CONTRIBUTIONS
5.1 Employer Contributions: Subject to the applicable
limitations of Article XII, each Employer shall contribute, out of
current or accumulated earnings as determined under generally
accepted accounting principles and practices or from other sources
of funds without regard to current or accumulated profits, on
behalf of each of the Participants in its employ an amount equal to
one hundred percent of all Deferrals and Regular Contributions
under the provisions of Sections 4.1 and 4.2, to the extent such
contributions, when combined, do not exceed six percent (6%) of
Eligible Earnings. Employer Contributions will be made as soon as
practicable after the end of each month. No Employer Contributions
will be made with respect to Additional Contributions pursuant to
Section 4.3 or Rollover Contributions pursuant to Section 4.8.
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5.2 Corrective Contributions/Reallocations: If, with respect
to a Plan Year, an administrative error results in a Participant's
accounts not being properly credited with the amounts of Deferrals,
Regular Contributions, Additional Contributions, Rollover
Contributions, or Employer Contributions, or earnings on any such
amounts, corrective Employer contributions or account reallocations
may be made in accordance with this Section. Solely for the
purpose of placing any affected Participant's account in the
position that it would have been in if no error had been made, the
Company may make additional contributions to such Participant's
accounts, or the Committee may reallocate existing
Contributions among the accounts of affected Participants.
ARTICLE VI. PLAN INVESTMENTS
6.1 Employee Deferrals, Regular Contributions, Additional
Contributions, and Rollover Contributions: Effective November 1,
1988, all Deferrals, Regular Contributions, Additional
Contributions, and Rollover Contributions made during any Plan Year
shall be invested entirely in Common Stock.
6.2 Employer Contributions: Employer Contributions under
Article V shall be invested in Common Stock.
6.3 Investments: All Deferrals, Regular Contributions,
Additional Contributions, Rollover Contributions and Employer
Contributions shall be transferred to the Trustee for investment in
Common Stock. The Trustee shall invest such Deferrals, Regular
Contributions, Additional Contributions, Rollover Contributions,
and Employer Contributions in Company Stock as directed by the Plan
Manager as a named fiduciary of the Plan.
All funds which are to be invested in Common Stock shall be
pooled and so invested each month and shall be proportionately
allocated to the account of each Participant on whose behalf such
purchase is made.
When the Plan Manager shall direct the Trustee to purchase
shares of Common Stock, the Trustee shall purchase shares of Common
Stock in the open market or in privately negotiated transactions
(as directed by the Plan Manager), or alternatively from SCANA
Corporation holdings of authorized but unissued stock or of
treasury stock as this latter alternative may be directed by SCANA
Corporation in its sole discretion.
(a) Where SCANA Corporation directs that authorized but
unissued shares be acquired by the Trustee from SCANA
Corporation, the pricing of these original issue shares
will be determined as follows:
(1) Employee Deferrals , Regular Contributions,
Additional Contributions and Rollover
Contributions:
Shares will be purchased at the closing NYSE market
price on the last business day of the month in
which the contributions were made.
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EX: Contributions from the 01/14/94 payroll will
purchase at the closing NYSE market price on
01/31/94.
(2) Employer Contributions:
Shares will be purchased at the closing NYSE market
price on the last business day of the month for
which the contributions are effective.
EX: Employer Contributions matching the 01/14/94
and 01/28/94 payrolls will purchase at the closing
NYSE market price on 01/31/94.
(3) Loan Principal and Interest Repayments:
Shares will be purchased at the closing NYSE market
price on the last business day of the month in
which the repayments were collected.
EX: Loan repayments received with the 01/14/94 and
01/28/94 payrolls will purchase at the closing NYSE
market price on 01/31/94.
(4) Dividend Income:
Shares will be purchased at the closing NYSE market
price on the last business day of the month
immediately preceding the dividend payment date.
EX: Dividend income for the 01/01/94 dividend will
purchase at the closing NYSE market price on
12/31/94.
(5) Contribution Interest Income:
Shares will be purchased at the closing NYSE market
price on the last business day of the month in
which the interest was posted.
EX: Contribution interest income posted 01/03/94
will purchase at the closing NYSE market price on
01/31/94.
(6) Dividend Interest Income:
Shares will be purchased at the closing NYSE market
price on the last business day of the month
immediately preceding the next dividend payment
date.
EX: Dividend interest income associated with the
07/01/94 dividend will purchase at the closing NYSE
market price on 09/30/94.
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For each of items 1 through 6 above, in the event
the payday or last business day of the month
referenced therein is not a trading date, the
closing NYSE market price for the immediately
preceding trading date will establish the purchase
price per share.
(b) Effective August 3, 1991, the Trustee shall,
directly or via an agent, sell Participant shares in the
open market on the NYSE in accordance with Article VIII
of the Plan, to provide funds for cash-option
withdrawals or distributions, and for fractional-share
cash outs associated with either cash-option or share
withdrawals or distributions. Shares existing in the
account at the time the withdrawal or distribution
request is received will be sold in the open market.
Shares posted to the account during termination
processing, due to receipt of final contributions, loan
repayments and/or earnings, will be purchased by the
Plan at the Valuation Price.
(c) Effective August 3, 1992, the Trustee shall, directly or
via an agent, sell Participant shares in the open market
on the NYSE in accordance with Article IX of the Plan to
provide funds to borrowing Participants as loan
disbursements.
(d) The purchase and sale prices of shares per items (a)
through (c) above shall be averaged each month to
determine a monthly per share value for allocating
shares to the individual accounts.
(e) The Trustee shall purchase shares of Common Stock, as
directed by the Plan Manager as a named fiduciary, in
the open market at the current market price or in
privately negotiated transactions at a price and upon
such terms as directed by the Plan Manager as a named
fiduciary of the Plan. The purchase prices of the
shares so acquired shall be averaged each month to
determine a monthly per share value for allocating
shares to the individual accounts.
(f) In certain months the determination of a monthly per
share value for purposes of allocating shares to
individual accounts may involve the averaging of share
prices obtained in both items (d) and (e) above. Common
Stock purchased by the Trustee shall be carried in the
Participant's accounts at the cost thereof to the
Trustee, after deducting taxes and brokerage
commissions, if any. Contributions made before
November 1, 1988, which are to be invested in
obligations of the United States Government shall, to
the extent practicable, be invested in Series EE Savings
Bonds and registered either in the name of the
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Participant or in the name and title of the Trustee.
Purchases of such bonds shall be made by the Trustee
each time the Participant's savings are sufficient to do
so. The interests of Participants in Series EE Savings
Bonds registered in the name and title of the Trustee
shall be credited by the Trustee to the accounts of the
respective Participants in the manner prescribed by the
regulations of the United States Treasury Department
relating to Series EE Savings Bonds.
6.4 Earnings: Dividends on Common Stock shall, at the
direction of the Plan Manager as a named fiduciary of the Plan, be
invested in such stock. Interest on obligations of the United
States shall be reflected in the redemption value of such
obligations.
6.5 Uninvested Cash: Any uninvested cash in the account of
a Participant at the end of a Plan Year may be carried over to the
next Plan Year, if the Employee continues as a contributing
Participant, and then invested.
ARTICLE VII. INVESTMENT ACCOUNTS
7.1 Separate Accounts: Separate accounts for each
Participant for each Plan Year shall be set up to reflect the form
and source of investment (Deferrals, Regular Contributions,
Additional Contributions, Rollover Contributions, and Employer
Contributions). The Committee shall establish a separate account
for each Participant to which shall be credited the Participant's
allocable share of:
(a) Deferrals under Sections 4.1 and 4.3 (including any
Qualified Nonelective Contributions treated as
Salary Deferral Contributions under Section
12.10(d)) made on his or her behalf and the earnings
and losses thereon, which separate account shall
take into account gains, losses, withdrawals, and
other credits or charges attributable to such
amounts in accordance with the requirements of
Treas. Reg. 1.401(k)-1(e)(3) and any further
guidance issued thereunder;
(b) Regular Contributions under Sections 4.2 and 4.3
made by a Participant and the earnings and losses
thereon; and
(c) Rollover Contributions under Section 4.8 made by an
Employee and the earnings and losses thereon; and
(d) Employer Contributions under Article V (including
any Qualified Nonelective Contributions treated as
Employer Contributions under Section 12.11(c)) made
on his behalf and the earnings and losses thereon.
Amounts allocated to a Participant's accounts for a Plan Year
may be consolidated with amounts allocated for earlier Plan Years
two years after the Plan Year has ended. Original investments and
income therefrom shall be reflected separately in such accounts.
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7.2 Account Information: Shares of Common Stock shall be
accounted for on the bases of both numbers of shares and cost of
the shares to the Trustee. Obligations of the United States
purchased before November 1, 1988, shall be accounted for on a cost
basis. Notwithstanding anything to the contrary in the Plan, the
fair market value of the Trust Fund shall be determined each Plan
Year, as of the last day of the Plan Year. In accordance with the
provisions of Article VI, shares of Common Stock are allocated to
each Participant's accounts. The earnings and/or losses and
increases/decreases in the fair market value of each Participant's
account balance shall be determined as of each Valuation Date based
on the number of shares in the Participant's accounts multiplied by
the price of those shares on the Valuation Date. In addition to
shares of Common Stock, to the extent any Participant's accounts
are invested in cash as of the Valuation Date, earnings and/or
losses and increases/decreases in the fair market value of each
Participant's account balance are allocated to Participants'
accounts in proportion to their account balances. The fair market
value for the Trust Fund as a whole as of any Valuation Date shall
be determined as the sum of the individual Participants' accounts.
7.3 Applicable Valuation Date: Whenever a distribution or
withdrawal by a Participant is made, the amount paid to the
Participant shall be based on the value of his or her accounts as
of the Valuation Date determined in accordance with Article VIII.
Whenever a loan to a Participant is made, the amount of such loan
shall be based on the value of his or her accounts as of the
Valuation Date determined in accordance with Article IX.
ARTICLE VIII. WITHDRAWALS/DISTRIBUTIONS
8.1 Withdrawals Before Termination of Employment:
(a) Effective July 1, 1994, a Participant may elect at
any time during the Plan Year to make withdrawals
from his accounts in the order set forth in the list
below. Except as provided in Sections 8.1(b) and
(c), such withdrawals may not be made from any
account until all accounts previously listed have
been exhausted.
(1) An amount equal to all or part of the
Participant's before-1987 Regular Contributions
made to his account under Section 4.3 to the
extent required to exhaust such amounts.
(2) An amount equal to all or part of the
Participant's before-1987 Regular Contributions
made to his account under Section 4.2 to the
extent required to exhaust such amounts;
provided, however, that if the value of all
amounts attributable to Regular Contributions
plus earnings thereon is less than the net
amount of before-1987 Regular Contributions, no
more than such value may be withdrawn.
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(3) An amount equal to or part of the remaining
amounts allocated to the Participant's Regular
Contributions accounts under Section 4.3.
(4) An amount equal to all or part of the remaining
amounts allocated to the Participant's Regular
Contribution accounts under Section 4.2.
(5) An amount equal to all or part of the amounts
allocated to the Participant's Rollover
Contribution account under Section 4.8.
(6) If the Participant is credited with at least 60
months of participation in the Plan, an amount
equal to all or part of the amounts allocated
to his Employer Contributions account.
(7) If the Participant is credited with less than
60 months of participation in the Plan, an
amount equal to all or part of the amounts
allocated to his Employer Contributions account
which have been so allocated for at least two
years following the close of the Plan Year of
contribution.
(b) A Participant may at any time after reaching age 59 1/2
and after having exhausted the amounts described in
Section 8.1(a)(1) through (5) elect to make
withdrawals from his Deferral Account. The
Participant, in application for such withdrawal,
shall include evidence of the Participant's age and
a statement of any other facts required by the Plan
Manager.
(c) Hardship Withdrawals: A Participant may request a
withdrawal from his Deferral account in the order
set forth in Section 8.1(e) if he suffers a
hardship. Effective January 1, 1989, a hardship
will be determined by the Plan Manager to exist if
the withdrawal is necessary in light of an immediate
and heavy financial need of the Participant, and if
funds to alleviate such financial need are not
reasonably available from other resources, including
those assets of the Participant's spouse and minor
children (not to include any property held under the
Uniform Gifts to Minors Act) that are reasonably
available to the Participant. A withdrawal is
deemed to be on account of an immediate and heavy
financial need of the Participant and will be
permitted under this Plan, only if the withdrawal is
for:
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(1) Expenses for medical care described in Code Section
213(d) previously incurred by the Participant, the
Participant's spouse, or any dependents of the
Participant (as defined in Code Section 152) or
necessary for these persons to obtain medical care
prescribed in Code Section 213(d);
(2) Costs directly related to the purchase of a
principal residence for the Participant (excluding
mortgage payments);
(3) Payment of tuition, related educational fees, and
room and board expenses for the next 12 months of
post-secondary education for the Participant, or
the Participant's spouse, children, or dependents
(as defined in Code Section 152);
(4) Payments necessary to prevent the eviction of the
Participant from the Participant's principal
residence or foreclosure on the mortgage on that
residence; or
(5) Any other deemed need as may be authorized by the
Commissioner of the Internal Revenue Service
through the publication of Revenue Rulings,
Notices, or other documents of general
applicability.
