Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
SCANA Corporation
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(Exact name of registrant as specified in its charter)
South Carolina
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(State or other jurisdiction of incorporation or organization)
57-0784499
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(I.R.S. employer identification number)
1426 Main Street, Columbia, South Carolina 29201
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(Address of principal executive offices) (Zip code)
SCANA Corporation Stock Purchase-Savings Plan
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(Full title of the plan)
H. Thomas Arthur, II
Senior Vice President, General Counsel and Assistant Secretary
SCANA Corporation
1426 Main Street, Columbia, South Carolina 29201
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(Name and address of agent for service)
(803) 217-8547
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(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
maximum maximum
Title of Amount offering aggregate Amount of
securities to to be price offering registration
be registered(1) registered per unit(2) price(2) fee(2)
Common Stock
no par value 4,000,000 $24.00 $96,000,000 $26,688
(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 or 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 September 15,
1999.
<PAGE>
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, 1998, as amended. 2) Annual Report of the Company's
Stock Purchase-Savings Plan (the "Plan") for the year ended
December 31, 1998 as filed on Form 10-K/A.
3) Quarterly Reports of the Company on Form 10-Q for the quarters
ended March 31, 1999 and June 30, 1999.
4) The Registration Statement for Common Stock of the Company under
the Exchange Act on Form 8-B dated November 7, 1984, as amended
May 26, 1995.
5) SCANA's Current Report on Form 8-K dated February 16, 1999.
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 August 31, 1999, H. Thomas Arthur, II, Esquire, who is Senior Vice
President, General Counsel and Assistant Secretary, and a full-time employee of
the Company, owned beneficially 9,415 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.
<PAGE>
Item 6. Indemnification of Directors and Officers
The South Carolina Business Corporation Act of 1988 and the Registrant's
By-Laws provide for 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, as amended, 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. Finally, as permitted by Section
33-2-102 of the South Carolina Business Corporation Act of 1988, the
Registrant's Restated Articles of Incorporation provide that no director of the
Company shall be liable to the Company 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
(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
Registration Statement is on Form S-3, Form S-8 or Form F-3 and the information
required to be included in a post-effective amendment by those clauses is
contained in periodic reports filed with or furnished to the Commission 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.
<PAGE>
(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.
<PAGE>
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 17th
day of September 1999.
(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: September 17, 1999
(ii) Principal financial and accounting officer:
By: s/K. B. Marsh
(Name & Title): K. B. Marsh, Senior Vice President -Finance,
Chief Financial Officer and Controller
Date: September 17, 1999
(iii) Other Directors:
* B. L. Amick, J. A. Bennett, W. B. Bookhart, Jr., H. M. Chapman,
E. T. Freeman, L. M. Gressette, Jr., D. M. Hagood,
W. Hayne Hipp, L. M. Miller, J. B. Rhodes, M. K. Sloan, H. L. Stowe
* Signed on behalf of each of these persons:
s/K. B. Marsh
K. B. Marsh
(Attorney-in-Fact)
Directors who did not sign:
None
<PAGE>
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 September 17, 1999.
(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
<PAGE>
EXHIBIT INDEX
Exhibit Description
No.
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4.01 Restated Articles of Incorporation of SCANA as adopted on April 26, 1989
(Filed as Exhibit 3-A to Registration Statement No. 33-49145)
4.02 Articles of Amendment of SCANA, dated April 27, 1995 (Filed as Exhibit
4-B to Registration Statement No. 33-62421)
4.03 By-Laws of SCANA as revised and amended on December 17, 1997 (Filed as
Exhibit 4.01(b) to Registration Statement No. 33-86803)
4.04 SCANA Corporation Stock Purchase-Savings Plan as amended and
restated from January 1, 1989 to and as of January 1, 1999 (Filed
herewith on page 9)
4.05 Trust Agreement SCANA Corporation Stock Purchase-Savings Plan dated
January 15, 1999 (Filed herewith on page 61)
5.01 Opinion Re Legality (Filed herewith on page 72)
23.01 Consents of Experts and Counsel
(a) Consent of Deloitte & Touche LLP (Filed herewith on page 73)
(b) Consent of H. Thomas Arthur, II (Included in his opinion in
Exhibit 5.01)
24.01 Power of Attorney (Filed herewith on page 74)
99.01 Additional Exhibits
Not Applicable
SCANA CORPORATION
STOCK PURCHASE-SAVINGS PLAN
(As amended and restated from January 1, 1989,
to and as of January 1, 1999)
<PAGE>
SCANA CORPORATION
STOCK PURCHASE-SAVINGS PLAN
(As amended and restated from January 1, 1989
to and as of January 1, 1999)
TABLE OF CONTENTS
Article.............................................................Page
ARTICLE I. PURPOSE....................................................15
ARTICLE I-A. MERGER...................................................16
ARTICLE II. DEFINITIONS...............................................16
2.01 Additional Contributions...............................16
2.02 Adjustment Factor......................................16
2.03 Beneficiary............................................16
2.04 Break in Service.......................................16
2.05 Code...................................................17
2.06 Committee..............................................17
2.07 Common Stock...........................................17
2.08 Common Stock Fund......................................17
2.09 Company................................................17
2.10 Controlled Group.......................................18
2.11 Date of Distribution...................................18
2.12 Deferrals..............................................18
2.13 Disability.............................................18
2.14 Eligible Earnings......................................18
2.15 Eligible Employee......................................18
2.16 Employee...............................................18
2.17 Employee Plans Committee...............................18
2.18 Employer...............................................18
2.19 Employer Contribution..................................19
2.20 Highly Compensated Employee............................19
2.21 Inactive Participant...................................19
2.22 Investment Fund........................................19
2.23 Money Market Fund......................................19
2.24 Participant............................................19
2.25 Plan...................................................20
2.26 Plan Administrator.....................................20
2.27 Plan Manager...........................................20
2.28 Plan Year..............................................20
2.29 Regular Contributions..................................20
2.30 Spouse.................................................20
2.31 Termination of Employment..............................20
<PAGE>
SCANA CORPORATION
STOCK PURCHASE-SAVINGS PLAN
(As amended and restated from January 1, 1989
to and as of January 1, 1999)
TABLE OF CONTENTS
Article....................................................Page
2.32 Trust (or Trust Fund).................................20
2.33 Trustee...............................................20
2.34 U.S. Bond Fund........................................20
2.35 Valuation Date........................................20
2.36 Valuation Price.......................................20
ARTICLE III. ELECTION OF PARTICIPATION...............................20
3.1 Election to Participate................................20
