As filed with the Securities and Exchange Commission on
May 22, 2000
File No. 70-9639
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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PRE-EFFECTIVE AMENDMENT NO. 2 TO THE
APPLICATION-DECLARATION
ON FORM U-1
UNDER THE
PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
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SCANA CORPORATION
1426 Main Street
Columbia, South Carolina 29201
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(Name of companies filing this statement and
address of principal executive offices)
SCANA CORPORATION
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(Name of top registered holding company parent)
Kevin B. Marsh
H. Thomas Arthur
SCANA CORPORATION
1426 Main Street
Columbia, South Carolina 29201
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(Name and address of agent for service)
The Commission is requested to mail copies of
all orders, notices and communications to:
William S. Lamb, Esq.
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
125 West 55th Street
New York, New York 10019
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SCANA Corporation, a South Carolina corporation ("SCANA") and a registered
holding company under the Public Utility Holding Company Act of 1935, as amended
(the "Act") hereby amends and restates its Application-Declaration on Form U-1
(File No. 70-9639), initially filed with the Securities and Exchange Commission
(the "Commission") on February 28, 2000 and as amended and restated on March 14,
2000, as follows:
ITEM 1. DESCRIPTION OF PROPOSED TRANSACTIONS
SCANA is hereby seeking authorization for the approval of the Commission
under Sections 6(a), 7 and 12(e) of the Act and Rules 62(d) and 65 thereunder
for: (i) the granting of awards of Stock Options, Stock Appreciation Rights,
Restricted Stock, Performance Shares and Performance Units (collectively, the
"Awards") under its Long-Term Equity Compensation Plan (the "Plan"), (ii) the
issuance of up to five million shares of its no par value common stock (the
"Common Stock") over the period beginning with the effective date of an order
issued pursuant to this filing and continuing for a period of three (3) years
from the date of such order, in connection with such Awards and (iii) the
solicitation of proxies with respect to the Plan at SCANA's 2000 Annual Meeting
of Shareholders. The maximum aggregate number of shares of Common Stock to be
issued under the Plan is five million shares.
On February 9, 2000, SCANA received approval from the Commission to acquire
the outstanding voting securities of Public Service Company of North Carolina,
Incorporated ("PSNC") in a merger transaction (HCAR No. 35-27133). SCANA and
PSNC completed their merger effective at the close of business on February 10,
2000 and SCANA registered as a public utility holding company under the Act on
February 11, 2000. In connection with such registration under the Act, SCANA
received approval from the Commission on February 14, 2000 for certain financing
transactions, including the issuance of up to 10 million shares of Common Stock
under SCANA's direct stock purchase and dividend reinvestment plan, certain
incentive compensation plans and certain other employee benefit plans (HCAR No.
35-27137). Upon approval of the Plan discussed herein, SCANA will be authorized
to issue up to 15 million shares under its various plans. To the knowledge of
SCANA, no state laws, other than the laws of the State of South Carolina, apply
to the transactions contemplated herein.
The Board of Directors of SCANA adopted the Plan for SCANA at a meeting
held on February 22, 2000, subject to shareholder and regulatory approvals.
SCANA's shareholders approved the Plan at SCANA's 2000 Annual Meeting of
Shareholders held on April 27, 2000.
A. Authorization to Grant Awards Pursuant to the Plan
The purpose of the Plan is to optimize the profitability and growth of
SCANA through long-term incentives which are consistent with SCANA's goals and
which link the personal interests of participants to those of SCANA's
stockholders; to provide participants with an incentive for excellence in
individual performance and to promote teamwork among participants. In addition,
the Plan is intended to provide flexibility to SCANA in its ability to motivate,
attract, and retain the services of participants who make significant
contributions to SCANA's success and to allow participants to share in the
success of SCANA.
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The Plan will be administered by a committee of SCANA's Board of Directors
that is comprised entirely of directors who satisfy the "outside director"
requirements of Section 162(m) of the Internal Revenue Code of 1986, as amended
(the "Code") and who are "Non-Employee Directors" as defined in Rule 16b-3 under
the Securities Exchange Act of 1934, as amended, (the "Committee"), except that
the full Board of Directors will administer the Plan with respect to Awards
granted to directors. The Committee will have the authority to delegate
administrative duties to officers or directors of SCANA.