A financial need may be immediate and heavy even if
it was reasonably foreseeable or voluntarily
incurred by the Participant. The determination of
whether any such immediate and heavy financial need
exists shall be based upon a nondiscriminatory,
objective review of all relevant facts and
circumstances by the Plan Manager.
(d) Hardship withdrawals shall be carried out under the
following rules:
(1) The withdrawal date and eligible withdrawal amount
(excluding post 1988 earnings) shall be fixed by
the Plan Manager after application by the
Participant under procedures approved by the
Committee.
(2) The application for withdrawal shall include a
signed notarized statement of the facts causing
financial hardship and any other facts required by
the Plan Manager. The application will state that
the Participant's need can not be relieved through
any other resources such as reimbursement or
compensation by insurance or otherwise, reasonable
liquidation of assets available to the Participant
as noted in Subsection (c) above to the extent such
liquidation would not cause an immediate and heavy
financial need, stopping deferrals or after-tax
employee contributions, or other distributions or
nontaxable loans from plans maintained by the
Employer or any other employer, or by borrowing
from commercial sources on reasonable terms.
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(3) The Plan Manager may delay, upon circumstances of
reasonable cause, payment of an approved withdrawal
to permit a special valuation, to permit
liquidation of necessary assets or for other
pertinent reasons.
(4) Accounts shall be adjusted as of the last regular
or special Valuation Date on or before the
withdrawal unless the Plan Manager elects to have
a special Valuation Date, which will then control.
(5) The withdrawal may not be in excess of the amount
of the immediate and heavy financial need of the
Participant. The amount of an immediate and heavy
financial need may include any amounts necessary to
pay any federal, state, or local income taxes or
penalties reasonably anticipated to result from the
distribution.
(6) The Participant must obtain all withdrawals, other
than hardship withdrawals, and all nontaxable loans
currently available under all plans maintained by
the Employer, including nonqualified plans of the
Employer, before a hardship withdrawal will be
allowed. Notwithstanding the foregoing, if taking
such a nontaxable loan would not alleviate the
financial hardship for the Participant or if
repayment of such a loan would cause the
Participant to incur a financial hardship, taking
of such a loan shall not be required.
(7) After the Participant receives his hardship
withdrawal, the Plan Manager will suspend his
employee contributions to this Plan (to include all
Deferrals, Regular Contributions and Additional
Contributions) and shall cause his employee
contributions to be suspended as to any other plan
of deferred compensation, qualified or nonqualified
(but not including any health or welfare benefit
plan), maintained by the Employer for a period of
12 months, and the Participant will consent to this
suspension in writing on a form to be furnished by
the Plan Manager.
(8) The Participant's $7,000 (indexed) annual
limitation on his Deferrals, as imposed by Code
Section 402(g) and provided for in Section 12.9 of
the Plan (Maximum Amount of Deferrals), for the
Plan Year following the Plan Year in which he
received his hardship withdrawal will be reduced by
the amount of the Deferrals that he made during the
Plan Year in which he received his hardship
withdrawal.
(e) Hardship Withdrawals shall be charged in the following
order:
(1)Deferral Accounts under Section 4.3.
(2)Deferral Accounts under Section 4.1.
8.2 Frequency of Withdrawal: A Participant may make a
withdrawal under Section 8.1(a) or 8.1(b) once in any six month
period.
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8.3 Form of Withdrawal: Effective October 11, 1991,
withdrawals may be in kind (Common Stock or obligations of the
United States), except for (a) uninvested cash, and (b) cash for
fractional shares in accordance with Section 8.10, or may in the
alternative at the written election of the Participant be wholly in
cash with respect to SCANA Corporation Common Stock only, the cash
alternative to be based on the Valuation Price.
Effective August 3, 1992 regarding the cash-option
alternative, the Trustee shall, at the direction of the Plan
Manager as a named fiduciary of the Plan, directly or via an agent,
sell Participant shares of Common Stock in the open market on the
NYSE; the number of shares to be sold in the open market and the
authorization for such sale shall be specified on form(s) approved
by the Plan Manager, who shall directly or via duly designated
Company employee(s) review the same, and following approval, direct
the Trustee to carry out the sale of shares indicated. The
Participant shall bear all risk of a declining market price to the
time of sale, and the sales commissions and any transactional taxes
inherent to the sale and payable at such time shall be charged to
the Participant's account and paid from the sales proceeds, the net
amount being distributable.
8.4 Notice of Withdrawal: Notice of withdrawal must be given
by a Participant in writing at least sixty (60) days (or such
lesser number of days as the Committee may specify) prior to the
date of withdrawal. Such notice must be given to the Plan Manager
on a form provided by the Plan Manager for such purpose specifying
that the Participant elects a withdrawal option set forth in
Section 8.1. Subject to Section 8.14 (Direct Rollover
Distributions), payment pursuant to such notice shall be made as
soon as practicable upon receipt by the Employer. Notwithstanding
the foregoing, no withdrawal may be made under this Article VIII by
a Participant during the period in which the Committee is making a
determination of whether a domestic relations order affecting the
Participant's account is a qualified domestic relations order,
within the meaning of Section 414(p) of the Code. Further, if the
Committee is in receipt of written notice that a qualified domestic
relations order affecting a Participant's account is being sought,
it may prohibit such Participant from making a withdrawal under
this Article VIII until a final determination with respect to such
order has been made (or a determination has been made that such
order will not be submitted within a reasonable period of time
after the Committee was notified of such an order). Finally, if
the Committee is in receipt of a qualified domestic relations order
with respect to any Participant's account, it may prohibit such
Participant from making a withdrawal under this Article VIII until
the alternate payee's rights under such order are satisfied.
DISTRIBUTIONS
8.5 Distribution on Termination of Employment or Disability:
In the event of Termination of Employment of a Participant or the
Participant's Disability, he shall be eligible to receive, in a
single sum, the balance of shares of Common Stock in his entire
account, in cash or in kind, subject to the remaining provisions of
this Article VIII.
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8.6 Distribution on Death: If a Participant's employment
with an Employer is terminated by reason of death, or the
Participant's death occurs after Termination of Employment and
before a distribution of his account has been made, the entire
balance of shares of Common Stock credited to the Participant's
account shall be distributed to the Participant's Beneficiary in a
single sum, in cash or in kind, as determined under Section 8.9.
Such distribution shall be made as soon as practicable after the
Participant's death and in no event later than 60 days after the
close of the Plan Year in which that death occurs. In the case of
distributions to surviving Spouses, the direct rollover provisions
of Section 8.14 shall apply.
8.7 Promptness of Distribution: If the market value of the
Common Stock allocated to a Participant's account does not exceed
$3,500, determined as of the Valuation Date coincident with or
immediately following his Termination of Employment, a distribution
of the amounts allocated to his account shall be made to him as
soon as practicable thereafter. If the market value of the Common
Stock allocated to a Participant's account exceeds $3,500,
determined as of the Valuation Date coincident with or immediately
following his Termination of Employment, a distribution of the
amounts allocated to his account shall be made to him as soon as
practicable after he consents to the distribution in writing and on
a form provided by the Committee to receive a distribution of the
Participant's account. If such a Participant terminates employment
before age 65 and fails to consent to a distribution as soon as
practicable after his Termination of Employment, such a
distribution may be made upon the Participant's request in which
case, the distribution will be determined as of the Valuation Date
coincident with or immediately following such Participant consent.
In all events, however, distribution shall be made as soon as
practicable after the earlier of his attainment of age 65 or death
and in no event later than 60 days after the Plan Year in which the
earlier of his attainment of age 65 or death occurs.
Notwithstanding the foregoing, all distributions shall be made in
accordance with the remaining provisions of this Article VIII.
8.8 Amount of Distribution: A distribution from a
Participant's account shall include all amounts vested under
Article X.
8.9 Form of Distribution: Distributions may be in kind
(SCANA Corporation Common Stock or obligations of the United
States), except for (a) uninvested cash, and (b) cash for
fractional shares in accordance with Section 8.10, or may in the
alternative at the written election of the Participant (or of the
surviving spouse or other beneficiary in the event of death) be
wholly in cash with respect to Common Stock. Effective August 3,
1992, to effectuate the cash alternative, the Trustee shall, at the
direction of the Plan Manager as a named fiduciary of the Plan,
directly or via an agent, sell Participant shares in the open
market on the NYSE; the Participant shall bear all risk of a
declining market price to the time of sale, and the sales
commissions and any transactional taxes inherent to the sale and
payable at such time shall be charged to the Participant's account
and paid from the sales proceeds, the net amount being
distributable. The number of shares to be sold in the open market
and the authorization for such sale shall be specified on form(s)
approved by the Plan Manager, who shall directly or via duly
designated Company employee(s) review the
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same, and following approval, direct the Trustee to carry out the
sale of shares indicated. However, in those circumstances where,
subsequent to termination processing due to receipt of amounts
attributable to final contributions and/or allocated earnings,
there are amounts that were not previously recognized, such amounts
shall be paid in cash.
8.10 Fractional Shares: No fractional shares of Common Stock
shall be distributed. The amount of cash for fractional shares
shall be based on the Valuation Price of the stock as of the Date
of Distribution.
Any fractional share associated with a Participant's requested
cash-option or share-option Withdrawal or Distribution will either
be valued and purchased by the Trustee on behalf of the Plan at the
appropriate Valuation Price, or, depending upon the circumstances,
may be sold on the NYSE in aggregation with the fractional shares
of other similarly situated Participants as part of some whole
number of shares with the net proceeds allocated among the
respective Participants.
8.11 Limitations on Commencement of Benefits:
(a)Required Benefit Commencement -- In General. Unless the
Participant elects otherwise, the payment of the
Participant's benefits will not commence later than the
60th day after the end of the Plan Year in which occurs
the latest of the date when: (1) the Participant
reaches age 65; (2) the tenth anniversary of the date
the Participant commenced participation in the Plan; or
(3) the Participant's employment termination date.
(b)Minimum Required Distributions After Age 70 1/2:
(1)Notwithstanding any other provision of the Plan, at
the Participant's election, each Participant's
entire interest in the Plan will be distributed, or
minimum distribution of a Participant's interest in
the Plan will commence, no later than the April 1
following the calendar year in which the
Participant reaches age 70 1/2, whether or not the
Participant has then terminated employment. Prior
to January 1, 1997, in the absence of any election
by the Participant, minimum annual distributions
will commence to be paid no later than the required
beginning date. In accordance with Code Section
401(a)(9) and the regulations thereunder, a minimum
distribution shall be in an annual minimum amount
calculated with respect to the period of the life
expectancy of the Participant.
(2)Effective January 1, 1997, if a participant shall
attain age 70 1/2 on or after January 1, 1997 or
attained age 70 1/2 on or after January 1, 1996 and
has not yet commenced receiving minimum required
distributions in accordance with Code Section
401(a)(9) prior to January 1, 1997, such
participant shall commence receiving minimum
required distributions in accordance with the
requirements of the Code and the regulations and
other
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guidance thereunder not later than the "required
beginning date," which shall be the April 1
following the close of the later of (i) the
calendar year in which the participant attains age
70 1/2, or (ii) the calendar year in which the
participant terminates employment.
(3)Life expectancy will not be recalculated annually
for purposes of determining required minimum
distribution amounts for any such minimum
distribution required to be made on and after the
required beginning date.
(4)Computation of a required minimum distribution
amount shall take into account the applicable
incidental benefit requirements of Code Section
401(a)(9) and the regulations thereunder.
(5)Any other applicable provisions concerning minimum
required distributions as are prescribed by Code
Section 401(a)(9) and the regulations issued
thereunder shall also be complied with and are
hereby incorporated by reference.
(6)In the event that a Participant dies after minimum
required distributions have begun to be made, the
balance credited to the Participant's account will
be distributed in accordance with the procedure of
Section 8.6 of the Plan.
8.12 Employee Transfers from the Employer to a Controlled
Group Member: A transfer by a Participant from the Employer to
another Controlled Group Member which has not adopted this Plan
shall not affect his Participation under this Article VIII of the
Plan, nor, for purposes of the Plan, shall it be deemed to be a
Termination of Employment.
8.13 Distributions with Respect to Qualified Domestic
Relations Orders: Distributions may be made in accordance with the
terms of a Qualified Domestic Relations Order ["QDRO," as defined
by Code Section 414(p)], to an Alternate Payee [as defined by Code
Section 414(p)(8)] in the form of distribution otherwise provided
for under this Article VIII with respect to a Participant. In all
events, immediate distributions may be made pursuant to the terms
of a QDRO even before the Participant has attained "earliest
retirement age," as defined in Code Section 414(p). Further, if
the Committee is in receipt of written notice that a QDRO affecting
a Participant's account is being sought, it may prohibit such
Participant from commencing to receive a distribution until a final
determination with respect to such order has been made (or a
determination has been made that such order will not be submitted
within a reasonable period of time after the Committee was notified
of such an order). The amount payable to the Participant and to
any other person other than the alternate payee named in the order
shall be adjusted accordingly.