3.2 Election Authorization.................................21
ARTICLE IV. EMPLOYEE DEFERRALS AND CONTRIBUTIONS.....................21
4.1 Deferrals..............................................21
4.2 Regular Contributions..................................21
4.3 Additional Contributions...............................21
4.4 Timing of Contributions................................21
4.5 Changes in Contributions...............................21
4.6 Suspension of Contributions............................21
4.7 Rounding of Amounts....................................21
4.8 Rollover Contributions.................................21
ARTICLE V. EMPLOYER CONTRIBUTIONS....................................22
5.1 Employer Contributions.................................22
5.2 Corrective Contributions/Reallocations.................23
ARTICLE VI. PLAN INVESTMENTS.........................................23
6.1 Investment Funds.......................................23
6.2 Employee Deferrals, Regular Contributions, Additional
Contributions, and Rollover Contributions....................23
6.3 Change in Investment Designation of Future Employee
Deferrals, Regular Contributions, Additional Contributions,
and Rollover Contributions...................................23
6.4 Transfers of Existing Employee Deferrals, Regular
Contributions, Additional Contributions, and Rollover
Contributions Among Investment Funds..........................23
6.5 Employer Contributions.................................24
6.6 Investments in Common Stock Fund.......................24
6.7 Earnings...............................................26
6.8 Uninvested Cash........................................26
<PAGE>
SCANA CORPORATION
STOCK PURCHASE-SAVINGS PLAN
(As amended and restated from January 1, 1989
to and as of January 1, 1999)
TABLE OF CONTENTS
Article.........................................................Page
ARTICLE VII. INVESTMENT ACCOUNTS..................................26
7.1 Separate Accounts............................................26
7.2 Account Information..........................................26
7.3 Applicable Valuation Date....................................27
ARTICLE VIII. WITHDRAWALS/DISTRIBUTIONS....................................28
8.1 Withdrawals Before Termination of Employment...............28
8.2 Frequency of Withdrawal....................................31
8.3 Form of Withdrawal.........................................31
8.4 Notice of Withdrawal.......................................31
8.5 Distribution on Termination of Employment or Disability....32
8.6 Distribution on Death......................................32
8.7 Promptness of Distribution.................................32
8.8 Amount of Distribution.....................................32
8.9 Form of Distribution.......................................32
8.10 Fractional Shares...........................................33
8.11 Limitations on Commencement of Benefits.....................33
8.12 Employee Transfers from the Employer to a
Controlled Group Member.....................................34
8.13 Distributions with Respect to Qualified Domestic
Relations Orders............................................34
8.14 Direct Rollover Distributions...............................34
8.15 Definitions.................................................35
ARTICLE IX. LOANS TO PARTICIPANTS..........................................35
9.1 Amount of Loan..............................................35
9.2 Terms of Loan...............................................36
9.3 Commencement of Loans.......................................39
9.4 Employee Transfers from the Employer to a
Controlled Group Member.....................................39
9.5 Specific Information........................................39
ARTICLE X. VESTING.........................................................39
10.1 Vesting......................................................39
10.2 Employee Transfers from the Employer to a
Controlled Group Member.....................................40
ARTICLE XI. FORFEITURES....................................................40
11.1 Termination of Employment...................................40
11.2 Repayments..................................................40
11.3 Lost Participants or Beneficiaries..........................40
<PAGE>
SCANA CORPORATION
STOCK PURCHASE-SAVINGS PLAN
(As amended and restated from January 1, 1989
to and as of January 1, 1999)
TABLE OF CONTENTS
Article..................................................................Page
11.4 Application of Forfeitures............................... .40
ARTICLE XII. LIMITATIONS ON CONTRIBUTIONS AND BENEFITS....................40
12.1 Definition of Annual Additions............................40
12.2 Maximum Annual Addition...................................40
12.3 Limitation on Annual Additions............................40
12.4 Definitions...............................................41
12.5 Special Rules.............................................41
12.6 Limitation of Benefits and Contributions..................42
12.7 Transitional Rule.........................................43
12.8 Effective Date............................................43
12.9 Maximum Amount of Deferrals...............................43
12.10 Non-Discrimination Limitation on Deferral Contributions....44
12.11 Nondiscrimination Limitations on Regular
Contributions and Employer Contributions...................46
12.12 Definitions................................................47
ARTICLE XIII. TOP HEAVY PROVISIONS........................................50
13.1 General Rule................................................50
13.2 Vesting Provisions..........................................50
13.3 Minimum Benefit Provisions.................................50
13.4 Limitation on Benefits.....................................50
13.5 Coordination with Other Plans..............................51
13.6 Top-Heavy Plan Definition..................................51
13.7 Key Employee...............................................52
13.8 Non-Key Employee...........................................52
13.9 Collective Bargaining Rules................................52
13.10 Distribution to Key Employees..............................53
13.11 Effective Date.............................................53
ARTICLE XIV. VOTING OF STOCK..............................................53
14.1 Voting of Stock.............................................53
14.2 Tender Offer Rights With Respect to Stock...................53
ARTICLE XV. ADMINISTRATION................................................54
15.1 Plan Administrator..........................................54
15.2 Powers and Duties of the Committee..........................54
15.3 Claims Procedure............................................54
<PAGE>
SCANA CORPORATION
STOCK PURCHASE-SAVINGS PLAN
(As amended and restated from January 1, 1989
to and as of January 1, 1999)
TABLE OF CONTENTS
Article.................................................Page
15.4 Claims Review Procedure.............................54
15.5 Plan Expenses.......................................55
ARTICLE XVI. TRUSTEE..............................................55
ARTICLE XVII. FIDUCIARY LIABILITIES...............................56
ARTICLE XVIII. AMENDMENT OR TERMINATION...........................56
18.1 General Provision...................................56
18.2 Special Provision...................................56
ARTICLE XIX. GENERAL PROVISIONS...................................57
19.1 Source of Distributions............................57
19.2 Non-Alienation of Benefits.........................57
19.3 Merger or Consolidation............................57
19.4 No Right to Employment.............................57
19.5 Controlling Law.....................................57
19.6 Military Service....................................57
SIGNATURES.........................................................58
APPENDIX I.........................................................59
<PAGE>
SCANA CORPORATION
STOCK PURCHASE-SAVINGS PLAN
(As amended and restated from January 1, 1989,
to and as of January 1, 1999)
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 Section 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.
