Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
SOUTH CAROLINA ELECTRIC & GAS COMPANY
(Exact name of registrant as specified in its charter)
South Carolina 57-0248695
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
1426 Main Street
Columbia, South Carolina 29201
(803) 217-9000
(Address, including zip code and telephone number, including area code,
of registrant's principal executive offices)
H. T. Arthur, II
Senior Vice President and General Counsel
SCANA Corporation
1426 Main Street
Columbia, South Carolina 29201
(803) 217-8547
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
With copies to:
John W. Currie, Esq. J. Michael Parish, Esq.
McNair Law Firm, P.A. Thelen Reid & Priest LLP
1301 Gervais Street - 17th Floor 40 West 57th Street Columbia, SC 29201
New York, NY 10019
(803) 799-9800 (212) 603-2000
Approximate date of commencement of proposed sale to the public: After the
effective date of the Registration Statement, as determined by market conditions
and other factors.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box.
(---)
<PAGE>
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. (X)
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. (___)
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. (___)
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. (___)
CALCULATION OF REGISTRATION FEE
Proposed Proposed Amount
Title of maximum maximum of
each class of offering price aggregate registration
securities to be Amount to per unit* offering price* fee
registered be registered
First Mortgage Bonds $300,000,000 100% $300,000,000 $83,400
* Determined solely for the purpose of calculating the registration fee.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED.
WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION DATED ____________ ___, 1999.
PROSPECTUS
$300,000,000
SOUTH CAROLINA ELECTRIC & GAS COMPANY
1426 Main Street
Columbia, South Carolina 29201
(803) 217-9000
Internet Address: http://www.scana.com
First Mortgage Bonds
South Carolina Electric & Gas Company may offer and sell from time to
time up to $300,000,000 aggregate principal amount of its New Bonds. SCE&G may
sell the New Bonds in one or more series (1) through underwriters or dealers,
(2) directly to a limited number of institutional purchasers or (3) through
agents. See "PLAN OF DISTRIBUTION." We will provide the specific terms of these
securities in supplements to this prospectus. This prospectus may not be used to
sell securities unless accompanied by a prospectus supplement. You should read
this prospectus and the prospectus supplement before you invest.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
accuracy or adequacy of this prospectus. Any representation to the contrary is a
criminal offense.
The date of this prospectus is ___________ ___, 1999.
<PAGE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission utilizing a shelf registration process.
Under this shelf process, we may sell any or all of the New Bonds described in
this prospectus in one or more offerings up to a total dollar amount of
$300,000,000. This prospectus provides you with a general description of the New
Bonds. Each time we sell New Bonds, we will provide a prospectus supplement that
will contain specific information about the terms of that offering. The
prospectus supplement may also add, update or change information contained in
this prospectus. You should read both this prospectus and the relevant
prospectus supplement, together with the additional information described under
the heading "WHERE YOU CAN FIND MORE INFORMATION."
We believe we have included all information material to investors but
certain details that may be important for specific investment objectives have
not been included. To see more detail, you should read the exhibits filed with
the registration statement.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. Our SEC filings are available to the public over
the Internet at the SEC's web site at http://www.sec.gov. You may also read and
copy any document we file with the SEC at the SEC's public reference room at 450
Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information on the operation of the public reference
room. Because we have preferred stock which is listed on the New York Stock
Exchange, you may also read our filings at the Stock Exchange offices at 20
Broad Street, New York, New York 10005.
This prospectus does not repeat important information that you can find
in the registration statement and in the reports and other documents which we
file with the SEC under the Securities Exchange Act of 1934. The SEC allows us
to "incorporate by reference" the information we file with it, which means that
we can disclose important information to you by referring you to those
documents. The information incorporated by reference is an important part of
this prospectus, and information that we file later with the SEC will
automatically update and supersede this information. We incorporate by reference
our Annual Report on Form 10-K, as amended, for the year ended December 31,
1998, our Quarterly Reports on Form 10-Q for the quarters ended March 31, 1999
and June 30, 1999, a Current Report on Form 8-K dated February 16, 1999, and any
future filing made with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the
Exchange Act until we sell all of the New Bonds.
We are not required to, and do not, provide annual reports to holders
of our debt securities unless specifically requested by a holder.
You may request a copy of our SEC filings at no cost by writing or
telephoning us at the following address:
H. John Winn, III
Manager - Investor Relations and Shareholder Services
South Carolina Electric & Gas Company
Columbia, South Carolina 29218
(803) 217-9240
You may obtain more information by contacting the Internet website of
SCE&G's parent company, SCANA Corporation, at http://www.scana.com.
You should rely on the information we incorporate by reference or
provide in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. We are not making an
offer of these securities in any state where the offer is not permitted. You
should not assume that the information in this prospectus or any prospectus
supplement is accurate as of any date other than the date on the front of those
documents.
<PAGE>
SOUTH CAROLINA ELECTRIC & GAS COMPANY
SCE&G is a wholly-owned subsidiary of SCANA Corporation and is a
regulated public utility which generates, transmits, distributes and sells
electricity, and purchases and sells natural gas at retail, in South Carolina.
SCE&G also operates an urban bus service in Columbia, South Carolina. The SCE&G
electric service area covers over 15,000 square miles and extends into 24
counties in central, southern and southwestern portions of South Carolina. The
service area for natural gas encompasses all or part of 31 of the 46 counties in
South Carolina. The total population of SCE&G's combined electric and gas
service area is approximately 2.3 million. SCE&G has its principal executive
offices at 1426 Main Street, Columbia, South Carolina 29201, telephone number
(803) 217-9000.
RATIO OF EARNINGS TO FIXED CHARGES
SCE&G's historical ratios of earnings to fixed charges are as follows:
Twelve Months Year Ended December 31,
Ended June 30, 1999 1998 1997 1996 1995 1994
- ------------------- ---- ---- ---- ---- ----
4.07 4.52 3.85 3.80 3.41 3.46
For purposes of this ratio, earnings represent net income plus income taxes and
fixed charges. Fixed charges represent interest charges and the estimated
interest portion of annual rentals.
USE OF PROCEEDS
SCE&G will use the proceeds from the sale of the New Bonds to finance
its construction program and to reduce short-term indebtedness incurred for such
purpose, to refinance senior securities and for other general corporate
purposes.
DESCRIPTION OF THE NEW BONDS
General
SCE&G will issue the New Bonds in one or more series under an
Indenture, dated as of April 1, 1993, between SCE&G and The Bank of New York,
successor to NationsBank of Georgia, National Association, as trustee (the
"Trustee"), as supplemented (the "Mortgage"). The New Bonds and all other debt
securities issued and outstanding under the Mortgage are referred to in this
prospectus as the "Bonds." Capitalized terms used under this heading which are
not otherwise defined in this prospectus have the meanings given those terms in
the Mortgage. The summaries under this heading are not detailed. Whenever
particular provisions of the Mortgage or terms defined in the Mortgage are
referred to, those statements are qualified by reference to the Mortgage.
References to article and section numbers under this heading, unless otherwise
indicated, are references to article and section numbers of the Mortgage. A copy
of the Mortgage is included as an exhibit to the registration statement of which
this prospectus is a part.
Each prospectus supplement which accompanies this prospectus will set
forth the following information to describe the series of New Bonds related to
that prospectus supplement, unless the information is the same as the
information included under the captions "Payment of New Bonds; Transfers;
Exchanges" and "Redemption" in this prospectus:
o the title of the series of New Bonds;
o any limit upon the aggregate principal amount of the series of New Bonds;
o the date or dates on which the principal of the series of New Bonds will be
payable;
o the rate or rates at which the series of New Bonds will bear interest, if
any (or the method of calculating the rate); the date or dates from which
the interest will accrue; the dates on which the interest will be payable
("Interest Payment Dates"); the record dates for the interest payable on
the Interest Payment Dates;
o any option of SCE&G to redeem the series of New Bonds and redemption terms
and conditions;
o any obligation of SCE&G to redeem or purchase the series of New Bonds
pursuant to any sinking fund or analogous provisions or at the option of
the holder and the relevant terms and conditions for that redemption or
purchase;
o the denominations of the series of New Bonds;
o whether the series of New Bonds are subject to a book-entry system of
transfers and payments; and
o any other particular terms of the series of New Bonds and of their
offering.
Payment of New Bonds; Transfers; Exchanges
We will pay any interest which is due on each New Bond to the person in
whose name that New Bond is registered as of the close of business on the record
date relating to the Interest Payment Date. However, we will pay interest which
is payable when the New Bonds mature (whether the New Bonds mature on their
stated date of maturity, the date the New Bonds are redeemed or otherwise) to
the person to whom the relevant principal payment on the New Bonds is paid.
We will pay principal of, any premium and interest on, the New Bonds at
the office or agency of SCE&G in Atlanta, Georgia (currently, the Trustee). The
prospectus supplement identifies any other place of payment and any other paying
agent. SCE&G may change the place at which the New Bonds will be payable, may
appoint one or more additional paying agents (including SCE&G) and may remove
any paying agent, all at its discretion. (Section 702)
You may transfer or exchange the New Bonds for other New Bonds of the
same series, authorized denominations (which are, unless otherwise stated in the
prospectus supplement, denominations of $1,000 and any integral multiple
thereof) and of like tenor and aggregate principal amount, at the office or
agency of SCE&G in Atlanta, Georgia (currently, the Trustee). At our discretion,
we may change the place for registration and transfer of the New Bonds, and we
may appoint one or more additional Security Registrars (including SCE&G) and
remove any Security Registrar. The prospectus supplement will identify any
additional place for registration of transfer and any additional Security
Registrar. You are not responsible for paying a service charge for any transfer
or exchange of the New Bonds, but you may have to pay a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of the New Bonds. (Sections 202 and 205)
For additional information with respect to the rights of the owners of
beneficial interests in New Bonds subject to a book-entry system of transfers
and payments, see "BOOK-ENTRY SYSTEM."
Redemption
The New Bonds are subject to redemption, as set forth in the relevant
prospectus supplement, only upon notice by mail not less than 30 days prior to
the redemption date. If less than all the New Bonds of a series are to be
redeemed, the particular New Bonds to be redeemed will be selected by that
method as shall be provided for any particular series, or in the absence of any
such provision, by any method as the Security Registrar deems fair and
appropriate. (Sections 903 and 904)
We may make any redemption conditional upon receipt by the Trustee, on
or prior to the date fixed for redemption, of money sufficient to pay the
redemption price. If the Trustee has not received that money, we will not be
required to redeem those New Bonds. (Section 904)
Security
General. The New Bonds will be equally and ratably secured with all other
Bonds issued under the Mortgage. The Bonds are
secured by:
o a like principal amount of non-interest bearing first mortgage
bonds (the "Class A Bonds" as more particularly described below),
and
o the lien of the Mortgage on substantially all of the properties of
SCE&G used in the generation, purchase, transmission, distribution
and sale of electricity and any other property which SCE&G may
elect to subject to the lien of the Mortgage on the Mortgaged
Property.
The lien of the Mortgage is junior to the lien of SCE&G's Indenture, dated as of
January 1, 1945 (the "Class A Mortgage") to The Chase Manhattan Bank, successor
to Central Hanover Bank and Trust Company, as trustee (the "Class A Trustee").
If SCE&G merges or is consolidated into another corporation and certain
conditions set forth in the Mortgage are satisfied, then SCE&G may deliver to
the Trustee bonds issued under an existing mortgage on the properties of such
other corporation in lieu of or in addition to Class A Bonds. In that event, the
Bonds will be secured, additionally, by such bonds (which would become Class A
Bonds) and by the lien of the Mortgage on the properties of such other
corporation, subject to such existing mortgage, which lien would be junior to
the liens of such existing mortgage (which would become a Class A Mortgage) and
the Class A Mortgage. (Section 1206)
When no Class A Bonds are outstanding under a Class A Mortgage except
for Class A Bonds held by the Trustee, then, subject to the satisfaction of
certain conditions, the Trustee will surrender those Class A Bonds for
cancellation and the related Class A Mortgage will be satisfied and discharged.
In that event, the lien of such Class A Mortgage on SCE&G's property will cease
to exist and the Mortgage will constitute, subject to certain exceptions, a
first mortgage lien on the property mortgaged thereby. (Section 1207)
Class A Bonds. The Class A Bonds are issued under the Class A Mortgage,
and delivered to the Trustee under the Mortgage. The Class A Bonds will be
registered in the name of the Trustee and will be owned and held, subject to the
provisions of the Mortgage, for the benefit of the holders of all of the Bonds
Outstanding from time to time. SCE&G will have no interest in the Class A Bonds
designated as the basis for authentication and delivery of Bonds. (Section 1201)
The Trustee may not transfer any Class A Bonds which have been
designated as the basis for the authentication and delivery of Bonds, except to
a successor trustee. At the time any Bonds which have been authenticated and
delivered upon the basis of Class A Bonds are no longer Outstanding, SCE&G may
request the Trustee to surrender for cancellation an equal principal amount of
such Class A Bonds. (Sections 1203 and 1204)
Lien of the Mortgage. The properties subject to the lien of the
Mortgage are also subject to the prior first mortgage lien of the Class A
Mortgage. As discussed under the heading "The Class A Mortgage--Security," the
lien of the Class A Mortgage is a first mortgage lien, subject to certain
exceptions, against the properties subject thereto. Until the Class A Mortgage
is discharged, the Bonds have the benefit of the lien of the Class A Mortgage on
the property mortgaged thereby, to the extent of the aggregate principal amount
of Class A Bonds designated as the basis for the authentication and delivery of
Bonds held by the Trustee. (Granting Clauses and Article Twelve)
The lien of the Mortgage is also subject to liens on after-acquired
property existing at the time of acquisition and to various liens, including:
o tax liens, mechanics', materialmen's and similar liens and certain
employees' liens, in each case, which are not delinquent and which are being
contested,
o certain judgment liens, easements, reservations and rights of others
(including governmental entities) in, and defects of title to, the property
subject to the lien of the Mortgage which do not materially impair its use
by SCE&G,
o certain leases, and
o certain other liens and encumbrances. (Granting Clauses and Section 101)
The following, among other things, are excepted from the lien of the
Mortgage:
o cash and securities not held under the Mortgage,
o contracts, leases and other agreements, bills, notes and other instruments,
receivables, claims, certain intellectual property rights and other general
intangibles,
o automotive and similar vehicles, movable equipment, and railroad, marine and
flight equipment,
o all goods, stock in trade, wares and merchandise held for sale in the
ordinary course of business,
o fuel (including nuclear fuel assemblies), materials, supplies and other
personal property consumable in the operation of SCE&G's business,
o portable equipment,
o furniture and furnishings, and computers, machinery and equipment used
exclusively for corporate administrative or clerical purposes,
o electric energy, gas and other products generated, produced or purchased,
o substances mined, extracted or otherwise separated from the land and all
rights thereto, leasehold interests, and,
o with certain exceptions, all property which is located outside of the State of
South Carolina or Columbia County, Georgia.
(Granting Clauses)
The Mortgage contains provisions subjecting (with certain exceptions and
limitations and subject to the prior lien of the Class A Mortgage)
after-acquired electric utility property to the lien of the Mortgage. (Granting
Clauses)
The Mortgage provides that the Trustee has a lien upon the property
subject to the lien of the Mortgage, for the payment of its compensation and
expenses. This Trustee's lien is prior to the lien on behalf of the holders of
the Bonds. (Section 1607)
Issuance of Bonds
The maximum principal amount of Bonds which SCE&G may issue under the
Mortgage is unlimited. (Section 201) SCE&G may issue Bonds of any series from
time to time on the basis of, and in an aggregate principal amount not exceeding
o the aggregate principal amount of Class A Bonds issued and delivered to
the Trustee and designated by SCE&G as the basis for such issuance,
o 70% of the amount of Unfunded Net Property Additions (generally defined
as Property Additions (net of retirements) which are not subject to the
lien of the Class A Mortgage and which have not been made or deemed to
have been made the basis of the authentication and delivery of Bonds or
used for other purposes under the Mortgage),
o the aggregate principal amount of retired Bonds, and
o cash deposited with the Trustee. (Sections 101 and 302 and Articles
Four, Five and Six)
Property Additions are generally defined to include any Property
subject to the lien of the Mortgage which SCE&G may elect to designate as such,
except (with certain exceptions) goodwill, going concern value rights,
intangible property or any property the cost of acquisition or construction of
which is properly chargeable to an operating expense account of SCE&G. (Section
104)
Since the Mortgaged Property is subject to the lien of the Class A
Mortgage, the New Bonds are issued on the basis of Class A Bonds. The amount of
Bonds SCE&G may issue on that basis will be limited by the amount of Class A
Bonds which may be issued under the Class A Mortgage. See "The Class A Mortgage
- - Issuance of Additional Bonds."
With certain exceptions in the case of Bonds issued on the basis of
Class A Bonds and retired Bonds as described above, we can issue Bonds only if
the Adjusted Net Earnings of SCE&G for 12 consecutive months within the
preceding 18 months is at least twice the Annual Interest Requirements on:
o all Bonds at the time outstanding,
o the Bonds then applied for, and
o all outstanding Class A Bonds other than Class A Bonds held by the
Trustee under the Mortgage. (Sections 103, 301, 302 and 501)
Release of Property
SCE&G may obtain the release of property from the lien of the Mortgage
either upon the basis of an equal amount of Unfunded Net Property Additions or
upon the basis of the deposit of cash or a credit for Retired Securities and
certain other obligations. SCE&G may also obtain the release of property upon
the basis of the release of the property from the lien of the Class A Mortgage.
(Article Ten)
Withdrawal of Cash
SCE&G may withdraw cash deposited as the basis for the issuance of
Bonds and cash representing payments in respect of Class A Bonds designated as
the basis for the issuance of Bonds upon the basis of (1) Unfunded Net Property
Additions in an amount equal to ten-sevenths of such cash, (2) an equal amount
of Retired Bonds or (3) an equal amount of Class A Bonds not then designated as
the basis for the issuance of Bonds or the withdrawal of cash. (Sections 601 and
1202) In addition, SCE&G may withdraw cash upon the basis of (a) an equal amount
of Unfunded Net Property Additions, or (b) ten-sevenths of the amount of Retired
Securities, or may apply such cash to (y) the purchase of Bonds (at prices not
exceeding ten-sevenths of the principal amount thereof) or (z) the redemption or
payment at stated maturity of Bonds. (Sections 601 and 1005)
Modification of Mortgage
Except for modifications which will not have a material adverse effect
upon the interests of the Holders of the Bonds, the holders of a majority in
aggregate principal amount of the Outstanding Bonds (or if only certain series
would be affected, the Outstanding Bonds of that series) must consent to amend
the Mortgage. However, no amendment may, without the consent of the holder of
each Outstanding Bond directly affected by the amendment, (1) change the Stated
Maturity of the principal of or interest on that Bond, or reduce the principal
amount, or the rate of interest on that Bond, or (2) permit the creation of a
lien prior to the lien of the Mortgage on substantially all of the Mortgaged
Property or otherwise deprive those holders of the security of the lien of the
Mortgage. (Section 1702)
Events of Default
Each of the following events is an Event of Default under the Mortgage:
o SCE&G fails to make payments of principal or premium within three days,
or interest within 60 days, after the due date,
o SCE&G fails to perform or breaches any other covenant or warranty for
a period of 90 days after notice,
o SCE&G files for bankruptcy or certain other events involving
insolvency, receivership or bankruptcy occur, and
o SCE&G defaults under any Class A Mortgage. (Section 1101)
If an Event of Default occurs and is continuing, either the Trustee or
the Holders of 25% in principal amount of the Outstanding Bonds may declare the
principal amount of all of the Outstanding Bonds to be immediately due and
payable. After the declaration of maturity has been made, but before the sale of
any of the Mortgaged Property and before the Trustee has obtained a judgment or
decree for payment of money, the Event of Default giving rise to such
declaration of acceleration will be waived, and such declaration and its
consequences will be rescinded and annulled, if SCE&G cures such Event of
Default. (Sections 1102 and 1117)
The Holders of a majority in principal amount of the Outstanding Bonds
may direct the time, method and place of conducting any proceeding for the
enforcement of the Mortgage available to the Trustee or exercising any trust or
power conferred on the Trustee. No Holder of any Bond has the right to institute
any proceeding with respect to the Mortgage, or for the appointment of a
receiver or for any other remedy thereunder, unless
o that Holder previously gave written notice of an Event of Default to
the Trustee,
o the Holders of a majority in principal amount of Outstanding Bonds
tendered to the Trustee reasonable indemnity against costs and
liabilities and requested that the Trustee take action,
o the Trustee declined to take action, and
o the Holders of a majority in principal amount of Outstanding Bonds have
given no inconsistent direction;
provided, however, that each Holder of a Bond has the right to enforce
payment of that Bond when due. (Sections 1111, 1112 and 1116)
In addition to the rights and remedies provided in the Mortgage, the
Trustee may exercise any right or remedy available to the Trustee in its
capacity as the owner and holder of Class A Bonds which arises as a result of a
default under the Class A Mortgage. (Section 1119)
Evidence of Compliance
The Trust Indenture Act requires that SCE&G give the Trustee, at least
annually, a brief statement as to SCE&G's compliance with the conditions and
covenants under the Mortgage. (Article Eight)
The Class A Mortgage
General. Capitalized terms used under this sub-heading which are not
otherwise defined in this prospectus have the meanings ascribed to those terms
in the Class A Mortgage. The summaries under this sub-heading are not detailed.
Whenever particular provisions of the Class A Mortgage or terms defined in the
Class A Mortgage are referred to in this section, those provisions or
definitions are qualified by reference to the Class A Mortgage. References to
article and section numbers in this sub-heading, unless otherwise indicated, are
references to article and section numbers of the Class A Mortgage. A copy of the
Class A Mortgage is included as an exhibit to the registration statement of
which this prospectus is a part.
Security. The Class A Bonds are secured, equally and ratably with all
other bonds issued and outstanding under the Class A Mortgage, by a direct lien
on substantially all of SCE&G's fixed property and franchises used or useful in
its public utility businesses (except cash, securities, contracts and accounts
receivable, materials and supplies, natural gas, oil, certain minerals and
mineral rights and certain other assets) now owned by SCE&G. The lien of the
Class A Mortgage is a first lien except that it is subject to (1) certain
excepted encumbrances and (2) the fact that titles to certain properties are
subject to reservations and encumbrances such as are customarily encountered in
the public utility business and which do not materially interfere with their
use. The Class A Mortgage contains provisions for the subjection (with certain
exceptions and limitations) of after-acquired property of SCE&G to the lien
thereof. (Granting Clauses)
The Class A Mortgage prohibits SCE&G from acquiring property subject to
prior liens if, following the acquisition, prior lien bonds would exceed 15% of
the aggregate of outstanding bonds unless the principal amount of indebtedness
secured by such prior liens does not exceed 70% of the cost of such property to
SCE&G and unless, in certain cases, the net earnings of such property meet
certain tests. (Section 7.05 and Fifty-third Supplemental Section 2.02)
The Class A Trustee has a lien upon the property subject to the lien of
the Class A Mortgage for payment of its reasonable compensation and expenses and
for indemnification against certain liabilities. This lien is prior to the lien
on behalf of the holders of bonds. (Section 16.10)
Issuance of Additional Bonds. The principal amount of bonds which may
be secured by the Class A Mortgage is limited to $5,000,000,000 but may be
increased by a supplemental indenture or indentures without the consent of
bondholders or stockholders. (Section 2.01 and Fifty-third Supplemental Section
1.04) Additional bonds may from time to time be issued on the basis of
o 70% of unfunded net property additions,
o deposit of cash or
o retirement of bonds.
With certain exceptions in the case of bonds issued on the basis of the
retirement of bonds, we can issue bonds only if net earnings for 12 consecutive
months out of the preceding 15 months are at least twice the annual interest
requirements on all bonds to be outstanding and all prior lien bonds.
SCE&G may withdraw, or apply to the purchase or redemption of bonds,
cash deposited with the Class A Trustee as the basis for the issuance of bonds
in an amount equal to the principal amount of bonds which SCE&G is then entitled
to have authenticated and delivered. (Section 1.03 and Articles IV, V and VI) At
June 30, 1999 unfunded net property additions were approximately $507.5 million,
sufficient to permit the issuance of approximately $355.3 million principal
amount of bonds under the Class A Mortgage. Retirement credits in the amount of
$81.8 million were available at June 30, 1999.
Sinking Fund. The Class A Mortgage requires SCE&G to deposit, on or
before June 1 in each year, with the Class A Trustee as a "sinking fund
requirement" an amount equal to 1% of the aggregate principal amount of bonds
(other than bonds authenticated on the basis of retirements of other bonds and
certain retired bonds). SCE&G may pay the sinking fund requirement in cash or
bonds. In addition, we may satisfy a portion of the sinking fund requirement by
certifying to the Class A Trustee unfunded net property additions in an amount
equal to ten-sevenths of the portion of the sinking fund requirement being
satisfied. Any cash deposited may be applied to the purchase or redemption of
bonds of any series or may be withdrawn by SCE&G against deposit of bonds.
(Section 2.12, Second Supplemental Section 2, Third through Fifth, Seventh
through Eleventh, Thirteenth through Fifty-third Supplementals, Section 1.03 and
Sixth and Twelfth Supplementals Section 2.03)
Events of Default; Concerning the Trustee. The following are defaults under
the Class A Mortgage:
o SCE&G fails to make payments of principal or interest,
o SCE&G fails to make any sinking fund or purchase fund payment,
o SCE&G files for bankruptcy or certain other events involving
insolvency, receivership or bankruptcy occur, and
o SCE&G fails to perform certain covenants or agreements.
Certain of these events become defaults only after the lapse of prescribed
periods of time and/or notice from the Trustee. (Section 11.01) The Trust
Indenture Act requires SCE&G to furnish the Class A Trustee with periodic
evidence as to the absence of defaults and as to compliance with the terms of
the Class A Mortgage.
Upon the occurrence of a default under the Class A Mortgage, either the
Class A Trustee or the holders of not less than 20% in principal amount of
outstanding bonds may declare the principal of all outstanding bonds immediately
due and payable. However, if the default is cured, the holders of a majority in
principal amount of outstanding bonds may rescind that declaration and waive the
default and its consequences. (Section 11.05)
The holders of a majority in principal amount of outstanding bonds may
direct the time, method and place of conducting any proceeding for the
enforcement of the Class A Mortgage. (Section 11.12) No holder of any bond has
the right to institute any proceeding with respect to the Class A Mortgage
unless
o the holder previously gave written notice of a default to the Class A
Trustee,
o the holders of not less than 20% in principal amount of outstanding bonds
tendered to the Class A Trustee reasonable indemnity against costs and
liabilities and requested the Class A Trustee to take action,
o the Class A Trustee declined to take action, and
o the holders of a majority in principal amount of outstanding bonds have
given no inconsistent direction;
provided, however, that each holder of a bond shall have the right to
enforce payment of that Bond when due. (Section 11.14)
Miscellaneous. Subject to certain exceptions and limitations contained
in the Class A Mortgage, property subject to the lien of that mortgage may be
released only upon the substitution of cash, divisional bonds, bonds
authenticated under the Class A Mortgage or certain other property. (Article X)
Amendments of the Class A Mortgage require the consent of the holders of 66 2/3%
in principal amount of outstanding bonds; provided, the bondholders shall have
no power
o to extend the maturity, or reduce the rate or extend the time of payment
of interest on any bonds, or reduce the principal amount of any bonds,
or change provisions relating to the sinking fund or the redemption
provisions of any series of bonds outstanding under the Class A
Mortgage, without the express consent of the holder of each bond which
would be affected,
o to reduce the percentages of holders whose consent is required to enter
into any supplemental indenture, without the consent of the holders of
all bonds outstanding,
o to permit the creation by SCE&G of any mortgage or pledge or lien in the
nature thereof, ranking prior to or equal with the lien of the Class A
Mortgage on any of the mortgaged property, or
o to deprive the holder of any bond outstanding under the Class A
Mortgage of the lien of the Class A Mortgage. (Fifty-third
Supplemental Section 2.01)
Amendment of the Class A Mortgage by Vote of Trustee
The Mortgage provides that, if SCE&G requests the holders of the Class
A Bonds to eliminate the sinking provisions of the Mortgage, the Trustee, as
such a holder, will vote to amend the Class A Mortgage to eliminate the sinking
provisions accordingly. The Company intends to request the Trustee to do so at
such time as the Trustee is the sole holder of the Class A Bonds. (Article Two,
Fifty-third Supplemental)
With respect to any other amendments to the Class A Mortgage, the
Trustee will vote proportionately with what it reasonably believes will be the
vote of the holders of all other Class A Bonds. However, if the proposed
amendment of the Mortgage is an amendment or modification described under
"Modification of Mortgage" that requires the prior consent of a majority in
aggregate principal amount of the Outstanding Bonds (or if only certain series
would be affected, the Outstanding Bonds of such series), then the Trustee will
not vote in favor of that amendment unless the consent requirement has already
been met. (Article Twelve)
BOOK-ENTRY SYSTEM
If provided in the prospectus supplement, except under the
circumstances described below, SCE&G will issue the New Bonds as one or more
global Bonds (each a "Global Bond"), each of which will represent beneficial
interests in the New Bonds. Each such beneficial interest in a Global Bond is
called a "Book-Entry Bond" in this prospectus. We will deposit those Global
Bonds with, or on behalf of, The Depository Trust Company, New York, New York,
or another depository as we may subsequently designate (the "Depository")
relating to the New Bonds, and register them in the name of a nominee of the
Depository.
So long as the Depository, or its nominee, is the registered owner of a
Global Bond, the Depository or its nominee, as the case may be, will be
considered the owner of that Global Bond for all purposes under the Mortgage. We
will make payments of principal of, any premium and interest on the Global Bond
to the Depository or its nominee, as the case may be, as the registered owner of
that Global Bond. Except as set forth below, owners of a beneficial interest in
a Global Bond will not be entitled to have any individual New Bonds registered
in their names, will not receive or be entitled to receive physical delivery of
any New Bonds and will not be considered the owners of New Bonds under the
Mortgage.
Accordingly, to exercise any of the rights of the registered owners of
the New Bonds, each person holding a beneficial interest in a Global Bond must
rely on the procedures of the Depository. If that person is not a Direct
Participant (hereinafter defined), then that person must also rely on procedures
of the Direct Participant through which that person holds its interest.
The following information concerning DTC and DTC's book-entry system
has been obtained from sources that SCE&G believes to be reliable, but neither
SCE&G nor any underwriter, dealer or agent takes any responsibility for the
accuracy of that information.
DTC will act as securities depository for the Global Bonds. The Global
Bonds will be issued as fully-registered securities registered in the name of
Cede & Co. (DTC's partnership nominee). One fully-registered New Bond
certificate will be issued for each issue of the New Bonds, each in the
aggregate principal amount of such issue, and will be deposited with DTC. If,
however, the aggregate principal amount of any issue exceeds $200 million, one
certificate will be issued with respect to each $200 million of principal amount
and an additional certificate will be issued with respect to any remaining
principal amount of such issue.
DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York Banking
Law, a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934. DTC holds securities that its participants ("Participants") deposit
with DTC. DTC also facilitates the settlement among Participants of securities
transactions such as transfers and pledges, in deposited securities through
electronic computerized book-entry changes in Participants' accounts, thereby
eliminating the need for physical movement of securities certificates. Direct
Participants include securities brokers and dealers, banks, trust companies,
clearing corporations, and certain other organizations. DTC is owned by a number
of its Direct Participants and by The New York Stock Exchange, Inc., the
American Stock Exchange, Inc., and the National Association of Securities
Dealers, Inc. Access to the DTC system is also available to others such as
securities brokers and dealers, banks, and trust companies that clear through or
maintain a custodial relationship with a Direct Participant, either directly or
indirectly ("Indirect Participants"). The Rules applicable to DTC and its
Participants are on file with the SEC.
Purchases of the New Bonds under the DTC system must be made by or
through Direct Participants, which will receive a credit for the New Bonds on
DTC's records. The ownership interest of each actual purchaser of each New Bond
("Beneficial Owner") is in turn to be recorded on the Direct and Indirect
Participants' records. Beneficial Owners will not receive written confirmation
from DTC of their purchase, but Beneficial Owners are expected to receive
written confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the Direct or Indirect Participant through
which the Beneficial Owner entered into the transaction. Transfers of ownership
interests in the New Bonds are to be accomplished by entries made on the books
of Participants acting on behalf of Beneficial Owners. Beneficial Owners will
not receive certificates representing their ownership interests in the New
Bonds, except in the event that use of the book-entry system for the New Bonds
is discontinued.
To facilitate subsequent transfers, all New Bonds deposited by
Participants with DTC are registered in the name of DTC's partnership nominee,
Cede & Co. The deposit of New Bonds with DTC and their registration in the name
of Cede & Co. effect no change in beneficial ownership. DTC has no knowledge of
the actual Beneficial Owners of the New Bonds; DTC's records reflect only the
identity of the Direct Participants to whose accounts such New Bonds are
credited, which may or may not be the Beneficial Owners. The Participants will
remain responsible for keeping account of their holdings on behalf of their
customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
Redemption notices shall be sent to DTC. If less than all of the New
Bonds within an issue are being redeemed, DTC's practice is to determine by lot
the amount of the interest of each Direct Participant in such issue to be
redeemed.
Neither DTC nor Cede & Co. will consent or vote with respect to the New
Bonds. Under its usual procedures, DTC mails an Omnibus Proxy to SCE&G as soon
as possible after the record date. The Omnibus Proxy assigns Cede & Co.'s
consenting or voting rights to those Direct Participants to whose accounts the
New Bonds are credited on the record date (identified in a listing attached to
the Omnibus Proxy).
Principal and interest payments on the New Bonds will be made to Cede &
Co., as nominee of DTC. DTC's practice is to credit Direct Participants'
accounts, upon DTC's receipt of funds and corresponding detail from SCE&G or the
Trustee on payable date in accordance with their respective holdings shown on
DTC's records. Payments by Participants to Beneficial Owners will be governed by
standing instructions and customary practices, as is the case with securities
held for the accounts of customers in bearer form or registered in "street
name," and will be the responsibility of such Participant and not of DTC, the
Trustee or SCE&G, subject to any statutory or regulatory requirements as may be
in effect from time to time. Payment of principal and interest to Cede & Co. is
the responsibility of SCE&G or the Trustee. Disbursement of such payments to
Direct Participants is the responsibility of DTC, and disbursement of such
payments to the Beneficial Owners shall be the responsibility of Direct and
Indirect Participants.
A Beneficial Owner shall give notice of any option to elect to have its
Book-Entry Bonds repaid by SCE&G, through its Participant, to the Trustee and
shall effect delivery of such Book-Entry Bonds by causing the Direct Participant
to transfer the Participant's interest in the Global Bond or Bonds representing
such Book-Entry Bonds, on DTC's records, to the Trustee. The requirement for
physical delivery of Book-Entry Bonds in connection with a demand for repayment
will be deemed satisfied when the ownership rights in the Global Bond or Bonds
representing such Book-Entry Bonds are transferred by Direct Participants on
DTC's records.
DTC management is aware that some computer applications, systems, and
the like for processing data ("Data Systems") that are dependent upon calendar
dates, including dates before, on, and after January 1, 2000, may encounter
"Year 2000 problems." DTC has informed its Participants and other members of the
financial community (the "Industry") that it has developed and is implementing a
program so that its Data Systems, as the same relate to the timely payment of
distributions (including principal and income payments) to security holders,
book-entry deliveries, and settlement of trades within DTC ("DTC Services"),
continue to function appropriately. This program includes a technical assessment
and a remediation plan, each of which is complete. Additionally, DTC's plan
includes a testing phase, which DTC expects to be completed within appropriate
time frames.
However, DTC's ability to perform properly its services is also
dependent upon other parties, including but not limited to issuers and their
agents, as well as third-party vendors from whom DTC licenses software and
hardware, and third-party vendors on whom DTC relies for information or the
provision of services, including telecommunication and electrical utility
service providers, among others. DTC has informed the Industry that it is
contacting (and will continue to contact) third-party vendors from whom DTC
acquires services to: (1) impress upon them the importance of such services
being Year 2000 compliant; and (2) determine the extent of their efforts for
Year 2000 remediation (and, as appropriate, testing) of their services. In
addition, DTC is in the process of developing such contingency plans as it deems
appropriate.
According to DTC, the foregoing information with respect to DTC has
been provided to the Industry for informational purposes only and is not
intended to serve as a representation, warranty, or contract modification of any
kind.
DTC may discontinue providing its services as securities depository
with respect to the New Bonds at any time by giving reasonable notice to SCE&G
or the Trustee. Under those circumstances, in the event that a successor
securities depository is not obtained, New Bonds in certificated form are
required to be printed and delivered. SCE&G may decide to discontinue use of the
system of book-entry transfers through DTC (or a successor securities
depository). In that event, New Bonds in certificated form will be printed and
delivered.
Neither SCE&G nor the Trustee will have any responsibility or
obligation to the Depositary, any Participant in the book-entry system or any
Beneficial Owner with respect to (1) the accuracy of any records maintained by
the Depository or any Participant; (2) the payment by the Depository or by any
Participant of any amount due to any Participant or Beneficial Owner,
respectively, in respect of the principal amount or purchase price or redemption
price of, or interest on, any New Bonds; (3) the delivery of any notice by the
Depository or any participant; (4) the selection of the Beneficial Owners to
receive payment in the event of any partial redemption of the New Bonds; or (5)
any other action taken by the Depository or any Participant.
PLAN OF DISTRIBUTION
SCE&G may offer the New Bonds in any of three ways:
o through underwriters or dealers,
o directly to a limited number of purchasers or to a single purchaser, or
o through agents.
Each prospectus supplement will set forth:
o the terms of the offering of the New Bonds,
o the proceeds to SCE&G,
o any underwriting discounts and other items constituting underwriters'
compensation, and
o any initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers.
From time to time, SCE&G may change any initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers.
If underwriters are involved, the New Bonds being sold will be acquired
by them for their own account and they may resell the New Bonds from time to
time in one or more transactions, including negotiated transactions, at a fixed
public offering price or at varying prices determined at the time of sale.
Underwriters may offer the New Bonds to the public either through underwriting
syndicates represented by one or more managing underwriters or directly by one
or more firms acting as underwriters. The applicable prospectus supplement will
name any underwriter involved in a sale of New Bonds and the cover page will
state the name of the managing underwriter. Any underwriting agreement will
provide that the obligations of the underwriters are subject to certain
conditions precedent, and that the underwriters will be obligated to purchase
all of the New Bonds to which that underwriting agreement relates if any are
purchased. SCE&G may agree to indemnify any underwriters against certain civil
liabilities, including liabilities under the Securities Act of 1933.
SCE&G may sell the New Bonds directly or through agents designated by
SCE&G from time to time. In the applicable prospectus supplement, SCE&G will
state the name of any agent involved in the offer or sale of the New Bonds as
well as any commissions payable by SCE&G to such agent. Unless otherwise
indicated in the prospectus supplement, any such agent will be acting on a best
efforts basis for the period of its appointment.
EXPERTS
H. Thomas Arthur, II, Esq. has prepared or reviewed the statements made
under "DESCRIPTION OF THE NEW BONDS," as to matters of law and legal
conclusions. Such statements are made in reliance upon his authority as an
expert. Mr. Arthur is a Senior Vice President, General Counsel and an Assistant
Secretary of SCE&G.
The consolidated financial statements incorporated by reference from
SCE&G's Annual Report on Form 10-K for the year ended December 31, 1998 have
been audited by Deloitte & Touche LLP, independent auditors, as stated in their
report, which is incorporated, by reference into this prospectus and is so
incorporated in reliance upon the report of such firm, given upon their
authority as experts in accounting and auditing.
VALIDITY OF THE NEW BONDS
McNair Law Firm, P.A., of Columbia, South Carolina, and H. Thomas Arthur,
II, Esq. of Columbia, South Carolina, will pass upon the validity of the New
Bonds for SCE&G. Thelen Reid & Priest LLP, of New York, New York, will pass upon
the validity of the New Bonds for any underwriters. Thelen Reid & Priest LLP
will rely as to all matters of South Carolina law upon the opinion of H. Thomas
Arthur, II, Esq. Thelen Reid & Priest LLP, from time to time, renders legal
services to SCE&G.
At July 31, 1999, H. Thomas Arthur, II, Esq. owned beneficially 9,331
shares of SCANA Corporation's Common Stock, including shares acquired by the
trustee under its Stock Purchase-Savings Program by use of contributions made by
Mr. Arthur and earnings thereon and including shares purchased by the trustee by
use of SCANA contributions and earnings thereon.