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8.14 Direct Rollover Distributions:
(a)At the written request of a Participant, a surviving
Spouse of a Participant, or a Spouse or former Spouse of
a Participant that is an alternate payee under a
Qualified Domestic Relations Order, under Section 8.14
(referred to as the "distributee") and upon receipt of
the written direction of the Committee or its designee,
the Trustee shall effectuate a Direct Rollover
Distribution of the amount requested by the distributee,
in accordance with Section 401(a)(31) of the Code, to an
Eligible Retirement Plan. Such amount may constitute
all or any whole percent of any distribution from the
Plan otherwise to be made to the distributee, provided
that such distribution constitutes an Eligible Rollover
Distribution. All Direct Rollover Distributions shall
be made in accordance with the following Subsections
8.14(b) through 8.14(h).
(b)A distributee may not elect to have a Direct Rollover
Distribution made to more than one Eligible Retirement
Plan.
(c)Direct Rollover Distributions shall be made, in
accordance with such forms and procedures as may be
established by the Committee, in shares of Common Stock
otherwise distributable under the Plan to the
distributee, with cash for fractional shares of Common
Stock, which shares shall be registered in a manner
necessary to effectuate a Direct Rollover Distribution;
provided, however, that the distributee may request that
such Direct Rollover Distribution be made entirely in
cash in the manner described above and in accordance
with the terms of the Plan governing cash distributions
in this Article VIII.
(d)No amounts of Regular Contributions under Sections 4.2
or 4.3 may be distributed to an Eligible Retirement Plan
through a Direct Rollover Distribution.
(e)No Direct Rollover Distribution shall be made unless the
distributee furnishes the Committee with such
information as the Committee shall require and deems to
be sufficient.
(f)A distributee may elect to divide an Eligible Rollover
Distribution into two components, with one portion paid
as a Direct Rollover Distribution and the remainder paid
to the distributee, provided that such division of
payments shall be permitted only if the amount of the
Direct Rollover Distribution is at least equal to $500.
(g)No Direct Rollover Distributions shall be permitted
unless the amount of the distribution exceeds $200.
(h)Direct Rollover Distributions shall be treated as all
other distributions under the Plan and shall not be
treated as a direct trustee-to-trustee transfer of
assets and liabilities.
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8.15 Definitions: For purposes of Section 8.14, the
following terms have the following meanings:
(a)The term "Direct Rollover Distribution" means a payment
by the plan to the Eligible Retirement Plan specified by
the distributee.
(b)The term "Eligible Rollover Distribution" means any
distribution of all or any portion of the balance to the
credit of the distributee, except that, subject to the
regulations and other guidance issued pursuant to
Sections 402(c) and 401(a)(31) of the Code, an Eligible
Rollover Distribution does not include:
(1)any distribution that is one of a series of
substantially equal periodic payments (not less
frequently than annually) made for the life (or
life expectancy) of the distributee or the joint
lives (or joint life expectancies) of the
distributee and the distributee's designated
beneficiary, or for a specified period of ten years
or more;
(2)any distribution to the extent that such
distribution is required under Section 401(a)(9) of
the Code; or
(3)the portion of any distribution that is not
includible in gross income (determined with regard
to the exclusion for net unrealized appreciation
with respect to employer securities).
(c)The term "Eligible Retirement Plan" means any individual
retirement account described in Section 408(a) of the
Code, an individual retirement annuity described in
Section 408(b) of the Code, an annuity plan described in
Section 408(c) of the Code, or a qualified trust
described in Section 401(a) of the Code, that accepts
the distributee's Eligible Rollover Distribution.
However, in the case of an Eligible Rollover
Distribution to the surviving spouse, an Eligible
Retirement Plan is an individual retirement account or
individual retirement annuity."
ARTICLE IX. LOANS TO PARTICIPANTS
9.1 Amount of Loan: Loans from the Plan may be made to all
Participants and Beneficiaries who are "parties in interest" within
the meaning of Section 3(14) of the Employee Retirement Income
Security Act of 1974, as amended. Such individuals are referred to
herein as "Eligible Borrowers." An Eligible Borrower may request
a loan from his Deferral, Regular Additional, and Rollover
Contribution accounts, including increments attributable to
earnings thereon. The Plan Manager shall, in the exercise of
uniform and nondiscriminatory procedures, grant such loan request
where the requested loan amount when added to the outstanding
balance (if any) of all other loans to the Eligible Borrower from
this Plan, does not exceed the lesser of:
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(a)$50,000 reduced by the excess (if any) of the highest
outstanding balance of loans from the Plan to the
Eligible Borrower during the 1-year period ending on the
day before the date on which the latest such loan is
made, over the outstanding balance of loans from the
Plan to the Eligible Borrower on the date on which the
latest such loan is made, or
(b)one-half of the present value of the Eligible Borrower's
entire interest in the Plan,
except that an Eligible Borrower's application for a loan to
acquire his principal residence must evidence compliance with Code
purposes and provisions as indicated in Section 9.2(c).
9.2 Terms of Loan: In addition to such rules and regulations
as the Committee may adopt, all loans shall comply with the
following terms and conditions:
(a)An application for a loan by an Eligible Borrower shall
be made in writing to the Plan Manager.
(b)The period of repayment for any loan, except as set
forth in Subsection (c) below, shall be arrived at by
mutual agreement between the Plan Manager and the
borrower. The terms of each loan shall require
repayment on a substantially level amortization basis
(with payments not less frequently than quarterly) over
a period not to exceed five (5) years except as may
otherwise be applicable with respect to an approved
leave of absence without pay per Subsection (d) below or
as otherwise provided in Subsection (c) below.
(c)Notwithstanding the above, the period of repayment for
any loan used to acquire the principal residence of an
Eligible Borrower shall be arrived at by mutual
agreement between the Plan Manager and the borrower.
The applying Eligible Borrower shall provide such
documentation as shall be required in the discretion of
the Plan Manager to assure compliance with Code purposes
for principal residence acquisition loans where the
Eligible Borrower is seeking a loan term greater than
five (5) years. The Plan Manager shall not approve such
loan for a term greater than five (5) years where Code
compliance is not evidenced.
(d)Loan Payment Suspension During Approved Leave of Absence
without Pay.
(1)The level amortization requirement does not apply
to a period of up to one year during which the
Eligible Borrower is on a leave of absence without
pay which has been properly approved by the
Employer of the Eligible Borrower. However,
interest shall continue to accrue during such
period of nonpayment. Except as otherwise provided
below, if the Eligible Borrower does not pay all of
the interest accrued during the period of leave
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promptly upon returning to work, the loan shall be
reamortized as a new, refinanced loan (which may
constitute a second refinancing of the original
loan as an exception to the one-refinancing rule of
Subsection (j)(1)) to establish a new level payment
schedule over the remaining period of the original
loan term as reduced by the period of leave using
the loan balance inclusive of the unpaid accrued
interest amounts; if the Eligible Borrower does
promptly upon returning to work pay all interest
accrued during the period of leave, a revision of
payment amounts and due dates to assure compliance
with the applicable loan term limitation may yet
require refinancing.
(2)The period of a leave of absence without pay shall
not extend the term of the loan, as based upon the
date of the original loan, beyond the term
limitations noted with respect to refinancing
Subsection (j)(3)(C). Thus, in the circumstance
where it is reasonably anticipated that the period
of a leave of absence without pay would terminate
at, after or within 6 months before the expiration
of the applicable loan term limitation, the
Eligible Borrower will be required to continue
making payments according to the initial level
amortization schedule during the period of leave.
(e) Each loan shall be made against collateral which must
include, but need not be limited to, that portion of the
borrower's Deferral, Regular , Additional and Rollover
Contribution Accounts to the maximum extent of 50
percent of his entire interest in the Plan supported by
the borrower's collateral promissory note payable to the
Plan.
(f)Each loan shall bear interest at a reasonable rate
established by the Plan Manager. In determining such
interest rate, the Plan Manager shall take into
consideration interest rates being charged by banks or
other financial institutions for comparable loans at the
time the loan is made.
(g)The minimum loan amount shall be determined by the Plan
Manager but shall not be less than $500.
(h)Repayment of loans shall be made by payroll deduction.
An Eligible Borrower waives any right to discontinue
payroll deductions for loan payment purposes until the
promissory note is paid in full. Notwithstanding the
foregoing, an Eligible Borrower may prepay the entire
amount due under the loan at any time without penalty;
partial prepayments are not allowed.
(i)Effective August 3, 1992, an Eligible Borrower may have
two (2) loans from this Plan outstanding at a time, one
(1) of which may be a loan for the acquisition of the
Eligible Borrower's principal residence which has a term
greater than five (5) years.
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(j) Effective August 3, 1992:
(1)Each loan may be refinanced one (1) time after
thirteen (13) scheduled payments have been made,
except as otherwise provided in Subsection (d)(1).
(2)Loans made prior to August 1, 1992 that have
previously been refinanced under Plan rules
applicable at the time will not be eligible for
refinancing on or after August 3, 1992.
(3) (A)Loan refinancing will not extend the term of
the original loan, calculated from the
original date of the loan, so as to exceed
the five (5) year term limitation applicable
to loans other than to a loan used to acquire
the principal residence of the Eligible
Borrower.
(B)The refinancing of a loan used to acquire the
principal residence of an Eligible Borrower
will not extend the term of the original
loan, calculated from the original date of
the loan.
(4) (A) (i)Refinancing shall not require that the
Eligible Borrower borrow any additional
amount, except as is inherent in the
reamortization of a loan to include
unpaid interest following an approved
leave of absence without pay per
Subsection (d)(1) above.
(ii)Effective December 1, 1995,
refinancing shall not be permitted for
the purposes of borrowing an additional
amount.
(B)The refinancing of a loan used to acquire the
principal residence of an Eligible Borrower
shall not involve the borrowing of any
additional amount, except as is inherent in
the reamortization of a loan to include
unpaid interest following an approved leave
of absence without pay per Subsection (d)(1)
above.
(k)(1)Assets in the Deferral, Regular , Additional and/or
Rollover Contribution account(s) [prior to January
1, 1992, Deferral account only] in an amount equal
to the amount of such loan shall, at the direction
of the Plan Manager as a named fiduciary of the
Plan, be converted to cash, then the amount of such
loan shall be transferred to a special loan account
in the name of the Eligible Borrower. As of the
last day of each month following the making of the
loan and until the loan is repaid, all payments of
the loan, including interest, shall be reallocated
from the Eligible Borrower's loan account and
shall, at the direction of the Plan Manager
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as a named fiduciary of the Plan, be reinvested in
shares of Common Stock. Until such reinvestment in
Common Stock, such payment shall be invested by the
Trustee as directed by the Plan Manager as a named
fiduciary of the Plan.
(2)Effective August 3, 1992, the Company shall not
time the making of cash contributions to the
Trustee for the latter's purchase of loan shares
from Eligible Borrower accounts to provide funds
for loan disbursement. An Eligible Borrower shall
specify and authorize a whole-share amount from his
account -- first from Deferral Contributions, if
any, then from Rollover Contributions, if any, and
then from Regular Contributions as necessary -- to
be sold in the open market on the NYSE by or on
behalf of the Trustee, at the direction of the Plan
Manger, after which the proceeds, net of sales
commissions and any related transactional taxes
inherent to the sale and payable at such time,
shall be treated as the loan amount, and shall be
so indicated in the promissory note signed by the
Eligible Borrower. The Eligible Borrower shall
bear all risk of a declining market price to the
time of sale. The number of shares to be sold in
the open market and the authorization for such sale
shall be specified on form(s) approved by the Plan
Manager, who shall directly or via duly designated
Company employee(s) review the same, and following
approval, as a named fiduciary of the Plan, direct
the Trustee to carry out the sale of shares
indicated.
(l)Upon Termination of Employment or death, the outstanding
balance of the loan plus interest due must be repaid in
full before any distribution will be made to the
Eligible Borrower or the Eligible Borrower's
Beneficiary. In the absence of such repayment, the
value of the Eligible Borrower's account shall be
reduced by the amount outstanding on the loan and the
net amount shall be distributed to the Eligible Borrower
or Beneficiary. The Eligible Borrower's consent to the
loan shall be treated as a consent to a reduction in his
account balance in the event of a failure to repay such
loan. The amount of such account adjustment shall be
treated as a distribution under the Plan. Under no
circumstances, however, shall any unpaid loan be charged
against an Eligible Borrower's Account so long as he
remains employed by the Employer unless a distribution
of Deferrals could otherwise be made under Section
401(k) of the Code and the regulations issued
thereunder.
(m)Any scheduled loan payment shall be regarded as
delinquent upon the 15th day following the due date. If
substantially level repayments of an Eligible Borrower's
loan are not made at least quarterly, such loan shall be
treated as in default and the entire amount outstanding
on such loan shall become immediately due and payable.