The maximum five million shares reserved for issuance to participants under
the Plan is subject to appropriate adjustment by the Committee to prevent
dilution or enlargement of participants' rights under the Plan.
The following Awards may be granted under the Plan. No grant will be
exercisable or payable before approval of SCANA stockholders and the Commission
hereunder have been obtained and all grants made prior to said approvals will be
contingent upon such approvals.
(i) Stock Options. Stock Options under the Plan are rights to purchase
shares of Common Stock at a specified price during a prescribed period. The
exercise price for Common Stock will be at least the fair market value at the
date of the grant. The maximum aggregate number of shares that may be granted in
the form of Stock Options, pursuant to any Award granted in any one fiscal year
to any one single participant shall be 300,000 shares.
(ii) Stock Appreciation Rights ("SARs"). SARs under the Plan are divided
into "freestanding" SARs and "tandem" SARs. Freestanding SARs will have a grant
price equal to the fair market value of Common Stock on the date of grant of
such SAR. Tandem SARs will have a grant price equal to the option price of the
related option and may be exercised for all or part of the Common Stock subject
to the related option upon the surrender of the right to exercise the equivalent
portion of the related option. At the discretion of the Committee, the payment
upon SAR exercise may be in cash, in Common Stock of equivalent value, or in
some combination thereof. The maximum aggregate number of shares that may be
granted in the form of SARs, pursuant to any Award granted in any one fiscal
year to any one single participant shall be 300,000 shares.
(iii) Restricted Stock. Restricted Stock under the Plan is Common Stock
that is issued to a participant subject to a condition that the participant
continue as an employee or a member of SCANA's Board of Directors, as
applicable, for a specified period of time and/or satisfy other applicable
conditions or performance requirements. The maximum aggregate number of shares
that may be granted in the form of Restricted Stock, pursuant to any Award
granted in any one fiscal year to any one single participant shall be 150,000
shares. The aggregate maximum number of shares that may be granted in the form
of Restricted Stock under the Plan is one million.
(iv) Performance Shares. Performance Shares are rights to receive shares of
Common Stock or an equivalent amount of cash, contingent upon the achievement of
specified performance goals determined by the Committee. The maximum aggregate
number of shares that
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may be granted in the form of Performance Shares, pursuant to any Award granted
in any one fiscal year to any one single participant shall be 200,000 shares.
(v) Performance Units. Performance Units are rights to receive cash or
other property of equivalent value including shares of Common Stock, contingent
upon the achievement of specified performance goals determined by the Committee.
The maximum aggregate payment with respect to Performance Units pursuant to any
Award granted in any one fiscal year to any one single participant shall be
equal to the value of $1,000,000.
The term of any Stock Option or SAR granted in tandem therewith may not
exceed ten years from the grant date. In the event of a change in control of
SCANA, any outstanding Stock Options and SARs become immediately exercisable and
remain exercisable throughout their entire term and any restriction periods and
restrictions imposed on Restricted Stock which are not performance-based shall
lapse. The treatment of any Awards which are performance-based will be addressed
in the participants' related Award agreement. The Committee may at any time and
from time to time, alter, amend, suspend or terminate the Plan in whole or in
part for any purpose which the Committee deems appropriate; provided, however,
no amendment shall without shareholder approval (i) increase the total number of
shares that may be issued under the Plan or the maximum awards thereunder or
(ii) modify the requirements as to eligibility for benefits under the Plan.
The Plan is designed to comply with limits imposed by the Code on the
ability of a public company to claim tax deductions for compensation paid to
certain highly compensated executives. Section 162(m) of the Code generally
denies a federal income tax deduction for annual compensation exceeding
$1,000,000 paid to the Chief Executive Officer and the four other most highly
compensated officers of a public company. Certain types of compensation,
including some performance-based compensation, are generally excluded from this
deduction limit. While SCANA believes compensation payable pursuant to the Plan
will be deductible for federal income tax purposes under most circumstances,
compensation not qualified under Section 162(m) of the Code may be payable under
certain circumstances.