<PAGE>
PART II
INFORMATION NOT REQUIRED
IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
Securities and Exchange Commission filing fee....... $ 83,400
Printing Expense.................................... 25,000#
Blue Sky and Legal fees............................. 160,000#
Rating Agency fees.................................. 37,000#
Trustee fees........................................ 25,000#
Accounting services................................. 25,000#
Miscellaneous....................................... 15,000#
Total.............................................. $370,400#
# Estimated
Item 15. Indemnification of Directors and Officers
The South Carolina Business Corporation Act of 1988 permits, and the
Registrant's By-Laws require, indemnification of the Registrant's directors and
officers in a variety of circumstances, which may include indemnification for
liabilities under the Securities Act. Under Sections 33-8-510, 33-8-550 and
33-8-560 of the South Carolina Business Corporation Act of 1988, a South
Carolina corporation is authorized generally to indemnify its directors and
officers in civil or criminal actions if they acted in good faith and reasonably
believed their conduct to be in the best interests of the corporation and, in
the case of criminal actions, had no reasonable cause to believe that the
conduct was unlawful. The Registrant's By-Laws require indemnification of
directors and officers with respect to expenses actually and necessarily
incurred by them in connection with the defense or settlement of any action,
suit or proceeding in which they are made parties by reason of having been a
director or officer, except in relation to matters as to which they shall be
adjudged to be liable for willful misconduct in the performance of duty and to
such matters as shall be settled by agreement predicated on the existence of
such liability. In addition, the Registrant carries insurance on behalf of
directors, officers, employees or agents that may cover liabilities under the
Securities Act.
Item 16. Exhibits
Exhibits required to be filed with this registration statement are
listed in the following Exhibit Index. Certain of such exhibits which have
heretofore been filed with the Securities and Exchange Commission and which are
designated by reference to their exhibit numbers in prior filings are hereby
incorporated herein by reference and made a part hereof.
Item 17. 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:
(i) to include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) 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. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement; and
(iii) 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 paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the 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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers 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
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3, except for the assignment of a security
rating pursuant to transaction requirement B-2 of Form S-3, which requirement
the Registrant reasonably believes will be met by the time of sale, 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 August 31, 1999.
(REGISTRANT) South Carolina Electric & Gas Company
By: s/J. L. Skolds
(Name & Title): J. L. Skolds, President and Chief Operating
Officer
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 dates indicated.
(i) Principal executive officer:
By: s/W. B. Timmerman
(Name & Title): W. B. Timmerman, Chairman of the Board,
Chief Executive Officer and Director
Date: August 31, 1999
(ii) Principal financial officer:
By: s/K. B. Marsh
(Name & Title): K. B. Marsh, Senior Vice President-Finance and
Chief Financial Officer
Date: August 31, 1999
(iii) Principal accounting officer:
By: s/J. E. Addison
(Name & Title) J. E. Addison, Vice President and Controller
Date: August 31, 1999
(iv) Other Directors:
*B. L. Amick; J. A. Bennett; W. B. Bookhart, Jr.,; W. T. Cassels, Jr.;
H. M. Chapman; E. T. Freeman; L. M. Gressette, Jr.; W. H. Hipp;
F. C. McMaster; L. M. Miller; J. B. Rhodes; M. K. Sloan
* Signed on behalf of each of these persons:
s/K. B. Marsh
K. B. Marsh
(Attorney-in-Fact)
<PAGE>
EXHIBIT INDEX
Exhibit No.
Description
1.01 Underwriting Agreement
Form of Underwriting Agreement relating to the New Bonds
(Filed herewith on page 25)
2.01 Agreement and Plan of Merger, dated as of February 16, 1999 as
amended and restated as of May 10, 1999, by and among Public
Service Company of North Carolina, Incorporated, SCANA
Corporation, New Sub I, Inc. and New Sub II, Inc. (Filed as
Exhibit 2.1 to SCANA Form S-4 on May 11, 1999)
3.01 Restated Articles of Incorporation of SCE&G, as adopted on
December 15, 1993 (Filed herewith on page 45)
3.02 Articles of Amendment of SCE&G, dated June 7, 1994 file June 9,
1994 (Filed herewith on page 87)
3.03 Articles of Amendment of SCE&G, dated November 9, 1994
(Filed herewith on page 90)
3.04 Articles of Amendment of SCE&G, dated December 9, 1994
(Filed herewith on page 92)
3.05 Articles of Correction of SCE&G, dated January 17, 1995
(Filed herewith on page 94)
3.06 Articles of Amendment of SCE&G, dated January 13, 1995 and filed
January 17, 1995 (Filed herewith on page 95)
3.07 Articles of Amendment of SCE&G, dated March 30, 1995 (Filed
herewith on page 97)
3.08 Articles of Correction of SCE&G - Amendment to Statement filed
March 31, 1995, dated December 13, 1995 (Filed herewith on
page 99)
3.09 Articles of Amendment of SCE&G, dated December 13, 1995 (Filed
herewith on page 100)
3.10 Articles of Amendment of SCE&G, dated February 18, 1997 (Filed
as Exhibit 3-L to Registration Statement No. 333-24919)
3.11 Articles of Amendment of SCE&G, dated February 21, 1997 (Filed
herewith on page 102)
3.12 Articles of Amendment of SCE&G, dated April 22, 1997 (Filed
herewith on page 104)
3.13 Articles of Amendment of SCE&G, dated April 9, 1998 (Filed
herewith on page 108)
3.14 By-Laws of SCE&G as revised and amended on December 17, 1997
(Filed herewith on page 110)
Exhibit No.
Description
4.01 Indenture dated as of January 1, 1945, from the South Carolina
Power Company (the "Power Company") to Central Hanover Bank and
Trust Company, as Trustee, as supplemented by three Supplemental
Indentures dated respectively as of May 1, 1946, May 1, 1947 and
July 1, 1949 (Filed as Exhibit 2-B to Registration Statement No.
2-26459)
4.02 Fourth Supplemental Indenture dated as of April 1, 1950, to
Indenture referred to in Exhibit 4.01, pursuant to which SCE&G
assumed said Indenture (Filed as Exhibit 2-C toRegistration
Statement No. 2-26459)
4.03 Fifth through Fifty-second Supplemental Indentures referred to
in Exhibit 4.01 dated as of the dates indicated below and filed
as exhibits to the Registration Statements and 1934 Act reports
whose file numbers are set forth below:
December 1, 1950 Exhibit 2-D to registration No. 2-26459
July 1, 1951 Exhibit 2-E to Registration No. 2-26459
June 1, 1953 Exhibit 2-F to Registration No. 2-26459
June 1, 1955 Exhibit 2-G to Registration No. 2-26459
November 1, 1957 Exhibit 2-H to Registration No. 2-26459
September 1, 1958 Exhibit 2-I to Registration No. 2-26459
September 1, 1960 Exhibit 2-J to Registration No. 2-26489
June 1, 1961 Exhibit 2-K to Registration No. 2-26459
December 1, 1965 Exhibit 2-L to Registration No. 2-26459
June 1, 1966 Exhibit 2-M to Registration No. 2-26459
June 1, 1967 Exhibit 2-N to Registration No. 2-26459
September 1, 1968 Exhibit 4-O to Registration No. 2-29693
June 1, 1969 Exhibit 4-C to Registration No. 2-31569
December 1, 1969 Exhibit 4-O to Registration No. 33-38580
June 1, 1970 Exhibit 4-R to Registration No. 2-35388
March 1, 1971 Exhibit 2-B-17 to Registration No. 2-37363
January 1, 1972 Exhibit 2-B to Registration No. 2-40324
July 1, 1974 Exhibit 2-A-19 to Registration No. 33-38580
May 1, 1975 Exhibit 4-C to Registration No. 2-51291
July 1, 1975 Exhibit 2-B-21 to Registration No. 33-38580
February 1, 1976 Exhibit 2-B-22 to Registration No. 2-53908
December 1, 1976 Exhibit 2-B-23 to Registration No. 2-55304
March 1, 1977 Exhibit 2-B-24 to Registration No. 2-57936
May 1, 1977 Exhibit 4-C to Registration No. 2-58662
February 1, 1978 Exhibit 4-C to Registration No. 33-38580
June 1, 1978 Exhibit 2-A-3 to Registration No. 2-61653
April 1, 1979 Exhibit 4-C to Registration No. 33-38580
June 1, 1979 Exhibit 2-A-3 to Registration No. 33-38580
April 1, 1980 Exhibit 4-C to Registration No. 33-38580
June 1, 1980 Exhibit 4-C to Registration No. 33-38580
December 1, 1980 Exhibit 4-C to Registration No. 33-38580
April 1, 1981 Exhibit 4-D to Registration No. 33-49421
June 1, 1981 Exhibit 4-D to Registration No. 2-73321
March 1, 1982 Exhibit 4-D to Registration No. 33-49421
April 15, 1982 Exhibit 4-D to Registration No. 33-49421
May 1, 1982 Exhibit 4-D to Registration No. 33-49421
December 1, 1984 Exhibit 4-D to Registration No. 33-49421
December 1, 1985 Exhibit 4-D to Registration No. 33-49421
June 1, 1986 Exhibit 4-D to Registration No. 33-49421
February 1, 1987 Exhibit 4-D to Registration No. 33-49421
September 1, 1987 Exhibit 4-D to Registration No. 33-49421
Exhibit No.
Description
January 1, 1989 Exhibit 4-D to Registration No. 33-49421
January 1, 1991 Exhibit 4-D to Registration No. 33-49421
February 1, 1991 Exhibit 4-D to Registration No. 33-49421
July 15, 1991 Exhibit 4-D to Registration No. 33-49421
August 15, 1991 Exhibit 4-D to Registration No. 33-49421
April 1, 1993 Exhibit 4-E to Registration No. 33-49421
July 1, 1993 Exhibit 4-D to Registration No. 33-57955
4.04 Fifty-Third Supplemental Indenture, dated as of May 1, 1999, to
Indenture referred to in Exhibit 4.01 (Filed herewith on
page 128)
4.05 Indenture dated as of April 1, 1993 from South Carolina Electric
& Gas Company to NationsBank of Georgia, National Association
(Filed as Exhibit 4-F to Registration Statement No. 33-49421)
4.06 First Supplemental Indenture to Indenture referred to in
Exhibit 4.05 dated as of June 1, 1993 (Filed as Exhibit
4-G to Registration Statement No. 33-49421)
4.07 Second Supplemental Indenture to Indenture referred to in
Exhibit 4.05 dated as of June 15, 1993 (Filed as Exhibit 4-G to
Registration Statement No. 33-57955)
5.01 Opinion Re Legality
Opinion of H. T. Arthur, II, Esq. (Filed herewith)
8.01 Opinion Re Tax Matters (Not Applicable)
10.01 Supplemental Executive Retirement Plan (Filed herewith on
page 170)
12.01 Statements Re Computation of Ratios (Filed herewith)
15.01 Letter Re Unaudited Interim Financial Information
(Not Applicable)
23.01 Consents of Experts and Counsel
A. Consent of Deloitte & Touche LLP (Filed herewith)
B. Consent of H. T. Arthur, II, Esq. is contained in his
opinion filed as Exhibit 5.01.
24.01 Power of Attorney (Filed herewith)
25.01 Statement of Eligibility of Trustee
Statement of Eligibility of The Bank of New York, as Trustee
(Form T-1) (Filed herewith)
26.01 Invitations for Competitive Bids (Not Applicable)
27.01 Financial Data Schedule (Not Applicable)
99.01 Additional Exhibits (Not Applicable)
Exhibit 1.01
SOUTH CAROLINA ELECTRIC & GAS COMPANY
First Mortgage Bonds, ________% Series due _____ 1, _________
UNDERWRITING AGREEMENT
_______ ___, 1999
===============
- ---------------
Gentlemen:
The undersigned South Carolina Electric & Gas Company, a South Carolina
corporation (the "Company"), addresses you as the representatives (the
"Representatives") of each of the persons, firms and corporations listed in
Schedule A hereto (the "Underwriters").
The term "Representatives" as used herein shall be deemed to mean the firms
and/or corporations addressed hereby. If there is only one firm or corporation
to which this Agreement (the "Agreement") is addressed, such term shall be
deemed to mean such firm or corporation. If there are any Underwriters in
addition to yourselves, you represent that you have been authorized by each of
the Underwriters to enter into this Agreement on their behalf and to act for
them in the manner herein provided in all matters relating to carrying out the
provisions of this Agreement. If there are no Underwriters other than
yourselves, the term "Underwriters" shall be deemed to mean the Representatives.
All obligations of the Underwriters hereunder are several and not joint.
The Company hereby confirms its agreement with the several Underwriters as
follows:
1. Description of the Bonds. The Company has authorized the issuance and
sale of $______________ principal amount of its First Mortgage Bonds, ________%
Series due ______ 1, _______ (the "Bonds"), to be issued under and secured by
(i) the Indenture, dated as of April 1, 1993 (the "Indenture"), made by the
Company to The Bank of New York, successor to NationsBank of Georgia, National
Association, as trustee (the "Trustee"), and (ii) a Supplemental Indenture from
the Company to the Trustee (hereinafter called the "Supplemental Indenture"),
dated as of June 15, 1993 (the Indenture as so supplemented being hereinafter
collectively referred to as the "Indenture as Supplemented"). The Bonds are also
entitled to the benefit of a like principal amount of the Company's First and
Refunding Mortgage Bonds (the "Class A Bonds"), issued or to be issued under the
Company's Indenture dated as of January 1, 1945, as supplemented (the "Class A
Mortgage"), to The Chase Manhattan Bank, successor to Central Hanover Bank and
Trust Company, as trustee, delivered to and held by the Trustee under the
Indenture as Supplemented. The Class A Mortgage constitutes, subject to certain
exceptions, a first mortgage lien on substantially all of the public utility
properties of the Company. The Bonds shall be dated, shall mature, shall bear
interest, shall be payable and shall otherwise conform to the description
thereof to be contained in the Prospectus relating to the Bonds referred to in
Section 2(a) hereof and to the provisions of the Indenture as Supplemented. No
amendment to the Indenture as Supplemented is to be made prior to the Closing
Date hereinafter referred to unless said amendment is first approved by you.
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, each Underwriter that:
(a) A registration statement (File No. ___-________) on Form S-3 with
respect to the Bonds, including a prospectus, has been prepared by the Company
in conformity with the requirements of the Securities Act of 1933, as amended
(the "Act"), the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), and the rules and regulations of the Securities and Exchange Commission
(the "Commission") under such Acts, and has been filed with and declared
effective by the Commission. Copies of such registration statement and any
amendments thereto heretofore filed (including all exhibits except those
incorporated therein by reference) have heretofore been delivered to you. The
Company will file with or mail for filing to the Commission a prospectus
supplement relating to the Bonds pursuant to Rule 424 under the Act. The
registration statement when it became effective and as it may be amended as of
the date of this Agreement is hereafter referred to as the "Registration
Statement" and the prospectus as supplemented including all documents
incorporated therein by reference is hereafter referred to as the "Prospectus."
If the Company files any documents pursuant to Sections 13 or 14 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") after the time
the Registration Statement became effective and prior to the termination of the
offering of the Bonds by the Underwriters, which documents are deemed to be
incorporated by reference in the Prospectus, the term "Prospectus," unless the
context otherwise indicates or requires, shall refer to said Prospectus as
supplemented by the documents so filed from and after the time said documents
are filed with the Commission.
(b) The documents incorporated by reference in the Prospectus, when they
became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Exchange Act and
the rules and regulations of the Commission thereunder, and none of such
documents contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and any further documents so filed and incorporated by
reference, when they become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder, and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading.
(c) When the Registration Statement became effective and at all times
subsequent thereto up to and at the Closing Date (hereinafter defined), (i) the
Registration Statement and Prospectus and any post-effective amendments or
supplements thereto contained and will contain all statements and information
which are required to be stated therein by the Act, the Trust Indenture Act and
the rules and regulations of the Commission under such Acts, and in all material
respects, conformed and will conform to the requirements thereof, and (ii)
neither the Registration Statement nor the Prospectus nor any post-effective
amendment or supplement thereto included or will include any untrue statement of
a material fact or omitted or will omit to state any material fact required to
be stated therein or necessary to make the statements therein not misleading;
provided, however, that the foregoing representations and warranties shall not
apply to information contained in or omitted from the Registration Statement or
Prospectus or any such amendment or supplement thereto in reliance upon, and in
conformity with, written information furnished to the Company by you, or by any
Underwriter through you, specifically for use in the preparation thereof, or to
any information relating to the book-entry system of payments and transfers of
the Bonds or the depository therefor set forth under the caption "Book-Entry
System" provided by The Depository Trust Company or to any statements in or
omissions from the Statement of Eligibility (Form T-1) of the Trustee.
(d) The financial statements of the Company incorporated by reference in
the Prospectus fairly present the financial condition of the Company as of the
dates indicated and the results of operations and changes in financial position
for the periods therein specified; and said financial statements have been
prepared in accordance with generally accepted accounting principles, applied on
a consistent basis throughout the periods involved. Deloitte & Touche LLP, who
have audited certain of such financial statements, as set forth in their report
with respect to such financial statements, are independent public accountants
with respect to the Company as required by the Act and the rules and regulations
of the Commission thereunder.
(e) The Company has been duly organized and is validly existing as a
corporation under the laws of the State of South Carolina; the Company has the
corporate power and authority to own and operate the properties now owned by it
and to carry on its business as now being carried on by it, as described in the
Prospectus; and neither the character of properties owned or leased by the
Company nor the nature of the business transacted by it make the licensing or
qualification of the Company as a foreign corporation necessary in any other
state or jurisdiction.
(f) The Company does not own any shares of capital stock of a "public
utility company" or a "holding company" as such terms are defined in the Public
Utility Holding Company Act of 1935, as amended, and is a "subsidiary" of a
"registered holding company" within the meaning of said Act. The Company has no
subsidiaries other than SCE&G Trust I, a Delaware business trust.
(g) The Bonds have been duly authorized and, when duly executed,
authenticated and issued as provided in the Indenture as Supplemented and
delivered pursuant to this Agreement, will constitute valid and legally binding
obligations of the Company entitled to the security and benefits of the
Indenture as Supplemented, will be secured equally and ratably with all other
Bonds to be issued under the Indenture as Supplemented, and will conform to the
description thereof contained in the Prospectus. The Indenture as Supplemented
has been duly authorized, executed and delivered by the Company and is a valid
and legally binding instrument in accordance with its terms. The Indenture as
Supplemented has been qualified under the Trust Indenture Act.
(h) The Indenture as Supplemented constitutes a legally valid and
directly enforceable mortgage lien (except to the extent that enforcement of
such lien may be limited by the effect of certain laws and judicial decisions
upon the remedies provided in the Indenture as Supplemented, which, however, do
not make the remedies afforded inadequate for the practical realization of the
security and benefits provided by the Indenture as Supplemented, and except as
enforceability of such lien may be limited by bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
creditors' rights and by general equity principles) upon the respective
properties subject thereto (which properties constitute substantially all of the
electric utility properties of the Company) subject only to Permitted Liens (as
defined in the Indenture), the prior lien of the Class A Mortgage and to minor
defects and irregularities customarily found in properties of like size and
character which do not materially impair the use of the property affected
thereby in the operations of the business of the Company, and the Indenture as
Supplemented conforms to the description thereof contained in the Prospectus.
(i) Except as contemplated in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration Statement
and the Prospectus, the Company has not incurred any liabilities or obligations,
direct or contingent, or entered into any transactions, not in the ordinary
course of business, which are material to the Company, and there has not been
any material change in the capital stock or long-term debt of the Company, or
any material adverse change, or any development which the Company has reasonable
cause to believe will involve a prospective material adverse change, in the
condition (financial or other), business, net worth or results of operations of
the Company.
(j) Except as set forth in the Prospectus, there is not pending or, to
the knowledge of the Company, threatened, any action, suit or proceeding, to
which the Company is a party, before or by any court or governmental agency or
body, which might result in any material adverse change in the condition
(financial or other), business, net worth or results of operations of the
Company or might materially and adversely affect the properties or assets
thereof; and there are no contracts or documents of the Company which are
required to be filed as exhibits to the Registration Statement by the Act or by
the rules and regulations of the Commission thereunder which have not been so
filed.
(k) The Company holds good and marketable title in fee simple, except as
otherwise stated in the Prospectus, to all of the real property referred to
therein as being owned by it, free and clear of all liens and encumbrances,
except liens and encumbrances referred to in the Prospectus (or reflected in the
financial statements included therein) and liens and encumbrances which are not
material in the aggregate and do not materially interfere with the conduct of
the business of the Company and the properties referred to in the Prospectus as
held under lease by the Company are held by it under valid and enforceable
leases with such exceptions as do not materially interfere with the conduct of
the business of the Company.
(l) The Class A Bonds which heretofore or on the date hereof have been
issued or on the closing date shall have been issued to the Trustee under the
Indenture as Supplemented as the basis for the issuance of the Bonds have been
duly authorized, executed, authenticated and delivered to the Trustee under the
Indenture as Supplemented, constitute valid and legally binding obligations of
the Company, entitled to the security and benefits of the Class A Mortgage, and
are equally and ratably issued with all other bonds issued under the Class A
Mortgage.
(m) The Class A Mortgage constitutes a legally valid and directly
enforceable first mortgage lien (except to the extent that enforcement of such
lien may be limited by the effect of certain laws and judicial decisions upon
the remedies provided in the Class A Mortgage, which, however, do not make the
remedies afforded inadequate for the practical realization of the security and
benefits provided by the Class A Mortgage, and except as enforceability of such
lien may be limited by bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and by general
equity principles) upon the respective properties subject thereto (which
properties constitute substantially all of the utility properties of the
Company) subject only to excepted encumbrances (as defined therein) and to minor
defects and irregularities customarily found in properties of like size and
character, which do not materially impair the use of the property affected
thereby in the operation of the business of the Company, and the Class A
Mortgage conforms to the description thereof contained in the Prospectus.
(n) The performance of this Agreement and the consummation of the
transactions herein contemplated will not result in a breach or violation of any
of the terms and provisions of, or constitute a default under, any statute,
indenture, mortgage, deed of trust, note agreement or other agreement or
instrument to which the Company is a party or by which it is bound or to which
any of the property of the Company is subject, the Company's Restated Articles
of Incorporation, as amended, or by-laws, or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the Company or
any of its properties; no consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation of the
transactions contemplated by this Agreement in connection with the issuance or
sale of the Bonds by the Company hereunder, except such as may be required under
the Act, the Trust Indenture Act or state securities laws and except for the
approval of The Public Service Commission of South Carolina which has been
obtained or will be obtained prior to the Closing Date and is or will be in full
force and effect; and the Company has full power and authority to authorize,
issue and sell the Bonds on the terms and conditions herein set forth.
3. Purchase, Sale and Delivery of the Bonds. On the basis of
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to issue and sell to
the several Underwriters named in Schedule A hereto, and each such Underwriter
agrees, severally and not jointly, to purchase from the Company at the purchase
price set forth in such Schedule A the principal amount of Bonds set forth
opposite the name of such Underwriter in such Schedule A.
The Bonds will be delivered by the Company to you for the accounts of the
several Underwriters against payment of the purchase price therefor by certified
or official bank check payable in New York Clearing House (next day) funds at
the office of Thelen Reid & Priest LLP, 40 West 57th Street, New York, New York,
at 10:00 A.M., New York City Time, on ___________ ___, 1999 (or, if the New York
and American Stock Exchanges and commercial banks in The City of New York are
not open on such day, the next day on which such exchanges and banks are open),
or at such other time not later than eight full business days thereafter as you
and the Company determine, such time being herein referred to as the "Closing
Date."
It is understood that you, individually and not as Representatives of the
Underwriters, may (but shall not be obligated to) make payment to the Company,
on behalf of any Underwriter or Underwriters, for the Bonds to be purchased by
such Underwriter or Underwriters. Any such payment by you shall not relieve any
such Underwriter or Underwriters of any of its or their obligations hereunder.
4. Covenants. The Company covenants and agrees with each Underwriter that:
(a) The Company will file no amendment to the Registration Statement,
and prior to the completion of the offering of the Bonds make no supplement to
the Prospectus, including the initial supplement to the Prospectus which is
filed pursuant to Rule 424 under the Act referred to in Section 2(a) hereof, of
which you have not been advised and furnished with a copy or to which you have
promptly and reasonably objected; it will notify you, promptly after it shall
receive notice thereof, of the time when any post-effective amendment to the
Registration Statement has become effective or any supplement to the Prospectus
has been filed; it will notify you promptly of any request by the Commission for
the amending or supplementing of the Registration Statement or Prospectus or for
additional information; it will prepare and file with the Commission, promptly
upon your request, any amendments or supplements to the Registration Statement
or Prospectus which, in your opinion, may be necessary or advisable in
connection with the distribution of the Bonds by the Underwriters; it will file
promptly all reports and any definitive proxy or information statements required
to be filed by the Company with the Commission pursuant to the Exchange Act
subsequent to the date of the Prospectus and for so long as the delivery of a
prospectus is required in connection with the offering or sale of the Bonds; and
it will furnish to you at or prior to the filing thereof a copy of any document
which upon filing is deemed to be incorporated by reference in the Prospectus.
(b) The Company will advise you, promptly after it shall receive notice
or obtain knowledge thereof, of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of any proceeding
for that purpose having been instituted or threatened by the Commission; and it
will promptly use its best efforts to prevent the issuance of any stop order or
to obtain its withdrawal if such a stop order should be issued.
(c) Within the time during which a prospectus relating to the Bonds is
required to be delivered under the Act, the Company will comply as far as it is
able with all requirements imposed upon it by the Act, as now and hereafter
amended, and by the rules and regulations of the Commission thereunder, as from
time to time in force, so far as necessary to permit the continuance of sales of
or dealings in the Bonds as contemplated by the provisions hereof and the
Prospectus. If during such period any event occurs as a result of which the
Prospectus as then amended or supplemented would include an untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances then existing, not
misleading, or if during such period it is necessary to amend or supplement the
Prospectus to comply with the Act or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the Act or
the Exchange Act, the Company will promptly notify you and, if such event occurs
within nine months after the date hereof, the Company will at its own cost and
expense amend or supplement the Prospectus in order to correct such statement or
omission and in order that the Prospectus as so amended or supplemented will
comply with the requirements of Section 10(a)(1) of the Act or file such
document to effect such compliance. In case any Underwriter is required to
deliver a Prospectus relating to the Bonds at any time nine months or more after
the date hereof, the Company will, at the expense of the Underwriter requesting
the same, prepare promptly such prospectus or prospectuses and thereafter amend
or supplement the same as may be necessary to permit compliance with the
requirements of Section 10(a)(3) of the Act.
(d) The Company will use its best efforts to qualify the Bonds for sale
under the securities laws of such jurisdictions as you reasonably designate and
to continue such qualifications in effect so long as required for the
distribution of the Bonds, except that the Company shall not be required in
connection therewith to qualify as a foreign corporation or to execute a general
consent to service of process in any state. The Company will also arrange for
the determination of the Bonds' eligibility for investment under the laws of
such jurisdictions as you reasonably request.
(e) The Company has furnished or will furnish to the Underwriters, as
soon as available, copies of the Registration Statement (three of which will be
signed and will include all exhibits except those incorporated by reference),
the Prospectus (including all documents incorporated by reference therein but
excluding exhibits to such documents), and all amendments and supplements to
such documents, including any prospectus prepared to permit compliance with
Section 10(a)(3) of the Act, all in such quantities as you may from time to time
reasonably request.
(f) The Company will make generally available to its security holders as
soon as practicable, but in any event not later than 15 months after the end of
the Company's current fiscal quarter, an earning statement (which need not be
audited) covering a 12-month period beginning after the effective date of the
Registration Statement which shall satisfy the provisions of Section 11(a) of
the Act.
(g) So long as any of the Bonds are outstanding, the Company agrees to
furnish to you, and, upon request, to each of the other Underwriters, (i) as
soon as they are available, copies of all the reports (financial or other) and
any definitive proxy statements mailed to security holders or filed with the
Commission and (ii) from time to time such other information concerning the
business and financial condition of the Company as you may reasonably request.
(h) The Company, whether or not the transactions contemplated hereunder
are consummated or this Agreement is prevented from becoming effective or is
terminated under the provisions of Section 9 hereof, will pay all costs and
expenses incident to the performance of the obligations of the Company
hereunder, including, without limitation, the fees and expenses of the Company's
accountants and counsel for the Company, all costs incident to the preparation,
printing and filing under the Act of the Registration Statement, the Prospectus
and all amendments and supplements thereto, any fees charged by any investment
rating agencies for rating the Bonds, all fees and disbursements incurred by the
Company and by the Underwriters in connection with the qualification of the
Bonds under the laws of various jurisdictions as provided in Section 4(d) hereof
and the determination of their eligibility for investment under the laws of
various jurisdictions (including the cost of furnishing to the Underwriters
memoranda relating thereto and the reasonable fees and disbursements of counsel
for the Underwriters in connection therewith), the cost of furnishing to the
Underwriters copies of the Registration Statement, the Prospectus and each
amendment and supplement thereto, in such numbers as you may reasonably request,
the cost of printing this Agreement, the costs and charges of the Trustee and of
any depository in connection with a book-entry system of payments and transfers,
and the cost of preparing the Bonds. If the sale of the Bonds provided for
herein is not consummated by reason of any failure, refusal or inability on the
part of the Company to perform any agreement on its part to be performed, or
because any other condition of the Underwriters' obligation hereunder required
to be fulfilled by the Company is not fulfilled, the Company will reimburse the
several Underwriters for all reasonable out-of-pocket disbursements (including
fees and disbursements of counsel) incurred by the Underwriters in connection
with their investigation, preparing to market and marketing the Bonds or in
contemplation of performing their obligations hereunder. The Company shall not
in any event be liable to any of the Underwriters for loss of anticipated
profits from the transactions covered by this Agreement.
(i) The Company will apply the net proceeds from the sale of the Bonds
to be sold by it hereunder for the purposes set forth under "Use of Proceeds" in
the Prospectus.
(j) The Company will not for a period of 30 days after the commencement
of the public offering of the Bonds, without the prior written consent of the
Representatives, sell, contract to sell or otherwise dispose of any other of its
First Mortgage Bonds.
5. Conditions of Underwriters' Obligations. The obligations of the several
Underwriters to purchase and pay for the Bonds, as provided herein, shall be
subject to the accuracy, as of the date hereof and the Closing Date (as if made
on the Closing Date), of the representations and warranties of the Company
herein, to the performance by the Company of its obligations hereunder, and to
the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose shall have
been instituted or, to the knowledge of the Company or any Underwriter,
threatened by the Commission; and any request of the Commission for additional
information (to be included in the Registration Statement or the Prospectus or
otherwise) shall have been complied with to your satisfaction.
(b) No Underwriter shall have advised the Company that the Registration
Statement or Prospectus, or any amendment or supplement thereto, contains an
untrue statement of fact which in your opinion is material or omits to state a
fact which in your opinion is material and is required to be stated therein or
is necessary to make the statements therein not misleading.
(c) Except as contemplated in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration Statement
and the Prospectus, there shall not have been any change in the capital stock or
long-term debt of the Company or any adverse change, or any development
involving a prospective adverse change, in the condition (financial or other),
business, net worth or results of operations of the Company which, in your
judgment, makes it impractical or inadvisable to offer or deliver the Bonds on
the terms and in the manner contemplated in the Prospectus.
(d) On the Closing Date, you shall have received the opinion of McNair
Law Firm, P.A., counsel for the Company, dated the Closing Date, to the effect
that:
(i) The Company is validly existing as a corporation under the laws
of the State of South Carolina and is empowered by its Restated Articles of
Incorporation, as amended, to own and operate the properties now owned and
proposed to be owned by it and to carry on its business as now carried on and
proposed to be carried on as described in the Prospectus.
(ii) Each of the Indenture as Supplemented and the Class A Mortgage
has been duly authorized, executed and delivered by the Company and constitutes
a valid and legally binding instrument enforceable against the Company in
accordance with its terms and the Indenture as Supplemented has been qualified
under the Trust Indenture Act.
(iii) The Class A Bonds which heretofore or on the date hereof have
been issued to the Trustee under the Indenture as Supplemented as the basis for
the issuance of the Bonds have been duly authorized by all necessary corporate
action, have been duly executed, authenticated, issued and delivered and
constitute valid and legally binding obligations of the Company enforceable
against the Company in accordance with their terms and the terms of the Class A
Mortgage, are entitled to the security and benefits of the Class A Mortgage and
are secured equally and ratably with all other bonds issued under the Class A
Mortgage.
(iv) The Bonds have been duly authorized by all necessary corporate
action, have been duly executed, authenticated, issued and delivered and
constitute valid and legally binding obligations of the Company enforceable
against the Company in accordance with their terms and the terms of the
Indenture as Supplemented, are entitled to the security and benefits of the
Indenture as Supplemented and are secured equally and ratably with all other
bonds issued under the Indenture as Supplemented.
(v) This Agreement has been duly authorized, executed and delivered
by the Company.
(vi) The Indenture as Supplemented, the Bonds and the Class A
Mortgage conform in all material respects to the statements concerning them in
the Prospectus.
(vii) The documents incorporated by reference in the Prospectus (other
than the financial statements and other financial or statistical data contained
therein, as to which such counsel need express no opinion), when they were filed
with the Commission complied as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations of the Commission
thereunder; and, based upon such counsel's participation in conferences with
representatives of the Company and its accountants and participation in certain
prior financings of the Company, they have no reason to believe that any of such
documents, when they were so filed, contained an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made
when such documents were so filed, not misleading.
(viii) The Registration Statement has become effective under the Act,
and, to the best of the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are pending or contemplated under the
Act, and, based upon such counsel's participation in conferences with
representatives of the Company and its accountants and participation in certain
prior financings of the Company, they do not believe that on the date hereof or
the Closing Date either the Registration Statement or the Prospectus (or the
Registration Statement or Prospectus as amended or supplemented by any amendment
or further supplement thereto made by the Company prior to the Closing Date)
contained or contains any untrue statement of a material fact or omitted or
omits to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and, in their opinion, the
Registration Statement and the Prospectus, as of the date hereof (or the
Registration Statement or Prospectus as amended or supplemented by any amendment
or further supplement thereto made by the Company prior to the Closing Date),
appear on their face to be appropriately responsive in all material respects to
the requirements of the Act, the Trust Indenture Act and the rules and
regulations of the Commission under such acts (except that no opinion need be
expressed as to financial statements and other financial or statistical data
contained or incorporated by reference in the Registration Statement or to any
information relating to the book-entry system of payments and transfers of the
Bonds or the depository therefor set forth under the caption "Book-Entry System"
provided by The Depository Trust Company or as to the Trustee's Statement of
Eligibility on Form T-1).
In rendering said opinion, (i) counsel may rely upon the opinion of H. Thomas
Arthur, II, Esquire, delivered pursuant to paragraph (e), with respect to
matters of title, property descriptions, recording fees and taxes and the
filing, recordation and liens of the Indenture as Supplemented and the Class A
Mortgage; (ii) counsel may state that the enforceability of the Class A
Mortgage, the Class A Bonds, the Indenture as Supplemented and the Bonds is
subject to applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the rights of creditors generally and general principles of
equity; and (iii) counsel may state that although certain provisions of the
Class A Mortgage and the Indenture as Supplemented may not be enforceable in
whole or in part, the inclusion of such provisions does not affect the validity
of the Class A Mortgage or Indenture as Supplemented, which contain adequate
provisions for the practical realization of the benefits and security provided
therefor.
(e) On the Closing Date, you shall have received the opinion of H.
Thomas Arthur, II, Esquire, General Counsel of the Company, dated the Closing
Date, covering the matters set forth in clauses (i) to (viii), inclusive, of
paragraph (d) of this Section and such other matters incident to the
transactions contemplated hereby as you may reasonably request, and also to the
effect that (subject to such exceptions specified in such opinion with respect
to the matters referred to in clauses (i), (ii), (iii), (iv) and (v) of this
paragraph (e) as such counsel may deem appropriate, which exceptions in the
opinion of the counsel rendering such opinion do not materially interfere with
the maintenance and operation by the Company of the properties now owned by it
or with the conduct by the Company of the business now carried on by it), and in
rendering the opinion set forth in clause (i) of paragraph (d) counsel shall
also state that neither the character of property owned or leased by the Company
nor the nature of the business transacted by it make the licensing or
qualifications of the Company as a foreign corporation necessary in any other
state or jurisdiction:
(i) The Company has fee title to all the real property (except (i)
rights-of-way, water rights and flowage rights, (ii) that electric transmission
and electric and gas distribution lines are constructed principally on
rights-of-way which are maintained under or held by easement and (iii) that the
fee ownership of the lands upon which the Company's Stevens Creek dam is
situated may extend only to the abutment sites on each side of the Savannah
River) and has good and valid title to all of the personal property described or
referred to in each of the Class A Mortgage and the Indenture as Supplemented as
owned by it (except property heretofore released from the liens thereof or
retired in accordance with the provisions thereof), subject to no liens or
encumbrances other than (a) excepted encumbrances and Permitted Liens, (b) the
lien of the Class A Mortgage, (c) the lien of the Indenture as Supplemented and
(d) the fact that titles to certain properties are subject to reservations and
encumbrances such as are customarily encountered in the public utility business
and which do not materially interfere with their use, and the descriptions of
and references to such real and personal property contained in each of the Class
A Mortgage and the Indenture as Supplemented are adequate for the purposes
thereof. No notice has been given to the Company by any governmental authority
of any proceeding to condemn, purchase or otherwise acquire any of the
properties of the Company and, so far as such counsel knows, no such proceeding
is contemplated.
(ii) The Indenture as Supplemented has been duly filed for recording
and recorded, and constitutes a legally valid and direct enforceable mortgage
lien upon the respective properties presently subject thereto subject only to
Permitted Liens and the prior lien of the Class A Mortgage.
(iii) The Class A Mortgage has been duly filed for recording and
recorded and constitutes a valid direct first mortgage lien on the respective
properties presently subject thereto subject only to excepted encumbrances.
(iv) Except as set forth in "Security - Lien of the Mortgage" and
"The Class A Mortgage - Security" under "Description of the New Bonds" in the
Prospectus, substantially all fixed electric utility properties used or useful
in its electric utility business (other than those of the character not subject
to the lien of the Indenture as Supplemented as aforesaid and properties
heretofore released from the lien thereof or retired in accordance with the
provisions thereof) acquired by the Company after the date of the Indenture, and
substantially all fixed properties and franchises used or useful in its public
utility businesses (other than those of the character not subject to the lien of
the Class A Mortgage as aforesaid and properties heretofore released from the
lien thereof or retired in accordance with the provisions thereof) acquired by
the Company after the date of the Class A Mortgage have become subject to the
respective liens thereof, subject, however, to excepted encumbrances or
Permitted Liens, as the case may be, the lien of the Class A Mortgage in the
case of the Indenture as Supplemented, and to liens, if any, existing or placed
thereon at the time of the acquisition thereof by the Company.
<PAGE>
(v) Except as otherwise set forth in the Prospectus, the Company
has such valid franchises, certificates of convenience and necessity, operating
rights, licenses, permits, consents, approvals, authorizations and/or orders of
governmental bodies, political subdivisions or regulatory authorities, free from
burdensome restrictions, as are necessary for the acquisition, construction,
ownership, maintenance and operation of the properties now owned by it and the
conduct of the business now carried on by it as described in the Registration
Statement and Prospectus, and the Company is not in default or violation of any
thereof and is carrying on its business in accordance therewith and, to the best
of his knowledge, with all applicable federal, state and other laws and
regulations.
(vi) The descriptions in the Registration Statement and Prospectus
of statutes, legal and governmental proceedings, contracts and other documents
are, to the best of his knowledge, accurate and fairly present the information
required to be shown therein, and such counsel does not know of any legal or
governmental proceedings required to be described in the Prospectus which are
not described as required, nor of any contracts or documents of a character
required to be described in the Registration Statement or Prospectus or required
to be incorporated by reference into the Prospectus or to be filed as exhibits
to the Registration Statement which are not described or incorporated by
reference or filed as required.
(vii) An order has been or orders have been entered by The Public
Service Commission of South Carolina permitting the issuance and sale of the
Bonds as contemplated hereby, and no further authorization or consent of any
public body or board is required for the issuance and sale by the Company of the
Bonds as contemplated hereby, except as may be required under state securities
or Blue Sky laws.
(viii) The statements in the Prospectus which are stated therein to
have been made on the authority of such counsel have been reviewed by such
counsel and, as to matters of law and legal conclusions, are correct in all
material respects.