In no event, however, shall a foreclosure on such loan
(by reduction of the Eligible Borrower's account
balance) occur earlier than the time
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permitted for distributions under Section 401(k) of the
Code and the regulations issued thereunder. The
foregoing provisions shall not apply during the period
of suspension of loan payments during an Employer
approved leave of absence without pay which satisfies
the provisions of Subsection (d) above.
(n)Notwithstanding anything herein to the contrary, no
loans may be made under this Article IX by an Eligible
Borrower during the period in which the Committee is
making a determination of whether a domestic relations
order affecting the Eligible Borrower's account is a
qualified domestic relations order, within the meaning
of Section 414(p) of the Code. Further, if the
Committee is in receipt of written notice that a
qualified domestic relations order affecting an Eligible
Borrower's account is being sought, it may prohibit such
Eligible Borrower from making a loan under this Article
IX until a final determination with respect to such
order has been made (or a determination has been made
that such order will not be submitted within a
reasonable period of time after the Committee was
notified of such an order). If the Committee is in
receipt of a qualified domestic relations order with
respect to any Eligible Borrower's account, it may
prohibit such Eligible Borrower from making a loan under
this Article IX until the alternate payee's rights under
such order are satisfied. A domestic relations order
shall not be qualified if it attempts to assign to an
alternate payee an amount in excess of the non-loaned
portion of any Participant's account. No alternate
payee shall be eligible for a loan under this Plan
unless the alternate payee otherwise qualifies as an
Eligible Borrower as defined in Section 9.1.
(o)Loan repayments will be suspended under the Plan as
permitted under Section 414(u) of the Code.
9.3 Commencement of Loans: No loans shall be made under this
Article prior to January 1, 1987.
9.4 Employee Transfers from the Employer to a Controlled
Group Member: A transfer by an Eligible Borrower from the Employer
to another Controlled Group Member which has not adopted this Plan
shall not affect his Participation under this Article IX of the
Plan, nor, for purposes of the Plan, shall it be deemed to be a
Termination of Employment.
9.5 Specific Information: The Committee must adopt,
announce, and publish as part of this Plan, additional rules on
borrowing under the Plan that are not inconsistent with the
provisions of the Plan and this Section 9. These rules on the
administration of this Plan's loan program must include rules and
provisions on:
(a)the persons or positions authorized to assist in the
administration of the loan program;
(b)the procedure for applying for loans;
(c)the basis on which loans will be approved or denied;
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(d)the limitations (if any) on the types and amounts of
loans offered;
(e)the procedure for determining a reasonable rate of
interest;
(f)the types of collateral that may secure a loan; and
(g)the events that constitute a default and the steps that
will be taken to preserve Plan assets in the event of
such default.
ARTICLE X. VESTING
10.1 Vesting : A Participant's Deferral, Regular, Additional
and Rollover Contribution accounts (and earnings thereon) shall be
fully vested and nonforfeitable at all times. Employer
contributions made under Article V with respect to any Plan Year
and earnings thereon shall be fully vested and nonforfeitable at
all times.
10.2 Employee Transfers from the Employer to a Controlled
Group Member: A transfer by a Participant from the Employer to
another Controlled Group Member which has not adopted this Plan
shall not affect his participation under this Article X of the
Plan, nor, for purposes of the Plan, shall it be deemed to be a
Termination of Employment.
ARTICLE XI. FORFEITURES
11.1 Termination of Employment: Unless vested under Article
X, Employer Contributions and earnings thereon shall be forfeited
upon Termination of Employment.
11.2 Repayments: A reemployed Participant who received a
distribution from the Plan as a result of a Termination of
Employment and forfeited any Employer Contributions on account of
such prior distribution (based on the vesting requirements in
effect prior to July 1, 1989), may repay the full amount of the
distribution provided the Participant is reemployed before
incurring five consecutive Breaks in Service and repays the
distribution within five years of reemployment. All repayments and
forfeitures shall be credited to the Participant's Regular
Contribution account under Section 4.2 for the year of repayment.
All repayments shall be made in accordance with uniform rules
adopted by the Committee.
11.3 Lost Participants or Beneficiaries: If a Participant or
Beneficiary cannot be located by reasonable efforts of the
Committee within a reasonable period of time after the latest date
such benefits are otherwise payable under the Plan, the amounts in
the Participant's account shall be forfeited; provided, however,
that such forfeited amount shall be restored (without earnings) if,
at any time, the Participant or Beneficiary who was entitled to
receive such benefit when it first became payable shall, after
furnishing proof of their identity and right to make such claim to
the Committee, filed a written request for such benefit with the
Committee.
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11.4 Application of Forfeitures: All amounts which are
forfeited under this Article shall be applied to reduce any
subsequent contributions of the Employer by which the Participant
is employed at the time of the forfeiture. If the Plan is
terminated or if Employer Contributions are completely
discontinued, forfeitures shall be credited ratably to the accounts
of all Participants at the time of termination or discontinuance of
contributions. In all cases, forfeitures shall be so applied no
later than as of the end of the Plan Year in which the forfeiture
occurs.
ARTICLE XII. LIMITATIONS ON CONTRIBUTIONS AND BENEFITS
12.1 Definition of Annual Additions: For purposes of the
Plan, Annual Addition shall mean the amount allocated to a
Participant's account during the Limitation Year that constitutes:
(a) Employer Contributions,
(b) Employee Contributions
(c) Forfeitures, and
(d) Amounts described in Sections 415(l)(1) and
419A(d)(2) of the Code.
12.2 Maximum Annual Addition: The maximum Annual Addition
that may be contributed or allocated to a Participant's account
under the Plan for any Limitation Year shall not exceed the lesser
of:
(a) the Defined Contribution Dollar Limitation, or
(b) 25 percent of the Participant's Compensation, as
defined in Section 12.4.
12.3 Limitation on Annual Additions: If, notwithstanding
the foregoing provisions of Section 12.2, the limitations with
respect to Annual Additions prescribed hereunder are exceeded with
respect to any Participant and such excess arises as a consequence
of the allocation of forfeitures, a reasonable error in estimating
the Participant's compensation, a reasonable error in determining
the amount of Deferrals that may be made with respect to any
individual under the limits of Code Section 415, or under other
limited facts and circumstances that the Internal Revenue Service
approves, the excess amounts attributable to Deferrals may be
returned to the affected Participant to the extent necessary to
reduce the excess amounts in the Participant's Accounts. Such
returned amounts shall not be taken into account in applying the
limitations of Section 12.10. To the extent excess amounts remain
in the Participant's Accounts,
(a)so much of the Participant's contributions which cause
the Participant's accounts to exceed the maximum Annual
Additions shall be returned to the Participant in the
following order:
(1)Regular Contributions under Section 4.3
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(2)Regular Contributions under Section 4.2, and
(b)to the extent excess amounts remain in the Participant's
Accounts, such excess shall be utilized to reduce future
Employer Contributions on behalf of the Participant for
the next succeeding Limitation Year and succeeding
Limitation Years as necessary. If the Participant is no
longer employed in such a succeeding Limitation Year,
such excess amounts will be held unallocated in a
suspense account which shall be used to reduce future
Employer Contributions on behalf of the other
Participants entitled to an allocation.
12.4 Definitions: For purposes of Section 12.2:
(a)Defined Contribution Dollar Limitation shall mean
$30,000 or, if greater, one-fourth of the defined
benefit dollar limitation set forth in Section 415(b)(1)
of the Code as in effect for the Limitation Year.
(b)Compensation shall mean wages within the meaning of
Section 3401(a) of the Code (without regard to any rules
under Section 3401(a) that limit the remuneration
included in wages based on the nature or location of the
employment or the services performed (such as the
exception for agricultural labor in Section 3401(a)(2))
and all other payments of compensation to an Employee by
the Company (in the course of the Company's trade or
business) for which the Company is required to furnish
the Employee a written statement under Sections 6401(d),
6051(a)(3) and 6052 of the Code (a Form W-2), and shall
not include all amounts currently not included in the
Employee's gross income by reason of Sections 125 and
402(e)(3) of the Code.
(c)Limitation Year shall mean the Plan Year.
12.5 Special Rules:
(a)The Compensation limitation referred to in Section
12.2(b) shall not apply to:
(1)Any contribution for medical benefits (within
the meaning of Section 419A(f)(2) of the Code)
after separation from service which is otherwise
treated as an Annual Addition, or
(2)Any amount otherwise treated as an Annual
Addition under Section 415(l)(1) of the Code.
(b)Recomputation Not Required. The Annual Addition for any
Limitation Year beginning before January 1, 1987 shall
not be recomputed to treat all Employee Contributions as
an Annual Addition.
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(c)Adjustment of Defined Benefit Plan Fraction. If the
Plan satisfied the applicable requirements of Section
415 of the Code as in effect for all Limitation Years
beginning before January 1, 1987, an amount shall be
subtracted from the numerator of the defined benefit
plan fraction (not exceeding such numerator) as
prescribed by the Secretary of the Treasury so that the
sum of the defined benefit plan fraction and defined
contribution plan fraction computed under Section
415(e)(1) of the Code (as revised by this Section) does
not exceed 1.0 for such Limitation Year.
12.6 Limitation of Benefits and Contributions:
(a)If an Employee is or was a Participant in one or more
defined benefit plans and one or more defined
contribution plans maintained by the Employer, the sum
of the Defined Benefit Plan Fraction and his Defined
Contribution Plan Fraction (as defined herein) shall not
exceed 1.0 for any year. If the sum of the Defined
Benefit Plan Fraction and the Defined Contribution Plan
Fraction shall exceed 1.0 in any year for any
Participant in this Plan, the Employer shall adjust the
numerator of the Defined Benefit Plan Fraction so that
the sum of the Defined Benefit Plan Fraction and the
Defined Contribution Plan Fraction shall not be in
excess of 1.0 in any year for such Participant in
accordance with the provisions set forth above,
specifically incorporated by reference thereto.
(b)For the purpose of this section, the term "Defined
Benefit Plan Fraction" for any year shall mean a
fraction, the numerator of which is the projected annual
benefit payable to a Participant as of the close of the
then current year under all plans maintained by the
Employer and the denominator of which is the lesser of:
(1)The product of 1.25 multiplied by the maximum
dollar limitation for the Plan Year concerned as
provided under Internal Revenue Code Section 415,
or
(2)The product of 1.4 multiplied by the applicable
percentage of compensation limit as defined for
this purpose under Internal Revenue Code section
415.
(c)The term "Defined Contribution Plan Fraction" for any
year shall mean a fraction the numerator of which is the
aggregate amount of annual additions made to a
Participant's accounts under all plans maintained by the
Employer as of the close of the then current year and
the denominator of which is the sum of the lesser of the
following amounts determined for such year and for each
prior Year of Service with the Employer:
(1)The product of 1.25 multiplied by the maximum
dollar limitation for the Plan Year concerned as
provided under Internal Revenue Code Section 415,
or
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(2)The product of 1.4 multiplied by the applicable
percentage of Compensation limit as defined for
this purpose under Internal Revenue Code section
415.
12.7 Transitional Rule: At the Committee's election, with
respect to any year ending after December 31, 1982, the amount
taken into account in determining the Defined Contribution Plan
Fraction with respect to each Participant for all years ending
before January 1, 1983, shall be an amount equal to the product of
(a) and (b), where:
(a)Is the Defined Contribution Plan Fraction in effect for
the Plan Year ending in 1982, and
(b)Is the Transition Fraction.
"Transition Fraction" means a fraction the numerator of which
is the lesser of $51,874 or 1.4 multiplied by 25% of the
Compensation of the Participant for the year ending in 1981, and
the denominator of which is the lesser of $41,500 or 25% of the
Compensation of the Participant for the year ending in 1981.
If the plan is a Top-Heavy Plan, as defined by the Tax Equity
and Fiscal Responsibility Act of 1982, then $41,500 shall be
substituted for $51,874 in the numerator of the Transition
Fraction.
12.8 Effective Date: The provisions of the foregoing
Sections 12.1 through 12.7 shall become effective for Plan Years
beginning on and after January 1, 1987.
12.9 Maximum Amount of Deferrals: Effective January 1, 1987:
(a)In no event shall the aggregate of Deferrals under
Section 4.1 (including Additional Contributions made as
Deferrals under Section 4.3) and such other elective
deferrals as defined in Section 402(g)(3) of the Code
made on a Participant's behalf under the Plan and all
other qualified cash or deferred arrangements maintained
by the Company or any member of the Controlled Group
with respect to any calendar year exceed $7,000 (or such
higher dollar limit as may be in effect with respect to
such year in accordance with Section 402(g)(5) of the
Code and the regulations thereunder). Notwithstanding
the foregoing, the Committee shall be empowered to
prescribe such nondiscriminatory rules as it deems
necessary or advisable to facilitate the ease of
administration of this limit, including but not limited
to, permitting more frequent changes in contribution
rates than are otherwise permitted under Section 4.5.