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 Plan was amended and restated as of January 1, 1999 to permit
Participants to invest their contributions (pre-tax and after-tax) in a Money
Market Fund and to provide for related amendments.
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.
<PAGE>
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.
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.
(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.
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 Common Stock Fund: An Investment Fund which is invested
solely in Common Stock in accordance with Section 6.6.
2.09 Company: The term "Company" shall mean SCANA Corporation.
<PAGE>
2.10 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.
2.11 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.
2.12 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.
2.13 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.
2.14 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 and
amounts received as a qualified transportation fringe under Code Section 132(f).
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.
2.15 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:
(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.
2.16 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.
2.17 Employee Plans Committee: The Employee Plans Committee
established by the Company's Board of Directors.
2.18 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.
2.19 Employer Contribution: A contribution made by an Employer
pursuant to Article V.
2.20 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).
2.21 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.
2.22 Investment Fund: A fund established in the Trust for
investment of contributions made to a Participant's accounts.
2.23 Money Market Fund: An Investment Fund which is invested in short
term money market instruments, including, but not by way of limitation, short
term securities of the United States or any agency or instrumentality thereof or
in one or more investment companies commonly known as "money market" mutual
funds.
2.24 Participant: An Eligible Employee who is an active Participant
in the Plan and who has amounts credited to his account under the Plan.
<PAGE>
2.25 Plan: The SCANA Corporation Stock Purchase-Savings Plan,
the Plan set forth herein, as amended from time to time.
2.26 Plan Administrator: The SCANA Corporation Stock Purchase-
Savings Plan Committee ("Committee").
2.27 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.
2.28 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.
2.29 Regular Contributions: Eligible Earnings which a Participant
elects to contribute to the Plan on an after-tax basis in accordance with
Section 4.2.
2.30 Spouse: That person who is legally married to the Employee
according to the law of the Employee's residence.
2.31 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.
2.32 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.
2.33 Trustee: The individual(s) or corporation(s) appointed by the
Company, pursuant to a trust agreement, to hold and manage the Trust Fund.
2.34 U.S. Bond Fund: An Investment Fund which is invested in
obligations of the United States Government consisting solely, to the extent
practicable, of Series EE Savings Bonds. No new contributions or transfers can
be made to the U.S. Bond Fund on or after November 1, 1988.
2.35 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.
2.36 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.
<PAGE>
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 as well as an Investment Fund
designation pursuant to Section 6.2.
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 thirty (30) 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.
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 (including Investment Fund
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).
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 Employee'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.
<PAGE>
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 Investment Funds: In the sole discretion of the Plan Administrator, one
or more funds (to be designated as "Investment Funds") shall be established in
the Trust which shall include, but not be limited to the Common Stock Fund, the
U.S. Bond Fund and the Money Market Fund.
6.2 Employee Deferrals, Regular Contributions, Additional
Contributions, and Rollover Contributions: Effective November 1, 1988 and for
periods prior to January 1, 1999, all Deferrals, Regular Contributions,
Additional Contributions, and Rollover Contributions made during any Plan Year
shall be invested entirely in Common Stock. Effective January 1, 1999, each
Participant, as part of his election to make Deferrals, Regular Contributions,
Additional Contributions, and Rollover Contributions, shall designate the
Investment Fund in which such contributions, if any, shall be invested. Until
and unless other Investment Funds are available under the Plan, the designation
shall indicate that such contributions shall be invested either 100% in the
Common Stock Fund or 100% in the Money Market Fund. No contributions may be made
to the U.S. Bond Fund. If a Participant fails to designate the investment of
such contributions, such contributions shall be invested in the Money Market
Fund until the Participant properly designates otherwise.
6.3 Change in Investment Designation of Future Employee Deferrals,
Regular Contributions, Additional Contributions, and Rollover Contributions: A
Participant may change the Investment Fund into which any future Employee
Deferrals, Regular Contributions, Additional Contributions, and Rollover
Contributions are invested, by notifying the Plan Manager at any time and in the
manner prescribed by the Plan Manager (including, if such procedures are
authorized, telephonic notice). Any change in the designated Investment Fund
shall be such that all such future contributions shall be invested either 100%
in the Common Stock Fund or 100% in the Money Market Fund. No contributions may
be made to the U.S. Bond Fund. A Participant who makes a change pursuant to this
Section 6.3 may not make another change pursuant to this Section 6.3 until after
the expiration of the 120 calendar day period following the date of the previous
change, in accordance with such procedures established by the Plan Manager. Any
such change in the designation of Investment Funds shall be effective as soon as
practicable after the Participant notifies the Plan Manager.