(ix) The consummation of the transactions contemplated herein and
the fulfillment of the terms hereof and compliance by the Company with all terms
and provisions of the Indenture as Supplemented and the Class A Mortgage will
not result in a breach of any of the terms or provisions of, or constitute a
default under, any statute, indenture, mortgage, deed of trust, note agreement
or other agreement or instrument known to such counsel to which the Company is a
party or by which it is bound or to which any of the property of the Company is
subject, or the Restated Articles of Incorporation, as amended, or by-laws of
the Company, or to the best of his knowledge, any order, rule or regulation
applicable to the Company of any court or of any federal or state regulatory
body or administrative agency or other governmental body having jurisdiction
over the Company or its property.
(x) All recording fees and taxes applicable to or in connection
with the recording of the Class A Mortgage and the Indenture as Supplemented and
all applicable taxes on or in connection with the issuance of the Bonds have
been paid.
In giving the opinion contemplated by clauses (ii) and (iii), counsel shall
state what, if any, re-recording or re-filing of the Class A Mortgage and the
Indenture as Supplemented is required and what, if any, further supplemental
indentures or other instruments are required to be executed, filed and/or
recorded or notices given, in order to extend the liens of the Class A Mortgage
and Indenture as Supplemented to after-acquired property, or to maintain such
liens with respect to future advances. Furthermore, in rendering said opinion,
(i) counsel may state that the enforceability of the Class A Mortgage, the Class
A Bonds, the Indenture as Supplemented and the Bonds, and the enforceability of
the respective lien of the Class A Mortgage and the Indenture as Supplemented,
are subject to applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the rights of creditors generally and general principles of
equity and (ii) counsel may state that although certain provisions of the Class
A Mortgage and the Indenture as Supplemented may not be enforceable in whole or
in part, the inclusion of such provisions does not affect the validity of the
Class A Mortgage or the Indenture as Supplemented, which contain adequate
provisions for the practical realization of the benefits and security provided
therefor.
(f) On the Closing Date, you shall have received from Thelen Reid &
Priest LLP, counsel for the several Underwriters, such opinion or opinions with
respect to the incorporation of the Company, the validity of the Bonds, the
Registration Statement, the Prospectus and other related matters as you may
reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters. In rendering their opinion, such counsel may rely upon the opinion of
H. Thomas Arthur, II, Esquire referred to above as to all matters governed by
South Carolina law.
(g) On the Closing Date, you shall have received a letter from Deloitte
& Touche LLP, dated the date of delivery thereof, in the form heretofore
delivered to the Representatives.
(h) On the Closing Date, you shall have received from the Company a
certificate, signed by its Chairman, President or a Vice President and by its
principal financial or accounting officer, dated the Closing Date, to the effect
that, to the best of their knowledge based on reasonable investigation:
(i) The representations and warranties of the Company in this
Agreement are true and correct in all material respects, as if made on and as of
the Closing Date, and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied on or
prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceedings for that purpose have been
instituted or are pending or threatened, under the Act;
(iii) The Registration Statement and the Prospectus, and any
amendments or supplements thereto, contain all statements and information
required to be included therein, and neither the Registration Statement nor the
Prospectus, nor any amendment or supplement thereto, includes any untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading and,
since the date hereof there has occurred no event required to be set forth in an
amended or supplemented prospectus which has not been so set forth and there has
been no document required to be filed under the Exchange Act and the rules and
regulations of the Commission thereunder and which upon such filing would be
deemed to be incorporated by reference in the Prospectus, which has not been so
filed; and
(iv) As of the date of such certificate, the real and personal
property owned by the Company and located in the State of Georgia does not have
an aggregate depreciated cost, as reflected in the accounting records of the
Company, in excess of $5,000,000.
(i) The Company shall have furnished to you such further certificates
and documents as you shall have reasonably requested.
(j) There shall not have been any further announcement by any
"nationally recognized statistical rating organization," as defined for purposes
of Rule 430(g)(2) under the Act, that (i) it is downgrading its rating assigned
to any debt securities of the Company, or (ii) it is reviewing its rating
assigned to any debt securities of the Company with a view to possible
downgrading, or with negative implications, or with direction not determined.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to you. The Company will furnish you with such conformed copies of
such opinions, certificates, letters and other documents as you shall reasonably
request. In giving the opinions contemplated by paragraphs (d), (e) and (f) of
this Section, counsel need not express any opinion either as to matters of
Georgia law, including the enforceability of the Indenture as Supplemented
thereunder, or with respect to real or personal property of the Company located
in the State of Georgia, may rely upon certificates of state officials as to the
Company's good standing and upon certificates of officers of the Company as to
matters of fact relevant to such opinions and may assume (i) that the Bonds have
been executed on behalf of the Company by the manual or facsimile signatures of
the President or a Vice President and the Secretary or an Assistant Secretary of
the Company and have been duly authenticated by the Trustee and (ii) that the
signatures on all documents examined by them are genuine.
6. Indemnification. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
the Prospectus, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading; and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by it in connection with investigating or defending against
such loss, claim, damage, liability or action; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement, the Prospectus, or any such amendment or supplement, in
reliance upon and in conformity with written information furnished to the
Company by you, or by any Underwriter through you, specifically for use in the
preparation thereof.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the Registration
Statement, the Prospectus, or any such amendment or supplement, in reliance upon
and in conformity with written information furnished to the Company by you, or
by such Underwriter through you, specifically for use in the preparation
thereof; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
against any such loss, claim, damage, liability or action.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party, and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate in
and, to the extent that it shall wish, jointly with any other indemnifying
party, similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under such subsection for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. The indemnified party will have the right to
employ its own counsel in any such action, but the fees, expenses and other
charges of such counsel will be at the expense of such indemnified party unless
(1) the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) the indemnified party has reasonably
concluded (based on advice of counsel) that there may be legal defenses
available to it or other indemnified parties that are different from or in
addition to those available to the indemnifying party, (3) a conflict or
potential conflict exists (based on advice of counsel to the indemnified party)
between the indemnified party and the indemnifying party (in which case the
indemnifying party will not have the right to direct the defense of such action
on behalf of the indemnified party) or (4) the indemnifying party has not in
fact employed counsel to assume the defense of such action within a reasonable
time after receiving notice of the commencement of the action, in each of which
cases the reasonable fees, disbursements and other charges of counsel will be at
the expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm admitted to
practice in such jurisdiction at any one time for all such indemnified party or
parties. All such fees, disbursements and other charges will be reimbursed by
the indemnifying party promptly as they are incurred. An indemnifying party will
not be liable for any settlement of any action or claim effected without its
written consent (which consent will not be unreasonably withheld). No
indemnifying party shall, without the prior written consent of each indemnified
party, settle or compromise or consent to the entry of any judgment in any
pending or threatened claim, action or proceeding relating to the matters
contemplated by this Section 6 (whether or not any indemnified party is a party
thereto), unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising or
that may arise out of such claim, action or proceeding.
(d) If the indemnification provided for in this Section 6 is unavailable
under subsection (a) or (b) above to a party that would have been an indemnified
party under subsection (a) or (b) above ("Indemnified Party") in respect of any
losses, claims, damages or liabilities (or actions in respect thereof) referred
to therein, then each party that would have been an indemnifying party
thereunder ("Indemnifying Party") shall, in lieu of indemnifying such
Indemnified Party, contribute to the amount paid or payable by such Indemnified
Party as a result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other from the offering of the Bonds. If, however, the allocation provided by
the immediately preceding sentence is not permitted by applicable law or if the
Indemnified Party failed to give the notice required under subsection (c) above,
then each Indemnifying Party shall contribute to such amount paid or payable by
such Indemnified Party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company on the one
hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received
by the Company bear to the total underwriting discounts and commissions received
by the Underwriters, in each case as set forth in the table on the cover page of
the initial supplement to the Prospectus which is filed pursuant to Rule 424
under the Act referred to in Section 2(a) hereof. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or alleged omission to state a material fact
relates to information supplied by the Company or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this subsection (d). The amount paid or payable by an Indemnified
Party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such Indemnified
Party in connection with investigating or defending any such action or claim
(which shall be limited as provided in subsection (c) above if the Indemnifying
Party has assumed the defense of any such action in accordance with the
provisions thereof). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the
underwriting discounts received by it. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 6 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Company, to each officer of the
Company who has signed the Registration Statement and to each person, if any,
who controls the Company within the meaning of the Act.
7. Representations and Agreements to Survive Delivery. All representations,
warranties and agreements of the Company herein or in certificates delivered
pursuant hereto, and the indemnity and contribution agreements of the several
Underwriters contained in Section 6 hereto, shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of any
Underwriter or any controlling persons, or the Company or any of its officers,
directors or any controlling persons and shall survive delivery of the Bonds to
the Underwriters hereunder.
8. Substitution of Underwriters. (a) If any Underwriter or Underwriters
shall fail to take up and pay for the principal amount of Bonds agreed by such
Underwriter or Underwriters to be purchased hereunder, upon tender of such Bonds
in accordance with the terms hereof, and the principal amount of Bonds not
purchased does not aggregate more than 10% of the aggregate principal amount of
the Bonds, the remaining Underwriters shall be obligated to take up and pay for
(in proportion to their respective commitments hereunder except as may otherwise
be determined by you) the Bonds which any withdrawing or defaulting Underwriters
agreed but failed to purchase; however, if such Bonds not purchased aggregate
more than 10% of the aggregate principal amount of the Bonds, the remaining
Underwriters shall have the right, but shall not be obligated, to take up and
pay for (in such proportions as shall be determined by you) the Bonds which the
defaulting Underwriter or Underwriters agreed but failed to purchase. If such
remaining Underwriters do not, at the Closing Date, take up and pay for the
Bonds which the defaulting Underwriter or Underwriters agreed but failed to
purchase, the time for delivery of the Bonds shall be extended to the next
business day to allow the several Underwriters the privilege of substituting
within 24 hours (including non-business hours) another underwriter or
underwriters satisfactory to the Company. If no such underwriter or underwriters
shall have been substituted, as aforesaid, the time for delivery of the Bonds
may, at the option of the Company, be again extended to the next following
business day, if necessary, to allow the Company the privilege of finding within
24 hours (including non-business hours) another underwriter or underwriters,
satisfactory to you, to purchase the Bonds which the defaulting Underwriter or
Underwriters agreed but failed to purchase. If the remaining Underwriters shall
not take up and pay for all such Bonds agreed to be purchased by the defaulting
Underwriters, or substitute another underwriter or underwriters as aforesaid,
and the Company shall not find or shall not elect to seek another underwriter or
underwriters for such Bonds as aforesaid, then this Agreement shall terminate.
In the event of any such termination the Company shall not be under any
liability to any Underwriter (except to the extent provided in Section 4(h) and
in Section 6 hereof), nor shall any Underwriter (other than an Underwriter who
shall have failed, otherwise than for some reason permitted under this
Agreement, to purchase the principal amount of Bonds agreed by such Underwriter
to be purchased hereunder) be under any liability to the Company (except to the
extent provided in Section 6 hereof).
(b) If the remaining Underwriters or substituted underwriters take up
the Bonds of the defaulting Underwriter or Underwriters as provided in this
Section, (i) the Company shall have the right to postpone the time of delivery
for a period of not more than seven full business days, in order to effect any
changes which may be made necessary thereby in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Company agrees
promptly to file any amendments to the Registration Statement or supplements to
the Prospectus which may be made necessary thereby, and (ii) the respective
principal amounts of Bonds to be purchased by the remaining Underwriters or
substituted underwriters shall be taken as the basis of their respective
underwriting obligations for all purposes of this Agreement. A substituted
underwriter hereunder shall become an Underwriter for all purposes of this
Agreement.
(c) Nothing herein shall relieve a defaulting Underwriter from liability
for its default.
9. Effective Date of this Agreement and Termination. (a) This Agreement
shall become effective upon your accepting it in the manner indicated below.
(b) You, as Representative of the several Underwriters, shall have the
right to terminate this Agreement by giving notice as hereinafter specified at
any time at or prior to the Closing Date if (i) the Company shall have failed,
refused or been unable, at or prior to the Closing Date, to perform any material
agreement on its part to be performed hereunder, (ii) any other condition of the
Underwriters' obligations hereunder required to be fulfilled by the Company is
not fulfilled, (iii) trading on the New York Stock Exchange or the American
Stock Exchange shall have been wholly suspended, (iv) minimum or maximum prices
for trading shall have been fixed, or maximum ranges for prices for securities
shall have been required, on the New York Stock Exchange or the American Stock
Exchange, by the New York Stock Exchange or the American Stock Exchange or by
order of the Commission or any other governmental authority having jurisdiction,
(v) a banking moratorium shall have been declared by Federal or New York
authorities, or (vi) an outbreak of major hostilities in which the United States
is involved, a declaration of war by Congress, any other substantial national or
international calamity, a default in payment when due of interest on or
principal of any debt obligations of, or the institution of proceedings under
the Federal bankruptcy laws by or against, any State of the United States or any
other event or occurrence of a similar character shall have occurred since the
execution of this Agreement which, in your judgment, makes it impractical or
inadvisable to proceed with the completion of the sale of and payment for the
Bonds. Any such termination shall be without liability of any party to any other
party except that the provisions of Section 4(h) and Section 6 hereof shall at
all times be effective.
(c) If you elect to prevent this Agreement from becoming effective or to
terminate this Agreement as provided in this Section, the Company shall be
notified promptly by you by telephone or telegram, confirmed by letter. If the
Company elects to prevent this Agreement from becoming effective, you shall be
notified promptly by the Company by telephone or telegram, confirmed by letter.
10. Notices. All notices or communications hereunder, except as herein
otherwise specifically provided, shall be in writing and, if sent to you, shall
be mailed, delivered or telegraphed and confirmed to you at
- -------------------------, -----------------------, ------------------,
_______________, Attention: __________________ or if sent to the Company, shall
be mailed, delivered or telegraphed and confirmed to the Company at 1426 Main
Street, Columbia, South Carolina 29201, Attention: Secretary. Notice to any
Underwriter pursuant to Section 6 shall be mailed, delivered or telegraphed and
confirmed to such Underwriter in care of the Representatives at the address set
forth below. Any party to this Agreement may change such address for notices by
sending to the parties to this agreement written notice of a new address for
such purpose.
11. Parties. This Agreement shall inure to the benefit of and be binding
upon the several Underwriters, the Company and their respective successors and
assigns. Nothing expressed or mentioned in this Agreement is intended or shall
be construed to give any person or corporation, other than the parties hereto
and their respective successors and assigns and the controlling persons,
officers and directors referred to in Section 6, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of the parties
hereto and their respective successors and assigns and said controlling persons
and said officers and directors and for the benefit of no other person or
corporation. No purchaser of any of the Bonds from any Underwriter shall be
construed a successor or assign merely by reason of such purchase.
In all dealings with the Company under this Agreement, you shall act on
behalf of each of the several Underwriters, and any action under this Agreement
taken by you will be binding upon all Underwriters.
12. Applicable Law. The Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
<PAGE>
If the foregoing correctly sets forth the understanding between the Company
and the several Underwriters, please so indicate in the space provided below for
that purpose, whereupon this letter shall constitute a binding agreement between
the Company and the several Underwriters.
Very truly yours,
SOUTH CAROLINA ELECTRIC & GAS COMPANY
By________________________________________
Its________________________________
ACCEPTED at _____________, _____________ as of the date first above written.
- ----------------------------------
By____________________________________
Its_____________________________
<PAGE>
SCHEDULE A
UNDERWRITERS
________% Series due
________ 1, _____
Amount of Bonds
Name of Underwriters To be Purchased
$
plus accrued interest
from _________ 1, 1999
Exhibit 3.01
SOUTH CAROLINA ELECTRIC & GAS COMPANY
RESTATED ARTICLES OF INCORPORATION
TABLE OF CONTENTS
(This Table of Contents is not part of the Restated Articles of
Incorporation and has been inserted herein for convenience only. Nothing
contained in this Table of Contents shall be deemed to affect the meaning or
construction of any of the provisions contained in the Restated Articles of
Incorporation.)
<PAGE>
Page
RECITAL 1
ARTICLE I
Name of Company 2
ARTICLE II
Perpetual existence, rights, powers and liabilities under laws
of South Carolina 3
ARTICLE III
Principal place of business 3
ARTICLE IV
General powers clauses 3
ARTICLE V
Number of shares authorized 5
Classes of series of shares
A. Seniority of Preferred Stock 6
B. Preferred Stock
1. Issuable in Series 6
2. Terms of Preferred Stock which may vary among series 6
3. Relative rights and preferences 6
C. Dividends on Preferred Stock
1. Dividend rates 7
2. Ratable dividend payments 9
3. Restrictions on payment of dividends on Common Stock 9
4. Definitions:
"dividends" 10
"Common Stock Equity" 10
"Total Capitalization" 11
"Net Income of Company available for dividends on Common
Stock" 11
5. Consolidated subsidiaries 11
6. Reserves 11
D. Amounts payable upon liquidation, whether voluntary or involuntary 12
1. Purchase Fund for 4.60% Cumulative Preferred Stock 13
2. Purchase Fund for 4.50% Cumulative Preferred Stock 14
3. Purchase Fund for 4.60% (Series A) Cumulative Preferred Stock 16
4. Purchase Fund for 5.125% Cumulative Preferred Stock 18
5. Purchase Fund for 4.60% (Series B) Cumulative Preferred Stock 19
6. Purchase Fund for 6% Cumulative Preferred Stock 21
7. Sinking Fund for 9.40% Cumulative Preferred Stock 23
8. Sinking Fund for 8.12% Cumulative Preferred Stock 23
9. Sinking Fund for 7.70% Cumulative Preferred Stock 24
10. Sinking Fund for 8.72% Cumulative Preferred Stock 24
E. Redemption provisions relating to Preferred Stock 25
F. Voting Powers 27
<PAGE>
G. Required consent or vote of Preferred Stock to:
1. (a) Create or issue shares of stock ranking equally or prior
to the Preferred Stock or increase authorized
Preferred Stock 28
(b) Amend charter affecting preferences, voting powers,
restrictions and qualifications 28
2. Consolidations, mergers or sales of assets 30
3. Issuance of unsecured indebtedness; exceptions and limitations 30
H. Holders of Preferred Stock not entitled to preemptive right to
purchase any capital stock or securities convertible into capital
stock 31
I. Holders of Common Stock not entitled to preemptive right to
purchase Shares of Common Stock, options or rights of
securities convertible into Common Stock 31
ARTICLE VI
Number of directors required 31
EXHIBIT A 33
<PAGE>
STATE OF SOUTH CAROLINA
SECRETARY OF STATE
RESTATED ARTICLES OF INCORPORATION
Pursuant to Authority of Section 33-10-107 of the South Carolina Business
Corporation Act of 1988, the undersigned Corporation adopts the following
Restated Articles of Incorporation:
1. The name of the Corporation is SOUTH CAROLINA ELECTRIC & GAS COMPANY.
2. The Registered Office of the Corporation is Palmetto Center, 1426 Main
Street in the City of Columbia, County of Richland and the State of
South Carolina and the name of the Registered Agent at such address is
A. H.
Gibbes.
3. At a meeting thereof duly called and held on November 24, 1965, the
Board of Directors of SOUTH CAROLINA ELECTRIC & GAS COMPANY (hereinafter
sometimes referred to as the "Corporation" or the "Company") authorized the
adoption of a restatement of the Articles of Incorporation of the Corporation so
as to integrate into a single document the text of the Agreement of
Consolidation, dated June 29, 1943, between the Corporation (sometimes
hereinafter referred to as "South Carolina Company") and Lexington Water Power
Company (sometimes hereinafter referred to as "Lexington"), together with all
amendments thereto theretofore adopted, all as provided in Section 9.8 of the
South Carolina Business Corporation Act of 1962 (12-19.8 Supplement Code 1962)
and such Restated Articles of Incorporation, dated November 24, 1965, were filed
with the Secretary of State of South Carolina on November 24, 1965, and
thereupon became the Articles of Incorporation of the Corporation.
4. At a meeting thereof duly called and held on May 27, 1966, the
Board of Directors of the Corporation authorized the adoption of a
restatement of the Articles of Incorporation of the Corporation so
as to integrate into a single document the text of the Restated
Articles of Incorporation, dated November 24, 1965, together with
all amendments thereto theretofore adopted, all as provided in
Section 9.8 of the South Carolina Business Corporation Act of 1962
(12-19.8 Supplement to the South Carolina Code of
1962).
5. At a meeting thereof duly called and held on May 21, 1971, the
Board of Directors of the Corporation authorized the adoption of a
restatement of the Articles of Incorporation of the Corporation so
as to integrate into a single document the text of the Restated
Articles of Incorporation, dated May 27, 1966, together with all
amendments thereto theretofore adopted, all as provided in Section
9.8 of the South Carolina Business Corporation Act of 1962
(12-19.8 Supplement to the South Carolina Code of
1962).
6. At a meeting thereof duly called and held on August 28, 1974, the
Board of Directors of the Corporation authorized the adoption of a
restatement of the Articles of incorporation of the Corporation so
as to integrate into a single document the text of the Restated
Articles of Incorporation, dated May 21, 1971, together with all
amendments thereto theretofore adopted, all as provided in Section
9.8 of the South Carolina Business Corporation Act of 1962
(12-19.8 Supplement to the South Carolina Code of
1962).
7. At a meeting thereof duly called and held on July 28, 1976, the
Board of Directors of the Corporation authorized the adoption of a
restatement of the Articles of Incorporation of the Corporation so
as to integrate into a single document the text of the Restated
Articles of Incorporation, dated August 28, 1974, together with
all amendments thereto theretofore adopted, all as provided in
Section 9.8 of the South Carolina Business Corporation Act of 1962
(12-19.8 Supplement to the South Carolina Code of
1962).
8. At a meeting thereof duly called and held on November 26, 1980,
the Board of Directors of the Corporation authorized the adoption
of a restatement of the Articles of Incorporation of the
Corporation so as to integrate into a single document the text of
the Restated Articles of Incorporation, dated July 28, 1976,
together with all amendments thereto theretofore adopted, all as
provided in Section 9.8 of the South Carolina Business Corporation
Act of 1962 (Section 33-15-80 of the South Carolina Code of 1976).
9. At a meeting thereof duly called and held on June 26, 1985, the
Board of Directors of the Corporation authorized the adoption of a
restatement of the Articles of Incorporation of the Corporation so
as to integrate into a single document the text of the Restated
Articles of Incorporation, dated November 26, 1980, together with
all amendments thereto theretofore adopted, all as provided in
Section 33-15-80, as amended, of the South Carolina Business
Corporation Act of 1962.
10. At a meeting thereof duly called and held on June 28, 1989, the
Board of Directors of the Corporation authorized the adoption of a
restatement of the Articles of Incorporation of the Corporation so
as to integrate into a single document the text of the Restated
Articles of Incorporation, dated June 26, 1985, together with all
amendments thereto theretofore adopted, all as provided in Section
33-10-107 of the South Carolina Business Corporation Act of 1988.
11. At a meeting thereof duly called and held on December 15,1993, the
Board of Directors of the Corporation authorized the adoption of
the following restatement of the Articles of Incorporation of the
Corporation so as to integrate into a single document the text of
the Restated Articles of Incorporation, dated June 28, 1989,
together with all amendments thereto theretofore adopted, all as
provided in Section 33-10-107 of the South Carolina Business
Corporation Act of 1988.
12. This Restated Articles of Incorporation of the Corporation purports
merely to restate but not to change materially the provisions of the aforesaid
Restated Articles of Incorporation, dated June 28, 1989, as heretofore amended
and supplemented, and there is no material discrepancy between such provisions
and the provisions of this Restated Articles of Incorporation.
13. The undersigned Corporation adopts the following Restated Articles
of Incorporation, as heretofore amended and supplemented.
<PAGE>
ARTICLE I
The name of the Company is SOUTH CAROLINA ELECTRIC & GAS COMPANY.
ARTICLE II
The Company shall have perpetual existence and shall have and enjoy all
rights and powers accorded by the laws of South Carolina and be subject to all
liabilities imposed by such laws.
ARTICLE III
The principal place of business of the Company shall be Columbia, South
Carolina.
<PAGE>
ARTICLE IV
Without limiting the nature of the business which the Company may do as
provided in the charters, as amended, of South Carolina Company and Lexington,
the general nature of the business which the Company proposes to do is the
manufacture, generation, transmission, distribution, purchase and sale, both at
wholesale and at retail, of electricity and gas, the sale of electric and gas
appliances, and the furnishing of bus transportation service in the City of
Columbia and its environs.
The general nature of the business provided in the charter, as amended, of
South Carolina Company is:
A. To construct, acquire by purchase, lease, consolidation,
merger or otherwise; to use, operate, maintain, sell,
convey, lease or otherwise dispose of, any works,
constructions, plants, systems or parts thereof, and any
and all rights or other property necessary or appropriate
to the production, use, distribution, sale, regulation,
control or application of electricity for any purpose
whatsoever; to generate electricity by water, steam or
other power; to produce, buy, acquire, deal in, use, lease,
sell, furnish, transmit and supply electricity in any form
and for any purpose whatsoever.
B. To purchase, install, deal in, use, sell, lease or
otherwise dispose of, machinery, generators, motors, lamps,
poles, wires, apparatus, equipment, devices, supplies and
articles of every kind pertaining to, or in any wise
connected with, the production, use, distribution,
regulation, control or application of electricity or
electrical apparatus for light, heat, power, railway,
manufacturing, and any and all other purposes.
C. To build, construct, acquire by purchase, lease, consolidation, merger
or otherwise, and operate street railways, motor bus lines and
transportation lines for freight and passengers, whether operated by
steam, electricity or any other motive power whatsoever, (except those
transportation lines classed as railroads) and to sell, convey, lease
or otherwise dispose of the same.
<PAGE>
D. To build, construct, acquire, by purchase, lease, consolidation, merger
or otherwise, and to maintain and operate parks, places of amusement
and other usual or useful adjuncts to such properties or business, and
to sell, convey, lease or otherwise dispose of the same.
E. To manufacture, purchase, produce, sell, furnish and
distribute for light, heat, power and any other purposes
whatsoever, natural or artificial gas and to construct,
equip, acquire by purchase, lease, consolidation, merger or
otherwise and to own, maintain, operate, sell, convey,
lease or otherwise dispose of, all necessary and convenient
works, conduits, plants, apparatus and connections for
holding, receiving, purifying, manufacturing, selling,
utilizing and distributing natural and artificial gas; and
to manufacture, purchase, sell or otherwise dispose of
chemicals or other products derived wholly or in part from
gas or gas works, or in the manufacture of gas, and to
purchase, install, manufacture, deal in, use, sell or
otherwise handle or dispose of gas fixtures and appliances
in any way used or useful in connection with the
utilization or distribution of natural or artificial gas.
F. To build, construct, acquire by purchase, lease,
consolidation, merger or otherwise; to own, equip, maintain
and operate telephone and telegraph lines of all kinds and
descriptions, and to sell, convey, lease, or otherwise
dispose of all necessary and convenient works, plants,
apparatus and connections necessary or desirable in
connection therewith; and to purchase, manufacture,
install, use, sell or otherwise deal in any and all
fixtures, appliances or apparatus, useful, necessary or
desirable in connection with the installation or operation
of telephone or telegraph lines or systems.
<PAGE>
G. To build, construct, acquire, by purchase, lease, consolidation, merger
or otherwise; to own, equip, maintain, operate, sell, convey, lease or
otherwise dispose of ice and refrigerating plants and to manufacture,
purchase, sell and deal in ice; handling, selling or dealing in the
same at retail and/or wholesale.
H. To build, construct, acquire by purchase, lease,
consolidation, merger or otherwise; to own, equip, hold,
operate, maintain, sell, convey, lease or otherwise dispose
of water powers, power plants, hydro-electric plants,
reservoirs, dams, canals, ditches, flumes, pipe lines and
such other works, plants, equipment, appliances and
appurtenances as may be necessary, useful or appropriate
for impounding, storing, conveying, distributing and
utilizing water for power, irrigation, sanitary, domestic,
manufacturing and otherwise and to use, supply and
otherwise dispose of water for all such uses; and to build,
construct, acquire by purchase, lease, consolidation,
merger or otherwise; to own, hold, operate, maintain, sell,
convey, lease or otherwise dispose of hydraulic and other
works, transmission lines, lines for the conveying of
electric current for power, lighting, heating or other
purposes and transforming and distributing stations and
circuits.
I. To acquire by purchase, lease, consolidation, merger or
otherwise; to hold, use, own, sell, convey, lease or
otherwise dispose of rights of way, easements, privileges,
grants, consents and franchises, including franchises or
special grants or privileges or consents from the State of
South Carolina or other States, or from counties, cities
and towns situate in South Carolina or other States, for
any of the foregoing businesses or purposes.
J. To acquire by purchase, lease, consolidation, merger or
otherwise; to hold, improve, develop, use, let, sell,
convey or otherwise dispose of, real estate and rights and
interests in or in respect to real estate or other
property; and to exercise the rights of eminent domain in
connection with any or all of the objects and purposes for
which the company is formed in all respects as such right
is now or shall hereafter be authorized by law.
<PAGE>
K. To purchase, hold, assign, transfer, mortgage, pledge or
otherwise dispose of the shares of the capital stock or any
bonds, securities, obligations or evidences of indebtedness
of any other corporation or corporations of this or any
other State, and, while owner of such stock, to exercise
all the rights, powers and privileges of ownership,
including the right to vote thereon, and to issue in
exchange for any such shares of capital stock, bonds,
securities, obligations or evidences of indebtedness, its
stocks, bonds, or other obligations.
L. To guarantee the payment of any bonds, debentures or other securities
or obligations issued by any company in which this company is
interested, and the payment of dividends and interest on any stocks,
bonds, debentures or other securities issued by any such corporation.
M. The corporation shall have all the powers now or hereafter
conferred by the laws of South Carolina on corporations
formed for similar objects or purposes, and may carry on
any business or operation deemed advantageous, incidental
or necessary to any of the purposes or objects hereinbefore
enumerated, and, in general, may do whatever a natural
person might do in the premises, and may conduct its
business in all its branches, not only in the State of
South Carolina but in any State, territory, possession or
dependency of the United States.
N. It is expressly provided that the foregoing shall be construed both as
objects and powers, and that the enumeration of specific objects,
purposes and powers shall in no wise be held or construed to limit or
restrict in any manner the general or incidental powers of the
corporation.
The general nature of the business provided in the charter, as amended, of
Lexington is to erect and maintain power houses for the generation of electric
power by steam or water power and to transmit by wire and sell such electric
power, to conduct, transact and carry on in all its branches the manufacture,
dyeing, finishing and sale of goods of every kind and description made of
cotton, wool or other fibrous material, either or both, of all descriptions
whatsoever, and any and all kinds of goods, wares and merchandise made of
leather, iron, wood or other material, and to buy and sell all material for
manufacture and all products of manufacture, and other goods and merchandise;
and to erect, maintain, own, lease and operate, or cause to be operated planing
mills, grist mills, saw mills, and all other kinds of mill buildings, machine
and work shops, stores, dwellings and other business premises, and to do all
such things as are necessary and usually incident to the proper conduct of all
or any portion of its business as above enumerated; to construct a dam or dams,
on its own lands, across the Saluda River, in Lexington County, at Dreher's or
Rauch's Shoals, or both, or at other points on their own land, across said
river, at which the said river is not now navigable, for the purpose of
utilizing the water power at these shoals to generate electricity and for other
purposes; and, having first obtained the approval of the County Commissioners of
Lexington or other Counties, Lexington shall have the right to erect poles along
the public highways of the County or Counties so approving, and hang wires
thereon, for the purpose of transmitting electric current from its power plant
on the Saluda River to towns and other municipalities and to manufacturing and
industrial enterprises.
<PAGE>
ARTICLE V
The total number of shares which the Company shall be authorized to issue,
and the number of such shares which shall be Preferred Stock of the par value of
$25 per share, issuable in series, Preferred Stock of the par value of $50 per
share, issuable in series, Preferred Stock of the par value of $100 per share,
issuable in series, and Common Stock of the par value of $4.50 per share is
specified in Exhibit A hereto.
The relevant information regarding the shares, including classes and series
of shares, which the Company shall be authorized to issue, and the designations,
relative rights, preferences, and limitations of the shares of each class, and
as among the presently established series of Preferred Stock designated as set
forth in Exhibit A hereto, and any additional series hereafter established by
the Board of Directors of the Company (the "Board of Directors") pursuant to
Section B.2 of this Article V, are as follows:
A. The Preferred Stock is senior to the Common Stock and the Common
Stock is subject to all rights and preferences of the Preferred Stock
as herein set forth.
B.1. The Preferred Stock shall be issuable in series and shall consist of
the authorized but unissued shares undesignated as to series and the
authorized and outstanding shares designated as to series specified
in Exhibit A hereto.
2. The authorized but unissued shares of the Preferred Stock
undesignated as to series may be issued in one or more
series which shall be established by the Board of
Directors. The authorized number of shares of any such
series, the designation of such series, and the relative
rights, preferences and limitations as among such series
and the series which are designated as set forth in
Exhibit A (in those respects in which the shares of one
series may vary from the shares of other series as herein
provided) shall be fixed and determined at any time prior
to the issuance thereof by resolution or resolutions of
the Board of Directors. All shares of the same series
shall be identical.
3. The Preferred Stock of all series shall be identical except as to the
par value (which shall be $25 per share, $50 per share, or $100 per
share as specified in Exhibit A hereto) and as to the following
relative rights and preferences:
(a) The rate of dividends on shares of such series;
(b) Whether shares of such series may be redeemed and, if so, the
redemption price and the terms and conditions of redemption;
(c) The amount payable upon shares of such series in the event of
voluntary and involuntary liquidation;
(d) Sinking fund provisions, if any, for the redemption or purchase
of shares of such series for any sinking fund or purchase fund;
(e) The terms and conditions, if any, on which shares of such
series may be converted into shares of any other class or
series; and
(f) The voting rights of the shares of such series.
Except as otherwise provided by law, by paragraph 2
of Section G of this Article V, or by the resolutions
establishing any series of Preferred Stock in accordance with the
provisions of Section B.2 above, whenever the consent or vote or
other action on the part of the holders of the Preferred Stock
may be required for any purpose, such consent, vote or other
action shall be taken by the holders of the Preferred Stock as a
single body (unless these Articles or the law of the State of
South Carolina specifically provides otherwise), and shall be
determined by weighing the vote cast for each share as follows:
(i) Each share of the Preferred Stock of the par value of $25
per share shall be entitled to one-quarter of one vote per
share;
(ii) Each share of the Preferred Stock of the par value of $50
per share identified in Exhibit A hereto as being entitled
to one vote per share shall have one vote per share;
(iii) Each share of the Preferred Stock of the par value of $50
per share identified in Exhibit A hereto as being entitled
to one-half of one vote per share shall have one-half of one
vote per share; and
(iv) Each share of the Preferred Stock of the par value of $100
per share shall be entitled to one vote per share.
C.1. Before any dividend shall be declared or paid upon or set
apart for, or any other distribution shall be made or
ordered in respect of, the Common Stock and before any
sum shall be paid or set apart for or applied to the
purchase, redemption or other retirement of stock of the
Company of any class, the holders of the Preferred Stock,
without preference or priority as between series, shall
be entitled to receive out of the assets of the Company
available for dividends, but only when and as declared by
the Board of Directors, dividends as follows:
<PAGE>
(a) in the case of the 5% Preferred Stock, at the rate
of but not exceeding Two Dollars and Fifty Cents
($2.50) per share per annum from July 1, 1943 in
respect of shares issued prior to October 1, 1943
and, in respect of shares issued on and after
October 1, 1943, from the quarterly dividend payment
date which coincides with or next precedes the date
of issue thereof, whichever is later, payable on
October 1, 1943 and quarterly thereafter as to
shares issued prior to such date and payable as to
all other shares thereof on the first day of either
January, April, July or October, whichever of said
days first occurs after the issue thereof, and
quarterly thereafter,
(b) in the case of the 4.60% Cumulative Preferred Stock,
at the rate of but not exceeding Two Dollars and
Thirty Cents ($2.30) per share per annum from the
date of the original issue of the first share
thereof, payable on the first day of either January,
April, July or October, whichever of said days first
occurs after the issue thereof, and quarterly
thereafter,
(c) in the case of the 4.50% Cumulative Preferred Stock,
at the rate of but not exceeding Two Dollars and
Twenty-five Cents ($2.25) per share per annum from
the date of the original issue of the first share
thereof, payable on the first day of either January,
April, July or October, whichever of said days first
occurs after the issue thereof, and quarterly
thereafter,
(d) in the case of the 4.60% (Series A) Cumulative
Preferred Stock, at the rate of but not exceeding
Two Dollars and Thirty Cents ($2.30) per share per
annum from the date of the original issue of the
first share thereof, payable on the first day of
either January, April, July or October, whichever of
said days first occurs after the issue thereof, and
quarterly thereafter,
(e) in the case of the 5.125% Cumulative Preferred
Stock, at the rate of but not exceeding Two Dollars
and Fifty-six and one-quarter Cents ($2.5625) per
share per annum from the date of the original issue
of the first share thereof, payable on the first day
of either January, April, July or October, whichever
of said days first occurs after the issue thereof,
and quarterly thereafter,
(f) in the case of the 4.60% (Series B) Cumulative
Preferred Stock, at the rate of but not exceeding
Two Dollars and Thirty Cents ($2.30) per share per
annum from the date of the original issue of the
first share thereof, payable on the first day of
either January, April, July or October, whichever of
said days first occurs after the issue thereof, and
quarterly thereafter,
<PAGE>
(g) in the case of the 6% Cumulative Preferred Stock, at the rate of
but not exceeding Three Dollars ($3.00) per share per annum from
the date of the original issue of the first share thereof,
payable on the first day of either January, April, July or
October, whichever of said days first occurs after the issue
thereof, and quarterly thereafter,
(h) in the case of the 9.40% Cumulative Preferred Stock,
at the rate of but not exceeding Four Dollars and
Seventy Cents ($4.70) per share per annum from the
date of the original issue of the first share
thereof, payable on the first day of either January,
April, July or October, whichever of said days first
occurs after the issue thereof, and quarterly
thereafter,
(i) in the case of the 8.12% Cumulative Preferred Stock,
at the rate of but not exceeding Eight Dollars and
Twelve Cents ($8.12) per share per annum from the
date of the original issue of the first share
thereof, payable on the first day of either January,
April, July or October, whichever of said days first
occurs after the issue thereof, and quarterly
thereafter,
(j) in the case of the 7.70% Cumulative Preferred Stock,
at the rate of but not exceeding Seven Dollars and
Seventy Cents ($7.70) per share per annum from the
date of the original issue of the first share
thereof, payable on the first day of either January,
April, July or October, whichever of said days first
occurs after the issue thereof, and quarterly
thereafter,
(k) in the case of the 8.40% Cumulative Preferred Stock,
at the rate of but not exceeding Eight Dollars and
Forty Cents ($8.40) per share per annum from the
date of the original issue of the first share
thereof, payable on the first day of either January,
April, July or October, whichever of said days first
occurs after the issue thereof, and quarterly
thereafter,
(l) in the case of the 8.72% Cumulative Preferred Stock,
at the rate of but not exceeding Four Dollars and
Thirty-six Cents ($4.36) per share per annum from
the date of the original issue of the first share
thereof, payable on the first day of either January,
April, July or October, whichever of said days first
occurs after the issue thereof, and quarterly
thereafter, and
<PAGE>
(m) in the case of any series of Preferred Stock
established by the Board of Directors pursuant to
Section B.2 of this Article V, at such rate as may
be fixed and determined by the resolution or
resolutions of the Board of Directors establishing
such series from the date of original issue of the
first share thereof, payable on the first day of
either January, April, July or October, whichever of
said days first occurs after the issue thereof, and
quarterly thereafter.
Such dividends upon the Preferred Stock shall be cumulative from and
after the respective dates specified above, so that if dividends, at
the rate per share per annum specified for each of the series
designated as set forth in (a) through (m) above, and at such rate as
may be fixed and determined by the resolution or resolutions adopted
by the Board of Directors pursuant to Section B.2 (or its successor)
of this Article V in the case of any series of Preferred Stock
established by the Board of Directors pursuant to said Section B.2
(or its successor), from the date upon which the dividends thereon
became cumulative to the end of the then quarterly dividend period,
shall not have been paid or declared and a sum sufficient for the
payment thereof set apart, then the amount of the deficiency shall be
fully paid, but without interest, or dividends upon said shares in
such amount shall be declared and a sum sufficient for the payment
thereof set apart, before any dividends shall be declared or paid
upon or set apart for, or any other distribution shall be made or
ordered in respect of, the Common Stock and before any sum shall be
paid or set apart for or applied to the purchase, redemption or
retirement of stock of the Company of any class. The holders of the
Preferred Stock shall not be entitled to participate in or receive
any other or further dividend.