(b)Notwithstanding any other provision of the Plan, if the
aggregate of Deferrals (including Additional
Contributions made as Deferrals under Section 4.3) and
such other elective deferrals as defined in Section
402(g)(3) of the Code made on a Participant's behalf
under the Plan and all other qualified cash or deferred
arrangements maintained by the Company or any member of
the Controlled Group with respect to any calendar year
exceed $7,000 (or such higher dollar limit as
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may be in effect with respect to such year in accordance
with Section 402(g)(5) of the Code and the regulations
thereunder), the Excess Deferral (as hereinafter
defined) and earnings thereon shall be distributed to
the Participant as soon as practicable after the Plan
Manager determines that the Excess Deferral was made,
but no later than the April 15 of the year following the
calendar year in which the Excess Deferral arose.
(c)Notwithstanding any other provision of the Plan, if the
aggregate of Deferrals (including Additional
Contributions made as Deferrals under Section 4.3) and
such other elective deferrals as defined in Section
402(g)(3) of the Code made on a Participant's behalf
under any other qualified cash or deferred arrangement
not maintained by the Company or any member of the
Controlled Group with respect to any calendar year
exceed $7,000 (or such higher dollar limit as may be in
effect with respect to such year in accordance with
Section 402(g)(5) of the Code and the regulations
thereunder), the Excess Deferrals (as hereinafter
defined) and earnings allocable thereto may be
distributed no later than April 15 of the calendar year
following the calendar year of the deferral, to
Participants who claim such allocable Excess Deferrals
for the preceding calendar year.
(d)For purposes of this Section 12.9, "Excess Deferrals"
shall mean the amount of "elective deferrals" (within
the meaning of Section 402(g)(3) of the Code) for a
calendar year that are in excess of the applicable
dollar limitation under Section 402(g) of the Code and
are allocable to this Plan.
(e)For purposes of Section 12.9(c), a Participant's claim
shall be in writing; shall be submitted to the Plan
Manager no later than March 1 of the calendar year
following the calendar year in which the Excess
Deferrals were contributed; shall specify the
Participant's Excess Deferrals for the preceding
calendar year; and shall be accompanied by the
Participant's written statement that if such amounts are
not distributed, such Excess Deferrals, when added to
amounts deferred under other plans or arrangements
described in Sections 401(k), 408(k), 403(b) or
501(c)(18) of the Code for the calendar year, exceeds
the limit imposed on the Participant under Section
402(g) of the Code for such calendar year. In the
absence of such written notice, the amount of such
Excess Deferrals shall be subject to all limitations on
withdrawals and distributions applicable to Deferrals.
(f)The amount of Excess Deferrals that may be distributed
under this Section 12.9 with respect to any Participant
for any calendar year shall be reduced by the amount of
any Excess Deferral Contributions previously distributed
or recharacterized pursuant to Section 12.10, if any,
for the Plan Year, in accordance with regulations issued
under Section 402(g) of the Code. The Excess Deferrals
distributed to a Participant with respect to a year
shall be adjusted for
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earnings and losses for the Plan Year in accordance with
the provisions of Article VII and shall in no event
exceed the Participant's Deferral Account under the
Plan.
12.10 Non-Discrimination Limitation on Deferral
Contributions: Effective January 1, 1997:
(a)Notwithstanding any other provision of the Plan to the
contrary, the Plan Manager shall limit the amount of
Deferral Contributions made on behalf of each Highly
Compensated Employee for each Plan Year, in addition to
all such salary reduction contributions under all other
qualified cash or deferred arrangements (as defined in
Section 401(k) of the Code) maintained by the Company or
Controlled Group in which the Participant participates,
to the extent necessary to ensure that either of the
following tests is satisfied:
(1)the Actual Deferral Percentage (as hereinafter
defined) for the group of Highly Compensated
Employees who are eligible to participate in the
Plan is not more than the Actual Deferral
Percentage for the preceding Plan Year of all other
Employees who were eligible to participate in the
Plan during such preceding Plan Year multiplied by
1.25; or
(2)the excess of the Actual Deferral Percentage for
the group of Highly Compensated Employees who are
eligible to participate in the Plan over the
Actual Deferral Percentage for the preceding Plan
Year of all other Employees who are eligible to
participate in the Plan is not more than two
percentage points, and the Actual Deferral
Percentage for the group of Highly Compensated
Employees who are eligible to participate in the
Plan is not more than the Actual Deferral
Percentage for the preceding Plan Year of all other
Employees who are eligible to participate in the
Plan multiplied by 2.0.
(3)Notwithstanding the foregoing, the Plan Manager may
elect to determine the permissible Actual Deferral
Percentage for Highly Compensated Employees who are
eligible to participate in the Plan for any Plan
Year beginning on or after January 1, 1997 on the
basis of the Actual Deferral Percentage for the
current Plan Year rather than the preceding Plan
Year, of all other Employees who are eligible to
participate in the Plan, in accordance with such
regulations, notices or other guidance issued under
Section 401(k) of the Code
(b)If it is determined prior to any payroll period that the
amount of Deferral Contributions elected to be made
thereafter under Section 4.1 or Section 4.3 would cause
the limitation prescribed in this Section 12.10 to be
exceeded, the amount of Deferral Contributions allowed
to be made on behalf of Highly Compensated Employees
shall be reduced, notwithstanding the limitations on
contribution rate changes in Section 4.5. Except as is
hereinafter provided, the Participants to whom such
reduction is applicable and the amount of such reduction
shall be determined pursuant to such nondiscriminatory
rules as the Plan Manager shall prescribe.
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(c)In addition to the reductions set forth in Subsection
12.10(b), if the limitations under Subsection 12.10(a)
are exceeded in any Plan Year, the Committee may, in
accordance with regulations issued under Section
401(k)(3) of the Code, authorize or require the
recharacterization of Excess Deferral Contributions as
Regular Contributions, provided that the
recharacterization actually occurs within two and a half
(2 1/2) months after the close of the Plan Year and
pursuant to Section 4.2 for the Plan Year so that the
limitations in that Plan Year are not exceeded. Any
Regular Contributions under the Plan that result from
the recharacterization of Excess Deferral Contributions
in accordance with this Subsection, shall be
nonforfeitable when made and are distributable only in
accordance with the distribution and withdrawal
provisions that are applicable to Salary Deferral
Contributions under the Plan.
(d)To the extent such Deferral Contributions exceeding the
limitations under Subsection 12.10(a) are not
recharacterized, the Company may, in its discretion,
authorize the Employer to make Qualified Nonelective
Contributions to the accounts of certain Participants
who are not Highly Compensated Employees.
(e)To the extent the limitations under Subsection 12.10(a)
continue to be exceeded following such
recharacterization or making of Qualified Nonelective
Contributions, if any, the Excess Deferral Contributions
made on behalf of Highly Compensated Employees with
respect to a Plan Year and income allocable thereto for
the Plan Year shall then be distributed to such Highly
Compensated Employees as soon as practicable after the
end of such Plan Year, but no later than twelve months
after the close of such Plan Year. The amount of income
allocable to Excess Deferral Contributions for the Plan
Year shall be determined in accordance with the
regulations issued under Section 401(k) of the Code and
the provisions of Article VII. The amount of Excess
Deferral Contributions distributed to any Participant
under this subparagraph for any Plan Year shall be
reduced by any Excess Deferrals previously distributed
to such Participant pursuant to Section 12.9, if any,
for such Plan Year.
(f)The Plan Manager is authorized to implement rules under
which any combination of the methods described in the
foregoing Subsections 12.10(b), 12.10(c), 12.10(d) and
12.10(e) may be utilized to assure that the limitations
of Subsection 12.10(a) are satisfied.
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12.11 Nondiscrimination Limitations on Regular Contributions
and Employer Contributions: Effective January 1, 1997:
(a)Notwithstanding any other provision of the Plan to the
contrary, for each Plan Year, the Plan Manager shall
limit the amount of Regular Contributions under Sections
4.2 and 4.3 (including any recharacterized Deferrals
pursuant to Section 12.10) and Employer Contributions
under Section 5.1 made by or on behalf of each Highly
Compensated Employee to the extent necessary to ensure
that either of the following tests is satisfied:
(1)the Actual Contribution Percentage for the group of
Highly Compensated Employees who are eligible to
participate in the Plan is not more than the Actual
Contribution Percentage for the preceding Plan Year
of all other Employees who are eligible to
participate in the Plan multiplied by 1.25; or
(2)the excess of the Actual Contribution Percentage
for the group of Highly Compensated Employees who
are eligible to participate in the Plan over the
Actual Contribution Percentage for the preceding
Plan Year of all other Employees who are eligible
to participate in the Plan is not more than two
percentage points, and the Actual Contribution
Percentage for the group of Highly Compensated
Employees who are eligible to participate in the
Plan is not more than the Actual Contribution
Percentage for the preceding Plan Year of all other
Employees who are eligible to participate in the
Plan multiplied by 2.0.
(3)Notwithstanding the foregoing, the Plan Manager may
elect to determine the permissible Actual
Contribution Percentage for Highly Compensated
Employees who are eligible to participate in the
Plan for any Plan Year beginning on or after
January 1, 1997 on the basis of the Actual
Contribution Percentage for the current Plan Year
rather than the preceding Plan Year, of all other
Employees who are eligible to participate in the
Plan, in accordance with such regulations, notices
or other guidance issued under Section 401(k) of
the Code
(b)If it is determined prior to any payroll period that the
Regular Contributions under Section 4.2 or Section 4.3
to be contributed thereafter would cause the limitation
prescribed in this Section 12.11 to be exceeded, the
amount of such contributions allowed to be made by or on
behalf of Highly Compensated Employees shall be reduced,
notwithstanding the limitations on contribution rate
changes in Section 4.5. Except as is hereinafter
provided, the Participants to whom such reduction is
applicable and the amount of such reduction shall be
determined pursuant to such nondiscriminatory rules as
the Plan Manager shall prescribe.
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(c)Notwithstanding the foregoing paragraph, if with respect
to any Plan Year amounts contributed by or on behalf of
Highly Compensated Employees exceed the applicable limit
set forth in Subsection 12.11(a), the Company may, in
its discretion, authorize the making of additional
contributions to the accounts of Participants who are
not Highly Compensated Employees, which additional
contributions shall either be Qualified Nonelective
Contributions or additional Employer Contributions under
Section 5.1. In addition, in accordance with
regulations issued under Section 401(m) of the Code, the
Plan Manager may elect to treat amounts attributable to
Deferrals as such additional Employer Contributions
solely for the purposes of satisfying the limitations of
Subsection 12.11(a).
(d)If the limitations under Subsection 12.11(a) continue to
be exceeded following such Qualified Nonelective
Contributions or additional Employer Contribution
amounts, if any, the Excess Aggregate Contributions made
with respect to Highly Compensated Employees with
respect to such Plan Year, and any income attributable
thereto, shall be distributed to Highly Compensated
Employees in an amount equal to each such Participant's
Regular Contributions under Section 4.3 (including
recharacterized Deferral Contributions).
(e)If the limitations under Subsection 12.11(a) continue to
be exceeded following the distributions described in
Subsection (d), the Regular Contributions under Section
4.2 and associated Employer Contributions along with
earnings attributable to such amounts for the Plan Year
shall be distributed (to the extent already vested and,
if not vested, forfeited) to the extent of the remaining
Excess Aggregate Contributions, as determined pursuant
to such rules and regulations as shall be prescribed by
the Internal Revenue Service under Section 401(m) of the
Code and the provisions of Article VII, to the affected
Highly Compensated Employees. Any such forfeitures
shall be utilized no later than as of the last day of
the Plan Year in which such forfeiture occurs to reduce
future Employer Contributions and to defray
administrative expenses of the Plan.
(f)All Excess Aggregate Contributions and any income
allocable thereto shall be forfeited or distributed, as
described above, as soon as practicable after the close
of the Plan Year, but no later than twelve months after
the close of the Plan Year in which they occur. The
amount of income allocable to Excess Aggregate
Contributions shall be determined in accordance with the
regulations issued under Section 401(m) of the Code and
the provisions of Article VII. The Plan Manager is
authorized to implement rules under which any
combination of the methods described in the foregoing
Subsections 12.11(b), 12.11(c), 12.11(d), and 12.11(e)
may be utilized to assure that the limitations of
Subsection 12.11(a) are satisfied.
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(g)Notwithstanding anything to the contrary in Sections
12.10 or 12.11, effective January 1, 1989, Deferrals,
Regular Contributions, and Employer Contributions may
not be made to this Plan in violation of the rules
prohibiting multiple use of the alternative limitation
described in Sections 401(k)(3)(A)(ii)(II) and
401(m)(2)(A)(ii) of the Code and the provisions of
Treasury Regulation section 1.401(m)-2(b) and any
further guidance issued thereunder. If such multiple
use occurs, the Actual Contribution Percentages for all
Highly Compensated Employees (determined after applying
the foregoing provisions of Sections 12.10 and 12.11)
shall be reduced in accordance with Treasury Regulation
section 1.401(m)-2(c) and any further guidance issued
thereunder in order to prevent such multiple use of the
alternative limitation.