The Plan is incorporated by reference as Exhibit A-3 hereto. SCANA's Form
S-8 Registration Statement relating to the Plan is incorporated by reference as
Exhibit C-1 hereto.
B. Authorization to Issue Shares of Common Stock Under the Plan
SCANA anticipates that the Awards to be granted under the Plan could result
in the issuance of up to five million shares of Common Stock. SCANA intends to
file a registration statement with the Commission for the purpose of registering
the shares of Common Stock to be issued pursuant to the Plan under the
Securities Act of 1933, as amended (the "1933 Act"). SCANA hereby requests
authorization for the issuance of up to five million shares of Common Stock in
connection with Awards to be granted under the Plan.
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C. Solicitation of Proxies
SCANA intends to submit the Plan to the holders of its outstanding Common
Stock for consideration and action at the Annual Meeting to be held April 27,
2000. Drafts of the notice and proxy statement to be mailed to SCANA's
shareholders in connection with the Annual Meeting are included herewith as
Exhibit H-1. The Applicants will mail the proxy materials to SCANA common
shareholders on or about March 17, 2000. Accordingly, in order to accommodate
this schedule and to permit sufficient time for advance preparation and
printing, the Applicants request that the Commission issue an order by not later
than March 9, 2000 permitting the Applicants to solicit proxies with respect to
the Plan.
D. Involvement of SCANA and its Affiliates with Exempt
Wholesale Generators and Foreign Utility Companies
The proposed transactions may be subject to Rules 53 and 54 under the Act.
Neither SCANA nor any subsidiary thereof presently has, or as a consequence of
the proposed transactions will have, an interest in any exempt wholesale
generator ("EWG") or foreign utility company ("FUCO"), as those terms are
defined in Sections 32 and 33 of the Act, respectively. None of the proceeds
from the proposed transactions will be used to acquire any securities of, or any
interest in, an EWG or FUCO. Moreover, neither SCANA nor any of its subsidiaries
is, or as a consequence of the proposed transactions will become, a party to,
and such entities do not and will not have any rights under, a service, sales or
construction contract with any affiliated EWGs or FUCOs except in accordance
with the rules and regulations promulgated by the Commission with respect
thereto. Consequently, all applicable requirements of Rule 53(a)-(c) under the
Act are satisfied as required by Rule 54 under the Act.
ITEM 2. FEES, COMMISSIONS AND EXPENSES
The fees, commissions and expenses of the Applicants are expected to be
paid or incurred, directly or indirectly, in connection with the transactions
described above are estimated as follows:
Commission filing fee under the
Securities Act of 1933 ........................ $1,320
Legal fees ........................ $15,000
Exchanging, printing and engraving
of stock certificates ........................ $10,000
Miscellaneous ........................ $5,000
Total ........................ $31,320
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ITEM 3. APPLICABLE STATUTORY PROVISIONS
Sections 6 and 7 of the Act are deemed to be applicable to the proposed
issuance of Common Stock. Section 12(e) of the Act and Rules 62(d) and 65
thereunder are deemed applicable to the solicitation of proxies for the Annual
Meeting of Shareholders.
To the extent that the proposed transaction is considered by the Commission
to require authorization, approval or exemption under any section of the Act or
provision of rules or regulations other than those specifically referred to
herein, request for such authorization, approval or exemption is hereby made.
ITEM 4. REGULATORY APPROVALS
No state or federal commission other than the Commission has jurisdiction
with respect to any of the proposed transactions described in this
Application-Declaration.
ITEM 5. PROCEDURE
On March 14, 2000, the Commission issued and published the requisite notice
under Rule 23 with respect to this Application-Declaration; such notice
specifying April 4, 2000 as the date by which comments may be entered and the
date on which an order granting and permitting the Application-Declaration to
become effective may be entered by the Commission. In addition, on March 14,
2000, the Commission issued and published its order approving the solicitation
of proxies regarding approval of the Plan at SCANA's 2000 Annual Meeting of
Shareholders.