6.4 Transfers of Existing Employee Deferrals, Regular Contributions,
Additional Contributions, and Rollover Contributions Among Investment Funds: A
Participant may change the Investment Fund in which the existing balances of his
Employee Deferrals, Regular Contributions, Additional Contributions, and
Rollover Contributions are invested by notifying the Plan Manager at any time in
the manner prescribed by the Plan Manager (including, if such procedures are
authorized, telephonic notice). The Participant may transfer all or part of his
existing balances in such percentages or dollar amounts as permitted by the Plan
Manager and as applied to all similarly situated Participants, however, no
transfers may be made into the U.S. Bond Fund. A Participant who makes a
transfer pursuant to this Section 6.4 may not make another transfer pursuant to
this Section 6.4 until after the expiration of the 120 calendar day period
following the date of the previous transfer, in accordance with such procedures
established by the Plan Manager. Any such transfer of amounts from one
Investment Fund to another Investment Fund shall be effective as soon as
practicable after the Participant notifies the Plan Manager.
<PAGE>
6.5 Employer Contributions: Employer Contributions under Article V shall be
invested solely in the Common Stock Fund.
6.6 Investments in Common Stock Fund: All Deferrals, Regular
Contributions, Additional Contributions, and Rollover Contributions which are to
be invested in the Common Stock Fund and Employer Contributions shall be
transferred to the Trustee for investment in the Common Stock Fund. 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 amounts which are to be invested in the Common Stock Fund 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.
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.
<PAGE>
(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.
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, if necessary,
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 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.
<PAGE>
6.7 Earnings: With respect to the Common Stock Fund, dividends on
Common Stock shall, at the direction of the Plan Manager as a named fiduciary of
the Plan, be invested in such stock. With respect to the U.S. Bond Fund,
interest on obligations of the United States shall be reflected in the
redemption value of such obligations. With respect to the Money Market Fund, any
earnings shall be reinvested pursuant to the fund's operating guidelines.
6.8 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 in
accordance with the investment designation otherwise applicable under this
Article VI..
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 contribution
(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. ss. 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.
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 invested in the
Common Stock Fund 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 the Money Market Fund or 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. Each
Participant's share of such earnings and/or losses will be that portion of the
total net investment income or losses and realized and unrealized capital gains
or losses of such Investment Fund which bears the same ratio to such total as
the balance of his account attributable to such Investment Fund as of the
preceding Valuation Date. 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.
<PAGE>
ARTICLE VIII. WITHDRAWALS/DISTRIBUTIONS
8.1 Withdrawals Before Termination of Employment:
A Participant may elect at any time during the Plan Year to make
withdrawals from his accounts in the order set forth in the lists
below. Such Participant shall designate the portion of his withdrawal
to be made from the Money Market Fund, the U.S. Bond Fund and/or from
the Common Stock Fund.
(a) Any withdrawals made from accounts invested in the Money
Market Fund shall be made in the order set forth in the list
below. 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 if any such amounts are
transferred to the Money Market Fund, 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 if any such amounts are
transferred to the Money Market Fund, 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.
(3) An amount equal to all or part of the remaining
amounts allocated to the Participant's Regular
Contributions account under Section 4.3.
(4) An amount equal to all or part of the remaining
amounts allocated to the Participant's Regular
Contribution account 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 has reached age 59 1/2, an amount
equal to all or part of the amounts allocated to the
Participant's Deferral Account pursuant to Section
4.3. The Participant, in application for such
withdrawal, shall include evidence of the
Participant's age and a statement of other facts
required by the Plan Manager.
(7) If the Participant has reached age 59 1/2 , an
amount equal to all or part of the amounts allocated
to the Participant's Deferral Account pursuant to
Section 4.1. The Participant, in application for
such withdrawal, shall include evidence of the
Participant's age and a statement of other facts
required by the Plan Manager.
(b) Any withdrawals made from accounts invested in the Common
Stock Fund or the U.S. Bond Fund shall be made in the order
set forth in the list below. Except as provided in Sections
8.1(e) and (f), 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.
<PAGE>
(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.
(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.
(c) A Participant may at any time after reaching age 59 1/2 and
after having exhausted the amounts described in Section
8.1(b)(1) through (4) 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.
(d) Tax Accounting: Notwithstanding any provision of the Plan to
the contrary, for purposes of calculating a Participant's
tax liability for a withdrawal, the withdrawal shall be
deemed to be made in the following order:
(1) An amount equal to all or part of any before-1987 Regular Contributions
allocated to the Participant's account.
(2) An amount equal to all or part of any post-1986 Regular Contributions
and all earnings on Regular Contributions allocated to the Participant's
account.
(3) An amount equal to all or part of any Rollover
Contributions, Employer Contributions, Deferral
amounts and all earnings on such amounts allocated
to the Participant's account.
(e) Hardship Withdrawals: A Participant may request a
withdrawal from his Deferral account in the order set
forth in Section 8.1(g) 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:
<PAGE>
(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.
(f) 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 (e) 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.
(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.
(g) Hardship Withdrawals shall be charged pursuant to the
Participant's election as to withdrawal of amounts in the
Common Stock Fund, the U.S. Bond Fund or the Money Market
Fund and 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 who has made a withdrawal
under Sections 8.1(a), 8.1(b) or 8.1(c) may not made another withdrawal under
Sections 8.1(a), 8.1(b) or 8.1(c) until after the expiration of the 180 calendar
day period following the date of the previous withdrawal.
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)
amounts invested in the Money Market Fund, (b) uninvested cash, and (c) 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, if necessary, 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.
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 in his
entire account, in cash or in kind, subject to the remaining provisions of this
Article VIII.
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 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 a
Participant's entire account balance does not exceed $5,000 ($3,500 for periods
before January 1, 1998), 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 a Participant's entire account balance
exceeds $5,000 ($3,500 for periods before January 1, 1998), 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)
amounts invested in Money Market Fund, (b) uninvested cash, and (c) 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 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 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.
<PAGE>
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.
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 plus cash for any amounts invested in the Money
Market Fund; 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.
<PAGE>
(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.
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:
(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).
<PAGE>
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 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.
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(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.