(h)Notwithstanding anything in the Plan to the contrary, if
the rate of Employer Contributions, determined after
application of the corrective mechanisms described in
Section 12.10 and the foregoing provisions of Section
12.11, discriminates in favor of Highly Compensated
Employees, any such amounts attributable to any Excess
Deferral Contributions, Excess Aggregate Contributions,
or Excess Deferrals (as described in Subsection 12.9(d))
of each affected Highly Compensated Employee shall be
forfeited so that the rate of contribution is
nondiscriminatory. Any such forfeitures shall be made
no later than the end of the Plan Year following the
Plan Year for which the contribution was made.
Forfeitures, if any, shall be used no later than as of
the end of the Plan Year in which they occur to reduce
future Employer Contributions or to defray
administrative expenses of the Plan.
12.12 Definitions: For purposes of Sections 12.9, 12.10,
and 12.11 (as well as such other provisions of the Plan
specifically referring to a definition in this Section 12.12), the
following terms have the following meanings:
(a)The term "Actual Deferral Percentage" means, for a
specified group of Employees who are eligible to
participate in the Plan for a Plan Year, the average of
the ratios (calculated separately for each person in
such group) of:
(1)the aggregate of the Deferral contributions
(including any Additional Contributions treated
as Deferrals) and any Qualified Non-elective
Contributions (as hereinafter defined) which, in
accordance with the rules set forth in Treasury
Regulation Section 1.401(k)-1(b)(4) and (5) are,
at the election of the Plan Manager, in fact
taken into account with respect to such Plan
Year, to
(2)such Employee's Compensation taken into account
for the Plan Year.
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In determining the Actual Deferral Percentages for a
Plan Year, any Participant who is suspended from
participation pursuant to Section 8.1 and, to the extent
required by Section 401(k) of the Code and the
regulations and other guidance issued thereunder, any
Employee who waives participation under Section 2.14
shall be treated as an eligible Participant. In all
events, Actual Deferral Percentages shall be determined
in accordance with all of the applicable requirements
(including, to the extent applicable, the plan
aggregation requirements) of Section 401(k) of the Code,
and the regulations and other guidance issued
thereunder.
(b)The term "Actual Contribution Percentage" means, for a
specified group of Employees who are eligible to
participate in the Plan, the average of the ratios
(calculated separately for each person in such group)
of:
(1)the aggregate of the Regular Contributions and
Employer Contributions (including Additional
Contributions treated as Regular Contributions,
in addition to such other contributions,
including Qualified Nonelective Contributions or
Deferrals and including all such Contributions
made under all other plans subject to Section
401(m) of the Code maintained by the Company or
Controlled Group in which the Participant
participates, which, in accordance with
applicable rules and regulations promulgated by
the Internal Revenue Service, the Plan Manager
elects to aggregate with such Regular
Contributions for purposes of demonstrating
compliance with the requirements of Section
401(m)(2) of the Code) which are paid to the
Trust Fund by or on behalf of each such Employee
for a Plan Year, to
(2)such Employee's Compensation taken into account
for such Plan Year.
In determining the Actual Contribution Percentage for a
Plan Year, any Participant who is suspended from
participation pursuant to Section 8.1 and, to the extent
required by Section 401(m) of the Code and the
regulations and other guidance issued thereunder, any
Employee who waives participation under Section 2.14
shall be treated as an eligible Participant. In all
events, Actual Contribution Percentages shall be
determined in accordance with all of the applicable
requirements (including, to the extent applicable, the
plan aggregation requirements) of Section 401(m) of the
Code, and the regulations and other guidance issued
thereunder.
(c)The term "Compensation" means wages within the meaning
of Section 3401(a) of the Code (without regard to any
rules under Section 3401(a) that limit the remuneration
included in wages based on the nature or location of the
employment or the services performed (such as the
exception for
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agricultural labor in Section 3401(a)(2)) and all other
payments of compensation to an Employee by the Company
(in the course of the Company's trade or business) for
which the Company is required to furnish the Employee a
written statement under Sections 6401(d), 6051(a)(3) and
6052 of the Code (a Form W-2), modified to include all
amounts currently not included in the Employee's gross
income by reason of Sections 125 and 402(e)(3) of the
Code; provided that the total amount of Compensation
taken into account for any Plan Year shall not exceed
the applicable annual compensation limitation in effect
under Section 401(a)(17) of the Code, as adjusted by the
Internal Revenue Service for increases in the cost of
living in accordance with Section 401(a)(17) of the Code
and the regulations and other guidance issued
thereunder. If the Plan Year consists of fewer than
twelve months, the foregoing annual Compensation limit
will be multiplied by a fraction, the numerator of which
is the number of months in the Plan Year, and the
denominator of which is twelve. In the case of an
Employee who begins, resumes, or ceases to be eligible
to make contributions during a Plan Year, the amount of
Compensation included in the Actual Deferral Percentage
and Actual Contribution Percentage test is the amount of
Compensation received by the Employee during the entire
Plan Year.
(d) The term "Excess Aggregate Contributions" means, with
respect to each Highly Compensated Employee, the amount
equal to the total amount of Regular Contributions under
Section 4.2 (including Additional Contributions treated
as Regular Contributions) and Employer Contributions
under Section 5.1 (determined prior to the application
of the leveling procedure described below) ("Aggregate
Contributions") minus the product of the Employee's
Actual Contribution Percentage (determined after the
leveling procedure described below) multiplied by the
Employee's Compensation. In accordance with the
regulations issued under Section 401(m) of the Code,
Excess Aggregate Contributions shall be determined by a
leveling procedure under which the Actual Contribution
Percentage of the Highly Compensated Employee with the
highest such percentage shall be reduced to the extent
required to enable the limitation of Section 12.11(a) to
be satisfied, or, if it results in a lower reduction, to
the extent required to cause such Highly Compensated
Employee's Actual Contribution Percentage to equal that
of the Highly Compensated Employee with the next highest
percentage. This leveling procedure shall be repeated
until the limitations of Subsection 12.11(a) are
satisfied. Once the leveling procedure has been
completed, the total dollar amounts of Excess Aggregate
Contributions shall be determined . This amount shall
be distributed in accordance with a distribution
procedure under which the dollar amount of Aggregate
Contributions of the Highly Compensated Employee with
the highest dollar amount of Aggregate Contributions
shall be reduced to the extent required to distribute
the total amount of Excess Aggregate Contributions or,
if it results in a lower reduction, to the extent
required to cause such Highly
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Compensated Employee's dollar amount of Aggregate
Contributions to equal the dollar amount of Aggregate
Contributions of the Highly Compensated Employee with
the next highest dollar amount of Aggregate
Contributions. This distribution procedure shall be
repeated until all Excess Aggregate Contributions have
been distributed.
(e)"Excess Deferral Contributions" means, with respect to
each Highly Compensated Employee, the amount equal to
total Employee Deferrals on behalf of the Employee
(determined prior to the application of the leveling
procedure described below) minus the product of the
Employee's Actual Deferral Percentage (determined after
application of Section 12.10 and after the leveling
procedure described below) multiplied by the Employee's
Compensation. In accordance with the regulations issued
under Section 401(k) of the Code, Excess Deferral
Contributions shall be determined by a leveling
procedure under which the Actual Deferral Percentage of
the Highly Compensated Employee with the highest such
percentage shall be reduced to the extent required to
enable the limitation of Section 12.10(a) to be
satisfied, or, if it results in a lower reduction, to
the extent required to cause such Highly Compensated
Employee's Actual Deferral Percentage to equal the
Actual Deferral Percentage of the Highly Compensated
Employee with the next highest Actual Deferral
Percentage. This leveling procedure shall be repeated
until the limitations of Section 12.10(a) are satisfied.
Once the leveling procedure has been completed, the
total dollar amounts of Excess Deferral Contributions
shall be determined. This amount shall be distributed in
accordance with a distribution procedure under which the
dollar amount of Employee Deferrals of the Highly
Compensated Employee with the highest dollar amount of
Employee Deferrals shall be reduced to the extent
required to distribute the total amount of Excess
Deferral Contributions or, if it results in a lower
reduction, to the extent required to cause such Highly
Compensated Employee's dollar amount of Employee
Deferrals to equal the dollar amount of Employee
Deferrals of the Highly Compensated Employee with the
next highest dollar amount of Employee Deferrals. This
distribution procedure shall be repeated until all
Excess Deferral Contributions have been distributed.
(f)"Qualified Nonelective Contributions" means
contributions that are made pursuant to Sections
12.10(c) or 12.11(c), meet the requirements of Section
401(m)(4)(C) of the Code and the regulations issued
thereunder, and which are designated as a Qualified
Nonelective Contribution for purposes of satisfying the
limitations of Sections 12.10(a) or 12.11(a). Qualified
Nonelective Contributions shall be nonforfeitable when
made and are distributable only in accordance with the
distribution and withdrawal provisions that are
applicable to Tax Deferred Contributions under the Plan;
provided, however, that Qualified Nonelective
Contributions may not be withdrawn on account of
financial hardship. If any Qualified Nonelective
Contributions are made, the Company shall keep
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such records as necessary to reflect the amount of such
contributions made for purposes of satisfying the
limitations of Section 12.10(a) or Section 12.11(a).
Qualified Nonelective Contributions may be taken into
account for purposes of the limitations in Sections
12.10(a) or 12.11(a) only if the nondiscrimination and
plan aggregation conditions described in Treasury
Regulation sections 1.401(m)-1(b)(5) and
1.401(k)-1(b)(5) and any other guidance issued
thereunder are satisfied.
ARTICLE XIII. TOP HEAVY PROVISIONS
13.1 General Rule: For any Plan Year for which the Plan is
a "Top-Heavy Plan" as defined in Section 13.7 below, any other
provisions of the Plan to the contrary notwithstanding, this Plan
shall be subject to the following provisions:
(a) The vesting provisions of Section 13.2.
(b) The minimum benefit provisions of Section 13.3.
(c) The limitation on benefits set by Section 13.4.
13.2 Vesting Provisions: Each Participant shall have a
nonforfeitable right to the Employer's Contributions and earnings
thereon as provided in Article X.
13.3 Minimum Benefit Provisions: Each Participant who is a
Non-Key Employee (as defined in Section 13.9 below) shall be
entitled to an Employer Contribution of the lesser of (i) three
percent of such Participant's annual Compensation as defined in
Section 12.4(b) or (ii) the highest actual percentage Employer
Contributions made or required to be made on behalf of any Key
Employee. Notwithstanding the preceding sentence, a Participant
shall not be entitled to any minimum Employer Contribution under
this Section 13.3 if the Employer maintains a defined benefit plan
providing benefits on behalf of Participants in this Plan and the
defined benefit plan provides a minimum top heavy benefit.
13.4 Limitation on Benefits: In the event that the Employer
also maintains a defined benefit plan providing benefits on behalf
of Participants in this Plan, one of the two following provisions
shall apply:
(a)If for the Plan Year this Plan would not be a "Top-Heavy
Plan" as defined in Section 13.7 below if "90 percent"
were substituted for "60 percent," then Section 13.3
shall apply for such Plan Year as if amended so that the
minimum Employer Contribution is four percent of the
Participant's annual compensation.
(b)If for the Plan Year this Plan would continue to be a
"Top-Heavy Plan" as defined in Section 13.7 below if "90
percent" were substituted for "60 percent," then the
denominator of both the Defined Contribution Plan
Fraction and the Defined Benefit Plan Fraction shall be
calculated as set forth in Section 12.6 for the
Limitation Year by substituting "1.0" for "1.25" in each
place such figure appears, except with
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respect to any individual for whom there are no Employer
Contributions, forfeitures or voluntary nondeductible
contributions allocated or accruals for such individual
under the defined benefit plan.
13.5 Coordination with Other Plans: In the event that
another defined contribution or defined benefit plan maintained by
the Employer provides contributions or benefits on behalf of
Participants in this Plan, such other plan shall be treated as a
part of this Plan pursuant to applicable principles (such as Rev.
Rul. 81-202 or any successor ruling) in determining whether this
Plan satisfies the Top-Heavy requirements.
13.6 Top-Heavy Plan Definition: This Plan shall be a "Top-
Heavy Plan" for any Plan Year if, as of the Determination Date (as
defined in (a) below), the aggregate of the account balances for
Participants (including former Participants) who are Key Employees
(as defined in Section 13.8 below) exceeds 60 percent of the
aggregate of the account balances for all Participants or if this
Plan is required to be in an Aggregation Group (as defined in (b)
below) which for such Plan Year is a Top-Heavy Group (as defined in
(c) below).
(a) "Determination Date" means for any Plan Year the
last day of the immediately preceding Plan Year.
(b) "Aggregation Group" means the group of plans, if
any, that includes both the group of plans that are required to be
aggregated and the group of plans that are permitted to be
aggregated.
(1) The group of plans that are required to be
aggregated (the "Required Aggregation Group") includes:
(i)Each plan of the Employer in which a Key
Employee is a participant, and
(ii)Each other plan of the Employer which
enables a Plan in which a Key Employee is a
participant to meet the requirements of
either Code Sections 401(a)(4) or 410.