2. In the event that the assets of the Company available for
dividends are insufficient to pay or to justify making
provision for the payment of the full quarterly dividend
on the Preferred Stock of all series then outstanding or
in the event of arrearages thereon, the Company shall, so
long as Preferred Stock of more than one series is
outstanding, make dividend payments ratably, to the
extent declared, upon all outstanding shares of Preferred
Stock of all series then outstanding in proportion to the
amount of the cumulative dividends (including arrears, if
any) to which each outstanding share of Preferred Stock
of each series is entitled upon the date of such dividend
payment.
3. After the requirements in respect of the dividends upon
the Preferred Stock, as herein before set forth, to the
end of the then current quarterly dividend period for
said stock shall have been met, and subject to any
Purchase Fund or Sinking Fund provisions heretofore or
hereafter fixed and determined for any series of
Preferred Stock pursuant to this Article V, the holders
of the Common Stock shall be entitled to receive out of
the remaining assets of the Company available for
dividends, such dividends as may from time to time be
declared by the Board of Directors, subject, however, so
long as any shares of Preferred Stock shall be
outstanding, to the following restrictions:
(a) no dividends shall be paid on the Common Stock if
after such dividend the aggregate amount of such
dividends paid since December 31, 1945, exceeds the
sum of the aggregate amount credited to earned
surplus subsequent to December 31, 1945, less the
aggregate amount charged to earned surplus
subsequent to December 31, 1945, otherwise than with
respect to any such dividends, provided, however,
that no charge shall be made to capital surplus
accumulated prior to January 1, 1946 or to earned
surplus accumulated prior to January 1, 1946 except
that the Company may make charges to earned surplus
accumulated prior to January 1, 1946 or to capital
surplus accumulated prior to January 1, 1946 (i) for
the write-down or write-off of any portion of the
Company's Electric Plant which may be classified as
Electric Plant Adjustment or any portion of the
Company's other utility plant which may be
classified as plant adjustment or plant acquisition
adjustment, which write-down or write-off the
Company is required to make pursuant to an order of
the South Carolina Public Service Commission or of
the Federal Power Commission entered in connection
with the determination of the "Original Cost", or
(ii) for the write-down or write-off of any portion
of the Company's Electric Plant which may be
classified as Electric Plant Acquisition Adjustment
or Electric Plant Adjustment, which write-down or
write-off the Company is required to make pursuant
to an order of the Federal Power Commission entered
in connection with the determination of the "Actual
Legitimate Original Cost" of the properties of the
Company, and
(b) if and so long as the Common Stock Equity, as
hereinafter defined, at the end of the calendar
month immediately preceding the date on which a
dividend on Common Stock is declared is, or as a
result of such dividend would become, less than
twenty per centum (20%) of Total Capitalization, as
defined, the Company shall not declare dividends on
the Common Stock in an amount which, together with
all other dividends on Common Stock declared within
the year ending with (and including) the date of
such dividend declaration, exceeds fifty per centum
(50%) of the Net Income of the Company Available for
Dividends on the Common Stock, as defined, for the
twelve full calendar months immediately preceding
the month in which such dividends are declared, and
(c) if and so long as the Common Stock Equity at the end
of the calendar month immediately preceding the date
on which a dividend on Common Stock is declared is,
or as a result of such dividend would become, less
than twenty-five per centum (25%) but not less than
twenty per centum (20%) of Total Capitalization, the
Company shall not declare dividends on the Common
Stock in an amount which, together with all other
dividends on Common Stock declared subsequent to
December 31, 1945, exceeds seventy-five per centum
(75%) of Net Income of the Company Available for
Dividends on the Common Stock for the period from
December 31, 1945 to and including the end of the
calendar month immediately preceding the month in
which such dividends are declared, and
(d) at any time when the Common Stock Equity is twenty-
five per centum (25%) or more of Total
Capitalization, the Company may not pay dividends on
shares of the Common Stock which would reduce the
Common Stock Equity below twenty-five per centum
(25%) of Total Capitalization; provided, however,
that even though the payment of such dividends would
reduce the Common Stock Equity below twenty-five per
centum (25%) of Total Capitalization, such dividends
may be declared to the extent that the same,
together with all dividends on Common Stock declared
subsequent to December 31, 1945, do not exceed
seventy-five per centum (75%) of the Net Income of
the Company Available for Dividends on the Common
Stock for the period from December 31, 1945 to and
including the end of the calendar month immediately
preceding the month in which such dividends are
declared.
In computing the amount available for any dividend,
distribution, purchase or acquisition, charges and credits to
earned surplus shall be made in accordance with sound accounting
practice.
4. For the purpose of this Section C of Article V:
The word "dividends" when used with reference to the Common
Stock shall include dividends or other distributions on or the purchase
or other acquisition for value of shares of Common Stock, but shall not
include any portion of dividends payable in shares of the Common Stock.
The term "Common Stock Equity" shall mean the sum of the amount
of the par or stated value of the issued and outstanding shares of the
Common Stock and the surplus (including capital or paid-in surplus) and
premium on Common Stock of the Company less the amount known, or
estimated if not known, to represent the excess, if any, of recorded
value over original cost of used and useful utility plant and other
property, and less any items set forth on the asset side of the balance
sheet as a result of accounting convention such as unamortized debt
discount and expense, capital stock discount and expense, and the
excess, if any, of the aggregate amount payable on involuntary
dissolution, liquidation or winding up of the Company upon all
outstanding shares of Preferred Stock of all series over the aggregate
par value of such shares, unless such amount or items so to be deducted
in the determination of the Common Stock Equity are being amortized,
depreciated, or otherwise disposed of.
<PAGE>
The term "Total Capitalization" shall mean the aggregate of the
par value of the issued and outstanding shares of stock of all classes
of the Company and the surplus (including capital or paid-in surplus)
and premium on capital stock of the Company, plus the principal amount
of all outstanding debt maturing more than twelve months from the date
of the determination of Total Capitalization.
The term "Net Income of the Company Available for Dividends on
the Common Stock" shall mean, for any twelve months' period, or for the
period from December 31, 1945 to the date as of which such net income is
being determined, as the case may be, an amount equal to the sum of the
operating revenues and income from investments and other miscellaneous
income for such period, less all deductions (including accruals) for
operating expenses for such period, including maintenance and provision
for depreciation or amortization, income and excess profits and other
taxes, interest charges, other amortization charges and other income
deductions (provided, however, that no deduction shall be made with
respect to the appropriation in the amount of $500,000 made in May, 1948
to create a reserve to partly provide for the excess of cost of
investment in South Carolina Power Company over its underlying book
value at date of acquisition by the Company), all as shall be determined
in accordance with sound accounting practice, and less also current and
accrued dividends on all outstanding shares of stock of the Company
ranking prior to the Common Stock as to dividends or assets.
For the purpose of determining Net Income of the Company
Available for Dividends on the Common Stock the deduction on account of
provision for depreciation on all the property of the Company shall be
in the amount therefor shown on the books of the Company but, with
respect to property of the Company other than the Company's motor coach
transportation property, shall not be less than 15% of the gross
operating revenues of the Company derived from the sale of electricity
and manufactured or natural gas during such period after deducting from
such revenues an amount equal to the aggregate cost of electricity or
manufactured or natural gas purchased during such period for the purpose
of resale in connection with the operation of the Company's operating
property, less an amount equal to the aggregate of the charges to
operating expense during such period for current repairs and maintenance
of such operating property.
5. If at the time when any calculation of Common Stock Equity,
Total Capitalization or Net Income of the Company Available for
Dividends on the Common Stock is required to be made, the Company shall
have one or more subsidiaries whose accounts may properly be
consolidated with the accounts of the Company, such calculation shall be
made for the Company with such subsidiaries on a consolidated basis in
accordance with sound accounting practice.
6. Anything herein contained to the contrary notwithstanding,
the rights of the holders of all classes of stock of the Company in
respect of dividends shall at all times be subject to the power of the
Board of Directors from time to time to set aside such reserves and/or
to make such other provisions, if any, for working capital and for
additions and improvements to fixed properties and equipment as said
Board shall deem to be necessary or advisable.
D. In the event of any liquidation, dissolution or winding
up of the Company, whether voluntary or involuntary, or
any reduction of its capital stock resulting in any
distribution of its assets to its stockholders, the
holders of the Preferred Stock, without preference or
priority as between series, shall be entitled to
receive out of the assets of the Company, whether from
capital, from surplus or from earnings, available for
distribution to its stockholders, before any amount shall be
paid to the holders of the Common Stock, a sum per share
equal to the par value per share, plus, in the case of any
distribution resulting from a reduction of capital stock or
in the event that such dissolution, liquidation or winding
up shall have been voluntary, (a) in the case of the 5%
Preferred Stock a premium of Two Dollars and Fifty Cents
($2.50) per share, (b) in the case of the presently
designated series of Preferred Stock as set forth in
Exhibit A hereto a premium per share in an amount equal to
the difference between the par value per share and the then
redemption price per share as provided in Section E of this
Article V, and (c) in the case of any series of Preferred
Stock established by the Board of Directors pursuant to
Section B.2 (or its successor) of this Article V, a premium
in an amount equal to the difference between the par value
per share and the redemption price per share of shares of
such series fixed and determined by the resolution or
resolutions of the Board of Directors establishing such
series, in effect at the time of such voluntary dissolution,
liquidation or winding up, and in addition thereto, in all
cases, an amount which, together with the aggregate of the
dividends previously paid upon such share, will be equal, in
the case of all presently designated series as set forth in
Exhibit A hereto, to the annual dividend rate for such
series (but without interest) as set forth in 1(a) through
1(m) of Section C.1 of this Article V, from the date upon
which the dividends thereon became cumulative to the date of
the distribution upon such liquidation or dissolution or
winding up or reduction, and the holders of the Preferred
Stock shall not be entitled to any other or further
distribution. If the assets of the Company available for
distribution to the holders of the Preferred Stock shall be
insufficient to permit the payment in full of the sums
payable as aforesaid to the holders of all the outstanding
shares of Preferred Stock of all series then outstanding
upon such liquidation or dissolution or winding up or
reduction, all such assets of the Company shall be
distributed ratably among the holders of all the outstanding
shares of Preferred Stock of all series then outstanding,
without preference or priority as between series, in
proportion to the full preferential amount (including
cumulative dividends and premiums, if any) which each such
share would be entitled to receive, if such assets were
sufficient to permit distribution in full as aforesaid. The
redemption by the Company of its Preferred Stock of any
series or the purchase of shares of its Preferred Stock of
<PAGE>
any series or of its Common Stock in any manner permitted by law shall
not for the purpose of this Section D be regarded as a liquidation,
dissolution or winding up of the Company or as a reduction of its
capital; provided that, except as provided in any Purchase Fund or
Sinking Fund provisions heretofore or hereafter fixed and determined for
any series of Preferred Stock pursuant to this Article V, the Company
shall not, so long as any shares of Preferred Stock remain outstanding,
purchase any of its Preferred Stock or Common Stock otherwise than out
of earned surplus or net profits of the Company at the time available
for payment of dividends on its Common Stock or from the proceeds
received within a period of six (6) months prior to such purchase from
the sale of stock of any class subordinate to the Preferred Stock both
as to dividends and assets. Nothing in this Section D contained,
however, shall prevent the Company from acquiring its Preferred Stock of
any series for retirement by the exchange therefor of any class of stock
of the Company which is now or hereafter may be lawfully authorized. A
consolidation or merger of the Company with, or into, any other
corporation or corporations, or a consolidation or merger of any other
corporation or corporations into the Company, or a sale or transfer of
substantially all of its assets as an entirety, shall not be regarded as
a liquidation, dissolution or winding up of the Company within the
meaning of this Section D. A dividend or distribution to stockholders
from net profits or surplus earned after the date of any such reduction
of capital stock as does not result in any distribution of assets to
holders of its Common Stock, or the purchase or redemption of Preferred
Stock of any series or of Common Stock by the application of such net
profits or surplus, shall not be deemed to be a distribution resulting
from such reduction. After payment in full of the sums hereinabove
stated to be payable in respect of the Preferred Stock upon any such
liquidation, dissolution, winding up, reduction or other distribution,
then the remaining assets of the Company available for distribution to
the stockholders shall be distributed ratably among the holders of the
Common Stock.
1. On October 1, 1951 and on October 1 in each year
thereafter so long as any of the 4.60% Cumulative
Preferred Stock shall remain outstanding, the Company
shall, subject to the provisions of Section C of this
Article, set aside as a Purchase Fund for the 4.60%
Cumulative Preferred Stock (herein called the "Purchase
Fund") an amount equal to 2-1/2% of the aggregate par
value of the largest number of shares of 4.60%
Cumulative Preferred Stock at any time theretofore
outstanding; provided, however, that amounts set aside
for Purchase Funds heretofore or hereafter established
for the several series of Preferred Stock shall be set
aside without preference or priority as between series
so that if at any time there shall be a deficiency
(including any amount then required to be set aside) in
the Purchase Funds for two or more series of Preferred
Stock, any satisfaction of such deficiencies shall be
made simultaneously for such two or more Purchase Funds
in proportion to the amounts of the respective
deficiencies therein. On or before each such October 1
the Company shall in writing, addressed to all holders
of record of the 4.60% Cumulative Preferred Stock,
invite tenders of 4.60% Cumulative Preferred Stock at
the par value thereof, plus an amount equal to accrued
dividends to the next succeeding October 31, in an
amount sufficient to exhaust the moneys so set aside in
the Purchase Fund. The invitations for tenders shall
specify how tenders shall be made and how notification
of acceptance thereof will be given. Tenders may be
made on or before October 25, in each year. If the par
value of the shares of 4.60% Cumulative Preferred Stock
tendered in response to any such invitation aggregates
more than the amount available in the Purchase Fund such
tenders shall be accepted pro rata in proportion to the
total number of shares of 4.60% Cumulative Preferred
Stock tendered respectively by the holders thereof who
shall have made such tenders, provided that in any
event, each holder of 4.60% Cumulative Preferred Stock
shall be entitled to tender and to have purchased by the
Company on each such invitation, at least the number of
shares of the 4.60% Cumulative Preferred Stock held by
such holder which bears the same ratio to the total
number of shares to be purchased pursuant to the
invitation as the number of shares held of record by
such holder at the close of business on the last
business day before the date of such invitation, bears
to the total number of shares of 4.60% Cumulative
Preferred Stock then outstanding. Tenders shall be
accepted of sufficient shares of 4.60% Cumulative
Preferred Stock to exhaust all of the moneys in the
Purchase Fund. Payment for 4.60% Cumulative Preferred
Stock for which tenders shall have been accepted shall
be made on the October 31 following the last day for the
making of tenders. To the extent that tenders in any
year are not made in an amount sufficient to exhaust all
of the moneys so held in the Purchase Fund, such excess
moneys in the Purchase Fund for that year shall be
released from the Purchase Fund and become free funds to
the Company. The obligation to set aside amounts in the
Purchase Fund shall be cumulative, so that if, on
October 1 of each year cash in the required amount shall
not have been set aside in full, the amount of the
deficiency shall be added to the Purchase Fund for the
next succeeding year until the total aggregate amount
which shall have been set aside in such Purchase Fund,
and used or released to the Company in accordance with
the provisions of this Section D.1, shall equal 2-1/2%
of the aggregate par value of the largest number of
shares of 4.60% Cumulative Preferred Stock at any time
theretofore outstanding, multiplied by the number of
twelve month periods which shall have elapsed since
October 1, 1950. No dividends shall be declared or paid
upon or set apart for any shares of Common Stock or any
sums applied to the purchase, redemption or other
retirement of Common Stock, so long as any such
deficiency shall exist in the Purchase Fund. Amounts to
satisfy any such deficiency in the Purchase Fund, in
whole or in part, may be set aside in the Purchase Fund
at any time, for application in the manner aforesaid on
the next succeeding October 1, provided however, that if
at any time between any October 31 and July I of the
following year the amount so set aside in the Purchase
Fund shall aggregate $30,000 or more, the Company shall
immediately invite tenders of 4.60% Cumulative Preferred
Stock in the manner aforesaid, in an amount sufficient
to exhaust the moneys in the Purchase Fund, at the par
value thereof plus an amount equal to accrued dividends
to a date which shall be thirty days from the date of
such invitation, the invitation to remain open for
twenty-five days; and on or before the thirtieth day
following the date of such invitation, the Company shall
accept tenders and make payment for 4.60% Cumulative
Preferred Stock tendered, at the pace aforesaid in the
same manner as above provided with respect to moneys set
aside in the Purchase Fund on October 1 in each year,
and to the extent that tenders are not made in an amount
sufficient to exhaust the moneys so held in the Purchase
Fund, such moneys shall likewise be released from the
Purchase Fund and become free funds to the Company.
Amounts equal to accrued dividends on 4.60% Cumulative
Preferred Stock purchased through the Purchase Fund
shall be paid by the Company by the use of moneys not in
the Purchase Fund, and shall not be charged to the
Purchase Fund. Shares of 4.60% Cumulative Preferred
Stock purchased through the Purchase Fund shall be
cancelled and shall not be reissued.
2. On June 1, 1957 and on June 1 in each year thereafter so
long as any of the 4.50% Cumulative Preferred Stock
shall remain outstanding, the Company shall, subject to
the provisions of Section C of this Article, set aside
as a Purchase Fund for the 4.50% Cumulative Preferred
Stock (herein called the "4.50% Preferred Stock Purchase
Fund") an amount equal to 2% of the aggregate par value
of the largest number of shares of 4.50% Cumulative
Preferred Stock at any time theretofore outstanding;
provided, however, that amounts set aside for Purchase
Funds heretofore or hereafter established for the
several series of Preferred Stock shall be set aside
without preference or priority as between series so that
if at any time there shall be a deficiency (including
any amount then required to be set aside) in the
Purchase Funds for two or more series of Preferred
Stock, any satisfaction of such deficiencies shall be
made simultaneously for such two or more Purchase Funds
in proportion to the amounts of the respective
deficiencies therein. On or before each such June 1 the
Company shall in writing, addressed to all holders of
record of the 4.50% Cumulative Preferred Stock, invite
tenders of 4.50% Cumulative Preferred Stock at the par
value thereof, plus an amount equal to accrued dividends
to the next succeeding June 30, in an amount sufficient
to exhaust the moneys so set aside in the 4.50%
Preferred Stock Purchase Fund. The invitations for
tenders shall specify how tenders shall be made and how
notification of acceptance thereof will be given.
Tenders may be made on or before June 25, in each year.
If the par value of the shares of 4.50% Cumulative
Preferred Stock tendered in response to any such
invitation aggregates more than the amount available in
the 4.50% Preferred Stock Purchase Fund such tenders
shall be accepted pro rata (as nearly as practicable
without the purchase or issuance of fractional shares or
scrip therefor) in proportion to the total number of
shares of 4.50% Cumulative Preferred Stock tendered
respectively by the holders thereof who shall have made
such tenders, provided that in any event, each holder of
4.50% Cumulative Preferred Stock shall be entitled to
tender and to have purchased by the Company on each such
invitation, at least the number of shares (as nearly as
practicable without the purchase or issuance of
fractional shares or scrip therefor) of the 4.50%
Cumulative Preferred Stock held by such holder which
bears the same ratio to the total number of shares to be
purchased pursuant to the invitation as the number of
shares held of record by such holder at the close of
business on the last business day before the date of
such invitation, bears to the total number of shares of
4.50% Cumulative Preferred Stock then outstanding.
Tenders shall be accepted of sufficient shares of 4.50%
Cumulative Preferred Stock to exhaust all of the moneys
in the 4.50% Preferred Stock Purchase Fund. Payment for
4.50% Cumulative Preferred Stock for which tenders shall
have been accepted shall be made on the June 30
following the last day for the making of tenders. To
the extent that tenders in any year are not made in an
amount sufficient to exhaust all of the moneys so held
in the 4.50% Preferred Stock Purchase Fund, such excess
moneys in the 4.50% Preferred Stock Purchase Fund for
that year shall be released from the 4.50% Preferred
Stock Purchase Fund and become free funds to the
Company. The obligation to set aside amounts in the
4.50% Preferred Stock Purchase Fund shall be cumulative,
so that if, on June 1 of each year cash in the required
amount shall not have been set aside in full, the amount
of the deficiency shall be added to the 4.50% Preferred
Stock Purchase Fund for the next succeeding year until
the total aggregate amount which shall have been set
aside in such 4.50% Preferred Stock Purchase Fund, and
used or released to the Company in accordance with the
provisions of this Section D.2, shall equal 2% of the
aggregate par value of the largest number of shares of
4.50% Cumulative Preferred Stock at any time theretofore
outstanding, multiplied by the number of twelve month
periods which shall have elapsed since June 1, 1956. No
dividends shall be declared or paid upon or set apart
for any shares of Common Stock or any sums applied to
the purchase, redemption or other retirement of Common
Stock, so long as any such deficiency shall exist in the
4.50% Preferred Stock Purchase Fund. Amounts to satisfy
any such deficiency in the 4.50% Preferred Stock
Purchase Fund, in whole or in part, may be set aside in
the 4.50% Preferred Stock Purchase Fund at any time, for
application in the manner aforesaid on the next
succeeding June 1, provided however, that if at any time
between any June 30 and March 1 of the following year
the amount so set aside in the 4.50% Preferred Stock
Purchase Fund shall aggregate $40,000 or more, the
Company shall immediately invite tenders of 4.50%
Cumulative Preferred Stock in the manner aforesaid, in
an amount sufficient to exhaust the moneys in the 4.50%
Preferred Stock Purchase Fund, at the par value thereof
plus an amount equal to accrued dividends to a date
<PAGE>
which shall be thirty days from the date of such invitation, the
invitation to remain open for twenty-five days; and on or before the
thirtieth day following the date of such invitation, the Company
shall accept tenders and make payment for 4.50% Cumulative Preferred
Stock tendered, at the price aforesaid in the same manner as above
provided with respect to moneys set aside in the 4.50% Preferred
Stock Purchase Fund on June 1 in each year, and to the extent that
tenders are not made in an amount sufficient to exhaust the moneys
so held in the 4.50% Preferred Stock Purchase Fund such moneys shall
likewise be released from the 4.50% Preferred Stock Purchase Fund
and become free funds to the Company. Amounts equal to accrued
dividends on 4.50% Cumulative Preferred Stock purchased through the
4.50% Preferred Stock Purchase Fund shall be paid by the Company by
the use of moneys not in the 4.50% Preferred Stock Purchase Fund,
and shall not be charged to the 4.50% Preferred Stock Purchase Fund.
Shares of 4.50% Cumulative Preferred Stock purchased through the
4.50% Preferred Stock Purchase Fund shall be cancelled and shall not
be reissued.
3. On June 1, 1958 and on June 1 in each year thereafter so
long as any of the 4.60% (Series A) Cumulative Preferred
Stock shall remain outstanding, the Company shall,
subject to the provisions of Section C of this Article,
set aside as a Purchase Fund for the 4.60% (Series A)
Cumulative Preferred Stock (herein called the "4.60%
(Series A) Preferred Stock Purchase Fund") an amount
equal to 2% of the aggregate par value of the largest
number of shares of 4.60% (Series A) Cumulative
Preferred Stock at any time theretofore outstanding;
provided, however, that amounts set aside for Purchase
Funds heretofore or hereafter established for the
several series of Preferred Stock shall be set aside
without preference or priority as between series so that
if at any time there shall be a deficiency (including
any amount then required to be set aside) in the
Purchase Funds for two or more series of Preferred
Stock, any satisfaction of such deficiencies shall be
made simultaneously for such two or more Purchase Funds
in proportion to the amounts of the respective
deficiencies therein. On or before each such June 1 the
Company shall in writing, addressed to all holders of
record of the 4.60% (Series A) Cumulative Preferred
Stock, invite tenders of 4.60% (Series A) Cumulative
Preferred Stock at the par value thereof, plus an amount
equal to accrued dividends to the next succeeding June
30, in an amount sufficient to exhaust the moneys so set
aside in the 4.60% (Series A) Preferred Stock Purchase Fund. The
invitations for tenders shall specify how tenders shall be made and
how notification of acceptance thereof will be given. Tenders may be
made on or before June 25, in each year. If the par value of the
shares of 4.60% (Series A) Cumulative Preferred Stock tendered in
response to any such invitation aggregates more than the amount
available in the 4.60% (Series A) Preferred Stock Purchase Fund such
tenders shall be accepted pro rata (as nearly as practicable without
the purchase or issuance of fractional shares or scrip therefor) in
proportion to the total number of shares of 4.60% (Series A)
Cumulative Preferred Stock tendered respectively by the holders
thereof who shall have made such tenders, provided that in any event,
each holder of 4.60% (Series A) Cumulative Preferred Stock shall be
entitled to tender and to have purchased by the Company on each such
invitation, at least the number of shares (as nearly as practicable
without the purchase or issuance of fractional shares or scrip
therefor) of the 4.60% (Series A) Cumulative Preferred Stock held by
such holder which bears the same ratio to the total number of shares
to be purchased pursuant to the invitation as the number of shares
held of record by such holder at the close of business on the last
business day before the date of such invitation, bears to the total
number of shares of 4.60% (Series A) Cumulative Preferred Stock then
outstanding. Tenders shall be accepted of sufficient shares of 4.60%
(Series A) Cumulative Preferred Stock to exhaust all of the moneys in
the 4.60% (Series A) Preferred Stock Purchase Fund. Payment for 4.60%
(Series A) Cumulative Preferred Stock for which tenders shall have
been accepted shall be made on the June 30 following the last day for
the making of tenders. To the extent that tenders in any year are not
made in an amount sufficient to exhaust all of the moneys so held in
the 4.60% (Series A) Preferred Stock Purchase Fund, such excess
moneys in the 4.60% (Series A) Preferred Stock Purchase Fund for that
year shall be released from the 4.60% (Series A) Preferred Stock
Purchase Fund and become free funds to the Company. The obligation to
set aside amounts in the 4.60% (Series A) Preferred Stock Purchase
Fund shall be cumulative, so that if, on June I of each year cash in
the required amount shall not have been set aside in full, the amount
of the deficiency shall be added to the 4.60% (Series A) Preferred
Stock Purchase Fund for the next succeeding year until the total
aggregate amount which shall have been set aside in such 4.60%
(Series A) Preferred Stock Purchase Fund, and used or released to the
Company in accordance with the provisions of this Section D.3, shall
equal 2% of the aggregate par value of the largest number of shares
of 4.60% (Series A) Cumulative Preferred Stock at any time
theretofore outstanding, multiplied by the number of twelve month
periods which shall have elapsed since June 1, 1957. No dividends
shall be declared or paid upon or set apart for any shares of Common
Stock or any sums applied to the purchase, redemption or other
retirement of Common Stock, so long as any such deficiency shall
exist in the 4.60% (Series A) Preferred Stock Purchase Fund. Amounts
to satisfy any such deficiency in the 4.60% (Series A) Preferred
Stock Purchase Fund, in whole or in part, may be set aside in the
4.60% (Series A) Preferred Stock Purchase Fund at any time, for
application in the manner aforesaid on the next succeeding June 1,
provided however, that if at any time between any June 30 and March I
of the following year the amount so set aside in the 4.60% (Series A)
Preferred Stock Purchase Fund shall aggregate $50,000 or more, the
Company shall immediately invite tenders of 4.60% (Series
<PAGE>
A) Cumulative Preferred Stock in the manner aforesaid, in an amount
sufficient to exhaust the moneys in the 4.60% (Series A) Preferred
Stock Purchase Fund, at the par value thereof plus an amount equal to
accrued dividends to a date which shall be thirty days from the date
of such invitation, the invitation to remain open for twenty-five
days; and on or before the thirtieth day following the date of such
invitation, the Company shall accept tenders and make payment for
4.60% (Series A) Cumulative Preferred Stock tendered, at the price
aforesaid in the same manner as above provided with respect to moneys
set aside in the 4.60% (Series A) Preferred Stock Purchase Fund on
June 1 in each year, and to the extent that tenders are not made in
an amount sufficient to exhaust the moneys so held in the 4.60%
(Series A) Preferred Stock Purchase Fund, such moneys shall likewise
be released from the 4.60% (Series A) Preferred Stock Purchase Fund
and become free funds to the Company. Amounts equal to accrued
dividends on 4.60% (Series A) Cumulative Preferred Stock purchased
through the 4.60% (Series A) Preferred Stock Purchase Fund shall be
paid by the Company by the use of moneys not in the 4.60% (Series A)
Preferred Stock Purchase Fund, and shall not be charged to the 4.60%
(Series A) Preferred Stock Purchase Fund. Shares of 4.60% (Series A)
Cumulative Preferred Stock purchased through the 4.60% (Series A)
Preferred Stock Purchase Fund shall be cancelled and shall not be
reissued.
4. On April 1, 1963 and on April 1 in each year thereafter
so long as any of the 5.125% Cumulative Preferred Stock
shall remain outstanding, the Company shall, subject to
the provisions of Section C of this Article, set aside as
a Purchase Fund for the 5.125% Cumulative Preferred Stock
(herein called the "5.125% Preferred Stock Purchase
Fund") an amount equal to 1% of the aggregate par value
of the largest number of shares of 5.125% Cumulative
Preferred Stock at any time theretofore outstanding;
provided, however, that amounts set aside for Purchase
Funds heretofore or hereafter established for the several
series of Preferred Stock shall be set aside without
preference or priority as between series so that if at
any time there shall be a deficiency (including any
amount then required to be set aside) in the Purchase
Funds for two or more series of Preferred Stock, any
satisfaction of such deficiencies shall be made
simultaneously for such two or more Purchase Funds in
proportion to the amounts of the respective deficiencies
therein. On or before each such April 1 the Company
shall in writing, addressed to all holders of record of
the 5.125% Cumulative Preferred Stock, invite tenders of
5.125% Cumulative Preferred Stock at the par value
thereof, plus an amount equal to accrued dividends to the
next succeeding April 30, in an amount sufficient to
exhaust the moneys so set aside in the 5.125% Preferred
Stock Purchase Fund. The invitations for tenders shall
specify how tenders shall be made and how notification of
acceptance thereof will be given. Tenders may be made on
or before April 25, in each year. If the par value of
the shares of 5.125% Cumulative Preferred Stock tendered
in response to any such invitation aggregates more than
the amount available in the 5.125% Preferred Stock
Purchase Fund such tenders shall be accepted pro rata (as
nearly as practicable without the purchase or issuance of
fractional shares or scrip therefor) in proportion to the
total number of shares of 5.125% Cumulative Preferred
Stock tendered respectively by the holders thereof who
shall have made such tenders, provided that in any event,
each holder of 5.125% Cumulative Preferred Stock shall be
entitled to tender and to have purchased by the Company
on each such invitation, at least the number of shares
(as nearly as practicable without the purchase or
issuance of fractional shares or scrip therefor) of the
5.125% Cumulative Preferred Stock held by such holder
which bears the same ratio to the total number of shares
to be purchased pursuant to the invitation as the number
of shares held of record by such holder at the close of
business on the last business day before the date of such
invitation, bears to the total number of shares of 5.125%
Cumulative Preferred Stock then outstanding. Tenders
shall be accepted of sufficient shares of 5.125%
Cumulative Preferred Stock to exhaust all of the moneys
in the 5.125% Preferred Stock Purchase Fund. Payment for
5.125% Cumulative Preferred Stock for which tenders shall
have been accepted shall be made on the April 30
following the last day for the making of tenders. To the
extent that tenders in any year are not made in an amount
sufficient to exhaust all of the moneys so held in the
5.125% Preferred Stock Purchase Fund, such excess moneys
in the 5.125% Preferred Stock Purchase Fund for that year
shall be released from the 5.125% Preferred Stock
Purchase Fund and become free funds to the Company. The
obligation to set aside amounts in the 5.125% Preferred
Stock Purchase Fund shall be cumulative, so that if, on
April 1 of each year cash in the required amount shall
not have been set aside in full, the amount of the
deficiency shall be added to the 5.125% Preferred Stock
Purchase Fund for the next succeeding year until the
total aggregate amount which shall have been set aside in
such 5.125% Preferred Stock Purchase Fund, and used or
released to the Company in accordance with the provisions
of this Section D.4, shall equal 1% of the aggregate par
value of the largest number of shares of 5.125%
Cumulative Preferred Stock at any time theretofore
outstanding, multiplied by the number of twelve month
periods which shall have elapsed since April 1, 1962. No
dividends shall be declared or paid upon or set apart for
any shares of Common Stock or any sums applied to the
purchase, redemption or other retirement of Common Stock,
so long as any such deficiency shall exist in the 5.125%
Preferred Stock Purchase Fund. Amounts to satisfy any
such deficiency in the 5.125% Preferred Stock Purchase
Fund, in whole or in part, may be set aside in the 5.125%
Preferred Stock Purchase Fund at any time, for
application in the manner aforesaid on the next
succeeding April 1, provided however, that if at any time
between any April 30 and January 1 of the following year
the amount so set aside in the 5.125% Preferred Stock
Purchase Fund shall aggregate $50,000 or more, the
Company shall immediately invite tenders of 5.125%
Cumulative Preferred Stock in the manner aforesaid, in an
amount sufficient to exhaust the moneys in the 5.125%
Preferred Stock Purchase Fund, at the par value thereof
plus an amount equal to accrued dividends to a date which
shall be thirty days from the date of such invitation,
the invitation to remain open for twenty-five days; and
on or before the thirtieth day following the date of such
invitation, the Company shall accept tenders and make
payment for 5.125% Cumulative Preferred Stock tendered,
at the price aforesaid in the same manner as above
provided with respect to moneys set aside in the
5.125% Preferred Stock Purchase Fund on April I in each
year, and to the extent that tenders are not made in an
amount sufficient to exhaust the moneys so held in the
5.125% Preferred Stock Purchase Fund, such moneys shall
likewise be released from the 5.125% Preferred Stock
Purchase Fund and become free funds to the Company.
Amounts equal to accrued dividends on 5.125% Cumulative
Preferred Stock purchased through the 5.125% Preferred
Stock Purchase Fund shall be paid by the Company by the
use of moneys not in the 5.125% Preferred Stock Purchase
Fund, and shall not be charged to the 5.125% Preferred
Stock Purchase Fund. Shares of 5.125% Cumulative
Preferred Stock purchased through the 5.125% Preferred
Stock Purchase Fund shall be cancelled and shall not be
reissued.
5. On March 1, 1968 and on March 1 in each year thereafter
so long as any of the 4.60% (Series B) Cumulative
Preferred Stock shall remain outstanding, the Company
shall, subject to the provisions of Section C of this
Article, set aside as a Purchase Fund for the 4.60%
(Series B) Cumulative Preferred Stock (herein called the
"4.60% (Series B) Preferred Stock Purchase Fund") an
amount equal to 2% of the aggregate par value of the
largest number of shares of 4.60% (Series B) Cumulative
Preferred Stock at any time theretofore outstanding;
provided, however, that amounts set aside for Purchase
Funds heretofore or hereafter established for the several
series of Preferred Stock shall be set aside without
preference or priority as between series so that if at
any time there shall be a deficiency (including any
amount then required to be set aside) in the Purchase
Funds for two or more series of Preferred Stock, any
satisfaction of such deficiencies shall be made
simultaneously for such two or more Purchase Funds in
proportion to the amounts of the respective deficiencies
therein. On or before each such March 1 the Company
shall in writing, addressed to all holders of record of
the 4.60% (Series B) Cumulative Preferred Stock, invite
tenders of 4.60% (Series B) Cumulative Preferred Stock at
the par value thereof, plus an amount equal to accrued
dividends to the next succeeding March 31, in an amount
sufficient to exhaust the moneys so set aside in the
4.60% (Series B) Preferred Stock Purchase Fund. The
invitations for tenders shall specify how tenders shall
be made and how notification of acceptance thereof will
be given. Tenders may be made on or before March 25, in
each year. If the par value of the shares of 4.60%
(Series B) Cumulative Preferred Stock tendered in
response to any such invitation aggregates more than the
amount available in the 4.60% (Series B) Preferred Stock
Purchase Fund such tenders shall be accepted pro rata (as
nearly as practicable without the purchase or issuance of
fractional shares or scrip therefor) in proportion to the
total number of shares of 4.60% (Series B) Cumulative
Preferred Stock tendered respectively by the holders
thereof who shall have made such tenders, provided that
in any event, each holder of 4.60% (Series B) Cumulative
Preferred Stock shall be entitled to tender and to have
purchased by the Company on each such invitation, at
least the number of shares (as nearly as practicable
without the purchase or issuance of fractional shares or
scrip therefor) of the 4.60% (Series B) Cumulative
Preferred Stock held by such holder which bears the same
ratio to the total number of shares to be purchased
pursuant to the invitation as the number of shares held
of record by such holder at the close of business on the
last business day before the date of such invitation,
bears to the total number of shares of 4.60% (Series B)
Cumulative Preferred Stock then outstanding. Tenders
shall be accepted of sufficient shares of 4.60% (Series
B) Cumulative Preferred Stock to exhaust all of the
moneys in the 4.60% (Series B) Preferred Stock Purchase
Fund.
Payment for 4.60% (Series B) Cumulative Preferred Stock for which
tenders shall have been accepted shall be made on the March 31
following the last day for the making of tenders. To the extent that
tenders in any year are not made in an amount sufficient to exhaust
all of the moneys so held in the 4.60% (Series B) Preferred Stock
Purchase Fund, such excess moneys in the 4.60% (Series B) Preferred
Stock Purchase Fund for that year shall be released from the 4.60%
(Series B) Preferred Stock Purchase Fund and become free funds to the
Company. The obligation to set aside amounts in the 4.60% (Series B)
Preferred Stock Purchase Fund shall be cumulative, so that if, on
March 1 of each year cash in the required amount shall not have been
set aside in full, the amount of the deficiency shall be added to the
4.60 % (Series B) Preferred Stock Purchase Fund for the next
succeeding year until the total aggregate amount which shall have
been set aside in such 4.60% (Series B) Preferred Stock Purchase
Fund, and used or released to the Company in accordance with the
provisions of this Section D.5, shall equal 2% of the aggregate par
value of the largest number of shares of 4.60% (Series B) Cumulative
Preferred Stock at any time theretofore outstanding, multiplied by
the number of twelve month periods which shall have elapsed since
March 1, 1967. No dividends shall be declared or paid upon or set
apart for any shares of Common Stock or any sums applied to the
purchase, redemption or other retirement of Common Stock, so long as
any such deficiency shall exist in the 4.60% (Series B) Preferred
Stock Purchase Fund. Amounts to satisfy any such deficiency in the
4.60% (Series B) Preferred Stock Purchase Fund, in whole or in part,
may be set aside in the 4.60% (Series B) Preferred Stock Purchase
Fund at any time, for application in the manner aforesaid on the next
succeeding March 1, provided however, that if at any time between
March 31 and December 1 of any year the amount so set aside in the
4.60% (Series B) Preferred Stock Purchase Fund shall aggregate
$85,000 or more, the Company shall immediately invite tenders of
4.60% (Series B) Cumulative Preferred Stock in the manner aforesaid,
in an amount sufficient to exhaust the moneys in the 4.60% (Series B)
Preferred Stock Purchase Fund, at the par value thereof plus an
amount equal to accrued dividends to a date which shall be thirty
days from the date of such invitation, the invitation to remain open
for twenty-five days; and on or before the thirtieth day following
the date of such invitation, the Company shall accept tenders and
make payment for 4.60% (Series B) Cumulative Preferred Stock
tendered, at the price aforesaid in the same manner as above provided
with respect to moneys set aside in the 4.60% (Series B) Preferred
Stock Purchase Fund on March 1 in each year, and to the extent that
tenders are not made in an amount sufficient to exhaust the moneys so
held in the 4.60% (Series B) Preferred Stock Purchase Fund, such
moneys shall likewise be released from the 4.60% (Series B) Preferred
Stock Purchase Fund and become free funds to the Company. Amounts
equal to accrued dividends on 4.60% (Series B) Cumulative Preferred
Stock purchased through the 4.60% (Series B) Preferred Stock Purchase
Fund shall be paid by the Company by the use of moneys not in the
4.60% (Series B) Preferred Stock Purchase Fund, and shall not be
charged to the 4.60% (Series B) Preferred Stock Purchase Fund. Shares
of 4.60% (Series B) Cumulative Preferred Stock purchased through the
4.60% (Series B) Preferred Stock Purchase Fund shall be cancelled and
shall not be reissued.