(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) Loan proceeds shall be derived from the Participant's
accounts and Investment Funds in the order set forth in the
list below. Such proceeds shall be not derived from any
account until all accounts previously listed have been
exhausted.
(1) An amount equal to all or part of the amounts
allocated to the Participant's Employee Deferrals
account under Section 4.3 and invested in the Money
Market Fund.
(2) An amount equal to all or part of the amounts
allocated to the Participant's Employee Deferrals
account under Section 4.1 and invested in the Money
Market Fund.
(3) An amount equal to all or part of the amounts
allocated to the Participant's Employee Deferrals
account under Section 4.3 and invested in the Common
Stock Fund.
(4) An amount equal to all or part of the amounts
allocated to the Participant's Employee Deferrals
account under Section 4.1 and invested in the Common
Stock Fund.
(5) An amount equal to all or part of the amounts allocated to the
Participant's Rollover Contribution account under Section 4.8 and invested
in the Money Market Fund.
(6) An amount equal to all or part of the amounts allocated to the
Participant's Rollover Contribution account under Section 4.8 and invested
in the Common Stock Fund.
(7) An amount equal to all or part of the amounts
allocated to the Participant's Regular Contributions
account under Section 4.3 and invested in the Money
Market Fund.
(8) An amount equal to all or part of the amounts
allocated to the Participant's Regular Contributions
account under Section 4.2 and invested in the Money
Market Fund.
(9) An amount equal to all or part of the amounts
allocated to the Participant's Regular Contributions
account under Section 4.3 and invested in the Common
Stock Fund.
(10) An amount equal to all or part of the amounts allocated to the
Participant's Regular Contributions account under Section 4.2 and invested
in the Common Stock Fund.
Effective for all repayments of new and existing Plan loans
on and after January 1, 1999, all repayments of Plan loans,
including interest, shall be invested in the Investment
Funds in accordance with the Participant's current
investment election.
(l) To the extent the requested loan is derived from amounts
invested in the Common Stock Fund, a whole-share amount from
his account as equivalent to, without exceeding, the
requested loan amount as possible, shall be sold in the open
market on the NYSE by or on behalf of the Trustee, at the
direction of the Plan Manager, after which the proceeds
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, 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. 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.
(m) 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.
(n) 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
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.
(o) 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.
(p) 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;
(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.
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.
(a) To the extent excess amounts remain in the Participant's
Accounts, 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
(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.
(c) Any amount returned to a Participant pursuant to Section
12.3(a) shall be withdrawn first from any amounts invested
in the Money Market Fund and then, if necessary, from the
Common Stock Fund.
12.4 Definitions: For purposes of Section 12.2:
(a) Defined Contribution Dollar Limitation shall mean $30,000.
(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 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.
(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:
<PAGE>
(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
(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 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.
Any amount returned to a Participant pursuant to this
Section 12.9(b) shall be withdrawn first from any
amounts invested in the Money Market Fund, and then, if
necessary, from the Common Stock Fund.
(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 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.
(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. Any amount returned to
a Participant pursuant to this Section 12.10(e) shall be
withdrawn first from any amounts invested in the Money Market
Fund, and then, if necessary, from the Common Stock Fund.
(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.
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.
(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. Any amount
returned to a Participant pursuant to Section 12.11(d) or Section
12.11(e) shall be withdrawn first from any amounts invested in
the Money Market Fund, and then, if necessary, from the Common
Stock Fund.
(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. Any amount forfeited pursuant to this Section 12.11(h)
shall be forfeited first from any amounts invested in the Money
Market Fund, and then, if necessary, from the Common Stock Fund.
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.
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 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 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 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 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
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.
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.
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 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.
<PAGE>
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.
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.
(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.
<PAGE>
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
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:
(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
<PAGE>
(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.
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, 1999.
<PAGE>
SIGNATURES
IN WITNESS WHEREOF the undersigned has caused this instrument to be
executed by the duly authorized officer, this 15th day of January, 19 99 .
SCANA CORPORATION
BY: s/William B. Timmerman
William B. Timmerman, Chairman
of the Board and Chief Executive Officer
Attest: s/Lynn M. Williams
Lynn M. Williams
Secretary
<PAGE>
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.
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.
Exhibit 4.02
TRUST AGREEMENT
SCANA CORPORATION
STOCK PURCHASE-SAVINGS PLAN
THIS RESTATED AGREEMENT, by and between SCANA CORPORATION (the
"Company"), a corporation organized under the laws of the State of South
Carolina and having its principal office at Columbia, South Carolina, under the
SCANA Corporation Stock Purchase-Savings Plan (the "Plan") effective January 1,
1999, and First Union National Bank of South Carolina ("First Union", or the
"Trustee"), a banking corporation having its principal office in Greenville,
South Carolina, is effective as of the 1st day of January, 1999.