SCANA hereby requests that there be no hearing on this
Application-Declaration and that the Commission issue its order as soon as
practicable after the filing hereof. No recommended decision by a hearing
officer or other responsible officer of the Commission is necessary or required
in this matter. The Division of Investment Management of the Commission may
assist in the preparation of the Commission's decision in this matter. There
should be no thirty-day waiting period between the issuance and effective date
of any order issued by the Commission in this matter, and it is respectfully
requested that any such order be made effective immediately upon the entry
thereof.
ITEM 6. EXHIBITS AND FINANCIAL STATEMENTS
a) Exhibits
Exhibit No. Description of Exhibit
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A-1 Restated Articles of Incorporation of SCANA
as adopted on April 26, 1989 (Filed with the
Commission as Exhibit 3-A to Registration
Statement No. 33-49145 and incorporated by
reference herein).
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A-2 Articles of Amendment of SCANA, dated
April 27, 1995 (Filed with the Commission as
Exhibit 4-B to Registration Statement No. 33-
62421 and incorporated by reference herein).
A-3 SCANA's Long-Term Equity Compensation Plan
(Filed with the Commission as Exhibit 4.04 to
Registration Statement No. 333-37398 and
incorporated by reference herein).
C-1 Form S-8 Registration Statement No. 333-37398
relating to SCANA's issuance of Common
Stock under the Plan (Filed with the
Commission on May 19, 2000 and incorporated by
reference herein).
F-1 Opinion of Counsel.
F-2 "Past Tense" Opinion of Counsel (To be Filed
by Amendment).
G-1 Financial Data Schedule (previously filed).
H-1 SCANA's Proxy Statement relating, in part, to
the approval of the Plan (Filed with the
Commission on March 17, 2000 and
incorporated by reference herein).
H-2 Proposed Form of Notice (previously filed).
b) Financial Statements
No. Description of Financial Statements
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FS-1 SCANA's Actual Consolidated Condensed
Balance Sheet as of December 31, 1999 (Filed
with the Commission with SCANA's 10-K for
the period ended December 31, 1999 (File
No. 1-8809) and incorporated by reference
herein).
FS-2 SCANA's Unaudited Pro Forma Condensed
Consolidated Balance Sheets (previously
filed).
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FS-3 SCANA's Actual Consolidated Condensed
Statement of Earnings for the nine months
ended December 31, 1999 (Filed with the
Commission with SCANA's 10-K for the
period ended December 31, 1999 (File No. 1-
8809) and incorporated by reference herein).
FS-4 SCANA's Unaudited Pro Forma Consolidated
Condensed Statement of Earnings (previously
filed).
FS-5 Notes to SCANA's Unaudited Pro Forma
Condensed Consolidated Financial Statements
(previously filed).
ITEM 7. INFORMATION AS TO ENVIRONMENTAL EFFECTS
None of the matters that are the subject of this Application-Declaration
involve a "major federal action" nor do they "significantly affect the quality
of the human environment" as those terms are used in Section 102(2)(C) of the
National Environmental Policy Act. None of the proposed transactions that are
the subject of this Application-Declaration will result in changes in the
operation of the Applicants that will have an impact on the environment. The
Applicants are not aware of any federal agency which has prepared or is
preparing an environmental impact statement with respect to the transactions
proposed herein.
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SIGNATURE
Pursuant to the requirements of the Public Utility Holding Company Act of
1935, the undersigned has duly caused this Application-Declaration to be signed
on its behalf by the undersigned thereunto duly authorized.