6. On January 1, 1972 and on January 1 in each year
thereafter so long as any of the 6% Cumulative Preferred
Stock shall remain outstanding, the Company shall,
subject to the provisions of Section C of this Article,
set aside as a Purchase Fund for the 6% Cumulative
Preferred Stock (herein called the "6% Preferred Stock
Purchase Fund") an amount equal to 2% of the aggregate
par value of the largest number of shares of 6%
Cumulative Preferred Stock at any time theretofore
outstanding; provided, however, that
amounts set aside for Purchase Funds heretofore or
hereafter established for the several series of
Preferred Stock shall be set aside without preference or
priority as between series so that if at any time there
shall be a deficiency (including any amount then required
to be set aside) in the Purchase Funds for two or more
series of Preferred Stock, any satisfaction of such
deficiencies shall be made simultaneously for such two or
more Purchase Funds in proportion to the amounts of the
respective deficiencies therein. On or before each such
January 1 the Company shall in writing, addressed to all
holders of record of the 6% Cumulative Preferred Stock,
invite tenders of 6% Cumulative Preferred Stock at the
par value thereof, plus an amount equal to accrued
dividends to the next succeeding January 31, in an amount
sufficient to exhaust the moneys so set aside in the 6%
Preferred Stock Purchase Fund. The invitations for
tenders shall specify how tenders shall be made and how
notification of acceptance thereof will be given.
Tenders may be made on or before January 25, in each
year. If the par value of the shares of 6% Cumulative
Preferred Stock tendered in response to any such
invitation aggregates more than the amount available in
the 6% Preferred Stock Purchase Fund such tenders shall
be accepted pro rata (as nearly as practicable without
the purchase or issuance of fractional shares or scrip
therefor) in proportion to the total number of shares of
6% Cumulative Preferred Stock tendered respectively by
the holders thereof who shall have made such tenders,
provided that in any event, each holder of 6% Cumulative
Preferred Stock shall be entitled to tender and to have
purchased by the Company on each such invitation, at
least the number of shares (as nearly as practicable
without the purchase or issuance of fractional shares or
scrip therefor) of the 6% Cumulative Preferred Stock held
by such holder which bears the same ratio to the total
number of shares to be purchased pursuant to the
invitation as the number of shares held of record by such
holder at the close of business on the last business day
before the date of such invitation, bears to the total
number of shares of 6% Cumulative Preferred Stock then
outstanding. Tenders shall be accepted of sufficient
shares of 6% Cumulative Preferred Stock to exhaust all of
the moneys in the 6% Preferred Stock Purchase Fund.
Payment for 6% Cumulative Preferred Stock for which
tenders shall have been accepted shall be made on the
January 31 following the last day for the making of
tenders. To the extent that tenders in any year are not
made in an amount sufficient to exhaust all of the moneys
so held in the 6% Preferred Stock Purchase Fund, such
excess moneys in the 6% Preferred Stock Purchase Fund for
that year shall be released from the 6% Preferred Stock
Purchase Fund and become free funds to the Company. The
obligation to set aside amounts in the 6% Preferred Stock
Purchase Fund shall be cumulative, so that if, on January
1 of each year cash in the required amount shall not have
been set aside in full, the amount of the deficiency
shall be added to the 6% Preferred Stock Purchase Fund
for the next succeeding year until the total aggregate
amount which shall have been set aside in such 6%
Preferred Stock Purchase Fund, and used or released to
the Company in accordance with the provisions of this
Section D.6, shall equal 2% of the aggregate par value of
the largest number of shares of 6% Cumulative Preferred
Stock at any time theretofore outstanding, multiplied by
the number of twelve month periods which shall have
elapsed since January 1, 1971. No dividends shall be
declared or paid upon or set apart for any shares of
Common Stock or any sums applied to the purchase,
redemption or other retirement of Common Stock, so long
as any such deficiency shall exist in the 6% Preferred
Stock Purchase Fund. Amounts to satisfy any such
deficiency in the 6% Preferred Stock Purchase Fund, in
whole or in part, may be set aside in the 6% Preferred
Stock Purchase Fund at any time, for application in the
manner aforesaid on the next succeeding January 1,
provided however, that if at any time between January 31
and October I of any year the amount so set aside in the
6% Preferred Stock Purchase Fund shall aggregate $80,000
or more, the Company shall immediately invite tenders of
6% Cumulative Preferred Stock in the manner aforesaid, in
an amount sufficient to exhaust the moneys in the 6%
<PAGE>
Preferred Stock Purchase Fund, at the par value thereof plus an
amount equal to accrued dividends to a date which shall be thirty
days from the date of such invitation, the invitation to remain open
for twenty-five days; and on or before the thirtieth day following
the date of such invitation, the Company shall accept tenders and
make payment for 6% Cumulative Preferred Stock tendered, at the price
aforesaid in the same manner as above provided with respect to moneys
set aside in the 6% Preferred Stock Purchase Fund on January 1 in
each year, and to the extent that tenders are not made in an amount
sufficient to exhaust the moneys so held in the 6% Preferred Stock
Purchase Fund, such moneys shall likewise be released from the 6%
Preferred Stock Purchase Fund and become free funds to the Company.
Amounts equal to accrued dividends on 6% Cumulative Preferred Stock
purchased through the 6% Preferred Stock Purchase Fund shall be paid
by the Company by the use of moneys not in the 6% Preferred Stock
Purchase Fund, and shall not be charged to the 6% Preferred Stock
Purchase Fund. Shares of 6% Cumulative Preferred Stock purchased
through the 6% Preferred Stock Purchase Fund shall be cancelled and
shall not be reissued.
7. Subject to the provisions of Sections C and E of this
Article, prior to October 1, 1973 and prior to October 1
in each year thereafter so long as any of the 9.40%
Cumulative Preferred Stock shall remain outstanding, the
Company shall deposit with the Transfer Agent, as a
Sinking Fund for the 9.40% Cumulative Preferred Stock, an
amount equal to 2% of the aggregate par value of the
largest number of shares of 9.40% Cumulative Preferred
Stock at any time theretofore outstanding, plus an amount
equal to dividends accrued thereon to such October 1. The
Transfer Agent shall apply the moneys in such fund to
redeem on each such October 1, in accordance with the
provisions of Section E of this Article, shares of the
9.40% Cumulative Preferred Stock at Fifty Dollars
($50.00) per share, plus dividends accrued to the date of
redemption, provided that, in addition to the
restrictions contained in Sections C and E of this
Article, if, at any time, the Company shall be in default
in the performance of its obligations under this Sinking
Fund, thereafter and until all such defaults shall have
been remedied, the Company shall not redeem any Preferred
Stock unless all the shares of Preferred Stock
outstanding are redeemed, and shall not purchase or
otherwise acquire for value any shares of Preferred Stock
except out of amounts set aside as Purchase Funds or
Sinking Funds heretofore or hereafter established for one
or more of the series of Preferred Stock. The Company
may, upon notice to the Transfer Agent prior to August 15
in any year in which the Company shall be obligated to
redeem shares of the 9.40% Cumulative Preferred Stock
through the operation of the Sinking Fund, elect to
reduce its obligation in respect of the redemption of
shares so required to be redeemed by directing that any
shares of the 9.40% Cumulative Preferred Stock previously
purchased by the Company (other than shares purchased
pursuant to the operation of the Sinking Fund or
previously applied as a credit against the Sinking Fund)
shall be applied as a credit, in whole or in part, in an
amount equal to the aggregate par value of the shares so
applied, against the aggregate par value of the shares
required to be redeemed in such year pursuant to the
operation of the Sinking Fund.
8. Subject to the provisions of Sections C and E of this
Article, prior to July 1, 1974 and prior to July 1 in
each year thereafter so long as any of the 8.12%
Cumulative Preferred Stock shall remain outstanding, the
Company shall deposit with the Transfer Agent, as a
Sinking Fund for the 8.12% Cumulative Preferred Stock, an
amount equal to 2% of the aggregate par value of the
largest number of shares of 8.12% Cumulative Preferred
Stock at any time theretofore outstanding, plus an amount
equal to dividends accrued to such July 1 on the shares
to be redeemed therewith. The Transfer Agent shall apply
the moneys in such fund to redeem on each such July 1, in
accordance with the provisions of Section E of this
Article, shares of the 8.12% Cumulative Preferred Stock
at One Hundred Dollars ($100.00) per share, plus
dividends accrued to the date of redemption. The Company
may, upon notice to the Transfer Agent prior to April 15
in any year in which the Company shall be obligated to
redeem shares of the 8.12% Cumulative Preferred Stock
through the operation of the Sinking Fund, elect to
reduce its obligation in respect of the redemption of
shares so required to be redeemed by directing that any
shares of the 8.12% Cumulative Preferred Stock previously
purchased by the Company (other than shares purchased
pursuant to the operation of the Sinking Fund or
previously applied as a credit against the Sinking Fund)
shall be applied as a credit, in whole or in part, in an
amount equal to the aggregate par value of the shares so
applied, against the aggregate par value of the shares
required to be redeemed in such year pursuant to the
operation of the Sinking Fund.
9. Subject to the provisions of Sections C and E of this
Article, prior to July 1, 1975 and prior to July 1 in
each year thereafter so long as any of the 7.70%
Cumulative Preferred Stock shall remain outstanding, the
Company shall deposit with the Transfer Agent, as a
Sinking Fund for the 7.70% Cumulative Preferred Stock, an
amount equal to 2% of the aggregate par value of the
largest number of shares of 7.70% Cumulative Preferred
Stock at any time theretofore outstanding, plus an amount
equal to dividends accrued to such July 1 on the shares
to be redeemed therewith. The Transfer Agent shall apply
the moneys in such fund to redeem on each such July 1, in
accordance with the provisions of Section E of this
Article, shares of the 7.70% Cumulative Preferred Stock
at One Hundred Dollars ($100.00) per share, plus
dividends accrued to the date of redemption. The Company
may, upon notice to the Transfer Agent prior to April 15
in any year in which the Company shall be obligated to
redeem shares of the 7.70% Cumulative Preferred Stock
through the operation of the Sinking Fund, elect to reduce its
obligation in respect of the redemption of shares so required to be
redeemed by directing that any shares of the 7.70% Cumulative
Preferred Stock previously purchased by the Company (other than
shares purchased pursuant to the operation of the Sinking Fund or
previously applied as a credit against the Sinking Fund) shall be
applied as a credit, in whole or in part, in an amount equal to the
aggregate par value of the shares so applied, against the aggregate
par value of the shares required to be redeemed in such year pursuant
to the operation of the Sinking Fund.
<PAGE>
10. Subject to the provisions of Sections C and E of this
Article V, prior to January 1, 1985 and prior to January
1 in each year thereafter so long as any of the 8.72%
Cumulative Preferred Stock shall remain outstanding, the
Company shall deposit with the Transfer Agent, as a
Sinking Fund for the 8.72% Cumulative Preferred Stock, an
amount equal to 4% of the aggregate par value of the
largest number of shares of 8.72% Cumulative Preferred
Stock at any time theretofore outstanding and, in
addition, the Company may, at its option, deposit in such
fund up to an equal amount plus, in each case, an amount
equal to dividends accrued to such January 1 on the
shares to be redeemed therewith. The right to make such
optional deposit shall not be cumulative and shall not
reduce any subsequent mandatory Sinking Fund payment. If
the Company shall intend to exercise its right to make an
optional Sinking Fund payment in any year, it shall
deliver to the Transfer Agent prior to November 15 of
such year notice of its intent to exercise such optional
right. Thereupon, the amount required to be deposited in
such fund by the first sentence of this paragraph shall
be increased by, and shall include, the additional amount
specified in such notice. The Transfer Agent shall apply
the moneys in such fund to redeem on each such January 1,
in accordance with the provisions of Section E of this
Article, shares of the 8.72% Cumulative Preferred Stock
at Fifty Dollars ($50.00) per share, plus dividends
accrued to the date of redemption. The Company may, upon
notice to the Transfer Agent prior to November 15 in any
year in which the Company shall be obligated to redeem
shares of the 8.72% Cumulative Preferred Stock through
the operation of the Sinking Fund, elect to reduce its
obligation in respect of the redemption of shares so
required to be redeemed by directing that any shares of
the 8.72% Cumulative Preferred Stock previously purchased
by the Company (other than shares purchased pursuant to
the operation of the Sinking Fund or previously applied
as a credit against the Sinking Fund) shall be applied as
a credit, in whole or in part, in an amount equal to the
<PAGE>
aggregate par value of the shares so applied, against the aggregate
par value of the shares required to be redeemed in such year pursuant
to the operation of the Sinking Fund.
E. The Preferred Stock of any series at any time outstanding
may be redeemed by the Company (except as may be
otherwise provided by the resolution or resolutions
adopted by the Board of Directors pursuant to Section B.2
(or its successor) of this Article V in the case of any
series of Preferred Stock established by the Board of
Directors pursuant to said Section B.2 (or its
successor)). Any such redemption by the Company shall be
at its election expressed by resolution adopted by its
Board of Directors, as a whole at any time or in part
from time to time, on not less than thirty (30) nor more
than sixty (60) days' prior written notice given as
herein provided, at the then applicable redemption prices
per share set forth below with respect to shares of the
presently designated series of Preferred Stock as set
forth in Exhibit A hereto and, in addition thereto, in
each case, an amount which, together with the aggregate
of the dividends previously paid upon such share, shall
be equal to dividends accrued upon such share at the
annual dividend rate indicated below (but without
interest) from the date from which the dividends thereon
became cumulative to the date of redemption:
<PAGE>
Annual
Date Fixed Redemption Dividend
Series for Redemption Price Rate
(a) 5% Preferred Stock Any date $ 52.50 $ 2.50
(b) 4.60% Cumulative Preferred Stock Any date $ 50.50 $ 2.30
(c) 4.50% Cumulative Preferred Stock Any date $ 51.00 $ 2.25
(d) 4.60% (Series A) Cumulative Any date $ 51.00 $ 2.30
Preferred Stock
(e) 5.125% Cumulative Preferred Stock Any date $ 51.00 $ 2.5625
(f) 4.60% (Series B) Cumulative Any date $ 50.50 $ 2.30
Preferred Stock
(g) 6% Cumulative Preferred Stock Any date $ 50.50 $ 3.00
(h) 9.40% Cumulative Preferred Stock Any date $ 51.175 $ 4.70
(i) 8.12% Cumulative Preferred Stock Any date $ 102.03 $ 8.12
(j) 7.70% Cumulative Preferred Stock Any date $ 101.00 $ 7.70
(k) 8.40% Cumulative Preferred Stock
On or prior to November 30, 1991 $ 104.70 $ 8.40
December 1, 1991 through
November 30, 1996 102.80
On and after December 1, 1996 101.00
Annual
Date Fixed Redemption Dividend
Series for Redemption Price Rate
(1) 8.72% Cumulative Preferred Stock On or prior to
December 31, 1993 52.00 $ 4.36
January 1, 1994 through
December 31, 1998 51.00
On and after January 1, 1999 50.00
<PAGE>
and, in the case of any series of Preferred Stock
established by the Board of Directors pursuant to Section B.2 (or
its successor) of this Article V to be redeemed, at the
redemption price per share of shares of such series fixed and
determined by the resolution or resolutions of the Board of
Directors establishing such series in effect at the time of such
redemption, and, in addition thereto, an amount which, together
with the aggregate of the dividends previously paid upon such
share, will be equal to the annual dividend rate for such series
fixed and determined by the resolution or resolutions of the
Board of Directors establishing such series (but without
interest) from the date from which the dividends thereon became
cumulative to the date of redemption. Redemption may be made at
any time of either the whole or any part of the shares of any
series of Preferred Stock without redeeming the whole or any part
of the shares of any other series of Preferred Stock; provided
that if, at any time, the Company shall fail to pay dividends in
full on any outstanding shares of any series of Preferred Stock,
thereafter and until dividends in full on all such shares shall
have been paid, or declared and set apart for payment, for all
past dividend periods, the Company shall not redeem any Preferred
Stock unless all the shares of Preferred Stock outstanding are
redeemed, and shall not purchase or otherwise acquire for value
any shares of Preferred Stock otherwise than in accordance with
an offer made to all holders of shares of Preferred Stock; and
provided further if, at any time, the Company shall be in default
in the performance of its obligations under any Purchase Fund or
Sinking Fund provisions heretofore or hereafter fixed and
determined for any series of Preferred Stock pursuant to this
Article V, thereafter and until all such defaults shall have been
remedied, the Company shall not redeem any Preferred Stock unless
all the shares of Preferred Stock outstanding are redeemed, and
shall not purchase or otherwise acquire for value any shares of
Preferred Stock except out of amounts set aside as Purchase Funds
or Sinking Funds heretofore or hereafter established for one or
more of the series of Preferred Stock. In case of the redemption
of a part only of any series of Preferred Stock at the time
outstanding, the shares of Preferred Stock to be redeemed shall
be selected by lot, in such manner as the Company may determine,
by a bank or trust company selected for that purpose by the
Company. Notice of the election of the Company to redeem any of
the Preferred Stock shall be given by the Company by mailing a
copy of such notice, postage prepaid, not less than thirty (30)
nor more than sixty (60) days prior to the date designated
therein as the date for
<PAGE>
such redemption, to the holders of record on the date of such
mailing of the shares of Preferred Stock to be
redeemed, addressed to them at their respective addresses
appearing on the books of the Company. Such notice shall state
that such shares of Preferred Stock will be redeemed at the
redemption price aforesaid and on the date specified in such
notice, upon the surrender for cancellation, at the place
designated in such notice, of the certificates representing such
shares of Preferred Stock, properly endorsed in blank for
transfer or accompanied by proper instruments of assignment and
transfer in blank (if required by the Company) and bearing all
necessary transfer stamps thereto affixed and cancelled. On and
after the date specified in such notice, each holder of shares of
Preferred Stock called for redemption as aforesaid, upon
presentation and surrender at the place designated in such notice
of the certificates for shares of Preferred Stock held by him,
properly endorsed in blank for transfer or accompanied by proper
instruments of assignment and transfer in blank (if required by
the Company), and bearing all necessary transfer tax stamps
thereto affixed and cancelled, shall be entitled to receive
therefor the redemption price hereinbefore specified. From and
after the date of redemption specified in such notice (unless
default shall be made by the Company in providing moneys for the
payment of the redemption price), all dividends on the shares of
Preferred Stock so called for redemption shall cease to accrue
and, from and after said date (unless default shall be made by
the Company as aforesaid), or, if the Company shall so elect,
from and after the date (prior to the date of redemption so
specified) on which the Company shall provide the moneys for the
payment of the redemption price by depositing the amount thereof
with a bank or trust company doing business in the Borough of
Manhattan, City and State of New York, and having a capital and
surplus of at least $5,000,000, provided that the notice of
redemption shall have stated the intention of the Company to
deposit such amount on a date in such notice specified, all
rights of the holders of the shares so called for redemption as
stockholders of the Company, except only the right to receive the
redemption price then due, shall cease and determine. Subject to
the foregoing provisions of this Section E, the Company may also
from time to time repurchase shares of any series of its
Preferred Stock at not exceeding the respective redemption prices
thereof. All shares of Preferred Stock so redeemed shall be
retired and shall not be reissued, but the Company may,
nevertheless, from time to time thereafter increase and/or
reclassify its capital stock in the manner and to the extent
permitted by law and by its Charter.
<PAGE>
F. At all elections of directors of the Company, and on
all other matters, except on matters in respect of
which the laws of the State of South Carolina shall
provide that all stockholders shall have the right to
vote irrespective of whether such right has been
relinquished by any of such stockholders and except as
otherwise herein provided, the holders of the Common
Stock shall have the exclusive right to vote, provided,
however, that, if and whenever four (4) quarterly
dividends payable on the Preferred Stock shall be
unpaid in whole or in part, the holders of the
Preferred Stock as a class, all the shares of all
series of Preferred Stock then outstanding taken
together constituting the class, shall have the
exclusive right to vote for and to elect the smallest
number of directors which shall constitute a majority
of the then authorized number of directors of the
Company, and in all matters other than the election of
directors, each holder of one or more shares of any
series of Preferred Stock shall be entitled to such
vote for each such share held by him as is provided in
paragraph 3.F of Section B of this Article V. In the
event of defaults entitling the Preferred Stock to vote
as aforesaid, the holders of the Common Stock as a
class shall have the exclusive right to vote for and to
elect the greatest number of directors which shall
constitute a minority of the then authorized number of
directors of the Company and in all matters other than
the election of directors, each holder of Common Stock
shall be entitled to one vote for each share of stock
held by him. The voting rights of the holders of the
Preferred Stock, however, shall cease when all
accumulated and unpaid dividends on their stock shall
have been paid in full. The terms of office of all
persons who may be directors of the Company, at the
time when the right to elect a majority of the
directors shall accrue to the holders of the Preferred
Stock as herein provided, shall terminate upon the
election of their successors at a meeting of the
stockholders of the Company then entitled to vote.
Whenever the right shall have accrued to the holders of
Preferred Stock to elect directors, the Board of
Directors shall, within ten days after delivery to the
Company at its principal office of a request to such
effect signed by any holder of shares of the Preferred
Stock entitled to vote, call a special meeting of the
stockholders to be held within forty days from the
delivery of such request for the purpose of electing
directors. The notice of such meeting shall be similar
to that provided in the By-Laws for an annual meeting of
stockholders. Any vacancy in the Board of Directors
occurring during any period that the Preferred Stock
shall have representatives on the Board shall be filled
<PAGE>
by a majority vote of the remaining directors representing the
class of stock theretofore represented by the director causing
the vacancy. Upon the termination of such exclusive right of the
holders of the Preferred Stock to elect a majority of the
directors of the Company, the terms of office of all the
directors of the Company shall terminate upon the election of
their successors at a meeting of the stockholders of the Company
then entitled to vote. Whenever the right of holders of shares of
Preferred Stock to elect directors shall have terminated, the
Board of Directors shall, within ten days after delivery to the
Company at its principal office of a request to such effect
signed by any holders of shares of Common Stock entitled to vote,
call a special meeting of the stockholders to be held within
forty days from the delivery of such request for the purpose of
electing directors. The notice of such meeting shall be similar
to that provided in the By-Laws for an annual meeting of
stockholders.
G. So long as any of the Preferred Stock shall be outstanding,
unless provision has been made for the redemption thereof as
provided in Section E of this Article V:
1. The Company shall not, without the affirmative vote
or written consent of the holders of at least two-
thirds of the total voting power of all shares of
Preferred Stock then outstanding, all of said
shares voting as a single class (in addition to any
other vote or consent at the time required by law),
(a) create or issue any shares of stock, in
addition to the shares which the Company is then
authorized to issue, which would rank equally with
or prior to the Preferred Stock or authorize any
increase of the Preferred Stock now authorized, or
(b) amend its charter so as to change, alter or
repeal the provisions contained herein relating to
the preferences, voting powers, restrictions and
qualifications of any series of Preferred Stock,
provided, however, that if any such amendment,
alteration or repeal would decrease the rights and
preferences of outstanding shares of Preferred
Stock of one or more series without proportionately
decreasing the rights and preferences of the
outstanding shares of the other series, then like
consent by the holders of at least two-thirds of
the total voting power of the Preferred Stock of
the former one or more series (voting as a class)
at the time outstanding shall also be necessary for
effecting or validating any such amendment,
alteration or repeal, provided further, however,
that the establishment and designation of any
<PAGE>
series of Preferred Stock, and the fixing and determination
of the relative rights and preferences thereof, pursuant to
Section B.2 (or its successor) of this Article V including,
without limiting the generality of the foregoing, provisions
for a Purchase Fund or Sinking Fund, with respect to such
series, which shall rank pari passu with the Purchase Funds
and Sinking Funds heretofore provided for shares of the
established series of Preferred Stock designated as set forth
in Exhibit A hereto or with any Purchase Fund or Sinking Fund
for any series of Preferred Stock hereafter established,
shall not be deemed to be an amendment of the Company's
charter which changes, alters or repeals the provisions
contained herein relating to the preferences, voting powers,
restrictions and qualifications of any series of Preferred
Stock or which decreases the rights and preferences of
outstanding shares of Preferred Stock of any series and shall
not require the affirmative vote or written consent of the
holders of Preferred Stock of any series heretofore or
hereafter established, and provided further, that if any such
amendment or alteration would increase the authorized number
of shares of any series of Preferred Stock referred to in
Exhibit A hereto, then like consent by the holders of at
least two-thirds in amount of each such series so affected
shall also be necessary for effecting or validating any such
amendment or alteration, and provided further that if any
such amendment or alteration would increase the authorized
number of shares of any series of Preferred Stock hereafter
established by the Board of Directors pursuant to Section B.2
(or its successor) of this Article V, then like consent of
the holders of at least two-thirds in amount of such series
shall also be necessary for effecting or validating any such
amendment or alteration or (c) issue any shares of Preferred
Stock in addition to the initial series of 125,234 shares of
the 5% Preferred Stock, 60,000 shares of the 4.60% Cumulative
Preferred Stock, 80,000 shares of the 4.50% Cumulative
Preferred Stock, 100,000 shares of the 4.60% (Series A)
Cumulative Preferred Stock, 100,000 shares of the 5.125%
Cumulative Preferred Stock and 170,000 shares of the 4.60%
(Series B) Cumulative Preferred Stock (i) unless for any
twelve consecutive calendar months immediately preceding the
calendar month within which such additional shares of
Preferred Stock shall be issued, the net earnings of the
Company available for the payment of interest charges on the
Company's indebtedness, determined after provision for
depreciation, amortization of utility
<PAGE>
plant acquisition adjustment accounts, and all taxes, in
accordance with sound accounting practice, shall have been at
least one and one-half times the aggregate for a twelve
months' period of the interest charges on indebtedness of the
Company and the dividend requirements on all shares of
Preferred Stock to be outstanding immediately after the
proposed issue of such additional shares thereof, provided
that there shall be excluded from the foregoing computation
interest charges on all indebtedness and dividends on all
stock which are to be retired in connection with the issue of
such additional shares of Preferred Stock, and also provided
that, where such additional shares of Preferred Stock are to
be issued in connection with the acquisition of new property,
the net earnings of the property to be so acquired may be
included on a pro forma basis in the foregoing computation,
computed on the same basis as the net earnings of the
Company, and (ii) unless the aggregate of the capital of the
Company applicable to the Common Stock and the surplus of the
Company shall be not less than the amount payable upon
involuntary dissolution to the holders of the Preferred Stock
to be outstanding immediately after the proposed issue of
such additional Preferred Stock, excluding from the foregoing
computation all indebtedness and stock which are to be
retired in connection with the issue of such additional
shares of Preferred Stock, provided, that no portion of the
surplus of the Company which shall be used to meet the
requirements of this clause (ii) shall, after the issue of
such additional shares of Preferred Stock and until such
additional shares or a like number of other shares of
Preferred Stock shall have been retired, be available for
dividends or other distribution upon the Common Stock; and
2. The Company shall not, without the consent of the
Preferred and Common Stock at a meeting duly called
for the purpose, which consent must be evidenced by
(a) a simple majority vote of the total voting
power of all shares of Preferred Stock then
outstanding, each of said shares being entitled to
such vote per share as is provided in paragraph 3.F
of Section B of this Article V and voting as a
single class, (b) a simple majority vote of the
total number of shares of Common Stock then
outstanding, each of said shares being entitled to
one vote per share, and (c) a two-thirds majority
vote of the then outstanding Preferred and Common
Stock voting as a single class, each outstanding
share of Preferred Stock being entitled to twenty
times the vote per share provided in paragraph 3.F
<PAGE>
of Section B of this Article V and each outstanding share of
Common Stock being entitled to one vote per share (in
addition to any other vote or consent at the time required by
law), consolidate or merge with or into any other corporation
or corporations, permit the consolidation or merger of any
other corporation or corporations into it, or sell, lease or
otherwise transfer all or the greater part of the assets of
the Company; provided, however, that the Board of Directors
of the Company, by resolution, shall have the right at any
time without the vote or consent of stockholders of any
class, to mortgage or otherwise subject to lien or pledge all
or any part of the assets of the Company for proper corporate
purposes.
3. The Company, except for the purposes of:
(a) refunding outstanding unsecured indebtedness
theretofore issued or assumed by the Company,
(b) redeeming or retiring all outstanding shares
of Preferred Stock, or
(c) reimbursing the Company, in whole or in part, for moneys
deposited by it to provide for the redemption or
retirement of all outstanding shares of one or more
series of the Preferred Stock,
shall not, without the consent (given by vote at a meeting
duly called for the purpose) of the holders of at least a
majority of the total voting power of all shares of Preferred
Stock then outstanding, all of said shares voting as a single
class, issue any unsecured notes, debentures or other
securities representing unsecured indebtedness, or assume any
such unsecured indebtedness, if, immediately after such issue
or assumption, as the case may be, the total principal amount
of all unsecured notes, debentures or other securities
representing unsecured indebtedness issued or assumed by the
Company and then outstanding (including unsecured securities
then to be issued or assumed) would exceed (i) $8,000,000 or
(ii) ten per cent (10%) of the aggregate of the total
principal amount of all bonds or other securities
representing secured indebtedness issued or assumed by the
Company and then outstanding and the capital and surplus of
the Company as then stated on the books of account of the
Company, whichever amount is greater, provided, however, that
no such consent shall be required in connection with the
Company's entering into any
<PAGE>
agreement for the payment of such amounts of money as may be
necessary to meet payments of interest, principal or premium
on and incidental costs with respect to securities issued by
tax-exempt public agencies for the purpose of financing,
directly or indirectly, the cost of facilities used or to be
used by the Company or in connection with the Company's
business or operations which are designed to eliminate,
mitigate or prevent air or water pollution or radiation
emissions or otherwise to prevent or ameloriate potentially
adverse side effects of the Company's business or operations
on the environment or public health. Nothing herein contained
shall be deemed to require such vote of Preferred
Stockholders to enable the Company to make or assume any
indebtedness secured by mortgage, pledge or collateral.
H. The holders of shares of any series of Preferred
Stock shall have no right whatever to subscribe for or
purchase or to have offered to them for subscription or
purchase any additional shares of stock of any class,
character or description, or obligations of any kind of
the Company convertible into stock of any class of the
Company, or to which shall be attached or appertain any
warrant or warrants or other instrument or instruments
that shall confer upon the holder or holders of such
obligations the right to subscribe for, or to purchase
or receive from the Company, any shares of capital
stock of any class of the Company, whether now or
hereafter authorized.
I. No holder of Common Stock of the Company shall have any
preemptive right to subscribe for, purchase or
otherwise acquire any additional shares of Common Stock
of the Company, or any options or rights to purchase
shares of Common Stock of the Company, or any
securities convertible into or carrying options or
rights to purchase shares of Common Stock of the
Company, whether now or hereafter authorized, and
whether issued or granted for cash, property, services
or otherwise.
<PAGE>
ARTICLE VI
The number of directors of the Corporation shall be such number
permitted by law as shall be fixed by the Corporation's By-Laws. They shall
manage the business, property and affairs of the Corporation.
Dated: December 15, 1993
SOUTH CAROLINA ELECTRIC & GAS COMPANY
By: B. TATE HORTON, JR.
Vice President and Treasurer
By: KEVIN B. MARSH
Secretary
Note: Any person signing this form, shall either opposite or beneath his
signature, clearly and legibly state his name and the capacity in
which he signs. Must be signed by the Chairman of the Board of
Directors, the president or another of its officers in accordance
with Section 33-1-200 of the South Carolina Business Corporation
Act of 1988.
<PAGE>
STATE OF SOUTH CAROLINA
COUNTY OF RICHLAND
The undersigned B. TATE HORTON, JR. and KEVIN B. MARSH do hereby certify
that they are the duly elected and acting Vice President and Treasurer and
Secretary, respectively, of SOUTH CAROLINA ELECTRIC & GAS COMPANY and are
authorized to execute this verification; that each of the undersigned for
himself does hereby further certify that he has read the foregoing document,
understands the meaning and purport of the statements therein contained and the
same are true to the best of his information and belief.
Dated at Columbia, S. C., this 15th day of December, 1993.
B. TATE HORTON, JR
Vice President and Treasurer
KEVIN B. MARSH
Secretary
<PAGE>
EXHIBIT A
TO
RESTATED ARTICLES OF INCORPORATION
OF
SOUTH CAROLINA ELECTRIC & GAS COMPANY
Statement of Authorized Shares of Stock and of Preferred Stock
unissued and undesignated as to Series and issued,
outstanding and designated as to Series
----------------------------------------------------------------
As of the effective date of this Exhibit A:
1. Authorized Classes.
The total number of shares which the Company shall be authorized to issue
is 55,515,095, of which 2,000,000 shall be Preferred Stock of the par value of
$25 per share, issuable in series, 1,765,095 shall be Preferred Stock of the par
value of $50 per share, issuable in series, 1,750,000 shall be Preferred Stock
of the par value of $100 per share, issuable in series, and 50,000,000 shall be
Common Stock of the par value of $4.50 per share.
2. Preferred Stock unissued and undesignated as to series and issued,
outstanding and designated as to series.
(a) Par Value $25 per share
(i) 2,000,000 unissued and undesignated as to series.
(b) Par Value $50 per share-entitled to one vote per share.
(i) 442,809 shares unissued and undesignated as to
series
(ii) 125,209 shares unissued and outstanding designated "5% Preferred
Stock"
(iii) 3,834 shares issued and outstanding designated "4.60% Cumulative
Preferred Stock"
(iv) 20,800 shares issued and outstanding designated "4.50%
Cumulative Preferred Stock"
(v) 30,052 shares issued and outstanding designated
"4.60% (Series A) Cumulative Preferred Stock"
(vi) 74,000 shares issued and outstanding designated
"5.125% (Series A) Cumulative Preferred Stock"
(vii) 81,600 shares issued and outstanding designated
"4.60% (Series B) Cumulative Preferred Stock"
(viii) 89,600 shares issued and outstanding designated "6% Cumulative
Preferred Stock"
(ix) 197,191 shares issued and outstanding designated "9.40%
Cumulative Preferred Stock"
Total 1,065,095
<PAGE>
(c) Par Value $50 per share-entitled
to one half of one vote per share
(i) 540,000 shares unissued and undesignated as to
series
(ii) 160,000 shares issued and outstanding designated "8.72%
Cumulative Preferred Stock"
Total 700,000
(d) Par Value $100 per share
(i) 1,327,442 unissued and undesignated as to series
(ii) 131,899 shares issued and outstanding designated "8.12%
Cumulative Preferred Stock"
(iii) 92,991 shares issued and outstanding designated "7.70%
Cumulative Preferred Stock"
(iv) 197,668 shares issued and outstanding designated "8.40%
Cumulative Preferred Stock"
Total 1,750,000
3. Shares Outstanding
The total number of shares issued and outstanding is 41,500,991, consisting
of:
(a) 40,296,147 shares of Common Stock;
(b) 0 shares of Preferred Stock par value $25 per share;
(c) 622,286 shares of Preferred Stock par value $50 per
share-entitled to one vote per share;
(d) 160,000 shares of Preferred Stock par value $50 per share-entitled to
one-half of one vote per share; and
(e) 422,558 shares of Preferred Stock par value $100 per share.
December 15, 1993
<PAGE>
Exhibit 3.02
STATE OF SOUTH CAROLINA
SECRETARY OF STATE
ARTICLES OF AMENDMENT
Pursuant to Section 3-10-106 of the 1976 South Carolina Code, as amended,
the undersigned corporation adopts the following Articles of Amendment to its
Articles of Incorporation:
1. The name of the Corporation is SOUTH CAROLINA ELECTRIC & GAS COMPANY.
2. On , the corporation adopted the following Amendment(s) of its Articles of
Incorporation:
NOT APPLICABLE
3. The manner, if not set forth in the amendment, in which any exchange,
reclassification, or cancellation of issued shares provided for in the
Amendment shall be effected, is as follows:
(a) The number of redeemable shares of the corporation reacquired by
redemption or purchase is 39,871 itemized as follows:
Class Series No. of Shares
Cumulative Preferred Stock ($50 par value) 4.60% (Series B) 3,400
Cumulative Preferred Stock ($50 par value) 5.125% 1,000
Cumulative Preferred Stock ($50 par value) 6% 3,200
Cumulative Preferred Stock ($50 par value) 8.72% 32,044
Cumulative Preferred Stock ($50 par value) 9.40% 88
Cumulative Preferred Stock ($100 par value) 8.12% 139
(b) The aggregate number of issued shares of the corporation after giving
effect to such cancellation is 41,461,121, itemized as follows:
Class Series No. of Shares
Cumulative Preferred Stock ($50 par value) 5% 125,209
Cumulative Preferred Stock ($50 par value) 4.60% 3,834
Cumulative Preferred Stock ($50 par value) 4.50% 20,800
Cumulative Preferred Stock ($50 par value) 4.60% (Series A) 30,052
Cumulative Preferred Stock ($50 par value) 5.125% 73,000
Cumulative Preferred Stock ($50 par value) 4.60% (Series B) 78,200
Cumulative Preferred Stock ($50 par value) 6% 86,400
Cumulative Preferred Stock ($50 par value) 9.40% 197,103
Cumulative Preferred Stock ($100 par value) 8.12% 131,760
Cumulative Preferred Stock ($100 par value) 7.70% 92,992
Cumulative Preferred Stock ($100 par value) 8.40% 197,668
Cumulative Preferred Stock ($50 par value) 8.72% 127,956
Common Stock ($4.50 par value) 40,296,147
41,461,121
<PAGE>
(c) The amount of the stated capital of the corporation after giving effect
to such cancellation is $260,702,361.50.
(d) The number of shares which the corporation has authority to issue after
giving effect to such cancellation is 55,507,495, itemized as follows:
Class Series No. of Shares
Cumulative Preferred Stock ($50 par value) 5% 125,209
Cumulative Preferred Stock ($50 par value) 5% 125,209
Cumulative Preferred Stock ($50 par value) 5% 125,209
Cumulative Preferred Stock ($50 par value) 4.60% 3,834
Cumulative Preferred Stock ($50 par value) 4.50% 20,800
Cumulative Preferred Stock ($50 par value) 4.60% (Series A) 30,052
Cumulative Preferred Stock ($50 par value) 5.125% 73,000
Cumulative Preferred Stock ($50 par value) 4.60% (Series B) 78,200
Cumulative Preferred Stock ($50 par value) 6% 86,400
Cumulative Preferred Stock ($50 par value) 9.40% 197,103
Cumulative Preferred Stock ($100 par value) 8.12% 131,760
Cumulative Preferred Stock ($100 par value) 7.70% 92,992
Cumulative Preferred Stock ($100 par value) 8.40% 197,668
Cumulative Preferred Stock ($50 par value) 8.72% 127,956
Serial Preferred Stock ($50 par value) (1 vote) 442,897
Serial Preferred Stock ($100 par value) (1 vote) 1,327,580
Serial Preferred Stock ($25 par value) (1/4 vote) 2,000,000
Serial Preferred Stock ($50 par value) (1/2 vote) 572,044
Common Stock ($4.50 par value) 50,000,000
55,507,495
4. (a) / / Amendment(s) adopted by shareholder action.
<PAGE>
At the date of adoption of the amendment, the number of outstanding shares
of each voting group entitled to vote separately on the Amendment, and the vote
of such shares was:
Number of Number of Number of Votes Number of Undisputed
Voting Outstanding Votes Entitled Represented at Shares Voted
Group Shares to be Cast the meeting For Against
(b) / XX / The Amendment(s) was duly adopted by the incorporators or board
of directors without shareholder approval pursuant to Section 33-6-102(d),
33-10-102 and 33-10-105 of the 1976 South Carolina Code, as amended, and
shareholder action was not required.
5. Unless a delayed date is specified, the effective date of these Articles of
Amendment shall be the date of acceptance for filing by the Secretary of State
(See Section 33-1-230(b)).