WITNESSETH:
WHEREAS, the Company and The South Carolina National Bank ("SCNB") had
executed an amended and restated Trust Agreement on December 7, 1989 pursuant to
which SCNB served as trustee of the Plan; and
WHEREAS, the Company did on November 19, 1991 deliver to SCNB in
accordance with Section 2.5 of the above Trust Agreement written notice of
prospective removal of trustee, the trust services of SCNB to be concluded as of
the close of business on December 31, 1991; and
WHEREAS, the Company thereafter appointed First Union to serve as
Trustee of the Trust for the Plan effective January 1, 1992, which Plan and
related Trust are intended to be and to be operated as a qualified Plan and
Trust within the meaning of Section 401(a) of the Internal Revenue Code of 1986
as may be from time to time amended; and
WHEREAS, effective as of August 3, 1992, the Company amended Section
2.4 and Article VIII of the Trust Agreement to address Trustee responsibilities
regarding the sale of Participant shares in the open market relative to changes
made to the Plan effective as of August 3. 1992; and
WHEREAS, effective as of January 1, 1997, the Company amended Sections
2.4, 3.5, 3.6, 3.9, 3.10 and Article VIII of the Trust Agreement to address
fiduciary obligations of the Trustee;
WHEREAS, effective as of January 1, 1999, the Company amended Sections
2.4, 3.2, 3.10 and Article VIII of the Trust Agreement to address the addition
of investment options other than Company common stock to the Plan;
NOW, THEREFORE, the Company, on behalf of itself and participating
SCANA Corporation subsidiaries, and First Union as Trustee under this Trust
Agreement hereby consent to the following Trust terms:
ARTICLE I
ESTABLISHMENT OF TRUST
1.1 The Company will, on behalf of itself and as agent for any
participating subsidiary company, deliver or cause to be delivered from time to
time to the Trustee contributions of employees of the Company and of any
participating subsidiary, and contributions by the Company and by any
participating subsidiary, pursuant to the Plan, all of which, together with the
earnings, profits and increments thereon, without distinction between principal
and income, shall constitute the trust fund hereby created and established. In
accordance with directions from the Company to SCNB as the retiring trustee
pursuant to notice issued in accordance with Section 2.5 of the Trust Agreement
with SCNB dated December 7, 1989, First Union shall initially receive delivery
of the trust fund and related records from SCNB to serve as successor Trustee as
specified in the preamble provisions above.
1.2 This trust shall be a part of the Plan and shall be administered
for the exclusive purpose of providing benefits to Participants as defined in
the Plan and their successors in interest in accordance with the provisions of
the Plan the Internal Revenue Code of 1986 and of the Employee Retirement Income
Security Act of 1974 (ERISA) and rules and regulations thereunder, as all may
from time to time be amended.
1.3 The Trustee, by executing this Trust Agreement, accepts the trust,
and undertakes to hold, invest, distribute and administer the Fund in accordance
with the provisions of this Agreement and agrees to be bound by the terms of the
Plan applicable to it as well as of this Agreement.
1.4 Notwithstanding references herein to the Plan, the duties and
responsibilities of the Trustee shall be limited to carrying out the terms of
this Agreement and the directions of the Company issued pursuant to this
Agreement, and the Trustee shall be under no duty to seek contributions from the
Company, or payments from any employee, or to compel acceptance by the Company
of any subscription or offer to purchase or sell common stock of the Company.
<PAGE>
ARTICLE II
CONCERNING THE TRUSTEE
2.1 The Trustee shall have all powers necessary for performance of its
duties under this Trust Agreement. 2.2 The Trustee shall be paid by the
Company such compensation as shall from time to time be agreed upon by
the Company
and the Trustee.
2.3 The Trustee may accept as the direction, act, statement,
determination or interpretation of the Company any writing purporting to be such
and signed by or on behalf of the Plan Administrator or by a person designated
in writing by the Plan Administrator. In that the Plan Administrator is the
SCANA Corporation Stock Purchase-Savings Plan Committee ("Committee") per
Section 15.1 of the Plan, and in that "The Committee delegates and assigns to
the Plan Manager primary responsibility for management of the regular operations
of the Plan" per Section 15.2 of the Plan, it is intended that the Plan Manager
shall act on behalf of the Plan Administrator in virtually all matters
concerning the Trustee.
2.4 The Trustee shall have power and authority to sell or exchange such
securities and to execute such proxies, powers of attorney, agreements and other
documents as directed by the Plan Manager as a named fiduciary or as otherwise
expressly required of the Trustee by the terms of the Plan. In addition to other
circumstances, this power of authority shall specifically pertain to the sale of
Participant shares of Company common stock in the open market on the New York
Stock Exchange, directly or via an agent, in accordance with Plan sections 8.3,
8.9 and 8.10, effective August 3, 1992, pertaining to cash-option Withdrawals,
Distributions, and fractional-share cash outs associated with either cash-option
or share Withdrawals or Distributions, and in accordance with Plan section
9.2(l), also effective August 3, 1992, to provide funds to borrowing
Participants as loan disbursements.
2.5 The Trustee may resign at any time by delivering sixty days'
written notice of its resignation to the Company, but the Company may agree to
accept such resignation upon shorter notice. The Company may at any time remove
the Trustee by delivering thirty days' written notice of such removal to the
Trustee, but the Trustee may agree to removal upon shorter notice. The retiring
Trustee shall deliver the Fund and related records to such successor trustee as
designated and appointed by the Company.
<PAGE>
ARTICLE III
TRUST RECEIPTS AND INVESTMENTS
3.1 All Deferrals and Contributions under the Plan shall be paid to the
Trustee, who shall invest such amounts and earnings thereon as provided in
Article VI of the Plan, and account for all such amounts and earnings thereon.
The Trustee shall not be responsible in any way for the collection of
contributions provided for under the Plan.
3.2 Effective for periods prior to January 1, 1999, all Employee
Deferrals and Contributions made during any Plan year were invested entirely in
SCANA Corporation common stock. Effective for periods on or after January 1,
1999, Employee Deferrals and Contributions made during any Plan year shall be
invested according to the designation of each Participant in Investment Funds as
established by the Plan Administrator. All Employer Contributions have been and
shall be invested entirely in SCANA Corporation common stock. Except as
otherwise provided in Section 3.10 of this Article, the Trustee shall not be
deemed to have any discretionary investment powers in this regard, and as a
result the Company shall, to the extent permitted by the Employee Retirement
Income Security Act of 1974, indemnify the Trustee for any and all claims,
losses, costs, expenses or other liabilities which the Trustee may incur or for
which the Trustee may be held legally liable regarding the exclusive investment
of Employer contributions in SCANA Corporation common stock or for following
Participant direction in the investment of Employee Deferrals and Contributions
in Investment Funds; the Company shall not, however, indemnify the Trustee for
any claim, loss, cost, expense or other liability incurred with respect to
investment in SCANA Corporation common stock or in other Investment Funds which
is the result of the Trustee's gross negligence or recklessness.
3.3 Company common stock shall be purchased by the Trustee as provided
in Article VI of the Plan.