(2)The group of plans that are permitted to be
aggregated (the "Permissive Aggregation Group")
includes any plan that is not part of the Required
Aggregation Group that the Committee certifies as
constituting a plan within the Permissive
Aggregation Group. Such plans may be added to the
Permissive Aggregation Group only if, after the
addition, the Aggregation Group as a whole
continues to meet the requirements of both Code
Sections 401(a)(4) and 410.
(c)"Top-Heavy Group" means the Aggregation Group, if as of
the applicable Determination Date, the sum of the
actuarial present value of the cumulative accrued
benefits for Key Employees under all defined benefit
plans included in the Aggregation Group plus the
aggregate of the accounts of Key Employees under all
defined contribution plans included in
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the Aggregation Group exceeds 60 percent of the sum of
the actuarial present value of the cumulative accrued
benefits for Key Employees under all such defined
benefit plans plus the aggregate accounts for all
employees under such defined contribution plans.
(d)Effective for Plan Years beginning after December 31,
1986, solely for the purpose of determining if the Plan,
or any other plan included in a required aggregation
group of which this Plan is a part, is top-heavy (within
the meaning of Section 416(g) of the Code) the accrued
benefit of an Employee other than a key employee (within
the meaning of Section 416(i)(l) of the Code) shall be
determined under (a) the method, if any, that uniformly
applies for accrual purposes under all plans maintained
by the Affiliated Employer, or (b) if there is no such
method, as if such benefit accrued not more rapidly than
the slowest accrual rate permitted under the fractional
accrual rate of Section 411(b)(1)(C) of the Code.
(e)In determining whether this plan constitutes a "Top-
Heavy Plan," the Committee (or its agent) shall make the
following adjustments in connection therewith:
(1)In determining the actuarial present value of the
cumulative accrued benefit or the amount of the
account of any Employee, such actuarial present
value or account shall include the amount in dollar
value of the aggregate distributions made to such
Employee under the applicable plan during the five-
year period ending on the Determination Date. Such
amounts shall also include distributions to
Employees which represented the entire amount
credited to their accounts under the applicable
plan.
(2)Further, in making such determination such
actuarial present value or such account shall not
include any rollover contribution (or similar
transfer) initiated by the Employee and made after
December 31, 1983, to an applicable plan with
respect to whether such plan is Top-Heavy or the
Aggregation Group of which it is a part is a Top-
Heavy Group.
(3)Further, in making such determination, in any case
where an individual is a "Non-Key Employee," as
defined below, with respect to an applicable plan
but was a Key Employee with respect to such plan
for any prior Plan Year, any accrued benefit and
any account of such Employee shall be altogether
disregarded. For this purpose, to the extent that
a Key Employee is deemed to be a Key Employee if he
or she met the definition of Key Employee within
any of the four preceding Plan Years, this
provision shall apply following the end of such
period of time.
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13.7 Key Employee: The term "Key Employee" means any
Participant (and any beneficiary of a Participant) under this Plan
who, at any time during the Plan Year of the Determination Date or
during any of the four preceding Plan Years, is or was one of the
following:
(a)An officer of the Employer having an annual compensation
greater than 150% of the dollar limit on contributions
under Internal Revenue Code Section 415(c)(1)(A) in
effect for any such Plan Year. For any such Plan Year,
there shall be treated as officers no more than the
lesser of:
(1)50 Employees, or
(2)10 percent of the Employees, or if greater than 10
percent, three Employees.
For this purpose, the highest paid officers shall be
selected.
(b)One of the 10 Employees owning (or considered as owning,
in accordance with applicable principles, such as
Internal Revenue Code Section 318 or a successor
provision) the largest interests in the Employer.
(c)Any person who owns (or is considered as owning, in
accordance with applicable principles, such as Internal
Revenue Code Section 318 or a successor provision) more
than five percent of the outstanding stock of the
Employer or stock possessing more than five percent of
the combined total voting power of all stock of the
Employer.
(d)Any person who owns (or is considered as owning, in
accordance with applicable principles, such as Internal
Revenue Code Section 318 or a successor provision) more
than one percent of the outstanding stock of the
Employer or stock possessing more than five percent of
the combined total voting power of all stock of the
Employer and receives annual compensation from the
Employer of more than $150,000.
13.8 Non-Key Employee: The term "Non-Key Employee" means any
Employee (and any beneficiary of an Employee) who is not a Key
Employee.
13.9 Collective Bargaining Rules: The provisions of Sections
13.2, 13.3 and 13.4 above do not apply with respect to any Employee
included in a unit of employees covered by a collective bargaining
agreement and who is covered by such agreement unless the
application of such Sections has been agreed upon with the
collective bargaining agent.
13.10 Distribution to Key Employees: Notwithstanding any
other provision of this Plan, the entire interest in this Plan of
each Participant who is or at any time has been a Key Employee
shall be distributed (or distribution of such interest shall have
begun) to such Participant not later than April 1 of the taxable
year of the Participant in which the Participant attains age 70 1/2.
13.11 Effective Date: Except as otherwise provided, the
provisions of this Article shall become effective beginning July 1,
1984.
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ARTICLE XIV. VOTING OF STOCK
14.1 Voting of Stock: Each Participant (or Beneficiary of a
deceased Participant) is, for purposes of this Section 14.1, hereby
designated as a "named fiduciary" (within the meaning of ERISA)
with respect to the shares of SCANA Corporation Common Stock
credited to his account and shall have the right to direct the
Trustee with respect to the vote of the shares of SCANA Corporation
Common Stock credited to his account, on each matter brought before
any meeting of the stockholders of the Company. Before each such
meeting of stockholders, the Company shall cause to be furnished to
each Participant (or Beneficiary) a copy of the proxy solicitation
material, together with a form requesting confidential directions
to the Trustee on how such shares of SCANA Corporation Common Stock
credited to such Participant's (or Beneficiary's) account shall be
voted in each such matter. Upon timely receipt of such directions,
the Trustee shall on each such matter vote as directed the number
of shares (including fractional shares) of SCANA Corporation Common
Stock credited to such Participant's (or Beneficiary's) Account,
and the Trustee shall have no discretion in such matter. The
instructions received by the Trustee from Participants (or
Beneficiaries) shall be held in confidence and shall not be
divulged or released to any person, including the Committee,
officers or employees of the Company or an affiliate. The Trustee
shall vote shares of SCANA Corporation Common Stock for which it
has not received direction in the same proportion as directed
shares are voted, and the Trustee shall have no discretion in such
matter.
14.2 Tender Offer Rights With Respect to Stock: The
provisions of this Section 14.2 shall apply in the event a tender
or exchange offer, including, but not limited to, a tender offer or
exchange offer within the meaning of the Securities Exchange Act of
1934, as from time to time amended and in effect (hereinafter, a
"tender offer") for SCANA Corporation Common Stock is commenced by
a person or persons. The Trustee shall have no discretion or
authority to sell, exchange or transfer any of such shares pursuant
to such tender offer except to the extent, and only to the extent,
as provided in this Plan and the trust agreement. Each Participant
(or Beneficiary) is, for purposed of this Section 14.2, hereby
designated as a "named fiduciary" (within the meaning of ERISA)
with respect to the shares of SCANA Corporation Common Stock
credited to his account and shall have the right, to the extent of
the number of whole shares of SCANA Corporation Common Stock
credited to his account, to direct the Trustee in writing as to the
manner in which to respond to a tender offer with respect to shares
of SCANA Corporation Common Stock. The Company shall use its best
efforts to timely distribute or cause to be distributed to each
Participant (or Beneficiary) such information as will be
distributed to stockholders of the Company in connection with any
such tender offer. Upon timely receipt of such instructions, the
Trustee shall respond as instructed with respect to such shares of
SCANA Corporation Common Stock. The instructions received by the
Trustee from Participants (or Beneficiaries) shall be held by the
Trustee in confidence and shall not be divulged or released to any
person, including the Committee, officers or employees of the
Company or an affiliate. If the Trustee shall not receive timely
instructions from a Participant (or Beneficiary) as to
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the manner in which to respond to such a tender offer, the Trustee
shall not tender or exchange any shares of SCANA Corporation Common
Stock with respect to which such Participant (or Beneficiary) has
the right of direction, and the Trustee shall have no discretion in
such matter.
ARTICLE XV. ADMINISTRATION
15.1 Plan Administrator: The Plan shall be administered by
the Committee, as defined in Section 2.06.
15.2 Powers and Duties of the Committee: The Committee is
the fiduciary that shall have all such powers as may be necessary
to discharge its duties hereunder, including, but not by way of
limitation, the power, in its discretion, to (a) interpret or
construe the Plan, (b) determine all questions of eligibility, (c)
determine the classification, status and rights of Employees,
Participants and beneficiaries of Participants, (d) determine the
amount, manner and time and type of any distribution hereunder, and
(e) fix minimum periods of notice where notice is required, all in
a manner not inconsistent with the terms of the Plan. All rules
and decisions of the Committee shall be consistently applied to all
persons in similar circumstances and shall be conclusive and
binding upon all persons affected thereby. The Committee shall be
entitled to rely upon certificates of the Employer and the Trustee
as to information pertinent to any determination made pursuant to
the Plan.
The Committee shall cause to be maintained such books of
accounts, records and other data as may be necessary or advisable
in its judgment for the purpose of the proper administration of the
Plan.
The Committee shall direct the Trustee concerning all payments
that shall be made from the Trust pursuant to the Plan.
The Committee, with respect to the Claims Review Procedure
specified in Section 15.4 of the Plan, assigns to the Plan Manager
the responsibility for making all initial claims determinations.
The Committee shall serve in an appeals review capacity as to those
claims denied by the Plan Manager which the Participant timely
submits in writing to the Committee for review.
If, in the Committee's judgment, any person to whom a
distribution is due is lacking in capacity because of illness,
accident or otherwise, the Committee may authorize a distribution
to any person or institution that in the Committee's judgment is
responsible for caring for the person who is entitled to the
distribution.
The Committee may act at a meeting or in writing without a
meeting. It may adopt such rules and regulations as it deems
desirable for the conduct of its affairs. Decisions by the
Committee shall be made by the vote or assent of a majority of its
members. The Committee shall have the power to assign or allocate
any of its responsibilities among its members and to designate one
or more persons (including persons who are not members of the
Committee) to carry out its responsibilities. The Committee
delegates and assigns to the Plan Manager primary responsibility
for management of the regular operations of the Plan.
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Any action by the Committee on matters within its discretion
shall be final and binding upon all interested parties.
15.3 Claims Procedure: Claims for benefits under the Plan
shall be submitted to the Plan Manager in writing.
15.4 Claims Review Procedure:
(a) The Plan Manager, as the assignee of the Committee
per Plan Section 15.2, shall make all claims
determinations for benefits under the Plan. Within
90 days after any denial of benefits under the Plan
(unless special circumstances require an extension
of time not to exceed an additional 90 days for
processing the claim, in which event written notice
of extension shall be furnished to the claimant
prior to the termination of the initial 90-day
period, and shall indicate both the special
circumstances requiring an extension and the date
by which the Plan Manager expects to render the
final decision), the Plan Manager shall give to the
Participant whose claim has been denied, in whole
or in part, a written notice stating the following
information:
(1)the specific reason or reasons for denial of the
claim;
(2)a specific reference to pertinent provisions of the
Plan on which the denial is based;
(3)a description of any additional material or
information necessary for the Participant to
perfect his claim and an explanation of why such
material or information is necessary; and
(4)an explanation of the claims review procedure set
forth below.
(b)(1)A Participant may request, in writing, a review of
his claim provided such request is submitted to the
Committee within 60 days after receipt of written
notification of the denial of his claim. Failure
of the participant to submit a written request for
a review of his claim within the allowable 60-day
period shall constitute an irrevocable consent by
the Participant to the Plan Manager's decision
denying the benefit claimed, and the Plan Manager's
written notice shall so state.
(2)For the purpose of presenting his claim for review,
the Participant may review any pertinent documents
of the Plan and submit any issues and comments in
writing to the Committee.
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(c)The Committee shall make a decision with regard to the
claim for review within 60 days after receipt of such
request for review. The decision on the review shall be
in writing and shall include the specific reason or
reasons for the decision and references to the pertinent
Plan provisions on which the decision is based and will
be final.
15.5 Plan Expenses: Expenses of administering the Plan shall
be paid by the Plan as otherwise provided herein, except to the
extent such expenses are paid by the Employer.