Date June 7, 1994 SOUTH CAROLINA ELECTRIC & GAS COMPANY
By: K. B. Marsh
Secretary
Exhibit 3.03
STATE OF SOUTH CAROLINA
SECRETARY OF STATE
ARTICLES OF AMENDMENT
Pursuant to Section 33-10-196 of the 1976 South Carolina Code, as amended,
the undersigned corporation adopts the following Articles of Amendment to its
Articles of Incorporation:
1. The name of the Corporation is SOUTH CAROLINA ELECTRIC & GAS COMPANY.
2. On , the corporation adopted the following Amendment(s) of its Articles of
Incorporation:
NOT APPLICABLE
3. The manner, if not set forth in the amendment, in which any exchange,
reclassification, or cancellation of issued shares provided for in the Amendment
shall be effected, is as follows:
(a) The number of redeemable shares of the Corporation reacquired by
redemption or purchase is 18,538 itemized as follows:
Class Series No. of Shares
Cumulative Preferred Stock ($50 par value) 4.50% 1,712
Cumulative Preferred Stock ($50 par value) 4.60% 2,000
Cumulative Preferred Stock ($100 par value) 7.70% 3,000
Cumulative Preferred Stock ($100 par value) 8.12% 4,925
Cumulative Preferred Stock ($50 par value) 9.40% 6,901
(b) The aggregate number of issued shares of the Corporation after giving
effect to such cancellation is 41,442,626, itemized as follows:
Class Series No. of Shares
Cumulative Preferred Stock ($50 par value) 5% 125,209
Cumulative Preferred Stock ($50 par value) 4.60% 3,834
Cumulative Preferred Stock ($50 par value) 4.50% 19,088
Cumulative Preferred Stock ($50 par value) 4.60% (Series A) 28,052
Cumulative Preferred Stock ($50 par value) 5.125% 73,000
Cumulative Preferred Stock ($50 par value) 4.60% (Series B) 78,200
Cumulative Preferred Stock ($50 par value) 6% 86,400
Cumulative Preferred Stock ($50 par value) 9.40% 190,245
Cumulative Preferred Stock ($100 par value) 8.12% 126,835
Cumulative Preferred Stock ($100 par value) 7.70% 89,992
Cumulative Preferred Stock ($100 par value) 8.40% 197,668
Cumulative Preferred Stock ($50 par value) 8.72% 127,956
Common Stock ($4.50 par value) 40,296,147
41,442,626
<PAGE>
(c) The amount of the stated capital of the Corporation after giving effect
to such cancellation is $259,381,361.50.
(d) The number of shares which the Corporation has authority to issue after
giving effect to such cancellation is 55,503,783, itemized as follows:
Class Series No. of Shares
Cumulative Preferred Stock ($50 par value) 5% 125,209
Cumulative Preferred Stock ($50 par value) 4.60% 3,834
Cumulative Preferred Stock ($50 par value) 4.50% 19,088
Cumulative Preferred Stock ($50 par value) 4.60% (Series A) 28,052
Cumulative Preferred Stock ($50 par value) 5.125% 73,000
Cumulative Preferred Stock ($50 par value) 4.60% (Series B) 78,200
Cumulative Preferred Stock ($50 par value) 6% 86,400
Cumulative Preferred Stock ($50 par value) 9.40% 190,245
Cumulative Preferred Stock ($100 par value) 8.12% 126,835
Cumulative Preferred Stock ($100 par value) 7.70% 89,992
Cumulative Preferred Stock ($100 par value) 8.40% 197,668
Cumulative Preferred Stock ($50 par value) 8.72% 127,956
Serial Preferred Stock ($50 par value) (1 vote) 449,755
Serial Preferred Stock ($100 par value) (1 vote) 1,335,505
Serial Preferred Stock ($25 par value) (1/4 vote) 2,000,000
Serial Preferred Stock ($50 par value) (1/2 vote) 572,044
Common Stock ($4.50 par value) 50,000,000
55,503,783
4. (a) / / Amendment(s) adopted by shareholder action.
At the date of adoption of the amendment, the number of outstanding shares
of each voting group entitled to vote separately on the Amendment, and the vote
of such shares was:
Number of Number of Number of Votes Number of Undisputed
Voting Outstanding Votes Entitled Represented at Shares Voted
Group Shares to be Cast the meeting For Against
(b) / X / The Amendment(s) was duly adopted by the incorporators or board
of directors without shareholder approval pursuant to Section 33-6-102(d),
33-10-102 and 33-10-105 of the 1976 South Carolina Code, as amended, and
shareholder action was not required.
5. Unless a delayed date is specified, the effective date of these Articles of
Amendment shall be the date of acceptance for filing by the Secretary of State
(See Section 33-1-230(b)).
Date November 9, 1994 SOUTH CAROLINA ELECTRIC & GAS COMPANY
By: K. B. Marsh
Secretary
Exhibit 3.04
STATE OF SOUTH CAROLINA
SECRETARY OF STATE
ARTICLES OF AMENDMENT
Pursuant to Section 33-10-196 of the 1976 South Carolina Code, as amended,
the undersigned corporation adopts the following Articles of Amendment to its
Articles of Incorporation:
1. The name of the Corporation is SOUTH CAROLINA ELECTRIC & GAS COMPANY.
2. On , the corporation adopted the following Amendment(s) of its Articles of
Incorporation:
NOT APPLICABLE
3. The manner, if not set forth in the amendment, in which any exchange,
reclassification, or cancellation of issued shares provided for in the Amendment
shall be effected, is as follows:
(a) The number of redeemable shares of the Corporation reacquired by
redemption or purchase is 1,500 itemized as follows:
Class Series No. of Shares
Cumulative Preferred Stock ($50 par value) 4.60% 1,500
(b) The aggregate number of issued shares of the Corporation after giving
effect to such cancellation is 41,442,626, itemized as follows:
Class Series No. of Shares
Cumulative Preferred Stock ($50 par value) 5% 125,209
Cumulative Preferred Stock ($50 par value) 4.60% 3,834
Cumulative Preferred Stock ($50 par value) 4.50% 19,088
Cumulative Preferred Stock ($50 par value) 4.60% (Series A) 28,052
Cumulative Preferred Stock ($50 par value) 5.125% 73,000
Cumulative Preferred Stock ($50 par value) 4.60% (Series B) 78,200
Cumulative Preferred Stock ($50 par value) 6% 86,400
Cumulative Preferred Stock ($50 par value) 9.40% 190,245
Cumulative Preferred Stock ($100 par value) 8.12% 126,835
Cumulative Preferred Stock ($100 par value) 7.70% 89,992
Cumulative Preferred Stock ($100 par value) 8.40% 197,668
Cumulative Preferred Stock ($50 par value) 8.72% 127,956
Common Stock ($4.50 par value) 40,296,147
41,442,626
(c) The amount of the stated capital of the Corporation after giving effect
to such cancellation is $259,381,361.50.
<PAGE>
(d) The number of shares which the Corporation has authority to issue after
giving effect to such cancellation is 55,502,283, itemized as follows:
Class Series No. of Shares
Cumulative Preferred Stock ($50 par value) 5% 125,209
Cumulative Preferred Stock ($50 par value) 4.60% 3,834
Cumulative Preferred Stock ($50 par value) 4.50% 19,088
Cumulative Preferred Stock ($50 par value) 4.60% (Series A) 28,052
Cumulative Preferred Stock ($50 par value) 5.125% 73,000
Cumulative Preferred Stock ($50 par value) 4.60% (Series B) 78,200
Cumulative Preferred Stock ($50 par value) 6% 86,400
Cumulative Preferred Stock ($50 par value) 9.40% 190,245
Cumulative Preferred Stock ($100 par value) 8.12% 126,835
Cumulative Preferred Stock ($100 par value) 7.70% 89,992
Cumulative Preferred Stock ($100 par value) 8.40% 197,668
Cumulative Preferred Stock ($50 par value) 8.72% 127,956
Serial Preferred Stock ($50 par value) (1 vote) 449,755
Serial Preferred Stock ($100 par value) (1 vote) 1,335,505
Serial Preferred Stock ($25 par value) (1/4 vote) 2,000,000
Serial Preferred Stock ($50 par value) (1/2 vote) 572,044
Common Stock ($4.50 par value) 50,000,000
55,502,283
4. (a) / / Amendment(s) adopted by shareholder action.
At the date of adoption of the amendment, the number of outstanding shares
of each voting group entitled to vote separately on the Amendment, and the vote
of such shares was:
Number of Number of Number of Votes Number of Undisputed
Voting Outstanding Votes Entitled Represented at Shares Voted
Group Shares to be Cast the meeting For Against
(b) / X / The Amendment(s) was duly adopted by the incorporators or board
of directors without shareholder approval pursuant to Section 33-6-102(d),
33-10-102 and 33-10-105 of the 1976 South Carolina Code, as amended, and
shareholder action was not required.
5. Unless a delayed date is specified, the effective date of these Articles of
Amendment shall be the date of acceptance for filing by the Secretary of State
(See Section 33-1-230(b)).
Date December 9, 1994 SOUTH CAROLINA ELECTRIC & GAS COMPANY
By: K. B. Marsh
Secretary
Exhibit 3.05
STATE OF SOUTH CAROLINA
SECRETARY OF STATE
ARTICLES OF CORRECTION
The following information is submitted pursuant to Section 33- 1-240 of the
1976 South Carolina Code, as amended:
1. The name of the corporation is SOUTH CAROLINA ELECTRIC & GAS COMPANY.
2. That on December 9, 1994, the corporation filed (fill out whichever is
applicable):
(a) XX The following described document: Articles of Amendment dated
December 9, 1994.
(b) The attached document (attach copy of the document).
3. That this document was incorrect in the following manner:
3(b) The aggregate number of issued shares of the corporation after
giving effect to such cancellation is 41,442,626, consisting of 3,834 shares of
4.60% Cumulative Preferred Stock ($50 par value).
3(c) The amount of the stated capital of the corporation after giving
effect to such cancellation is $259,381,361.50.
3(d) The number of shares which the corporation has authority to issue
after giving effect to such cancellation is 55,502,283, consisting of 3,834
shares of 4.60% Cumulative Preferred Stock ($50 par value).
4. That the incorrect matters stated in paragraph 3 should be revised as
follows:
3(b) The aggregate number of issued shares of the corporation after
giving effect to such cancellation is 41,441,126, of which 2,334 are shares of
the 4.60% Cumulative Preferred Stock ($50 par value) series.
3(c) The amount of the stated capital of the corporation after giving
effect to such cancellation is $259,306,361.50.
3(d) The number of shares which the corporation has authority to issue
after giving effect to such cancellation is 55,502,283, of which 2,334 are
shares of the 4.60% Cumulative Preferred Stock ($50 par value) series.
SOUTH CAROLINA ELECTRIC & GAS COMPANY
Date: January 17, 1995 By: Kevin B. Marsh
Secretary
Exhibit 3.06
STATE OF SOUTH CAROLINA
SECRETARY OF STATE
ARTICLES OF AMENDMENT
Pursuant to Section 33-10-196 of the 1976 South Carolina Code, as amended,
the undersigned corporation adopts the following Articles of Amendment to its
Articles of Incorporation:
1. The name of the Corporation is SOUTH CAROLINA ELECTRIC & GAS COMPANY.
2. On , the corporation adopted the following Amendment(s) of its Articles of
Incorporation:
NOT APPLICABLE
3. The manner, if not set forth in the amendment, in which any exchange,
reclassification, or cancellation of issued shares provided for in the Amendment
shall be effected, is as follows:
(a) The number of redeemable shares of the corporation reacquired by
redemption or purchase is 8, itemized as follows:
Class Series No. of Shares
Cumulative Preferred Stock ($50 par value) 7.70% 8
(b) The aggregate number of issued shares of the Corporation after giving
effect to such cancellation is 41,441,118, itemized as follows:
Class Series No. of Shares
Cumulative Preferred Stock ($50 par value) 5% 125,209
Cumulative Preferred Stock ($50 par value) 4.60% 2,334
Cumulative Preferred Stock ($50 par value) 4.50% 19,088
Cumulative Preferred Stock ($50 par value) 4.60% (Series A) 28,052
Cumulative Preferred Stock ($50 par value) 5.125% 73,000
Cumulative Preferred Stock ($50 par value) 4.60% (Series B) 78,200
Cumulative Preferred Stock ($50 par value) 6% 86,400
Cumulative Preferred Stock ($50 par value) 9.40% 190,245
Cumulative Preferred Stock ($100 par value) 8.12% 126,835
Cumulative Preferred Stock ($100 par value) 7.70% 89,984
Cumulative Preferred Stock ($100 par value) 8.40% 197,668
Cumulative Preferred Stock ($50 par value) 8.72% 127,956
Common Stock ($4.50 par value) 40,296,147
41,441,118
(c) The amount of the stated capital of the Corporation after giving effect
to such cancellation is $259,305,561.50.
<PAGE>
(d) The number of shares which the Corporation has authority to issue after
giving effect to such cancellation is 55,502,283, itemized as follows:
Class Series No. of Shares
Cumulative Preferred Stock ($50 par value) 5% 125,209
Cumulative Preferred Stock ($50 par value) 4.60% 2,334
Cumulative Preferred Stock ($50 par value) 4.50% 19,088
Cumulative Preferred Stock ($50 par value) 4.60% (Series A) 28,052
Cumulative Preferred Stock ($50 par value) 5.125% 73,000
Cumulative Preferred Stock ($50 par value) 4.60% (Series B) 78,200
Cumulative Preferred Stock ($50 par value) 6% 86,400
Cumulative Preferred Stock ($50 par value) 9.40% 190,245
Cumulative Preferred Stock ($100 par value) 8.12% 126,835
Cumulative Preferred Stock ($100 par value) 7.70% 89,984
Cumulative Preferred Stock ($100 par value) 8.40% 197,668
Cumulative Preferred Stock ($50 par value) 8.72% 127,956
Serial Preferred Stock ($50 par value) (1 vote) 449,755
Serial Preferred Stock ($100 par value) (1 vote) 1,335,513
Serial Preferred Stock ($25 par value) (1/4 vote) 2,000,000
Serial Preferred Stock ($50 par value) (1/2 vote) 572,044
Common Stock ($4.50 par value) 50,000,000
55,502,283
4. (a) / / Amendment(s) adopted by shareholder action.
At the date of adoption of the amendment, the number of outstanding shares
of each voting group entitled to vote separately on the Amendment, and the vote
of such shares was:
Number of Number of Number of Votes Number of Undisputed
Voting Outstanding Votes Entitled Represented at Shares Voted
Group Shares to be Cast the meeting For Against
(b) / X / The Amendment(s) was duly adopted by the incorporators or board
of directors without shareholder approval pursuant to Section 33-6-102(d),
33-10-102 and 33-10-105 of the 1976 South Carolina Code, as amended, and
shareholder action was not required.
5. Unless a delayed date is specified, the effective date of these Articles of
Amendment shall be the date of acceptance for filing by the Secretary of State
(See Section 33-1-230(b)).
Date January 13, 1995 SOUTH CAROLINA ELECTRIC & GAS COMPANY
By: K. B. Marsh
Secretary
Exhibit 3.07
STATE OF SOUTH CAROLINA
SECRETARY OF STATE
ARTICLES OF AMENDMENT
Pursuant to Section 33-10-196 of the 1976 South Carolina Code, as amended,
the undersigned corporation adopts the following Articles of Amendment to its
Articles of Incorporation:
1. The name of the Corporation is SOUTH CAROLINA ELECTRIC & GAS COMPANY.
2. On , the corporation adopted the following Amendment(s) of its Articles of
Incorporation:
NOT APPLICABLE
3. The manner, if not set forth in the amendment, in which any exchange,
reclassification, or cancellation of issued shares provided for in the Amendment
shall be effected, is as follows:
(a) The number of redeemable shares of the Corporation reacquired by
redemption or purchase is 35,515 itemized as follows:
Class Series No. of Shares
Cumulative Preferred Stock ($100 par value) 7.70% 260
Cumulative Preferred Stock ($100 par value) 8.12% 49
Cumulative Preferred Stock ($50 par value) 8.72% 31,971
Cumulative Preferred Stock ($50 par value) 9.40% 35
Cumulative Preferred Stock ($50 par value) 6.00% 3,200
(b) The aggregate number of issued shares of the Corporation after giving
effect to such cancellation is 41,405,603, itemized as follows:
Class Series No. of Shares
Cumulative Preferred Stock ($50 par value) 5% 125,209
Cumulative Preferred Stock ($50 par value) 4.60% 2,334
Cumulative Preferred Stock ($50 par value) 4.50% 19,088
Cumulative Preferred Stock ($50 par value) 4.60% (Series A) 28,052
Cumulative Preferred Stock ($50 par value) 5.125% 73,000
Cumulative Preferred Stock ($50 par value) 4.60% (Series B) 78,200
Cumulative Preferred Stock ($50 par value) 6% 83,200
Cumulative Preferred Stock ($50 par value) 9.40% 190,210
Cumulative Preferred Stock ($100 par value) 8.12% 126,786
Cumulative Preferred Stock ($100 par value) 7.70% 89,724
Cumulative Preferred Stock ($100 par value) 8.40% 197,668
Cumulative Preferred Stock ($50 par value) 8.72% 95,985
Common Stock ($4.50 par value) 40,296,147
41,405,603
<PAGE>
(c) The amount of the stated capital of the Corporation after giving effect
to such cancellation is $257,514,361.50.
(d) The number of shares which the Corporation has authority to issue after
giving effect to such cancellation is 55,502,283, itemized as follows:
Class Series No. of Shares
Cumulative Preferred Stock ($50 par value) 5% 125,209
Cumulative Preferred Stock ($50 par value) 4.60% 2,334
Cumulative Preferred Stock ($50 par value) 4.50% 19,088
Cumulative Preferred Stock ($50 par value) 4.60% (Series A) 28,052
Cumulative Preferred Stock ($50 par value) 5.125% 73,000
Cumulative Preferred Stock ($50 par value) 4.60% (Series B) 78,200
Cumulative Preferred Stock ($50 par value) 6% 83,200
Cumulative Preferred Stock ($50 par value) 9.40% 190,210
Cumulative Preferred Stock ($100 par value) 8.12% 126,786
Cumulative Preferred Stock ($100 par value) 7.70% 89,724
Cumulative Preferred Stock ($100 par value) 8.40% 197,668
Cumulative Preferred Stock ($50 par value) 8.72% 95,985
Serial Preferred Stock ($50 par value) (1 vote) 449,790
Serial Preferred Stock ($100 par value) (1 vote) 1,335,822
Serial Preferred Stock ($25 par value) (1/4 vote) 2,000,000
Serial Preferred Stock ($50 par value) (1/2 vote) 604,015
Common Stock ($4.50 par value) 50,000,000
55,499,083
4. (a) / / Amendment(s) adopted by shareholder action.
At the date of adoption of the amendment, the number of outstanding shares
of each voting group entitled to vote separately on the Amendment, and the vote
of such shares was:
Number of Number of Number of Votes Number of Undisputed
Voting Outstanding Votes Entitled Represented at Shares Voted
Group Shares to be Cast the meeting For Against
(b) / X / The Amendment(s) was duly adopted by the incorporators or board
of directors without shareholder approval pursuant to Section 33-6-102(d),
33-10-102 and 33-10-105 of the 1976 South Carolina Code, as amended, and
shareholder action was not required.
5. Unless a delayed date is specified, the effective date of these Articles of
Amendment shall be the date of acceptance for filing by the Secretary of State
(See Section 33-1-230(b)).
Date March 30, 1995 SOUTH CAROLINA ELECTRIC & GAS COMPANY
By: K. B. Marsh
Secretary
Exhibit 3.08
STATE OF SOUTH CAROLINA
SECRETARY OF STATE
ARTICLES OF CORRECTION
The following information is submitted pursuant to Section 33-1-240 of
the 1976 South Carolina Code, as amended:
1. The name of the corporation is SOUTH CAROLINA ELECTRIC & GAS COMPANY.
2. That on March 31, 1995, the corporation filed (fill out whichever is
applicable):
(a) XX The following described document: Articles of Amendment
dated March 30, 1995.
(b) The attached document (attach copy of the document).
3. That this document was incorrect in the following manner:
3(d) The number of shares which the corporation has authority to
issue after giving effect to such cancellation is 55,502,283,
itemized as follows:
4. That the incorrect matters stated in Paragraph 3 should be revised
as follows:
3(d) The number of shares which the corporation has authority to
issue after giving effect to such cancellation is 55,499,083,
itemized as follows:
SOUTH CAROLINA ELECTRIC & GAS COMPANY
Date: December 13, 1995 By: Kevin B. Marsh
Secretary
Exhibit 3.09
STATE OF SOUTH CAROLINA
SECRETARY OF STATE
ARTICLES OF AMENDMENT
Pursuant to Section 33-10-196 of the 1976 South Carolina Code, as
amended, the undersigned corporation adopts the following Articles of
Amendment to its Articles of Incorporation:
1. The name of the Corporation is SOUTH CAROLINA ELECTRIC & GAS COMPANY.
2. On , the corporation adopted the following Amendment(s) of its Articles
of Incorporation:
NOT APPLICABLE
3. The manner, if not set forth in the amendment, in which any exchange,
reclassification, or cancellation of issued shares provided for in the
Amendment shall be effected, is as follows:
(a) The number of redeemable shares of the Corporation reacquired by
redemption or purchase is 22,960 itemized as follows:
Class Series No. of Shares
Cumulative Preferred Stock ($50 par value) 4.50% 1,569
Cumulative Preferred Stock ($50 par value) 4.60% 1,500
Cumulative Preferred Stock ($50 par value) 4.60% (Series A) 2,000
Cumulative Preferred Stock ($50 par value) 4.60% (Series B) 3,400
Cumulative Preferred Stock ($50 par value) 5.125% 1,000
Cumulative Preferred Stock ($100 par value) 7.70% 2,759
Cumulative Preferred Stock ($100 par value) 8.12% 3,741
Cumulative Preferred Stock ($50 par value) 9.40% 6,991
(b) The aggregate number of issued shares of the Corporation after
giving effect to such cancellation is 41,382,643, itemized as follows:
Class Series No. of Shares
Cumulative Preferred Stock ($50 par value) 5% 125,209
Cumulative Preferred Stock ($50 par value) 4.60% 834
Cumulative Preferred Stock ($50 par value) 4.50% 17,519
Cumulative Preferred Stock ($50 par value) 4.60% (Series A) 26,052
Cumulative Preferred Stock ($50 par value) 5.125% 72,000
Cumulative Preferred Stock ($50 par value) 4.60% (Series B) 74,800
Cumulative Preferred Stock ($50 par value) 6% 83,200
Cumulative Preferred Stock ($50 par value) 9.40% 183,219
Cumulative Preferred Stock ($100 par value) 8.12% 123,045
Cumulative Preferred Stock ($100 par value) 7.70% 86,965
Cumulative Preferred Stock ($100 par value) 8.40% 197,668
Cumulative Preferred Stock ($50 par value) 8.72% 95,985
Common Stock ($4.50 par value) 40,296,147
----------
41,382,643
(c) The amount of the stated capital of the Corporation after giving
effect to such cancellation is $256,041,361.50.
<PAGE>
(d) The number of shares which the Corporation has authority to issue
after giving effect to such cancellation is 55,489,614, itemized as
follows:
Class Series No. of Shares
Cumulative Preferred Stock ($50 par value) 5% 125,209
Cumulative Preferred Stock ($50 par value) 4.60% 834
Cumulative Preferred Stock ($50 par value) 4.50% 17,519
Cumulative Preferred Stock ($50 par value) 4.60% (Series A) 26,052
Cumulative Preferred Stock ($50 par value) 5.125% 72,000
Cumulative Preferred Stock ($50 par value) 4.60% (Series B) 74,800
Cumulative Preferred Stock ($50 par value) 6% 83,200
Cumulative Preferred Stock ($50 par value) 9.40% 183,219
Cumulative Preferred Stock ($100 par value) 8.12% 123,045
Cumulative Preferred Stock ($100 par value) 7.70% 86,965
Cumulative Preferred Stock ($100 par value) 8.40% 197,668
Cumulative Preferred Stock ($50 par value) 8.72% 95,985
Serial Preferred Stock ($50 par value) (1 vote) 456,781
Serial Preferred Stock ($100 par value) (1 vote) 1,342,322
Serial Preferred Stock ($25 par value) (1/4 vote) 2,000,000
Serial Preferred Stock ($50 par value) (1/2 vote) 604,015
Common Stock ($4.50 par value) 50,000,000
----------
55,489,614
4. (a) / / Amendment(s) adopted by shareholder action.
At the date of adoption of the amendment, the number of outstanding
shares of each voting group entitled to vote separately on the Amendment,
and the vote of such shares was:
Number of Number of Number of Votes Number of Undisputed
Voting Outstanding Votes Entitled Represented at Shares Voted
Group Shares to be Cast the meeting For Against
(b) / XX / The Amendment(s) was duly adopted by the incorporators or
board of directors without shareholder approval pursuant to Section
33-6-102(d), 33-10-102 and 33-10-105 of the 1976 South Carolina Code, as
amended, and shareholder action was not required.
5. Unless a delayed date is specified, the effective date of these Articles
of Amendment shall be the date of acceptance for filing by the Secretary of
State (See Section 33-1-230(b)).
Date December 13, 1995 SOUTH CAROLINA ELECTRIC & GAS COMPANY
By: K. B. Marsh
Secretary
Exhibit 3.10
STATE OF SOUTH CAROLINA
SECRETARY OF STATE
ARTICLES OF AMENDMENT
Pursuant to Section 33-10-106 of the 1976 South Carolina Code, as amended,
the undersigned corporation adopts the following Articles of Amendment to its
Articles of Incorporation:
1. The name of the corporation is SOUTH CAROLINA ELECTRIC & GAS COMPANY.
2. On , the corporation adopted the following Amendment(s) of its
Articles of Incorporation:
NOT APPLICABLE
3. The manner, if not set forth in the amendment, in which any exchange,
reclassification, or cancellation of issued shares provided for in the
Amendment shall be effected, is as follows:
(a) The number of redeemable shares of the corporation
reacquired by redemption or purchase is 57,517, itemized
as follows:
Class Series No. of Shares
Cumulative Preferred Stock ($50 par value) 4.50% 1,519
Cumulative Preferred Stock ($50 par value) 4.60% 747
Cumulative Preferred Stock ($50 par value) 4.60% (Series A) 2,000
Cumulative Preferred Stock ($50 par value) 4.60% (Series B) 3,400
Cumulative Preferred Stock ($50 par value) 5.125% 1,000
Cumulative Preferred Stock ($100 par value) 7.70% 2,965
Cumulative Preferred Stock ($100 par value) 8.12% 4,233
Cumulative Preferred Stock ($50 par value) 9.40% 6,468
Cumulative Preferred Stock ($50 par value) 8.72% 31,985
Cumulative Preferred Stock ($50 par value) 6.00% 3,200
(b) The aggregate number of issued shares of the corporation after
giving effect to such cancellation is 41,325,126, itemized as
follows:
Class Series No. of Shares
Cumulative Preferred Stock ($50 par value) 5% 125,209
" " " " 4.60% 87
" " " " 4.50% 16,000
" " " " 4.60% (Series A) 24,052
" " " " 5.125% 71,000
" " " " 4.60% (Series B) 71,400
" " " " 6% 80,000
" " " " 9.40% 176,751
" " " ($100 par value) 8.12% 118,812
" " " " 7.70% 84,000
" " " " 8.40% 197,668
" " " ($50 par value) 8.72% 64,000
Common Stock ($4.50 par value)------ 40,296,147
41,325,126
(c) The amount of the stated capital of the corporation after giving
effect to such cancellation is $252,805,611.50.
(d) The number of shares which the corporation has authority to issue
after giving effect to such cancellation is 55,477,748, itemized
as follows:
<PAGE>
Class Series No. of Shares
Cumulative Preferred Stock ($50 par value) 5% 125,209
" " " " 4.60% 87
" " " " 4.50% 16,000
" " " " 4.60% (Series A) 24,052
" " " " 5.125% 71,000
" " " " 4.60% (Series B) 71,400
" " " " 6% 80,000
" " " " 9.40% 176,751
" " " ($100 par value) 8.12% 118,812
" " " " 7.70% 84,000
" " " " 8.40% 197,668
" " " ($50 par value) 8.72% 64,000
Serial Preferred Stock ($50 par value) (1 vote) ---- 463,249
Serial Preferred Stock ($100 par value) (1 vote) ---- 1,349,520
Serial Preferred Stock ($25 par value) (1/4 vote) ---- 2,000,000
Serial Preferred Stock ($50 par value) (1/2 vote) ---- 636,000
Common Stock ($4.50 par value) ---- 50,000,000
55,477,748
--
4. (a) |__| Amendment(s) adopted by shareholder action.
At the date of adoption of the amendment, the number of
outstanding shares of each voting group entitled to vote separately on
the Amendment, and the vote of such shares was:
Number of Number of Number of Votes Number of Undisputed
Voting Outstanding Votes Entitled Represented at Shares Voted
Group Shares to be Cast the meeting For Against
--
(b) |XX| The Amendment(s) was duly adopted by the incorporators or
board of directors without shareholder approval pursuant to Sections
33-6-102(d), 33-10-102 and 33-10-105 of the 1976 South Carolina Code, as
amended, and shareholder action was not required.
5. Unless a delayed date is specified, the effective date of these Articles
of Amendment shall be the date of the acceptance for filing by the
Secretary of State (See Section 33-1-230(b)):
SOUTH CAROLINA ELECTRIC & GAS COMPANY
Date: February 21, 1997 By:_____s/Lynn M. Williams_____________
Secretary
Exhibit 3.11
STATE OF SOUTH CAROLINA
SECRETARY OF STATE
ARTICLES OF AMENDMENT
Pursuant to Section 33-10-106 of the 1976 South Carolina Code, as amended,
the undersigned corporation adopts the following Articles of Amendment to its
Articles of Incorporation:
1. The name of the corporation is SOUTH CAROLINA ELECTRIC & GAS COMPANY.
2. On February 18, 1997 the corporation adopted the following
Amendment(s) of its Articles of Incorporation:
See Exhibit A attached hereto.
3. The manner, if not set forth in the amendment, in which any exchange,
reclassification, or cancellation of issued shares provided for in the
Amendment shall be effected, is as follows: (if not applicable, insert
"not applicable" or "NA").
4. Complete either a or b, whichever is applicable.
(a) __ Amendment(s) adopted by shareholder action. At the date of
adoption of the amendment, the number of outstanding shares of
each voting group entitled to vote separately on the Amendment,
and the vote of such shares was:
Number of Number of Number of Votes Number of Undisputed
Voting Outstanding Votes Entitled Represented at Shares Voted
Group Shares to be Cast the meeting For Against
*NOTE: Pursuant to Section 33-10-106(6)(i), the corporation can
alternatively state the total number of undisputed shares cast for
the amendment by each voting group together with a statement that
the number of cast for the amendment by each voting group was
sufficient for approval by the voting group.
(b) XX Amendment(s) was duly adopted by the incorporators or board of
directors without shareholder approval pursuant to Sections
33-6-102(d), 33-10-102 and 33-10-105 of the 1976 South Carolina
Code, as amended, and shareholder action was not required.
5. Unless a delayed date is specified, the effective date of these
Articles of Amendment shall be the date of the acceptance for filing by the
Secretary of State (See Section 33- 1-230(b)):
DATE: April 22, 1997 SOUTH CAROLINA ELECTRIC & GAS COMPANY
By: s/K. B. Marsh
(Signature)
K. B. Marsh, Vice-President and Chief
Financial Officer
(Type or Print Name and Office)
<PAGE>
FILING INSTRUCTIONS
1. Two copies of this form, the original and either a duplicate original or a
conformed copy, must be filed.
2. If the space in this form is insufficient, please attach additional sheets
containing a reference to the appropriate paragraph in this form.
3. Filing fee and taxes payable to the Secretary of State at time of filing
application.
Filing Fee $ 10.00
Filing tax 100.00
Total $110.00
Form Approved by South Carolina
Secretary of State 1/89
EXHIBIT A
The Board of Directors of South Carolina Electric & Gas Company (the
"Company"), pursuant to Section 33-10-106 of the South Carolina Code 1976, as
amended, and Section B.2 of Article V of the Restated Articles of Incorporation
of the Company, as amended, has, by resolution duly adopted on February 18,
1997, established and designated a new series of its Preferred Stock comprising
1,000,000 shares of the par value of $100 per share, designated "6.52%
Cumulative Preferred Stock," having, in addition to the relative rights,
limitations and preferences set forth in Article V of the Restated Articles of
Incorporation of the Company, as amended, the following relative rights,
limitations and preferences:
1. (a) Subject to the provisions of Section C of Article V of the Restated
Articles of Incorporation of the Company, as amended, and subject to adjustment
pursuant to the provisions of Subparagraph (b) of this Paragraph 1, dividends
shall be payable upon the 6.52% Cumulative Preferred Stock in the manner
contemplated by said Section C at the rate of 6.52% of par value per annum.
Dividends shall be cumulative from the date of the original issuance of the
first share of the 6.52% Cumulative Preferred Stock.
(b) If, prior to 18 months after the date of the original issuance of
the 6.52% Cumulative Preferred Stock, one or more amendments to the Internal
Revenue Code of 1986, as amended (the "Code"), are enacted that reduce the
percentage of the dividends-received deduction (currently 70%) as specified in
section 243(a)(1) of the Code or any successor provision (the
"Dividends-Received Percentage"), certain adjustments may be made in respect of
the dividends payable by the Company with respect to the 6.52% Cumulative
Preferred Stock, and Post Declaration Date Dividends and Retroactive Dividends
(as such terms are defined below) may become payable, as described in the
further provisions of this Subparagraph (b).
The amount of each dividend payable (if declared) per share of 6.52%
Cumulative Preferred Stock for dividend payments made on or after the effective
date of such change in the Code will be adjusted by multiplying the amount of
the dividend payable at the stated dividend rate of 6.52% (before adjustment) by
a factor, which will be the number determined in accordance with the following
formula (the "DRD Formula"), and rounding the result to the nearest cent (with
one-half cent rounded up):
1-.35 (1-.70)
1-.35 (1-DRP)
<PAGE>
For the purposes of the DRD Formula, "DRP" means the Dividends-Received
Percentage (expressed as a decimal) applicable to the dividend in question;
provided, however, that if the Dividends-Received Percentage applicable to the
dividend in question shall be less than 50%, then the DRP shall equal .50. No
amendment to the Code, other than a change in the percentage of the
dividends-received deduction set forth in section 243(a)(1) of the Code or any
successor provision thereto, will give rise to an adjustment. Notwithstanding
the foregoing provisions, if, with respect to any such amendment, the Company
receives either an unqualified opinion of nationally recognized independent tax
counsel selected by the Company or a private letter ruling or similar form of
authorization from the Internal Revenue Service ("IRS") to the effect that such
amendment does not apply to a dividend payable on the 6.52% Cumulative Preferred
Stock, then such amendment will not result in the adjustment provided for
pursuant to the DRD Formula with respect to such dividend. The opinion
referenced in the previous sentence shall be based upon the legislation amending
or establishing the DRP or upon a published pronouncement of the IRS addressing
such legislation. Unless the context otherwise requires, references to dividends
in this Subparagraph (b) mean dividends as adjusted by the DRD Formula. The
Company's calculation of the dividends payable, as so adjusted and as certified
accurate as to calculation and reasonable as to method by the independent
certified public accountants then regularly engaged by the Company, shall be
final and not subject to review absent manifest error.
Notwithstanding the foregoing, if any such amendment to the Code is enacted
after the dividend payable on a dividend payment date has been declared, the
amount of the dividend payable on such dividend payment date will not be
increased; instead, additional dividends (the "Post Declaration Date Dividends")
equal to the excess, if any, of (x) the product of the dividend paid by the
Company on such dividend payment date and the DRD Formula (where the DRP used in
the DRD Formula would be equal to the greater of the Dividend-Received
Percentage applicable to the dividend in question and .50) over (y) the dividend
paid by the Company on such dividend payment date, will be payable (if declared)
to holders of 6.52% Cumulative Preferred Stock on the record date applicable to
the next succeeding dividend payment date or, if the 6.52% Cumulative Preferred
Stock is called for redemption prior to such record date, to holders of 6.52%
Cumulative Preferred Stock on the applicable redemption date, as the case may
be, in addition to any other amounts payable on such date.
If any such amendment to the Code is enacted and the reduction in the
Dividends-Received Percentage retroactively applies to a dividend payment date
as to which the Company previously paid dividends on the 6.52% Cumulative
Preferred Stock (each, an "Affected Dividend Payment Date"), the Company will
pay (if declared) additional dividends (the "Retroactive Dividends") to holders
of 6.52% Cumulative Preferred Stock on the record date applicable to the next
succeeding dividend payment date (or, if such amendment is enacted after the
dividend payable on such dividend payment date has been declared, to holders of
6.52% Cumulative Preferred Stock on the record date following the date of
enactment), or, if the 6.52% Cumulative Preferred Stock is called for redemption
prior to such record date, to holders of 6.52% Cumulative Preferred Stock on the
applicable redemption date, as the case may be, in an amount equal to the excess
of (x) the product of the dividend paid by the Company on each Affected Dividend
Payment Date and the DRD Formula (where the DRP used in the DRD Formula would be
equal to the greater of the Dividends- Received Percentage and .50 applied to
each Affected Dividend Payment Date) over (y) the sum of the dividend paid by
the Company on each Affected Dividend Payment Date. The Company will only make
one payment of Retroactive Dividends for any such amendment. Notwithstanding the
foregoing provisions, if, with respect to any such amendment, the Company
receives either an unqualified opinion of nationally recognized independent tax
counsel selected by the Company or a private letter ruling or similar form of
authorization from the IRS to the effect that such amendment does not apply to a
dividend payable on an Affected Dividend Payment Date for the 6.52% Cumulative
Preferred Stock, then such amendment will not result in the payment of
Retroactive Dividends with respect to such Affected Dividend Payment Date. The
opinion referenced in the previous sentence shall be based upon the legislation
amending or establishing the DRP or upon a published pronouncement of the IRS
addressing such legislation.
Notwithstanding the foregoing, no adjustment in the dividends payable by
the Company shall be made, and no Post Declaration Date Dividends or Retroactive
Dividends shall be payable by the Company, in respect of the enactment of any
amendment to the Code 18 months or more after the date of original issuance of
the 6.52% Cumulative Preferred Stock that reduces the Dividends-Received
Percentage.
In the event that the amount of dividends payable per share of the 6.52%
Cumulative Preferred Stock is adjusted pursuant to the DRD Formula and/or Post
Declaration Date Dividends or Retroactive Dividends are to be paid, the Company
will give notice of each such adjustment and, if applicable, any Post
Declaration Date Dividends and Retroactive Dividends to the holders of 6.52%
Cumulative Preferred Stock.
2. Subject to the provisions of Sections C and E of Article V of the
Restated Articles of Incorporation of the Company, as amended, on or after April
24, 2007, the Company, at its option, may redeem the 6.52% Cumulative Preferred
Stock, in whole or in part, at any time or from time to time, out of funds
legally available therefor, at the redemption price of $100 per share plus an
amount equal to the dividend (whether or not declared) accrued but not
previously paid to but excluding the date of such redemption, including any
adjustments in dividends payable due to changes in the Dividends-Received
Percentage.
3. The 6.52% Cumulative Preferred Stock is not subject to any mandatory
redemption, sinking fund or other similar provisions.
Exhibit 3.12
STATE OF SOUTH CAROLINA
SECRETARY OF STATE
ARTICLES OF AMENDMENT
Pursuant to Section 33-10-106 of the 1976 South Carolina Code,
as amended, the undersigned corporation adopts the following Articles of
Amendment to its Articles of Incorporation:
1. The name of the corporation is SOUTH CAROLINA ELECTRIC & GAS COMPANY.
2. On , the corporation adopted the following Amendment(s) of its Articles
of Incorporation:
NOT APPLICABLE
3. The manner, if not set forth in the amendment, in which any exchange,
reclassification, or cancellation of issued shares provided for in the
Amendment shall be effected, is as follows:
(a) The number of redeemable shares of the corporation reacquired
by redemption or purchase is 659,276 itemized as follows:
Class Series No. of Shares
Cumulative Preferred Stock ($50 par value) 4.50% 1,600
Cumulative Preferred Stock ($50 par value) 4.60% 87
Cumulative Preferred Stock ($50 par value) 4.60% (Series A) 2,158
Cumulative Preferred Stock ($50 par value) 4.60% (Series B) 6,800
Cumulative Preferred Stock ($50 par value) 5.125% 1,000
Cumulative Preferred Stock ($100 par value) 7.70% 84,000
Cumulative Preferred Stock ($100 par value) 8.12% 118,812
Cumulative Preferred Stock ($50 par value) 9.40% 176,751
Cumulative Preferred Stock ($50 par value) 8.72% 64,000
Cumulative Preferred Stock ($50 par value) 6.00% 6,400
Cumulative Preferred Stock ($100 par value) 8.40% 197,668
(b) The aggregate number of issued shares of the corporation after
giving effect to such cancellation is 41,665,850, itemized as
follows:
Class Series No. of Shares
Cumulative Preferred Stock ($50 par value) 5% 125,209
" " " " 4.60% 0
" " " " 4.50% 14,400
" " " " 4.60% (Series A) 21,894
" " " " 5.125% 70,000
" " " " 4.60% (Series B) 64,600
" " " " 6% 73,600
" " " " 9.40% 0
" " " ($100 par value) 8.12% 0
" " " " 7.70% 0
" " " " 8.40% 0
" " " ($50 par value) 8.72% 0
" " " ($100 par value) 6.52% 1,000,000
Common Stock ($4.50 par value) ------ 40,296,147
----------
41,665.850
(c) The amount of the stated capital of the corporation after giving effect
to such cancellation is $299,817,811.50.