3.4 Company common stock purchased by the Trustee shall be carried in
the accounts of the Trustee at the cost thereof to the Trustee.
3.5 The provisions of this Section 3.5 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 the Plan and this Trust Agreement. Each Participant (or
Beneficiary) is, for purposed of this Section 3.5, 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 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.
3.6 Each Participant (or Beneficiary of a deceased Participant) is, for
purposes of this Section 3.6, 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.
3.7 The Trustee shall register Company common stock held by it
hereunder in its own name or in the name of its nominee, with or without the
addition of words indicating that such securities are held in a fiduciary
capacity, and may hold any other securities in bearer form, but the books and
records of the Trustee shall at all times show that all such investments are
part of the Trust.
3.8 The Company will maintain records accurately reflecting the
interest of each Participant in the Plan. 3.9 The Trustee shall
purchase and sell 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.
3.10 With respect to amounts to be invested in Company common stock,
the Trustee shall have the power to invest cash for short periods of time, not
to exceed the period from the date the Trustee receives funds from the Company
until the settlement date for purchases of Company common stock made by the
Trustee as directed by the Plan Manager as a named fiduciary of the Plan, in
interest-bearing deposits or money market obligations of the Trustee (where the
Trustee is a federally-regulated bank) or otherwise with due prudence exercised
as to safety, liquidity and rate of return.
3.11 Loans may be made to the participants under Article IX of the Plan
and this section provided such loans (a) are available to all such Participants
on a reasonably equivalent basis, (b) are not made available to highly
compensated Employees or officers in an amount greater than made available to
other Participants, (c) are made in accordance with Article IX of the Plan, (d)
bear a reasonable rate of interest and (e) are adequately secured. The Plan
Manager and not the Trustee shall be responsible for the administration,
processing and collection of loans. The Plan Manager may bring actions for
collection of amounts due in the name of the Trustee.
<PAGE>
ARTICLE IV
DISTRIBUTIONS
The Trustee shall make distributions at such times and in such form as
the Plan Manager may direct in writing.
ARTICLE V
REPORTS AND ACCOUNTS
5.1 The Trustee shall maintain true and accurate accounts of all
transactions hereunder, which shall be subject to inspection and audit at any
time by the Company or by auditors designated by the Company.
5.2 Within sixty days after the end of each Plan Year, the Trustee
shall prepare and deliver to the Plan Manager a statement, in such form as the
Company shall prescribe, of its accounts and proceedings for the year. Each
annual statement shall be certified as accurate by appropriate officers of the
Trustee.
ARTICLE VI
TAXES
6.1 The Trustee shall withhold and pay to the proper authorities any
taxes required to be withheld by the Trustee or the Company from any
distribution to or for the account of any Participant or with respect to any
credit to the account of any Participant.
6.2 The Trustee shall pay out of the Fund any taxes lawfully assessed
upon the Fund or the earnings thereof or upon the Company with respect to the
Fund or the earnings thereof.
ARTICLE VII
FIDUCIARY DUTIES
7.1 The Trustee shall not engage in any activity that would constitute
a prohibited transaction as defined in the appropriate sections of the Internal
Revenue Code, ERISA, related Regulations and any applicable South Carolina law.
7.2 No person dealing with the Trustee shall be required to inquire
into the decisions or authorities of the Trustee or to see to the application by
the Trustee of any properties involved in such transactions; provided, that this
provision shall not relieve any Plan fiduciary dealing with the Trustee from
fulfilling his fiduciary duty. For the purposes of this Agreement, the
"fiduciary duty" of the Plan fiduciaries (including the Trustee) shall include
the duties specified by the Plan and in this Trust Agreement and all other
duties imposed on plan fiduciaries under the Internal Revenue Code of 1986,
ERISA, and any applicable South Carolina law, as all may from time to time be
amended. The Trustee shall not be liable for the making, retention, or sale of
any investment nor for any loss to or diminution of the trust fund, nor for any
action it takes or refrains from taking, if at the direction of the Plan
Manager.
7.3 The Trustee shall not be liable for any expenses or liability
hereunder unless due to or arising from its fraud, dishonesty, negligence,
misconduct, or violation of the fiduciary standards of the Internal Revenue Code
of 1986, ERISA, and any applicable South Carolina law, as all may from time to
time be amended.
7.4 The Trustee shall be under no duty to question any direction
received from the Plan Manager or to make any suggestions to the Plan Manager in
connection therewith, and the Trustee shall as promptly as possible comply with
any direction given by the Plan Manager hereunder. The Trustee may consult with
legal counsel of its choice, including counsel for or employed by the Company,
upon any matter or question arising hereunder and shall be fully protected in
acting in good faith upon advice received from such counsel.
ARTICLE VIII
EXPENSES OF AND CHARGES AGAINST THE TRUST
Expenses of and charges against the trust fund relating to the ordinary
and necessary administration of the Plan and Trust shall be payable out of the
Fund, unless paid by the Company. Prior to any payment from the Fund, the
Trustee shall provide the Plan Manager with written notice of the amount of such
expenses. If the Company does not pay such amount within ninety (90) days of
delivery of such written notice, the Trustee shall be deemed authorized to
deduct such amount from the Fund. To the extent the Company pays any
administrative expenses directly, the Company may be reimbursed from the Fund,
provided the Trustee is so directed, in writing, by the Plan Manager. Among the
expenses encompassed by this section is reasonable compensation for the
Trustee's services, which fees shall be agreed upon from time to time between
the Company and the Trustee. If the Trustee and the Plan Manager mutually agree
that the advice of legal counsel is needed on any legal matter involving the
Trust, including the interpretation of this Trust, and mutually agreed upon
legal counsel is retained, the counsel fees shall be paid out of the Fund unless
directly paid by the Company. In all other cases, fees for legal counsel shall
not be paid from the Fund or by the Company unless otherwise required by a court
of competent jurisdiction.