ARTICLE XVI. TRUSTEE
All contributions under this Plan shall be paid to a Trustee
who shall invest and account for all such amounts and earnings
thereon as directed by provisions of Article VI of this Plan and
Article III of the related Trust Agreement. The Trustee shall have
such rights, powers and duties as are set forth in the Trust
agreement, including the responsibility of voting the shares of
SCANA Corporation Common Stock held by the Plan in the manner
directed under Article XIV of the Plan. All assets of the Trust
shall be held and invested in accordance with the provisions of the
Trust Agreement and the Plan for the sole benefit of Participants
and their beneficiaries. The Trustee shall be responsible solely
for the investment of the assets of the Trust and for the market
sale of whole share amounts for loans, cash-option in-service
withdrawals and cash-option distributions, and for fractional share
cash outs associated with cash-option or share withdrawals and
distributions, all as directed by the Plan Manager and for the
safekeeping of the assets of the Trust. In giving such directions
to the Trustee, the Plan Manager is acting in its capacity as a
named fiduciary of the Plan. The Trustee shall be a directed
Trustee with respect to the investment of Plan assets and shall
have no discretion regarding the investment of the Plan's assets
(except as provided in Section 3.10 of the Trust Agreement with
respect to the making of short-term cash investments and except to
the extent otherwise required by ERISA). The Trustee shall have no
responsibility for the operation or administration of the Plan.
The Trustee shall make only those disbursements and any market
sales of whole and fractional shares related thereto as directed by
the Committee or by the Plan Manager acting under direct authority
or on behalf of the Committee in accordance with Section 15.2 of
this Plan and Section 2.3 and Article IV of the related Trust
Agreement.
ARTICLE XVII. FIDUCIARY LIABILITIES
The Employer, Officers and Directors of the Employer, the
Committee (including the individual members thereof), the Trustee,
the Plan Manager and any person who is deemed to be a fiduciary
under the Plan (these persons and entities are referred to below as
"they") shall not be liable for a breach of fiduciary
responsibility of another fiduciary under the Plan except to the
extent (a) they shall have participated knowingly in, or knowingly
undertaken to conceal, an act or omission of such fiduciary,
knowing such act or omission was a breach of such fiduciary's
responsibilities, (b) they shall have through a breach of their
fiduciary responsibilities enabled such fiduciary to commit a
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breach of its fiduciary responsibilities, or (c) they shall have
knowledge of a breach of fiduciary responsibilities by such
fiduciary, unless they made reasonable efforts to remedy the
breach.
They also shall not be liable for the acts or omissions of any
person or persons to whom any authority, power or responsibility
has been allocated or who have been designated to carry out their
responsibilities, except to the extent they shall have violated
their fiduciary responsibilities with respect to such allocation or
designation or would otherwise be liable under provisions of the
immediately preceding paragraph.
The Committee, its individual members and other fiduciaries
who are employed by the Employer shall be indemnified by the
Employer or from proceeds under insurance policies purchased by the
Employer against any and all liabilities arising by reason of any
act or failure to act made in good faith pursuant to the provisions
of the Plan, including expenses reasonably incurred in the defense
of any claim relating thereto.
The Employer, the Committee, the Plan Manager, the Trustee,
and, to the extent provided in Article XIV, the Participants are
the named fiduciaries of the Plan. Each named fiduciary shall have
only those responsibilities with respect to the control and
management of the operation and administration of the Plan as are
expressly provided under the terms of the Plan and Trust, or as
otherwise required by ERISA.
ARTICLE XVIII. AMENDMENT OR TERMINATION
18.1 General Provision: Except to the extent provided in
Section 18.2, the Plan may be amended or terminated by action of
the Board of Directors of SCANA Corporation, but no amendment or
termination shall cause any of the assets of the Trust to be used
for or be diverted to any purpose other than the exclusive benefit
of Participants or their beneficiaries and no amendment may reduce
or eliminate any Participant's accrued benefit (including the form
and timing of all optional forms of benefit) in violation of
Section 411(d)(6) of the Code and the regulations thereunder.
18.2 Special Provision:
(a)Authority to Amend. Effective December 15, 1993, the
Employee Plans Committee will have the authority to
amend the Plan from time to time subject to Section
18.2(d).
(b)Amendment Procedure. The Employee Plans Committee will
determine that an amendment is appropriate, and will
direct that it be drafted. A majority of the Employee
Plans Committee members must approve the draft. The
Employee Plans Committee will deliver a copy of each
amendment to the Company and each adopting subsidiary
within 30 days after adoption.
(c)Prohibited Amendments. No amendment under this Section
18.2 will be permitted which would have the effect of:
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(1)permitting any part of the assets of the Trust to
be used for purposes other than the exclusive
benefit of Participants;
(2)revesting in any Employer any portion of the assets
of the Trust; or
(3)eliminating or reducing any Participant's accrued
benefit (including the form and timing of all
optional forms of benefit) in violation of Section
411(d)(6) of the Code and the regulations
thereunder.
(d)Authority of Terminate. The Employee Plans Committee
shall have the authority to terminate the Plan at any
time but only if the substantial purpose of the Plan is
continued by another plan maintained by the Company.
ARTICLE XIX. GENERAL PROVISIONS
19.1 Source of Distributions: Distributions under this Plan
shall be made only out of the Trust. No persons shall have any
rights under the Plan with respect to the Trust, or against the
Trustee or the Employer, except as specifically provided for
herein.
19.2 Non-Alienation of Benefits: Except as otherwise
provided by law, no person shall have the right to assign,
alienate, transfer, hypothecate or otherwise subject to lien an
interest in or benefit under the Plan nor shall benefits under the
Plan be subject to the claims of any creditor.
Notwithstanding the preceding paragraph, in the event that a
qualified domestic relations order (as defined in Section 414(p) of
the Code) is received by the Committee, benefits shall be payable
in accordance with such order and Section 8.13 of the Plan. The
Committee is authorized to issue procedures to effectuate the
requirements for administering qualified domestic relations orders.
19.3 Merger or Consolidation: In case of a merger or
consolidation with, or transfer of assets or liabilities to, any
other plan, each Participant shall have a benefit at least as large
as the benefit he would have been entitled to had the Plan been
terminated immediately before the merger, consolidation or
transfer. The Employee Plans Committee shall have the authority to
direct the merger, consolidation or transfer of assets and
liabilities of the Plan with and into another qualified plan;
provided, however, that the Employee Plans Committee may only
merge, consolidate or transfer all of the Plan's assets and
liabilities to another plan if the substantial purpose of the Plan
is continued by another Plan maintained by the Company.
19.4 No Right to Employment: The Plan confers no right upon
any Employee to continue employment with the Employer.
19.5 Controlling Law: The Plan shall be governed by the laws
of the state of South Carolina, except to the extent preempted by
the laws of the United States.
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19.6 Military Service: Notwithstanding any provision of this
Plan to the contrary, contributions, benefits and service credit
with respect to qualified military service will be provided in
accordance with Section 414(u) of the Code.
This restatement shall be effective from January 1, 1989, to
and as of January 1, 1997.
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SIGNATURES
IN WITNESS WHEREOF the undersigned has caused this instrument
to be executed by the duly authorized officer, this day of
, 19 .
SCANA CORPORATION
BY:___________________________________
William B. Timmerman
Chairman of the Board and
Chief Executive Officer
Attest:
Lynn M. Williams
Corporate Secretary
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APPENDIX I
(A) Effective June 10, 1986, the following special provisions
shall apply under this Plan to all Participants in the
CPC Plan on June 9, 1986, having account balances in the
CPC Plan Trust:
1. All account balances for Participants in the CPC
Plan on June 9, 1986 ("CPC Plan Participants") had
their account balances transferred to this Plan as of
June 10, 1986.
2. All other provisions of this Plan, as modified by the
provisions of this Appendix I(A), shall apply to the
CPC Plan Participants. The provisions of Appendix
I(A) shall not apply to any other Participants.
3. Employment with Carolina Pipeline Company, Inc.,
shall be considered as employment with the Employer
for all purposes relating to service and eligibility
under this Plan.
4. Notwithstanding the provisions of Article X of this
Plan, the CPC Plan Trust accounts of the CPC Plan
Participants shall be fully vested and
nonforfeitable at all times.
5. The value of the account of each Participant
described above in the CPC Plan Trust shall be
determined as of June 10, 1986. The balance in that
account shall be transferred to the Trust of this
Plan as of that date, shall constitute a balance in
the account of that person, and shall thereafter be
subject to all provisions of this Plan relating to
accounts under this Plan.
6. Any amount forfeited under the CPC Plan during the
period after the most recent reallocation of
forfeitures and prior to June 10, 1986, shall be
reallocated under the terms of the CPC Plan as of
June 9, 1986.
(B) Effective April 30, 1993, the following special
provisions shall apply under this Plan to all
Participants in the SCANA Corporation Employee Stock
Ownership Plan ("ESOP") on April 29, 1993, having account
balances in the ESOP:
1. All account balances for Participants in the ESOP
on April 29, 1993 ("ESOP Participants") had their
account balances transferred to this Plan as of
April 30, 1993.
2. All other provisions of this Plan, as modified by
the provisions of this Appendix I(B), shall apply
to the ESOP Participants. The provisions of
Appendix I(B) shall not apply to any other
Participants.
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3. Periods of participation in the ESOP shall count
as periods of participation in this Plan for all
purposes of Article VIII. Periods during which
assets were invested in shares of Common Stock
under the ESOP shall be aggregated with all such
periods of investment under this Plan for purposes
of Article VIII.
4. The ESOP accounts of the ESOP Participants shall
be fully vested and nonforfeitable at all times.
5. Notwithstanding anything in Article VIII to the
contrary, shares of Common Stock attributable to
the ESOP shall be distributable to ESOP
Participants after such amounts have been
allocated to the Participant's account for 84
months, including periods during which such assets
were invested under the ESOP prior to its merger
with this Plan. Following such 84-month holding
period, a Participant may elect to make
withdrawals from his transferred ESOP account in
the following order: (a) Employee voluntary
matching contributions; (b) Company contributions
(unmatched); and (c) Company matching
contributions. Such withdrawals may not be made
from any account until all accounts previously
listed have been exhausted. An ESOP Participant
may make a withdrawal under this Appendix I(B)(6)
once in any six-month period. Any such withdrawal
shall be subject to the otherwise applicable
provisions of Article VIII.
6. In no event shall the accrued benefit under the
ESOP for any ESOP Participant (including the form
and timing of all optional forms of benefit) be
modified in violation of Section 411(d)(6) of the
Code and the regulations thereunder, except to the
extent required to comply with applicable
requirements of the Code.
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Exhibit 5
January 26, 1998
SCANA Corporation
1426 Main Street
Columbia, South Carolina 29201
Dear Sirs:
SCANA Corporation (the "Company") proposes to file with the
Securities and Exchange Commission a Registration Statement on Form
S-8 for the registration under the Securities Act of 1933 of a
proposed public offering and sale of up to 3,000,000 shares of the
Company's Common Stock, without par value (the "Stock"), which may
be issued under the Company's Stock Purchase-Savings Plan (the
"Plan").
I have participated in the preparation of the aforesaid
Registration Statement and am familiar with all other proceedings
of the Company in connection with the Plan and the proposed
issuance of the Stock thereunder. I have also made such further
investigation as I have deemed pertinent and necessary as a basis
for this opinion.
Based upon the foregoing, I advise you that, upon (a) the
aforesaid Registration Statement becoming effective; (b) issuance
of the Stock in accordance with the terms of the Plan; (c) the due
execution, registration and countersignature of the certificates
for the Stock; and (d) the delivery of the Stock to the purchasers
thereof against receipt of the purchase price therefor; in my
opinion the Stock will have been duly authorized and legally and
validly issued and will be fully paid and nonassessable.
I hereby consent to the use of this opinion in connection with
the aforesaid Registration Statement.
Very truly yours,
s/H. Thomas Arthur
H. Thomas Arthur
Vice President, General Counsel
and Assistant Secretary
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Exhibit 23(a)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this
Registration Statement of SCANA Corporation on Form S-8 of the
report of Deloitte & Touche LLP dated February 7, 1997, appearing
in the Annual Report on Form 10-K of SCANA Corporation for the year
ended December 31, 1996.
s/DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
Columbia, South Carolina
January 23, 1998
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Exhibit 24
POWER OF ATTORNEY
The undersigned directors of SCANA Corporation (the
"Company"), hereby appoint, H. Thomas Arthur 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-8, 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 to be issued and
sold pursuant to the Company's Employee Stock Purchase Savings
Plan.
Dated: January 21, 1998
Columbia, South Carolina
s/B. L. Amick s/Lawrence M. Gressette, Jr.
B. L. Amick Lawrence M. Gressette, Jr.
Director Director
s/James A. Bennett s/W. Hayne Hipp
James A. Bennett W. Hayne Hipp
Director Director
s/W. B. Bookhart, Jr. s/F. Creighton McMaster
W. B. Bookhart, Jr. F. Creighton McMaster
Director Director
s/W. T. Cassels, Jr. s/Lynne M. Miller
W. T. Cassels, Jr. Lynne M. Miller
Director Director
s/Hugh M. Chapman s/John B. Rhodes
Hugh M. Chapman John B. Rhodes
Director Director
s/Elaine T. Freeman s/Maceo K. Sloan
Elaine T. Freeman Maceo K. Sloan
Director Director
s/William B. Timmerman
William B. Timmerman
Chairman
73