(d) The number of shares which the corporation has authority to issue
after giving effect to such cancellation is 56,459,703, itemized as follows:
Class Series No. of Shares
Cumulative Preferred Stock ($50 par value) 5% 125,209
" " " " 4.60% 0
" " " " 4.50% 14,400
" " " " 4.60% (Series A) 21,894
" " " " 5.125% 70,000
" " " " 4.60% (Series B) 64,600
" " " " 6% 73,600
" " " " 9.40% 0
" " " ($100 par value) 8.12% 0
" " " " 7.70% 0
" " " " 8.40% 0
" " " ($50 par value) 8.72% 0
" " " ($100 par value) 6.52% 1,000,000
Serial Preferred Stock ($50 par value) (1 vote) ---- 640,000
Serial Preferred Stock ($100 par value) (1 vote) ---- 1,750,000
Serial Preferred Stock ($25 par value) (1/4 vote) ---- 2,000,000
Serial Preferred Stock ($50 par value) (1/2 vote) ---- 700,000
Common Stock ($4.50 par value) ---- 50,000,000
----------
56,459,703
--
4. (a) |__| Amendment(s) adopted by shareholder action.
At the date of adoption of the amendment, the number of
outstanding shares of each voting group entitled to vote separately on
the Amendment, and the vote of such shares was:
Number of Number of Number of Votes Number of Undisputed
Voting Outstanding Votes Entitled Represented at Shares Voted
Group Shares to be Cast the meeting For Against
(b) |XX| The Amendment(s) was duly adopted by the incorporators or
board of directors without shareholder approval pursuant to Sections
33-6-102(d), 33-10-102 and 33-10-105 of the 1976 South Carolina Code, as
amended, and shareholder action was not required.
5. Unless a delayed date is specified, the effective date of these
Articles of Amendment shall be the date of the acceptance for filing by
the Secretary of State (See Section 33-1-230(b)):
SOUTH CAROLINA ELECTRIC & GAS COMPANY
Date: April 9, 1998 By:___s/Lynn M. Williams________________
------------------
Secretary
Exhibit 3.13
BY-LAWS
OF
SOUTH CAROLINA ELECTRIC & GAS COMPANY
AS AMENDED AND ADOPTED
December 17, 1997
ARTICLE I
OFFICES
Section 1. The principal office of the Corporation, which shall also be
designated as its registered office, shall be located in the City of Columbia,
County of Richland, State of South Carolina.
Section 2. The Corporation may also have offices and places of business at
such other places, within or without the State of South Carolina, as the Board
of Directors may from time to time determine or the business of the Corporation
may require.
ARTICLE II
SEAL
Section 1. The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the words "South Carolina". If
authorized by the Board of Directors, the corporate seal may be affixed to any
certificates of stock, bonds, debentures, notes or other engraved, lithographed
or printed instruments, by engraving, lithographing or printing thereon such
seal or a facsimile thereof, and such seal or facsimile thereof so engraved,
lithographed or printed thereon shall have the same force and effect, for all
purposes, as if such corporate seal had been affixed thereto by indentation.
<PAGE>
ARTICLE III
STOCKHOLDERS' MEETINGS
Section 1. Written or printed notices for annual or special meetings of
stockholders shall state the place, day and hour of such meetings and, in case
of special meetings, the purpose or purposes for which the meetings are called.
Section 2. Annual meetings of shareholders shall be held on a date selected
by the Board of Directors at its last regularly scheduled meeting in a calendar
year. The Board will select a date at said meeting for the following year with
the date occurring between April 16 and April 30 of said year, when they shall
elect members of the Board of Directors in accordance with the provisions of the
Corporation's Articles of Incorporation and transact such other business as may
properly be brought before the meeting.
Section 3. Except as otherwise provided by law, by the Articles of
Incorporation as the same may be amended from time to time, or by these By-Laws
as they may be amended from time to time, the holders of a majority of the
shares of stock of the Corporation issued and outstanding and entitled to vote
thereat, present in person or represented by proxy, shall constitute a quorum at
any meeting of the stockholders for the transaction of business.
If, however, such quorum shall not be present or represented at such
meeting of the stockholders, the stockholders entitled to vote thereat, present
in person or represented by proxy, shall have the power, by a majority vote of
those present, to adjourn the meeting from time to time without notice (unless
otherwise provided in Section 8 of this Article III) other than by announcement
at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented any business
may be transacted which may have been transacted at the meeting as originally
noticed provided notice of such adjourned meeting, when required by Section 8 of
this Article III, shall have been given or waived.
Section 4. At each meeting of the stockholders each stockholder having the
right to vote shall be entitled to vote in person, or by proxy appointed by
written or printed instrument executed by such stockholder or by his duly
authorized attorney or by telegram or cablegram appearing to have been
transmitted by such stockholder but, except as otherwise provided by statute, no
proxy shall be valid after expiration of eleven months from the date of its
execution. Every proxy shall be dated as of its execution and no proxy shall be
undated or postdated. Every holder of record of stock having voting power shall
be entitled to one vote for every share of stock standing in his name on the
books of the Corporation. The vote for directors and, upon the demand of any
stockholder or his duly authorized proxy, the vote upon any question before the
meeting shall be by ballot. All elections shall be decided by a plurality of the
votes cast by the holders of the shares entitled to vote at the meeting of
stockholders and except as otherwise provided by statute or by the Articles of
Incorporation all other questions by a majority of the votes cast by holders of
shares entitled to vote on such question at such meeting.
Section 5. The Secretary or the agent of the Corporation having charge of
its stock transfer books shall, in advance of each meeting of stockholders,
prepare a complete list of the stockholders entitled to vote at such meeting of
stockholders or adjournment thereof, which list shall be arranged in
alphabetical order with the address of and the number of shares held by each
stockholder. Unless the record of stockholders kept by the Secretary or agent of
the Corporation having charge of its stock transfer books readily shows, in
alphabetical order or by alphabetical index, the information required to appear
on such a list of stockholders, such list of stockholders shall, for a period
commencing upon the date when notice of such meeting is given, and in no event
less than 10 days prior to the date of such meeting, be kept on file at the
registered office of the Corporation or at its principal place of business or at
the office of its transfer agent or registrar, and shall be subject to
inspection by any stockholder at any time during usual business hours. In any
event, such list shall be produced and kept open at the time and place of such
meeting and shall be subject to the inspection of any stockholder during the
whole time of such meeting.
Section 6. Special meetings of the stockholders for any purpose or
purposes, unless otherwise prescribed by statute, may be called by the Chairman
of the Board, by the Vice Chairman of the Board or by the President, and shall
be called by the President or Secretary at the request in writing of a majority
of the Board of Directors, or at the request in writing of holders of ten per
cent or more of the shares of stock of the Corporation issued and outstanding
and entitled to vote at the proposed meeting. Such request shall state the
purpose or purposes of the proposed meeting.
Section 7. Business transacted at all special meetings shall be confined to
the objects stated in the call; provided, however, that if all the stockholders
of the Corporation entitled to vote shall be present in person or by proxy, any
business pertaining to the affairs of the Corporation may be transacted.
Section 8. Notice of annual meetings of stockholders and notice of any
special meeting of stockholders for the election of directors or for any other
purpose, unless otherwise provided by statute, shall be delivered personally or
mailed, not less than ten nor more than fifty days before the meeting, to each
person who appears on the books of the Corporation as a stockholder entitled to
vote at said meeting. In the event of the adjournment of any meeting of
stockholders, for whatever reason, for 30 days or more, notice of the adjourned
meeting shall be delivered personally or mailed not less than ten nor more than
fifty days before the date for such adjourned meeting to each person whose name
appears on the books of the Corporation as a stockholder entitled to vote at
said adjourned meeting. Any such notice may be either written or printed, or
partly written and partly printed, and if mailed it shall be directed to the
stockholder at his address as it appears on the books of the Corporation. Such
notice shall briefly state the business which it is proposed to present or to
submit to such meeting.
ARTICLE IV
DIRECTORS
Section 1. The property and business of the Corporation shall be managed by
its Board of Directors. The number of directors shall be not more than twenty
(20). The directors shall be elected at the annual meeting of the stockholders
or at a special meeting called for that purpose. Each director shall be elected
to serve until the next annual meeting of stockholders and thereafter until his
successor shall be elected and shall qualify. Any director may be removed with
or without cause, by a vote of the holders of a majority of the shares then
entitled to vote at an election of directors, provided, however, such removal
shall be subject to the following:
(1) Whenever the shares of a class of stock are entitled to elect one
or more directors, any director so elected may be removed only by the vote of
the holders of the outstanding shares of that class voting separately as a
class, and
(1) No director who has been elected by cumulative voting may be removed if
the votes cast against his removal would be sufficient to elect him if
then cumulatively voted at an election of the entire Board of
Directors.
Section 2. In addition to the powers and authorities by these By-Laws
expressly conferred upon them, the Board may exercise all such power of the
Corporation and do all such lawful acts and things as are not by statute or by
the Articles of Incorporation or by these By-Laws directed or required to be
exercised or done by the stockholders. A director or officer of this Corporation
shall not be disqualified by his office from dealing or contracting with the
Corporation either as a vendor, purchaser or otherwise, nor shall any
transaction or contract of this Corporation be void or voidable solely by reason
of the fact that any director or officer or any firm of which any director or
officer is a member or employee, or any corporation of which any director or
officer is a shareholder, director, officer or employee, is in any way
interested in such transaction or contract, provided that the material facts as
to such interest and as to such transaction or contract are disclosed or known
to the Board of Directors or the Executive Committee and noted in their
respective minutes, or to the stockholders entitled to vote with respect
thereto, as the case may be, and that such transaction or contract is or shall
be authorized, ratified or approved either (1) by the vote of a majority of a
quorum of the Board of Directors or of the Executive Committee, or (2) by a
majority of the votes cast by holders of shares of stock entitled to vote with
respect thereto, without counting (except for quorum purposes) the vote of or
shares held or controlled and voted by, as the case may be, any director so
interested or member or employee of a firm so interested or a shareholder,
director, officer or employee of a corporation so interested; nor shall any
director or officer be liable to account to the Corporation for any profits
realized by and from or through any such transaction, or contract of this
Corporation authorized, ratified or approved as aforesaid by reason of the fact
that he or any firm of which he is a member or employee, or any corporation of
which he is a shareholder, director, officer or employee was interested in such
transaction or contract.
ARTICLE V
MEETINGS OF THE BOARD
Section 1. The Board of Directors of the Corporation may hold meetings,
both regular and special, either within or without the State of South Carolina.
If so authorized by law, members of the Board of Directors may participate in a
meeting of the Board by means of telephone conference call or similar
communications by which all persons participating in the meeting may hear each
other at the same time.
Section 2. Regular meetings of the Board may be held without notice at such
time and place as shall from time to time be designated by the Board.
Section 3. Special meetings of the Board may be called by the Chairman of
the Board, or the Vice Chairman of the Board, if any, or the President or any
two directors and may be held at the time and place designated in the call and
notice of the meeting. The Secretary or other officer performing his duties
shall give notice either personally or by mail or telegram not less than
twenty-four hours before the meeting. Meetings may be held at any time and place
without notice if all the directors are present or if those not present sign
waivers of notice either before or after the meeting.
Section 4. At all meetings of the Board a majority of the total number of
directors then in office shall be necessary and sufficient to constitute a
quorum for the transaction of business, and the act of a majority of the
directors present at any meeting at which there is a quorum shall be the act of
the Board of Directors, except as may be otherwise specifically provided by
statute or by the Articles of Incorporation or by these By-Laws.
Section 5. Any regular or special meeting of the Board may be adjourned to
any other time at the same or any other place by a majority of the directors
present at the meeting, whether or not a quorum shall be present at such
meeting, and no notice of the adjourned meeting shall be required other than
announcement at the meeting.
Section 6. Whenever, by any provision of law, the vote of directors at a
meeting thereof is required or permitted to be taken in connection with any
corporate action, the meeting and vote of directors may be dispensed with, if
all the directors shall consent in writing to such corporate action being taken.
Such consents shall be filed with the minutes of meetings of the Board of
Directors.
Section 7. Directors, as such, shall not receive any stated salary for
their services, but, by resolution of the Board of Directors, a fixed fee and
expenses of attendance, if any, may be allowed for attendance at each regular or
special meeting of the Board (or of any committee of the Board), provided that
nothing herein contained shall be construed to preclude any Director from
serving the Corporation in any other capacity and receiving compensation
therefor.
Section 8. Directors who are salaried officers or employees of the
Corporation or of any affiliated Company and who are members of the Executive
Committee shall receive no compensation for their services as such members in
addition to such compensation as may be paid to them as officers or directors,
but shall be reimbursed for their reasonable expenses, if any, in attending
meetings of the Executive Committee, or otherwise performing their duties as
members of the Executive Committee.
ARTICLE VI
EXECUTIVE AND OTHER COMMITTEES
Section 1. The Board of Directors may, by vote of a majority of the full
Board, designate three or more of their number to constitute an Executive
Committee, to hold office for one year and until their respective successors
shall be designated. Such Executive Committee shall advise with and aid the
officers of the Corporation in all matters concerning its interests and the
management of its business, and shall, between sessions of the Board, except as
otherwise provided by law, have all the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and shall have power
to authorize the seal of the Corporation to be affixed to all papers which may
require it. The taking of any action by the Executive Committee shall be
conclusive evidence that the Board of Directors was not at the time of such
action in session.
The Board of Directors may, by vote of a majority of the full Board,
appoint from among their number, one or more additional committees, consisting
of three or more directors, which shall have such powers and duties as may be
fixed by the resolution of the Board of Directors appointing such Committee.
Section 2. The Executive Committee shall cause to be kept regular minutes
of its proceedings, which may be transcribed in the regular minute book of the
Corporation, and all such proceedings shall be reported to the Board of
Directors at its next succeeding meeting, and shall be subject to revision or
alteration by the Board, provided that no rights of third persons shall be
affected by such revision or alteration. A majority of the Executive Committee
shall constitute a quorum at any meeting. The Executive Committee may take
action without a meeting on the written approval of such action by all the
members of the Committee. The Board of Directors may by vote of a majority of
the full Board fill any vacancies in the Executive Committee. The Executive
Committee may, from time to time, subject to the approval of the Board of
Directors, prescribe rules and regulations for the calling and conduct of
meetings of the Committee, and other matters relating to its procedure and the
exercise of its powers.
Section 3. Other committees appointed by the Board shall cause to be kept
regular minutes of their proceedings and in general the provisions as to
procedure for such committees shall be that set forth above with respect to the
Executive Committee.
ARTICLE VII
OFFICERS
Section 1. The officers of the Corporation shall be elected by the Board of
Directors. They shall include a President, one or more Vice Presidents, a
Secretary, a Treasurer and a Controller and may include a Chairman of the Board
and a Vice Chairman of the Board. In the event there shall be a Chairman of the
Board and a Vice Chairman of the Board, the Board of Directors shall designate
which of the Chairman of the Board, the Vice Chairman of the Board or the
President shall be the Chief Executive Officer of the Corporation. If there
shall be no Chairman of the Board or Vice Chairman of the Board, the President
shall be the Chief Executive Officer of the Corporation. Any two or more of such
offices, except those of Treasurer and Controller, may be occupied by the same
person; provided, however, the same person may not act in more than one capacity
where action by two or more officers is required.
Section 2. The Board of Directors, at its first meeting after the election
of directors by the stockholders, shall elect from among its members, if it
deems proper, a Chairman of the Board and a Vice Chairman of the Board. It shall
also elect a President and one or more Vice Presidents, a Secretary, a Treasurer
and a Controller, none of whom need be members of the Board.
The Board of Directors, at any meeting, may elect such additional Vice
Presidents, and such Assistant Vice Presidents, Assistant Secretaries, Assistant
Treasurers and Assistant Controllers, as it shall deem necessary, none of whom
need be members of the Board.
Section 3. The Board of Directors, at any meeting, may elect or appoint
such other officers and agents as it shall deem necessary. The tenure and duties
of such officers and agents shall be fixed by the Board of Directors or, in the
absence of any action by the Board of Directors so fixing such tenure and
duties, the tenure and duties shall be fixed by the Chief Executive Officer of
the Corporation, or by such officers or department heads to whom he shall
delegate such authority.
Section 4. The salaries and compensation of the officers of the Corporation
and of agents of the Corporation appointed by the Board shall be fixed by the
Board of Directors. The salaries and compensation of all other employees of the
Corporation shall, in the absence of any action by the Board of Directors, be
fixed by the Chief Executive Officer of the Corporation. No officer receiving
compensation from any affiliated company shall at the same time be compensated
by the Corporation.
Section 5. The officers of the Corporation elected pursuant to Section 2 of
this Article VII shall hold office until the first meeting of the Board of
Directors after the next succeeding annual meeting of stockholders and until
their successors are elected and qualify in their stead. The Chief Executive
Officer may be removed at any time, with or without cause, by the affirmative
vote of a majority of the total number of directors then in office. Any other
officer or employee of the Corporation may be removed at any time, with or
without cause, either (a) by vote of a majority of the directors present at any
meeting of the Board of Directors at which a quorum is present, or (b) by vote
of a majority of the members of the Executive Committee, or (c) by the Chief
Executive Officer of the Corporation or by any officer who shall be exercising
the powers of the Chief Executive Officer of the Corporation, or by any superior
of such employee to whom such power of removal shall be delegated by the Chief
Executive Officer of the Corporation or the officer exercising the powers of the
Chief Executive Officers of the Corporation.
ARTICLE VIII
CHIEF EXECUTIVE OFFICER
Section 1. The Chief Executive Officer of the Corporation shall supervise,
direct and control the conduct of the business of the Corporation subject,
however, to the general policies determined by the Board of Directors and the
Executive Committee, if there be one.
He shall be a member of the Executive Committee and all committees
appointed by the Board of Directors, except the Audit Committee, shall have the
general powers and duties usually vested in the chief executive officer of a
corporation, and shall have such other powers and perform such other duties as
may be prescribed from time to time by law, by the By-Laws, or by the Board of
Directors.
He shall, whenever it may in his opinion be necessary, prescribe the duties
of officers and employees of the Corporation whose duties are not otherwise
defined.
He shall have power to remove at any time, with or without cause, any
employee or officer of the Corporation. He may, in accordance with Section 5 of
Article VII of these By-Laws, delegate such power of removal.
ARTICLE IX
CHAIRMAN OF THE BOARD
Section 1. The Chairman of the Board, if there be one, shall preside at all
meetings of the Board of Directors and of the stockholders, except when by
statute the election of a presiding officer shall be required. He shall, if
designated Chief Executive Officer pursuant to Section 1 of Article VII of these
By-Laws, have all the powers and duties granted and delegated to the Chief
Executive Officer by Section 1 of Article VIII of these By-Laws. In such event
he may sign in the name of and on behalf of the Corporation any and all
contracts, agreements or other instruments pertaining to matters which arise in
the ordinary course of business of the Corporation and, if authorized by the
Board of Directors or the Executive Committee, may sign in the name of and on
behalf of the Corporation any other contracts, agreements or instruments of any
nature pertaining to the business of the Corporation. He shall have such other
powers and perform such other duties as may be prescribed from time to time by
law, by the By-Laws or by the Board of Directors.
ARTICLE X
THE VICE CHAIRMAN OF THE BOARD
The Vice Chairman of the Board, if there be one, shall perform necessary duties
of the Chairman in case of the absence or temporary incapacity of the Chairman.
He shall have such other powers and perform such other duties as may be
prescribed from time to time by law, by the By-Laws or by the Board of
Directors.
ARTICLE XI
THE PRESIDENT
Section 1. The President shall, in the absence of the Chairman and Vice
Chairman of the Board, or if there shall be no Chairman or Vice Chairman of the
Board, preside at all meetings of the Board of Directors and of the
stockholders, except when by statute the election of a presiding officer shall
be required.
He shall, if designated Chief Executive Officer of the Corporation pursuant
to Section 1 of Article VII of these By-Laws, have all the powers and duties
granted and delegated to the Chief Executive Officer by Section 1 of Article
VIII of these By-Laws.
In the event there shall be a Chairman of the Board or a Vice Chairman of
the Board who shall have been designated as Chief Executive Officer of the
Corporation pursuant to Section 1 of Article VII of these By-Laws, then the
President shall have such powers and duties as may be assigned to him by the
Chief Executive Officer. In addition, he shall be a member of the Executive
Committee, and, in the absence or disability of the Chairman of the Board or the
Vice Chairman of the Board, he shall have all the powers and duties of the
Chairman of the Board or the Vice Chairman of the Board.
He may sign in the name of and on behalf of the Corporation any and all
contracts, agreements or other instruments pertaining to matters which arise in
the ordinary course of business of the Corporation and, if authorized by the
Board of Directors or the Executive Committee, may sign in the name of and on
behalf of the Corporation any other contracts, agreements or instruments of any
nature pertaining to the business of the Corporation.
He shall have such other powers and perform such other duties as may be
prescribed from time to time by law, by the By-Laws or by the Board of
Directors.
ARTICLE XII
THE VICE PRESIDENT
Section 1. The Vice President shall, in the absence or disability of the
President, perform the duties and exercise the powers of the President and shall
perform such other duties as the Board of Directors may prescribe.
The Vice President may sign in the name of and on behalf of the Corporation
contracts, agreements, or other instruments pertaining to matters which arise in
the ordinary course of business of the Corporation, except in cases where the
signing thereof shall be expressly delegated by the Board of Directors or the
Executive Committee to some other officer or agent of the Corporation. If
authorized by the Board of Directors or the Executive Committee, he may sign in
the name of and on behalf of the Corporation any other contracts, agreements or
instruments of any nature pertaining to the business of the Corporation. He
shall have such other powers and perform such other duties as may be prescribed
from time to time by law, by the By-Laws, or by the Board of Directors.
If there be more than one Vice President, the Board of Directors or the
Chief Executive Officer of the Corporation shall assign to such Vice Presidents
their respective duties, and the Board may designate any of such Vice Presidents
as Executive Vice Presidents and Senior Vice Presidents.
ARTICLE XIII
THE SECRETARY
Section 1. The Secretary shall attend all sessions of the Board and all
meetings of the stockholders and record all votes and the minutes of all
proceedings in a book to be kept for that purpose; and shall perform like duties
for the committees appointed by the Board of Directors when required. He shall
give, or cause to be given, notice of all meetings of the stockholders and of
the Board of Directors, and shall perform such other duties as may be prescribed
by the Board of Directors or Chief Executive Officer, under whose supervision he
shall be. He shall be sworn to the faithful discharge of his duty. Any records
kept by him shall be the property of the Corporation and shall be restored to
the Corporation in case of his death, resignation, retirement or removal from
office. He or his agent shall be the custodian of the seal of the Corporation,
the stock ledger, stock certificate book and minute books of the Corporation,
and its committees, and other formal records and documents relating to the
corporate affairs of the Corporation.
Section 2. The Assistant Secretary or Assistant Secretaries shall assist
the Secretary in the performance of his duties, exercise and perform his powers
and duties, in his absence or disability, and such other powers and duties as
may be conferred or required by the Board.
ARTICLE XIV
THE TREASURER
Section 1. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the Corporation, in
such depositories as may be designated by the Board of Directors or as may be
designated by persons to whom the Board of Directors delegates such authority.
He shall disburse the funds of the Corporation in such manner as may be
ordered by the Board, taking proper vouchers for such disbursements, and shall
render to the Chief Executive Officer and directors, at the regular meetings of
the Board, or whenever they may require it, an account of all his transactions
as Treasurer and of the financial condition of the Corporation.
He shall give the Corporation a bond if required by the Board of Directors
in a sum, and with one or more sureties satisfactory to the Board, for the
faithful performance of the duties of his office, and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the Corporation.
Section 2. The Assistant Treasurer or Assistant Treasurers shall assist the
Treasurer in the performance of his duties, exercise and perform his powers and
duties, in his absence or disability, and such other powers and duties as may be
conferred or required by the Board.
ARTICLE XV
THE CONTROLLER
Section 1. The Controller of the Corporation shall be the principal
accounting officer of the Corporation. He shall have full control of all the
books of the Corporation and keep a true and accurate record of all property
owned by it, of its debts and of its revenues and expenses, and shall keep all
accounting records of the Corporation other than the record of receipts and
disbursements and those relating to deposit or custody of money and securities
of the Corporation, which shall be kept by the Treasurer, and shall also make
reports to the directors and others of or relating to the financial condition of
the Corporation. He shall exhibit at all reasonable times his books of account
and records to any director of the Corporation upon application during business
hours at the office of the Corporation where such books of accounts and records
are kept.
He shall perform all duties generally incident to the office of Controller
and shall have such other powers and duties as, from time to time, may be
prescribed by law, by the By-Laws, or by the Board of Directors.
Section 2. The Assistant Controller or Assistant Controllers shall assist
the Controller in the performance of his duties, exercise and perform his powers
and duties, in his absence or disability, and such other powers and duties as
may be conferred or required by the Board of Directors.
ARTICLE XVI
VACANCIES
Section 1. If the office of any director becomes vacant by reason of death,
resignation, retirement, disqualification, or otherwise, the directors then in
office, although less than a quorum, by a majority vote, may elect a successor
or successors, who shall hold office for the unexpired term in respect of which
such vacancy occurred. Notwithstanding anything contained in the preceding
sentence, if a vacancy occurs with respect to a director elected by the votes of
a particular class of stock such vacancy shall be filled by the remaining
director or directors elected by that class, or by the stockholders of that
class, and any vacancy created by an increase in the number of directors of the
Corporation shall be filled only by election by the stockholders entitled to
vote with respect thereto at an annual meeting or a special meeting of
stockholders called for that purpose. If the office of any officer of the
Company shall become vacant for any reason, the Board of Directors, by a
majority vote of those present at any meeting at which a quorum is present, may
elect a successor or successors, who shall hold office for the unexpired term in
respect of which such vacancy occurred.
ARTICLE XVII
RESIGNATIONS
Section 1. Any officer or any director of the Corporation may resign at any
time, such resignation to be made in writing and to take effect from the time of
its receipt by the Corporation, unless some time be fixed in the resignation,
and then from that time. The acceptance of a resignation shall not be required
to make it effective. A vacancy shall be deemed to exist upon receipt by the
Corporation of such written resignation, and a successor may, then or
thereafter, be elected to take office when such resignation becomes effective.
ARTICLE XVIII
DUTIES OF OFFICERS MAY BE DELEGATED
Section 1. In case of the absence of any officer of the Corporation, or for
any other reason the Board may deem sufficient, the Board may delegate, for the
time being, the powers or duties, or any of them, of such officers to any other
officer or to any director.
ARTICLE XIX
STOCK OF OTHER CORPORATIONS
Section 1. The Board of Directors shall have the right to authorize any
officer or other person on behalf of the Corporation to attend, act and vote at
meetings, of the stockholders of any corporation in which the Corporation shall
hold stock, and to exercise thereat any and all the rights and powers incident
to the ownership of such stock and to execute waivers of notice of such meetings
and calls therefor; and authority may be given to exercise the same either on
one or more designated occasions, or generally on all occasions until revoked by
the Board. In the event that the Board shall fail to give such authority it may
be exercised by the Chief Executive Officer of the Corporation in person or by
proxy appointed by him on behalf of the Corporation.
<PAGE>
ARTICLE XX
CERTIFICATES OF STOCK
Section 1. The certificates of stock of the Corporation shall be entered in
the books of the Corporation as they are issued. No fractional shares of stock
shall be issued. Certificates of stock shall be signed by the Chairman of the
Board, the Vice Chairman of the Board, the President or a Vice President and by
the Secretary, or an Assistant Secretary, and the seal of the Corporation shall
be affixed thereto. Such seal may be facsimile, engraved or printed. Where any
certificate of stock is signed by a transfer agent or transfer clerk or by a
registrar, the signatures of any such Chairman of the Board, Vice Chairman of
the Board, President, Vice President, Secretary or Assistant Secretary, upon
such stock certificate may be facsimiles, engraved or printed. In case any such
officer who has signed, or whose facsimile signature has been placed upon, such
certificate of stock, shall have ceased to be such officer before such
certificate of stock is issued, it may be issued by the Corporation with the
same effect as if such officer had not ceased to be such at the date of its
issue.
ARTICLE XXI
TRANSFERS OF STOCK
Section 1. Transfer of stock shall be made on the books of the Corporation
only by the person named in the certificate or by attorney, lawfully constituted
in writing, and upon surrender of the certificate therefor.
ARTICLE XXII
FIXING OF RECORD DATE
Section 1. The Board of Directors is hereby authorized to fix a time, not
less than ten (10) days nor more than fifty (50) days preceding the date of any
meeting of stockholders or the date fixed for the payment of any dividend or the
making of any distribution, or for the delivery of evidences of rights or
evidences of interests arising out of any change, conversion or exchange of
shares of stock, as a record date for the determination of the stockholders
entitled to notice of and to vote at such meeting or entitled to receive any
such dividend, distribution, rights or interests, as the case may be; and all
persons who are holders of record of shares of stock at the date so fixed and no
others, shall be entitled to notice of and to vote at such meeting, and only
stockholders of record at such date shall be entitled to receive any such
notice, dividend, distribution, rights or interests; and the stock transfer
books shall not be closed during any such period.
<PAGE>
ARTICLE XXIII
REGISTERED STOCKHOLDERS
Section 1. The Corporation shall be entitled to treat the holders of record
of any share or shares of stock as the holder in fact thereof and accordingly
shall not be bound to recognize any equitable or other claim to, or interest in,
such share on the part of any other person, whether or not it shall have express
or other notice thereof, save as expressly provided by the statutes of the State
of South Carolina.
ARTICLE XXIV
LOST CERTIFICATES
Section 1. Whenever any stockholder shall desire a new certificate of stock to
replace an original certificate of stock which has been lost, destroyed or
wrongfully taken, he shall make application to the Corporation for the issuance
of a new certificate or certificates in replacement of the certificate or
certificates which were lost, destroyed or wrongfully taken, and shall file with
the Corporation a good and sufficient indemnity bond, together with an affidavit
stating that the applicant is the bona fide owner of such share(s) of stock and
specifying the number(s) of the certificate or certificates which were lost,
destroyed or wrongfully taken, the particular circumstances of such loss,
destruction or wrongful taking (including a statement that the share(s)
represented by such certificate or certificates has or have not been transferred
or otherwise disposed of by such applicant in any manner.)
Upon completion by a stockholder of the requirements set forth in the
preceding paragraph, the Corporation shall issue a certificate or certificates
in replacement of the certificate or certificates referred to in such
stockholder's application if such application is received by the Corporation
before it has notice that such certificate or certificates has or have been
acquired by a bona fide purchaser.
ARTICLE XXV
INSPECTION OF BOOKS
Section 1. The Board of Directors shall have power to determine whether and
to what extent, and at what time and places and under what conditions and
regulations, the accounts and books of the Corporation (other than the books
required by statute to be open to the inspection of stockholders), or any of
them, shall be open to the inspection of stockholders, and no stockholder shall
have any right to inspect any account or book or document of the Corporation,
except as such right may be conferred by the statutes of the State of South
Carolina or by resolution of the directors or of the stockholders.
<PAGE>
ARTICLE XXVI
CHECKS, NOTES, BONDS AND OTHER INSTRUMENTS
Section 1. All checks or demands for money and notes of the Corporation
shall be signed by such person or persons (who may but need not be an officer or
officers of the Corporation) as the Board of Directors may from time to time
designate or as may be designated by persons to whom the Board of Directors
delegates such authority. The Board of Directors shall have authority to make
provision, with proper safeguards, for the signatures to appear on all checks,
including, but not by way of limitation, payroll checks, to be made by
facsimile, whether engraved or printed. Whenever the seal of this Corporation is
to be affixed to any instrument being executed on behalf of this Corporation,
such seal shall be affixed thereto by the Secretary or an Assistant Secretary
and the fact of such affixation shall be attested to by the person so affixing
the seal.
ARTICLE XXVII
RECEIPT FOR SECURITIES
Section 1. All receipts for stocks, bonds or other securities received by
the Corporation shall be signed by the Treasurer or an Assistant Treasurer, or
by such other person or persons as the Board of Directors or Executive Committee
shall designate.
ARTICLE XXVIII
FISCAL YEAR
Section 1. The fiscal year shall begin the first day of January in each
year.
ARTICLE XXIX
RESERVES
Section 1. The Board of Directors shall have power to fix and determine,
and from time to time to vary, the amount to be reserved as working capital; to
determine whether any, or if any, what part of any, surplus shall be declared
and paid as dividends, to determine the date or dates for the declaration or
payment of dividends and to direct and determine the use and disposition of any
surplus, and before payment of any dividend or making any distribution of
surplus there may be set aside out of the surplus of the Corporation such sum or
sums as the directors from time to time, in their absolute discretion, think
proper as a reserve fund to meet contingencies, or for equalizing dividends, or
for repairing or maintaining any property of the Corporation, or for such other
purpose as the directors shall think conducive to the interests of the
Corporation.
<PAGE>
ARTICLE XXX
NOTICES
Section 1. In addition to the telegraphic notice permitted by Section 3 of
Article V of these By-Laws, whenever under the provisions of these By-Laws
notice is required to be given to any director, officer or stockholder, it shall
not be construed to require personal notice, but such notice may be given in
writing, by mail, by depositing a copy of the same in a post office, letter box
or mail chute, maintained by the Post Office Department, in a postpaid sealed
wrapper, addressed to such stockholder, officer or director, at his address as
the same appears on the books of the Corporation.
A stockholder, director or officer may waive any notice required to be
given to him under these By-Laws.
ARTICLE XXXI
INSPECTORS OF ELECTION
Section 1. Prior to every meeting of the stockholders the Board of
Directors may appoint any odd number of inspectors of election to act as
inspectors at such meeting. In the event that inspectors shall not be so
appointed, they shall be appointed by the person presiding at such meeting and
if any inspector shall refuse to serve, or neglect to attend such meeting or his
office becomes vacant, the person presiding at the meeting may appoint another
inspector in his place. The inspectors appointed to act at any meeting of the
stockholders shall, before entering upon the discharge of their duties, be sworn
faithfully to execute the duties of inspector at such meeting with strict
impartiality and according to the best of their ability.
ARTICLE XXXII
DIRECTOR, OFFICER AND EMPLOYEE INDEMNIFICATION
Section 1. The Corporation shall indemnify any and all of its employees,
officers, or directors, or former officers or directors (including their heirs,
executors, and administrators), or any person who may have served at its request
or by its election, designation, or request as a member, agent, employee,
director or officer of any other corporation or partner, trustee or otherwise,
of any organization against expenses actually and necessarily incurred by them
in connection with the defense or settlement of any action, suit or proceeding
(which shall include any threatened, pending, or completed action, suit or
proceeding, whether civil, criminal, administrative, investigative or
arbitrative) in which they, or any of them, are made parties, or a party, by
reason of being or having been agents, employees, directors or officers of the
Corporation, or of such other organization, except in relation to matters as to
which any such agent, employee, director or officer or former employee, director
or officer or person shall be adjudged in such action, suit or proceeding 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.
Such indemnity shall be in accordance with a written plan adopted by the Board
of Directors, which plan shall be in accordance with the law of South Carolina.
The indemnification provided hereby shall not be deemed exclusive of any other
right to which anyone seeking indemnification hereunder may be entitled under
any By-Law, agreement, or otherwise. The Corporation may purchase and maintain
insurance on the behalf of any director, officer, agent, employee or former
employee, director or officer or other person, against any liability asserted
against them and incurred by them.
ARTICLE XXXIII
AMENDMENTS
Section 1. Any of these By-Laws may be altered, amended or repealed, and/or
one or more new By-Laws may be adopted, at a meeting of the stockholders, by a
vote of the holders of a majority of all shares of stock entitled to vote to
elect directors who are entitled to vote at such meeting, provided that written
notice of such proposed alteration, amendment, repeal and/or adoption, as the
case may be, shall have been given to all such stockholders at least ten days
before such meeting. Any of these By-Laws may also be altered, amended or
repealed, and/or one or more new By-Laws may be adopted, by the vote of a
majority of all directors then in office, at a meeting of the Board of
Directors, provided that the notice of such meeting includes therein notice of
such alteration, amendment, repeal and/or adoption, as the case may be. At a
meeting thereof, the stockholders, by the vote of the holders of a majority or
by written consent of all shares of stock entitled to vote to elect directors
who are entitled to vote at such meeting, may repeal any alteration or amendment
of these By-Laws made by the Board of Directors and/or reinstate any of these
By-Laws repealed by the Board of Directors, and/or repeal any new By-Law adopted
by the Board of Directors.
Exhibit 4.04
SOUTH CAROLINA ELECTRIC & GAS COMPANY
TO
THE CHASE MANHATTAN BANK,
Trustee
------------------------------
FIFTY-THIRD SUPPLEMENTAL INDENTURE
(SUPPLEMENTAL TO INDENTURE OF SOUTH CAROLINA POWER COMPANY
DATED AS OF JANUARY 1, 1945)
PROVIDING FOR
FIRST AND REFUNDING MORTGAGE BONDS,
0% SERIES DUE DECEMBER 31, 2098
ISSUED BY SOUTH CAROLINA ELECTRIC & GAS COMPANY, AS SUCCESSOR
CORPORATION
TO SOUTH CAROLINA POWER COMPANY
Dated as of May 1, 1999
THE INDENTURE OF SOUTH CAROLINA ELECTRIC & GAS COMPANY TO CENTRAL
HANOVER BANK AND TRUST COMPANY, PREDECESSOR TRUSTEE TO THE CHASE
MANHATTAN BANK, AS TRUSTEE, DATED AS OF JANUARY 1, 1945 (THE
"INDENTURE"), RECORDED IN THE RMC OFFICE OF THIS COUNTY AS DESCRIBED ON
EXHIBIT A HERETO, AS HERETOFORE AMENDED AND SUPPLEMENTED AND AS AMENDED
AND SUPPLEMENTED BY THIS FIFTY-THIRD SUPPLEMENTAL INDENTURE THERETO IS
SUBJECT TO, AND IS INTENDED TO TAKE ADVANTAGE OF, THE PROVISIONS OF
SECTIONS 29-1-10 AND 29-3-80, S. C. CODE OF LAWS (1976), AS AMENDED.
THE LIEN OF THE INDENTURE, AS SUPPLEMENTED OR AMENDED FROM TIME TO
TIME, SHALL CONTINUE UNTIL SATISFIED OR RELEASED OF RECORD REGARDLESS
OF WHETHER OR NOT SUCH INDENTURE STATES A MATURITY DATE. FURTHER, AS
SET FORTH IN THE INDENTURE, THE LIEN AFFECTS AFTER-ACQUIRED PROPERTY.