Effective as of August 3, 1992 with regard to the open market sales of
Participant shares and fractional shares in accordance with Plan sections 8.3,
8.9, 8.10 and 9.2(l), those costs directly related to sale which by the terms of
the Plan are to be borne by the Participants shall be so treated under Plan and
Trust administration.
ARTICLE IX
NON-ASSIGNABILITY
Except to the extent permitted in the instance of a qualified domestic
relations order as defined in Section 414(p) of the Code, no right or interest
of any Participant or of any beneficiary of any Participant under this Agreement
or in or to any part of the Trust hereby established shall be assignable or
transferable, in whole or in part, either directly or by operation of law or
otherwise, including, but not by way of limitation, execution, levy,
garnishment, attachment, pledge, bankruptcy or in any other manner, but
excluding devolution by death or mental incompetency, and no right or interest
of any such Participant or beneficiary shall be liable for, or subject to, any
obligation or liability of such Participant or beneficiary.
ARTICLE X
AMENDMENT AND TERMINATION
10.1 The Company reserves the right at any time by written notice to
the Trustee to amend the terms of this Agreement in any respect whatsoever, or
to modify, suspend or terminate this Agreement. No such amendment, however, may
permit any part of the trust fund to revert to the Company or to be used for or
diverted to purposes other than the exclusive benefit of Participants or for the
payment of taxes and such expenses as might be incurred which are obligations
properly to be satisfied from the trust fund, except that Company contributions
made to the Plan shall be returned to the Company if made by reason of a good
faith mistake of fact. Applicable to the circumstance of return of Company
contributions are the following rules:
1. The amount returnable is the excess of the amount contributed
by the Company over the amount that would have been
contributed had there not occurred a mistake of fact.
2. Earnings attributable to the excess contribution shall not be
returned to the Company, but losses attributable thereto must
reduce the amount to be returned.
3. The return to the Company must be made within one year of the
mistaken payment of the contribution. No such amendment, modification,
suspension or termination shall have any retroactive effect, except that an
amendment may be made retroactively which is necessary or advisable in the
judgment of the Company to bring this Agreement into conformity with laws or
regulations, or to qualify the Plan and this Agreement for tax exemption and the
Company's contributions thereunder as deductible for tax purposes, or which does
not reduce the accrued benefit for any Participant, or which is not otherwise
contrary to any other applicable law.
10.2 Unless sooner terminated, the Trust shall continue for such period
of time as is required to accomplish the purposes for which it is established.
ARTICLE XI
MISCELLANEOUS
11.1 A copy of the Plan is attached hereto and incorporated herein by
reference. All terms used in this Agreement which are defined in the Plan shall
have the meanings assigned to them in the Plan unless the context in which they
are used clearly requires otherwise. In the event any matter arises in
connection with the administration of the Trust which is not provided for in
this Agreement, or in the event there is a conflict between the provisions of
this Agreement and the provisions of the Plan, the Plan provisions shall be
controlling.
11.2 This Agreement shall be construed, administered and enforced
according to the laws of the State of South Carolina except as superseded by
laws of the United States.
11.3 If any part of this Agreement shall be found to be invalid or
unenforceable, such invalidity or unenforceability shall not affect the
remaining provisions hereof, but such part shall be fully separable, and this
Agreement shall be construed and enforced as if such invalid or unenforceable
matter had never been inserted herein.
11.4 This Agreement shall be binding upon the parties and upon their
successors and assigns.
11.5 This Agreement may be executed in any number of counterparts, each
of which shall be an original, and all of which together shall constitute one
and the same instrument.
<PAGE>
IN WITNESS WHEREOF, this instrument has been executed this 15th day of
January, 1999.
SCANA CORPORATION
BY: s/William B. Timmerman
William B. Timmerman
Chairman of the Board and Chief Executive Officer
Attest: s/Lynn M. Williams
Lynn M. Williams
Corporate Secretary
FIRST UNION NATIONAL BANK
OF SOUTH CAROLINA, TRUSTEE
BY: s/Sandy W. Thrasher
Sandy W. Thrasher
Vice President and Trust Officer
Attest: s/Deborah Prince
Deborah Prince
Exhibit 5.01
September 17, 1999
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
4,000,000 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, II
H. Thomas Arthur, II
Senior Vice President, General Counsel
and Assistant Secretary
Exhibit 23.01
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of SCANA Corporation on Form S-8 of our report dated February 8, 1999 (February
17, 1999 as to Note 13), appearing in the Annual Report on Form 10-K of SCANA
Corporation for the year ended December 31, 1998.
s/DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
Columbia, South Carolina
September 17, 1999
Exhibit 24.01
POWER OF ATTORNEY
Each of the undersigned directors of SCANA Corporation (the "Company"),
hereby appoint W. B. Timmerman, Kevin B. Marsh and H. Thomas Arthur II, and each
of them severally, his or her true and lawful attorney or attorney's, with the
power to act with or without the other, and with full power of substitution and
re-substitution, to execute in his or her name, place and stead in his or her
capacity as director of the Company 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 an additional 4,000,000 shares of the Company's common
stock pursuant to the Company's Employee Stock Purchase Savings Plan.
Dated: August 31, 1999
Columbia, South Carolina
s/B. L. Amick s/W. H. Hipp
B. L. Amick W. H. Hipp
Director Director
s/J. A. Bennett s/L. M. Miller
J. A. Bennett L. M. Miller
Director Director
s/W. B. Bookhart, Jr. s/J. B. Rhodes
W. B. Bookhart, Jr. J. B. Rhodes
Director Director
s/H. M. Chapman s/M. K. Sloan
H. M. Chapman M. K. Sloan
Director Director
s/E. T. Freeman s/H. C. Stowe
E. T. Freeman H. C. Stowe
Director Director
s/L. M. Gressette, Jr. s/W. B. Timmerman
L. M. Gressette, Jr. W. B. Timmerman
Director Director
s/D. M. Hagood
D. M. Hagood
Director