Dated: May 22, 2000
SCANA CORPORATION
By:/s/ H. Thomas Arthur
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Name: H. Thomas Arthur
Title: Senior Vice President and
General Counsel
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SCANA Corporation
1426 Main Street
Columbia, South Carolina 29201
May 22, 2000
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, DC 20549
Gentlemen:
This opinion is furnished to the Securities and Exchange Commission (the
"Commission") in connection with the filing with the Commission of the
application-declaration on Form U-1 (File 70-9639) (the
"Application-Declaration") of SCANA Corporation ("SCANA") under the Public
Utility Holding Company Act of 1935, as amended (the "Act"). The
Application-Declaration seeks approval for (i) the granting of awards of stock
options, stock appreciation rights, restricted stock, performance shares and
performance units (collectively, the "Awards") under SCANA's Long-Term Equity
Compensation Plan (the "Plan"), (ii) the issuance by SCANA of up to five million
shares of its no par value common stock (the "Common Stock") over the period
beginning with the effective date of an order issued pursuant to the Application
Declaration and continuing for a period of three years from the date of such
order in connection with such Awards, and (iii) the solicitation of proxies with
respect to the Plan at SCANA's 2000 Annual Meeting of Shareholders.
I am general counsel for SCANA and in connection with this opinion I have
examined originals or copies certified or otherwise identified to my
satisfaction of:
(1) The charter documents and by-laws of SCANA, as amended to date;
(2) Minutes of meetings of SCANA's shareholders and directors, as kept in
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Securities and Exchange Commission
May 22, 2000
Page 2
their respective minute books; and
(3) The documents and agreements pertaining to the Awards and the
solicitation of proxies therefor described in the
Application-Declaration and such other certificates, documents and
papers as I deemed necessary or appropriate for the purpose of
rendering this opinion.
In such examination, I have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the conformity to
the original documents of all documents submitted to us as copies. As to any
facts material to my opinion, I have, when relevant facts were not independently
established, relied upon the aforesaid agreements, instruments, certificates and
documents. In addition, I have examined such questions of law as I considered
necessary or appropriate for the purpose of rendering this opinion.
The opinions expressed below are subject to the following further
assumptions and conditions:
(a) The Commission shall have duly entered an appropriate order or orders
with respect to the transactions contemplated in the Application-
Declaration granting and permitting the Application-Declaration to
become effective under the Act and the rules and regulations
thereunder and the transactions contemplated in the
Application-Declaration are consummated in accordance therewith.
(b) A registration statement with respect to the shares of SCANA Common
Stock to be issued in connection with the transactions contemplated in
the Application-Declaration shall have become effective pursuant to
the Securities Act of 1933, as amended (the "1933 Act"); no stop order
shall have been entered with respect thereto; and the issuance of
securities in connection with the transactions contemplated in the
Application- Declaration shall have been consummated in compliance
with the 1933 Act and the rules and regulations thereunder.
(c) The shareholders of SCANA shall have approved the Plan.
(d) Certificates representing any shares of SCANA Common Stock issued
pursuant to the Plan shall have been duly executed, countersigned,
registered and delivered pursuant to the terms and subject to the
conditions set forth in the Plan and authorized for listing on any
securities exchange on which the SCANA Common Stock is then listed.
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Securities and Exchange Commission
May 22, 2000
Page 3
(e) No act or event other than as described herein shall have occurred
subsequent to the date hereof which would change the opinions
expressed herein.
Based on the foregoing, and subject to the final paragraph hereof, I am of
the opinion that when the Commission has taken the action requested in the
Application-Declaration:
(1) All state laws applicable to the transactions contemplated in the
Application-Declaration have been complied with;
(2) SCANA is validly organized and duly existing under the laws of the
State of South Carolina;
(3) The shares of SCANA Common Stock to be issued in connection with the
transactions contemplated in the Application-Declaration will be
validly issued, fully paid and non-assessable, and holders thereof
will be entitled to the rights and privileges appertaining thereto as
set forth in the charter documents and by-laws of SCANA; and
(4) The consummation of the transactions contemplated in the Application-
Declaration will not violate the legal rights of the holders of any
securities issued by SCANA.
I hereby consent to the use of this opinion as an exhibit to the
Application-Declaration.
I am a member of the State Bar of South Carolina and do not purport to be
an expert on, nor do I opine as to, the laws of any jurisdiction other than the
State of South Carolina and the federal laws of the United States of America.
Very truly yours,
/s/ H. Thomas Arthur
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H. Thomas Arthur
Senior Vice President and
General Counsel