(The Chase Manhattan Bank, formerly known as Chemical Bank)
<PAGE>
THIS FIFTY-THIRD SUPPLEMENTAL INDENTURE, dated as of May 1, 1999, made
and entered into by and between SOUTH CAROLINA ELECTRIC & GAS COMPANY, a
corporation organized and existing under the laws of the State of South
Carolina, with its principal place of business in Columbia, Richland County,
South Carolina (the "Company"), party of the first part, and THE CHASE MANHATTAN
BANK (successor to Central Hanover Bank and Trust Company), a corporation
organized and existing under the laws of the State of New York, with its
principal office in the Borough of Manhattan, The City of New York (the
"Trustee"), as Trustee under the Indenture dated as of January 1, 1945 between
the South Carolina Power Company (the "Power Company") and Central Hanover Bank
and Trust Company, as Trustee, party of the second part;
Whereas, the Power Company heretofore executed and delivered to the
Trustee an Indenture dated as of January 1, 1945 (the "Original Indenture"), a
Supplemental Indenture thereto dated as of May 1, 1946, a Supplemental Indenture
thereto dated as of May 1, 1947 and a Third Supplemental Indenture thereto dated
as of July 1, 1949; and
Whereas, the Company heretofore executed and delivered to the Trustee a
Fourth Supplemental Indenture, dated as of April 1, 1950, wherein, among other
things, (i) the Company assumed the due and punctual payment of the principal
of, premium, if any, and interest on all bonds theretofore authenticated under
the Original Indenture as theretofore supplemented, according to their tenor,
and the due and punctual performance of all of the covenants and agreements of
the Original Indenture, as theretofore supplemented, required to be kept or
performed by the Power Company and (ii) the Company conveyed, transferred and
mortgaged to the Trustee and subjected to the lien of the Original Indenture as
theretofore supplemented, as supplemented by the Fourth Supplemental Indenture,
and as it might thereafter be supplemented, all property then owned or
thereafter to be acquired by the Company, except property of a character similar
to that excluded from the lien of the Original Indenture; and
Whereas, upon the execution and delivery of said Fourth Supplemental
Indenture, dated as of April 1, 1950, the Company succeeded to and became
substituted for the Power Company as Successor Corporation to the Power Company
under the Original Indenture, as contemplated by Article XV of the Original
Indenture; and
Whereas, the Company, as such Successor Corporation, has heretofore
executed and delivered to the Trustee the following supplemental indentures:
DESIGNATION DATED AS OF
Fifth Supplemental Indenture...........................December 1, 1950
Sixth Supplemental Indenture...............................July 1, 1951
Seventh Supplemental Indenture.............................June 1, 1953
Eighth Supplemental Indenture..............................June 1, 1955
Ninth Supplemental Indenture...........................November 1, 1957
Tenth Supplemental Indenture..........................September 1, 1958
Eleventh Supplemental Indenture.......................September 1, 1960
Twelfth Supplemental Indenture.............................June 1, 1961
Thirteenth Supplemental Indenture......................December 1, 1965
Fourteenth Supplemental Indenture..........................June 1, 1966
Fifteenth Supplemental Indenture...........................June 1, 1967
Sixteenth Supplemental Indenture......................September 1, 1968
Seventeenth Supplemental Indenture.........................June 1, 1969
Eighteenth Supplemental Indenture......................December 1, 1969
Nineteenth Supplemental Indenture..........................June 1, 1970
<PAGE>
Twentieth Supplemental Indenture.............................March 1, 1971
Twenty-first Supplemental Indenture........................January 1, 1972
Twenty-second Supplemental Indenture..........................July 1, 1974
Twenty-third Supplemental Indenture............................May 1, 1975
Twenty-fourth Supplemental Indenture..........................July 1, 1975
Twenty-fifth Supplemental Indenture.......................February 1, 1976
Twenty-sixth Supplemental Indenture.......................December 1, 1976
Twenty-seventh Supplemental Indenture........................March 1, 1977
Twenty-eighth Supplemental Indenture...........................May 1, 1977
Twenty-ninth Supplemental Indenture.......................February 1, 1978
Thirtieth Supplemental Indenture..............................June 1, 1978
Thirty-first Supplemental Indenture..........................April 1, 1979
Thirty-second Supplemental Indenture..........................June 1, 1979
Thirty-third Supplemental Indenture..........................April 1, 1980
Thirty-fourth Supplemental Indenture..........................June 1, 1980
Thirty-fifth Supplemental Indenture.......................December 1, 1980
Thirty-sixth Supplemental Indenture..........................April 1, 1981
Thirty-seventh Supplemental Indenture.........................June 1, 1981
Thirty-eighth Supplemental Indenture.........................March 1, 1982
Thirty-ninth Supplemental Indenture.........................April 15, 1982
Fortieth Supplemental Indenture................................May 1, 1982
Forty-first Supplemental Indenture........................December 1, 1984
Forty-second Supplemental Indenture.......................December 1, 1985
Forty-third Supplemental Indenture............................June 1, 1986
Forty-fourth Supplemental Indenture.......................February 1, 1987
Forty-fifth Supplemental Indenture.......................September 1, 1987
Forty-sixth Supplemental Indenture.........................January 1, 1989
Forty-seventh Supplemental Indenture.......................January 1, 1991
Forty-eighth Supplemental Indenture.......................February 1, 1991
Forty-ninth Supplemental Indenture...........................July 15, 1991
Fiftieth Supplemental Indenture............................August 15, 1991
Fifty-first Supplemental Indenture...........................April 1, 1993
Fifty-second Supplemental Indenture...........................July 1, 1993
all supplemental to the Original Indenture; the Original Indenture, together
with all instruments stated to be supplemental thereto to which the Trustee has
heretofore been or shall hereafter be a party, including the aforesaid
supplemental indentures and this Fifty-third Supplemental Indenture (herein
sometimes referred to as "this Supplemental Indenture"), being herein sometimes
referred to collectively as the "Mortgage"; and
Whereas, the Company, as such Successor Corporation, has executed
certain mortgages, specifically subjecting to the lien of the Mortgage certain
property purchased, constructed or otherwise acquired by the Company subsequent
to January 1, 1965; and
Whereas, there have been issued under the Original Indenture as
heretofore supplemented, the following series of First and Refunding Mortgage
Bonds, of which the following principal amounts were outstanding at the date of
this Supplemental Indenture:
<PAGE>
PRINCIPAL PRINCIPAL
AMOUNT AMOUNT
SERIES ISSUED OUTSTANDING
3% Series due 1975
"Bonds of the First Series".................. $ 8,000,000 None
3% Series due 1977
"Bonds of the Second Series"................. 4,000,000 None
3 1/8% Series due 1979
"Bonds of the Third Series".................. 4,000,000 None
3% Series due 1980
"Bonds of the Fourth Series"................. 72,445,000 None
3% Series A due 1980
"Bonds of the Fifth Series".................. 4,000,000 None
3 3/4% Series due 1981
"Bonds of the Sixth Series".................. 6,000,000 None
4 1/8% Series due 1983
"Bonds of the Seventh Series"................ 4,000,000 None
3 1/2% Series due 1985
"Bonds of the Eighth Series"................. 5,000,000 None
5 1/2% Series due 1987
"Bonds of the Ninth Series".................. 10,000,000 None
4 7/8% Series due 1988
"Bonds of the Tenth Series".................. 10,000,000 None
5% Series due 1990
"Bonds of the Eleventh Series"............... 10,000,000 None
5% Series due June 1, 1991
"Bonds of the Twelfth Series"................ 8,000,000 None
4 7/8% Series due 1995
"Bonds of the Thirteenth Series"............. 16,000,000 None
5.45% Series due 1996
"Bonds of the Fourteenth Series"............. 15,000,000 None
6% Series due June 1, 1997
"Bonds of the Fifteenth Series".............. 15,000,000 None
6 1/2% Series due September 1, 1998
"Bonds of the Sixteenth Series".............. 112,064,000 None
8% Series due June 1 1999
"Bonds of the Seventeenth Series"............ 35,000,000 None
9 1/8% Series due December 1, 1999
"Bonds of the Eighteenth Series"............. 15,000,000 None
9 7/8% Series due June 1, 2000
"Bonds of the Nineteenth Series"............. 30,000,000 None
8% Series due March 1, 2001
"Bonds of the Twentieth Series".............. 35,000,000 None
<PAGE>
PRINCIPAL PRINCIPAL
AMOUNT AMOUNT
SERIES ISSUED OUTSTANDING
7 1/4% series due January 1, 2002
"Bonds of the Twenty-first Series"............ $30,000,000 None
10 1/2% Series due July 1, 1979
"Bonds of the Twenty-second Series"........... 35,000,000 None
10 1/2% Series due May 1, 1990
"Bonds of the Twenty-third Series"............ 15,000,000 None
9 3/8% Series due July 1, 1984
"Bonds of the Twenty-fourth Series"........... 25,000,000 None
9 1/8% Series due February 1, 2006
"Bonds of the Twenty-fifth Series"............ 50,000,000 None
8.40% Series due December 1, 2006
"Bonds of the Twenty-sixth Series"............ 50,000,000 None
8 3/8% Series due March 1, 2007
"Bonds of the Twenty-seventh Series".......... 30,000,000 None
7% Series due May 1, 1982
"Bonds of the Twenty-eighth Series"........... 50,000,000 None
8.90% Series due February 1, 2008
"Bonds of the Twenty-ninth Series"............ 30,000,000 None
8.45% Series due June 1, 1981
"Bonds of the Thirtieth Series"............... 40,000,000 None
10 1/8% Series due April 1, 2009
"Bonds of the Thirty-first Series"............ 35,000,000 None
9 7/8% Series due June 1, 2009
"Bonds of the Thirty-second Series" .......... 50,000,000 None
14 1/2% Series due 1983-1987
"Bonds of the Thirty-third Series"............ 80,000,000 None
12.15% Series due June 1, 2010
"Bonds of the Thirty-fourth Series"........... 50,000,000 None
14 1/2% Series due April 1, 1982
"Bonds of the Thirty-fifth Series"............ 15,000,000 None
14 3/8% Series due October 1, 1986
"Bonds of the Thirty-sixth Series"............ 15,000,000 None
16% Series due June 1, 2011
"Bonds of the Thirty-seventh Series".......... 70,000,000 None
14 1/2% Series due April 1,1984
"Bonds of the Thirty-eighth Series"........... 15,000,000 None
15 1/2% Series due April 15, 1989
"Bonds of the Thirty-ninth Series"............ 60,000,000 None
15 5/8% Series due May 1, 1987
"Bonds of the Fortieth Series"................ 25,000,000 None
15% Series due September 1, 2014
"Bonds of the Forty-first Series"............. 57,000,000 $ 56,820,000
<PAGE>
PRINCIPAL PRINCIPAL
AMOUNT AMOUNT
SERIES ISSUED OUTSTANDING
15% Series A due September 1, 2014
"Bonds of the Forty-second Series"........... $ 5,500,000 $ 5,210,000
15% Series B due September 1, 2014
"Bonds of the Forty-third Series"............ 1,100,000 1,090,000
8 3/4% Series due February 1, 2017
"Bonds of the Forty-fourth Series"........... 100,000,000 None
15% Series C due September 1 2014
"Bonds of the Forty-fifth Series"............ 4,365,000 4,365,000
20% Series due February 1, 1991
"Bonds of the Forty-sixth Series"............ 75,000,000 None
20% Series due January 14, 1991
"Bonds of the Forty-seventh Series".......... 70,000,000 None
20% Series due February 4, 1992
"Bonds of the Forty-eighth Series"........... 75,000,000 None
9% Series due July 15, 2006
"Bonds of the Forty-ninth Series"............ 145,000,000 130,771,000
8 7/8% Series due August 15, 2021
"Bonds of the Fiftieth Series"............... 155,000,000 113,450,000
Series A due December 1, 2093
"Bonds of the Fifty-first Series"............ 375,000,000 375,000,000
Series B due December 1, 2093
"Bonds of the Fifty-second Series"........... 740,035,000 425,000,000
; and
Whereas, it is provided in Section 2.01 of the Original Indenture that the
aggregate principal amount of bonds which may be secured by the Mortgage shall
be such aggregate principal amount as may from time to time be authenticated and
delivered under the provisions thereof, provided, however, that until an
indenture or indentures supplemental thereto shall be executed and delivered by
the Company to the Trustee pursuant to authorization by the Board of Directors
and filed for record in all counties in which the mortgaged and pledged property
is located, increasing or decreasing the amount of future advances and other
indebtedness and sums which may be secured thereby, the Mortgage may secure
future advances and other indebtedness and sums not to exceed in the aggregate
$50,000,000; and
Whereas, Section 1.01 of the aforesaid Sixth Supplemental Indenture
increased the aggregate principal amount of bonds which may be secured by the
Mortgage, including future advances and other indebtedness and sums, from
$50,000,000 to $100,000,000; and
Whereas, Section 1.01 of the aforesaid Twelfth Supplemental Indenture
increased the aggregate principal amount of bonds which may be secured by the
Mortgage, including future advances and other indebtedness and sums, from
$100,000,000 to $200,000,000; and
Whereas, Section 2.01 of the aforesaid Seventeenth Supplemental Indenture
increased the aggregate principal amount of bonds which may be secured by the
Mortgage, including future advances and other indebtedness and sums, from
$200,000,000 to $300,000,000; and
<PAGE>
Whereas, Section 2.01 of the aforesaid Twenty-first Supplemental Indenture
increased the aggregate principal amount of bonds which may be secured by the
Mortgage, including future advances and other indebtedness and sums, from
$300,000,000 to $500,000,000; and
Whereas, Section 2.01 of the aforesaid Twenty-seventh Supplemental
Indenture increased the aggregate principal amount of bonds which may be secured
by the Mortgage, including future advances and other indebtedness and sums, from
$500,000,000 to $1,000,000,000; and
Whereas, Section 1.04 of the aforesaid Forty-ninth Supplemental Indenture
increased the aggregate principal amount of bonds which may be secured by the
Mortgage, including future advances and other indebtedness and sums, from
$1,000,000,000 to $1,500,000,000; and
Whereas, the Company, as Successor Corporation as aforesaid, by
appropriate corporate action taken by its Board of Directors in accordance with
the provisions of said Section 2.01 of the Original Indenture, has determined to
increase the aggregate principal amount of bonds which may be secured by the
Mortgage, including future advances and other indebtedness and sums, from
$1,500,000,000 to $5,000,000,000 and has duly authorized the execution and
delivery to the Trustee of this Fifty-third Supplemental Indenture to effect
such increase; and
Whereas, it is provided in Section 2.01 of the Twenty-third Supplemental
Indenture that Article XVII of the Original Indenture shall be amended as set
forth therein at such time after the required consents, if any, of the holders
of bonds of other series shall have been given as therein provided; and
Whereas, it is further provided in Section 2.01 of the Twenty-third
Supplemental Indenture that the amendments to Article XVII of the Original
Indenture set forth therein shall, subject to the Company and the Trustee
entering into an indenture or indentures supplemental to the Original Indenture
for the purpose of so amending said Article XVII, become effective at the
earlier of (a) such date as no bonds created prior to the bonds of the
Twenty-third Series shall remain outstanding or (b) such date as the holders of
all series created prior to the bonds of the Twenty-third Series shall have
consented thereto; and
Whereas, no bonds created prior to the bonds of the Twenty-third Series
remain outstanding on the date of this Supplemental Indenture and the holders of
all bonds of other series thereafter issued and now outstanding under the
Original Indenture have consented to the aforesaid amendments to Article XVII of
the Original Indenture; and
Whereas, the Company, as Successor Corporation as aforesaid, by
appropriate corporate action taken by its Board of Directors in accordance with
the provisions of the Original Indenture as heretofore supplemented, has duly
authorized the execution and delivery to the Trustee of this Fifty-third
Supplemental Indenture to effect such amendments to said Article XVII; and
Whereas, the Company, as Successor Corporation as aforesaid, by
appropriate corporate action in conformity with the terms of the Original
Indenture has duly determined to create a series of bonds under the Original
Indenture, to be issued under the name of the Company, to be designated as
"First and Refunding Mortgage Bonds, 0% Series due December 31, 2098"
(hereinafter sometimes referred to as the "bonds of the Fifty-third Series");
and
<PAGE>
Whereas, all acts and things necessary to make the bonds of the
Fifty-third Series, when authenticated by the Trustee and issued as in the
Original Indenture and herein provided, valid, binding and legal obligations of
the Company and to constitute the Original Indenture as heretofore supplemented
and this Supplemental Indenture valid, binding and legal instruments for the
security thereof, have been done and performed, and the execution and delivery
of this Supplemental Indenture, and the creation, execution and issue of the
bonds of the Fifty-third Series subject to the Original Indenture as heretofore
and hereby supplemented, have in all respects been duly authorized;
Now, therefore, in consideration of the premises and of the acceptance
by the holders thereof of bonds of the Fifty-third Series, and to set forth the
form and substance of the bonds of the Fifty-third Series and the terms,
provisions and conditions thereof, the Company does hereby covenant and agree to
and with the Trustee and its successor or successors in trust and its and their
assigns forever for the benefit of those who shall hold the bonds of the
Fifty-third Series, as follows:
ARTICLE ONE
BONDS OF THE FIFTY-THIRD SERIES AND CERTAIN
PROVISIONS RELATING THERETO
Section 1.01. A. Creation of bonds of the Fifty-third Series. There is
hereby created a series of bonds designated First and Refunding Mortgage Bonds,
0% Series due December 31, 2098. Such bonds of the Fifty-third Series shall be
issued by the Company in its name, shall be unlimited in principal amount,
subject to the limitation on the maximum aggregate principal amount of bonds
permitted to be secured by the Mortgage pursuant to Section 2.01 of the Original
Indenture and Section 1.04 of this Supplemental Indenture ($5,000,000,000 as of
the date hereof), as the same may hereafter be increased or decreased by
amendment or supplement to the Mortgage, shall mature on December 31, 2098,
unless previously redeemed pursuant to the provisions hereof, and shall be
issuable only in fully registered form without coupons in denominations of
$1,000 and any multiple thereof. The serial numbers of bonds of the Fifty-third
Series shall be such as may be approved by any officer of the Company, the
execution thereof by any such officer to be conclusive evidence of such
approval. Bonds of the Fifty-third Series shall not bear interest. The principal
of said bonds shall be payable in any coin or currency of the United States of
America which at the time of payment is legal tender for public and private
debts, at the corporate trust offices of the Trustee. Bonds of the Fifty-third
Series shall be dated as of their date of authentication, and shall be executed
on behalf of the Company by its President or a Vice President by his manual
signature or a facsimile thereof.
Bonds of the Fifty-third Series may be transferred at the principal
office of the Trustee in the Borough of Manhattan, the City of New York.
B. Form of bonds of the Fifty-third Series. The bonds of the
Fifty-third Series and the Trustee's authentication certificate to be executed
on all of the bonds of the Fifty-third Series shall be substantially in the
following forms, respectively:
<PAGE>
(Form of Bond of the Fifty-third Series)
SOUTH CAROLINA ELECTRIC & GAS COMPANY
First and Refunding Mortgage Bond,
0% Series due December 31, 2098
No. $
South Carolina Electric & Gas Company, a South Carolina corporation
(hereinafter called the "Company"), for value received, hereby promises to pay
to _______________ or registered assigns, the principal sum of _________________
Dollars on December 31, 2098, unless previously redeemed pursuant to the
provisions hereof, without interest. The principal of this bond shall be payable
at the office or agency of the Company in the Borough of Manhattan, The City of
New York, designated for such purpose, in any coin or currency of the United
States of America which at the time of payment is legal tender for public and
private debts.
This bond is one of the bonds issued and to be issued from time to time
under and in accordance with and all secured by an indenture of mortgage or deed
of trust dated as of January 1, 1945 (the "Original Indenture"), and indentures
supplemental thereto, given by South Carolina Power Company to Central Hanover
Bank and Trust Company (now The Chase Manhattan Bank and hereinafter sometimes
referred to as the "Trustee"), as trustee, and indentures supplemental thereto
dated as of April 1, 1950, as of December 1, 1950, as of July 1, 1951, as of
June 1, 1953, as of June 1, 1955, as of November 1, 1957, as of September 1,
1958, as of September 1, 1960, as of June 1, 1961, as of December 1, 1965, as of
June 1, 1966, as of June 1, 1967, as of September 1, 1968, as of June 1, 1969,
as of December 1,1969, as of June 1, 1970, as of March 1, 1971, as of January 1,
1972, as of July 1, 1974, as of May 1, 1975, as of July 1, 1975, as of February
1, 1976, as of December 1, 1976, as of March 1, 1977, as of May 1, 1977, as of
February 1, 1978, as of June 1, 1978, as of April 1, 1979, as of June 1, 1979,
as of April 1, 1980, as of June 1, 1980, as of December 1, 1980, as of April 1,
1981, as of June 1, 1981, as of March 1, 1982, as of April 15, 1982, as of May
1, 1982, as of December 1, 1984, as of December 1, 1985, as of June 1, 1986, as
of February 1, 1987, as of September 1, 1987, as of January 1, 1989, as of
January 1, 1991, as of February 1, 1991, as of July 15, 1991, as of August 15,
1991, as of April 1, 1993, as of July 1, 1993, and as of May 1, 1999,
respectively, given by the Company to said Trustee, to which Original Indenture
and all indentures supplemental thereto (hereinafter referred to collectively as
the "Indenture") reference is hereby made for a description of the property
mortgaged and pledged, the nature and extent of the security and the rights,
duties and immunities thereunder of the Trustee and the rights of the holders of
said bonds and of the Trustee and of the Company in respect of such security,
and the limitations on such rights. By the terms of the Indenture, the bonds to
be secured thereby are issuable in series which may vary as to date, amount,
date of maturity, rate of interest and in other respects as in the Indenture
provided. By the terms of the aforesaid supplemental indenture, dated as of
April 1, 1950, the Company, among other things, assumed the due and punctual
payment of the principal of, premium, if any, and interest on all of the bonds
of South Carolina Power Company then outstanding under the aforesaid indenture
of mortgage or deed of trust, dated as of January 1, 1945, of South Carolina
Power Company, as theretofore supplemented, and, except as therein provided, the
due and punctual performance of all the covenants and agreements of South
Carolina Power Company contained in said indenture of mortgage or deed of trust
as so supplemented.
<PAGE>
Bonds of this series are issuable only in fully registered form without
coupons in denominations of $1,000 and any multiple thereof. This bond may be
exchanged by the registered holder hereof, in person or by attorney duly
authorized, at the principal office of the Trustee, in the Borough of Manhattan,
City of New York, for a like aggregate principal amount of bonds of this series
of any other authorized denomination or denominations, but only in the manner
and subject to the conditions prescribed in the Indenture, upon the surrender
and cancellation of this bond and the payment of any taxes or other governmental
charges payable upon such exchange.
Upon the giving of notice of redemption, by first class mail postage
prepaid, not less than thirty nor more than forty-five days prior to the date
fixed for redemption to each registered holder of a bond to be redeemed, in
whole or in part, at the last address of such holder appearing on the registry
books, any or all of the bonds of this series may be redeemed by the Company, at
its option, or by operation of various provisions of the Indenture, at any time
and from time to time, upon payment of the principal amount thereof.
In case of certain defaults as specified in the Indenture, the principal
of this bond may be declared or may become due and payable on the conditions, at
the time, in the manner and with the effect provided in the Indenture.
No recourse shall be had for the payment of the principal of or premium,
if any, or interest on this bond, or for any claim based hereon, or otherwise in
respect hereof or of the Indenture, to or against any incorporator, stockholder,
director or officer, past, present or future, as such, of the Company, or of any
predecessor or successor company, either directly or through the Company, or
such predecessor or successor company, or otherwise, under any constitution or
statute or rule of law, or by the enforcement of any assessment or penalty, or
otherwise, all such liability of incorporators, stockholders, directors and
officers, as such, being waived and released by the holder and owner hereof by
the acceptance of this bond and being likewise waived and released by the terms
of the Indenture.
Subject to the restrictions noted hereon, this bond is transferable by the
registered holder hereof, in person or by attorney duly authorized, at the
principal office of the Trustee, in the Borough of Manhattan, the City of New
York, but only in the manner and subject to the conditions prescribed in the
Indenture, upon the surrender and cancellation of this bond and the payment of
any taxes or other governmental charges payable upon such transfer, and upon any
such transfer a new bond or bonds of the same series and for the same aggregate
principal amount, in authorized denominations, will be issued to the transferee
in exchange herefor. The Company and the Trustee may deem and treat the person
in whose name this bond is registered as the absolute owner for the purpose of
receiving payment and for all other purposes.
This bond shall not be valid or become obligatory for any purpose unless
and until it shall have been authenticated by the execution by the Trustee or
its successor in trust under the Indenture of the certificate endorsed hereon.
<PAGE>
IN WITNESS WHEREOF, South Carolina Electric & Gas Company has caused this
bond to be executed in its name by its President or one of its Vice Presidents,
by his manual signature or a facsimile thereof, and its corporate seal or a
facsimile thereof to be affixed hereto or imprinted hereon and attested by its
Secretary or one of its Assistant Secretaries.
Dated................................................
SOUTH CAROLINA ELECTRIC & GAS COMPANY,
By.............................................................
President or Vice President
Attest:
.....................................................
Secretary or Assistant Secretary
(FORM OF TRUSTEE'S AUTHENTICATION CERTIFICATE)
TRUSTEE'S AUTHENTICATION CERTIFICATE
This bond is one of the bonds, of the
series designated therein,
described in the within-mentioned
Indenture.
as Trustee,
By.............................................................
Authorized Officer
Section 1.02. Redemption Provisions. Any or all of the bonds of the
Fifty-third Series shall be redeemable, at the option of the Company, or by
operation of various provisions of the Original Indenture, at any time and from
time to time, prior to maturity, upon the giving of notice of redemption, by
first class mail postage prepaid, not less than thirty nor more than forty-five
days prior to the date fixed for redemption to each registered holder of a bond
of the Fifty-third Series to be redeemed in whole or in part, at the last
address of such holder appearing on the registry books, upon payment of the
principal amount thereof.
Section 1.03. Sinking Fund. The respective portions of the sinking fund
requirement for any year which are measured by bonds of the Fifteenth through
Twenty-second Series, bonds of the Twenty-fourth through Thirty-first Series,
bonds of the Thirty-third Series, bonds of the Thirty-seventh Series, bonds of
the Thirty-ninth Series, bonds of the Forty-first Series, bonds of the
Forty-second Series, bonds of the Forty-fourth Series, bonds of the Forty-sixth
Series, bonds of the Fiftieth Series, bonds of the Fifty-first Series, bonds of
the Fifty-second Series and bonds of the Fifty-third Series or by bonds of any
other series the holders of which shall have consented thereto may be satisfied
by certifying to the
<PAGE>
Trustee unfunded net property additions in an amount equal to 166-2/3% of such
portion of such sinking fund requirement; provided, further, however, that no
unfunded net property additions shall be used to satisfy any portion of any
sinking fund requirement unless there shall be delivered to the Trustee, with
such certification, the applicable certificates, opinions of counsel,
instruments and cash, if any, required by paragraphs (3), (4), (5), (7), (9) and
(10) of Section 4.01 of the Original Indenture showing that the Company has
unfunded net property additions equal to the amounts so certified.
Section 1.04. Increase in amount of indebtedness which may be secured
by the Mortgage. The aggregate principal amount of bonds which may be secured by
the Mortgage, including future advances and other indebtedness and sums, is
increased from $1,500,000,000 as specified in Section 2.01 of the Original
Indenture, as amended by Section 1.01 of the Sixth Supplemental Indenture dated
as of July 1, 1951, by Section 1.01 of the Twelfth Supplemental Indenture dated
as of June 1, 1961, by Section 2.01 of the Twenty-first Supplemental Indenture
dated as of January 1, 1972, by Section 2.01 of the Twenty-seventh Supplemental
Indenture dated as of March 1, 1977, and by Section 1.04 of the Forty-ninth
Supplemental Indenture dated as of July 15, 1991, to $5,000,000,000.
Section 1.05. Waiver of certain rights in respect of property
additions. The Company covenants and agrees that the provisions of Section 3.01
of the Fourth Supplemental Indenture, dated as of April 1, 1950, shall remain in
full force and effect so long as any bonds of the Fifty-third Series shall be
outstanding under the Mortgage.
Section 1.06. Certain restriction on sale of property. The Company
covenants and agrees that so long as any bonds of the Fifty-third Series shall
be outstanding under the Mortgage it will not enter into any agreement with any
governmental or public body, authority, agency or licensee, providing for the
sale by the Company to such governmental or public body, authority, agency or
licensee of any part of the mortgaged and pledged property for a consideration
less than the current fair value of such property at the time of payment to the
Company of such consideration.
Section 1.07. Waiver of service charge for exchange or transfer of
bonds of the Fifty-third Series. Notwithstanding the provisions of Section 2.05
of the Original Indenture, the Company covenants and agrees that so long as any
bonds of the Fifty-third Series shall be outstanding under the Mortgage it will
not impose any service charge for any new bond of the Fifty-third Series issued
upon any exchange or transfer thereof as permitted by Section 2.06 of the
Original Indenture, but the Company shall be entitled to receive funds
sufficient to reimburse it for any tax or taxes or other governmental charge
required to be paid by the Company in relation thereto.
Section 1.08 . Limitations on certain transfers of bonds of the
Fifty-third Series. In case less than all of the bonds of the Fifty-third Series
at the time outstanding are called for redemption, the Company shall not be
required to transfer or exchange any bonds of the Fifty-third Series for a
period of ten days before the mailing of a notice of redemption of bonds of the
Fifty-third Series selected for redemption, to transfer or exchange any bond of
the Fifty-third Series called for redemption in its entirety or to transfer or
exchange any portion of a bond of the Fifty-third Series which portion has been
called for redemption.
<PAGE>
ARTICLE TWO
AMENDMENT OF MORTGAGE
Section 2.01. Amendments described in Twenty-third Supplemental
Indenture and subsequent supplemental indentures. Article XVII of the Original
Indenture is hereby amended in the following respects:
A. The introductory clause of Section 17.02, which presently reads "In
each and every case provided for in this Article," shall be amended so as to
read "In each and every case provided for in Section 17.01 above,".
B. Section 17.02 shall be further amended by the addition of the
following new paragraph immediately after the existing text, as amended by
Paragraph A above:
"Any supplemental indenture authorized by the provisions of Section
17.01 above may be executed by the Company and the Trustee without the consent
of the holders of any of the bonds at the time outstanding, notwithstanding any
of the provisions of Section 17.03 hereof."
C. There shall be inserted new Sections 17.03, 17.04 and 17.05, which
Sections shall read as follows:
"Section 17.03. With the consent (evidenced as provided in Section
12.01 hereof) of the holders of not less than sixty-six and two-thirds per
centum (66 2/3%) in aggregate principal amount of the bonds at the time
outstanding which would be affected by the action proposed to be taken, the
Company, when authorized by a resolution of its Board of Directors, and the
Trustee may, from time to time and at any time, enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of any supplemental indenture or of modifying in any manner the rights of the
holders of the bonds and coupons; provided, however, that anything in this
Article to the contrary notwithstanding (a) the bondholders shall have no power
(i) to extend the fixed maturity of any bonds, or reduce the rate or extend the
time of payment of interest thereon, or reduce the principal amount thereof, or
change in any manner provisions relating to the sinking fund or the redemption
provisions of any series of bonds outstanding hereunder, without the express
consent of the holder of each bond which would be so affected, or (ii) to reduce
the aforesaid percentage of bonds, the holders of which are required to consent
to any such supplemental indenture, without the consent of the holders of all
bonds outstanding, or (iii) to permit the creation by the Company, after the
date hereof, of any mortgage or pledge or lien in the nature thereof, ranking
prior to or equal with the lien of this Indenture on any of the mortgaged
property, or (iv) to deprive the holder of any bond outstanding hereunder of the
lien of this Indenture on any of the mortgaged property; (b) no action
hereinabove specified which would affect the rights of the holders of bonds of
one or more but less than all series as evidenced by an opinion of counsel may
be taken unless approved by holders of not less than sixty-six and two-thirds
per centum (66 2/3%) in principal amount of outstanding bonds of such one or
more series affected, but if any such action would affect the bonds of two or
more series, the approval of such action on behalf of the holders of bonds of
such two or more series may be approved by holders of not less than sixty-six
and two-thirds per centum (66 2/3%) in aggregate principal amount of outstanding
bonds of such two or more series, which approval need not include sixty-six and
two-thirds per centum (66 2/3%) in principal amount of outstanding bonds of each
of such series.
<PAGE>
Upon the request of the Company, accompanied by a copy of a resolution
of its Board of Directors certified by the Secretary or an Assistant Secretary
of the Company authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of any required evidence of the consent of
bondholders as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion but shall not be
obligated to enter into such supplemental indenture.
It shall not be necessary for the consent of the bondholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Company
shall publish a notice, setting forth in general terms the substance of such
supplemental indenture, at least once in a daily newspaper of general
circulation in the Borough of Manhattan, The City of New York. Any failure of
the Company to publish such notice, or any defect therein, shall not, however,
in any way impair or affect the validity of any such supplemental indenture.
"Section 17.04. Upon the execution of any supplemental indenture
pursuant to the provisions of this Article, this Indenture shall be and be
deemed to be modified and amended in accordance therewith and the respective
rights, duties and obligations under this Indenture of the Company, the Trustee
and the holders of bonds of all series outstanding thereunder shall thereafter
be determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
"Section 17.05. Bonds authenticated and delivered after the execution
of any supplemental indenture pursuant to the provisions of this Article may
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company or the Trustee shall so determine,
new bonds so modified as to conform, in the opinion of the Trustee and the Board
of Directors of the Company, to any modification of this Indenture contained in
any such supplemental indenture may be prepared by the Company, authenticated by
the Trustee and delivered without cost to the holders of bonds then outstanding,
upon surrender of such bonds and, in the case of coupon bonds, with all
unmatured coupons and all matured coupons not fully paid, the new bonds so
issued to be of an aggregate principal amount equal to the aggregate principal
amount of those so surrendered."
D. Section 17.03 shall be renumbered as Section 17.06.
E. There shall be inserted a new Section 17.07, which Section shall
read as follows:
"Section 17.07. For all purposes of this Indenture, in any case in
which the "sinking fund requirement" for any year (as such term is used in
Section 2.12 of the Original Indenture as modified by any supplemental
indenture) shall, because of the provisions of any supplemental indenture,
include an amount in excess of one per centum (1%) of the aggregate principal
amount of bonds of any series authenticated and delivered by the Trustee
pursuant to the provisions of Articles III, IV and VI of the Original Indenture
prior to January 1 of such year, to the extent that
(i) the principal amount of bonds of such series deposited with
the Trustee pursuant to said Section 2.12 in such year and/or the
principal amount of bonds of such series purchased, paid or redeemed by
the use of cash deposited pursuant to said Section 2.12 in such year,
<PAGE>
shall, as a result of the provisions of such supplemental indenture, exceed
(ii) an amount equal to one per centum (1%) of the aggregate
principal amount of bonds of such series authenticated and delivered by
the Trustee pursuant to the provisions of Articles III, IV and VI of the
Original Indenture prior to January 1 of the year of such deposit of bonds
and/or cash (after deducting from such aggregate principal amount of bonds
of such series so authenticated, the principal amount of bonds of such
series which, prior to such January 1, have been deposited with the
Trustee for cancellation as the basis for the release of property or for
the withdrawal of cash representing proceeds of released property or have
been purchased, redeemed or paid at maturity by the use of proceeds of
released property),
from and after the time when all bonds of such series shall have ceased to be
outstanding, such excess principal amount of bonds of such series shall be
deemed not to have been cancelled or redeemed pursuant to the provisions of said
Section 2.12 of the Original Indenture, but shall be deemed to have been
redeemed pursuant to Section 9.01 of the Original Indenture."
Section 2.02. Additional amendments requiring consent of requisite
holders of outstanding bonds. The holder of all of the outstanding bonds of the
Fifty-first and Fifty-second Series, being the holder of 82.0% of the
outstanding bonds under the Original Indenture, having consented thereto, the
Original Indenture is further amended in the following respects:
A. Clause (a) of Section 1.11 of the Original Indenture shall be
amended to read as follows:
"(a) ten-sevenths (10\7ths) of the aggregate principal amount of bonds
theretofore authenticated and delivered upon the basis of unfunded net property
additions or for the authentication and delivery of which upon such basis any
other application is then pending;"
B. Section 7.07 of the Original Indenture (except the first paragraph
of such Section) and all provisions and references relating to Section 7.07 in
the Mortgage, and clause (c) of Section 1.11 of the Original Indenture, shall be
deleted.
C. The fraction set forth at the beginning of clause (b) of Section
1.11 of the Original Mortgage is hereby amended from "ten-sixths (10/6ths)" to
"ten-sevenths (10/7ths)".
D. The first paragraph of Section 4.01 and paragraph 3(b) of Section
10.03 of the Original Mortgage shall be amended by changing the percentage
therein from "sixty per centum (60%)" to "seventy per centum (70%)".
E. Section 1.03 of the Original Indenture shall be amended to read as
follows:
"Section 1.03. The term 'net earnings certificate' shall mean an
accountant's certificate stating:
I. for a period of twelve (12) consecutive calendar months within the
eighteen (18) consecutive calendar months immediately preceding the date of the
application for the authentication and delivery of bonds of which the net
earnings certificate is a part, the 'net earnings' of the Company, which shall
be the amount stated in (7) below;
and specifying
<PAGE>
(1) its gross operating revenues (which may include revenues of the
Company subject when collected to possible refund at a future date);
(2) its operating expenses, including, without limitation, (A) expenses
and accruals for repairs and maintenance, (B) expenses for taxes (other
than income, profits and other taxes measured by, or dependent on, net
income), (C) assessments, (D) rentals and (E) insurance, but excluding
(W) provisions for reserves for renewals, replacements, depreciation,
depletion or retirement of property (or any expenditures therefor), or
provisions for amortization of property, (X) expenses or provisions for
interest on any indebtedness of the Company, for the amortization of
debt discount, premium, expense or loss on reacquired debt, for any
maintenance and replacement, improvement or sinking fund or other
device for the retirement of any indebtedness, or for other
amortization, (Y) expenses or provisions for any non-recurring charge
to income of whatever kind or nature (including without limitation the
recognition of expense due to the non-recoverability of investment),
whether or not recorded as an extraordinary item in the Company's books
of account, and (Z) provisions for any refund of revenues subject to
possible refund at a future date;
(3) the amount remaining after deducting the amount required to be
stated in such certificate by clause (2) above from the amount required
to be stated therein by clause (1) above;
(4) its non-operating revenues, which amount may include any portion of
the allowance for funds used during construction (or any analogous
amount);
(5) the sum of the amounts required to be stated in such certificate by
clauses (3) and (4) above;
(6) the amount, if any, by which the amount required to be stated in
such certificate by clause (4) above exceeds twenty per centum (20%) of
the sum required to be stated by clause (5) above; and
(7) the Company's 'net earnings' for such period (being the amount
remaining after deducting in such certificate the amount required to be
stated by clause (6) above from the sum required to be stated by clause
(5) above).
II. (A) the interest requirements for one year, at the respective
interest rates, if any, borne prior to maturity, upon;
(i) all bonds authenticated hereunder and outstanding at the
date of such certificate, except any for the payment or redemption of
which the bonds applied for are to be issued; provided, however, that,
if outstanding bonds of any series bear interest at a variable rate or
rates, then the interest requirement on the bonds of such series shall
be determined by reference to the rate or rates in effect on the date
next preceding the date of such certificate;
(ii) all bonds then applied for in pending applications for
new bonds, including the application in connection with which such
certificate is made; provided, however, that if bonds of any series are
to bear interest at a variable rate or rates, then the interest
requirement on the bonds of such series shall be determined by
reference to the rate or rates to be in effect at the time of the
initial authentication and delivery of such bonds; and
<PAGE>
(iii) the principal amount of all other indebtedness (except
indebtedness for the payment of which the bonds applied for are to be
issued and indebtedness secured by a lien, prior to the lien of this
Indenture, for the payment of which money in the necessary amount shall
have been irrevocably deposited in trust with the trustee or other
holder of such lien) outstanding on the date of such certificate and
secured by a lien prior to the lien of this Indenture on any property
subject to the lien of this Indenture, if such indebtedness has been
issued, assumed or guaranteed by the Company or if the Company
customarily pays the interest on the principal thereof; provided,
however, that if any such indebtedness bears interest at a variable
rate or rates, then the interest requirement on such indebtedness shall
be determined by reference to the rate or rates in effect on the date
next preceding the date of such certificate.
(B) the principal amount of the respective bonds and other obligations
and indebtedness on which the annual interest charges referred to in subdivision
II.(A) of this Section are calculated and the respective interest rates at which
computed; and
III. the 'interest earnings requirement', which shall be a figure equal
to 200% of the aggregate annual interest charges specified in accordance with
subdivision II (A) of this Section.
"Notwithstanding anything herein to the contrary, neither profits nor
losses from the sale or other disposition of property, nor extraordinary items
of any kind or nature, whether items of revenue or expense, shall be included in
calculating the 'interest earnings requirement'.
"If any of the property of the Company owned by it at the time of the
making of any net earnings certificate (a) shall have been acquired during or
after any period for which the Company's net earnings are to be computed, (b)
shall not have been acquired in exchange or substitution for property the net
earnings of which have been included in the Company's net earnings and (c) had
been operated as a separate unit and items of revenue and expense attributable
thereto are readily ascertainable, then the net earnings of such property
(computed in the manner in this Section provided for the computation of the
Company's net earnings, during such period or such part of such period as shall
have preceded the acquisition thereof, to the extent that the same have not
otherwise been included in the Company's net earnings, shall be so included.
"In any case where a net earnings certificate is required as a
condition precedent to the authentication and delivery of bonds, such
certificate shall also be made and signed by an independent public accountant,
if the aggregate principal amount of bonds then applied for plus the aggregate
principal amount of bonds authenticated and delivered hereunder since the
commencement of the then current calendar year (other than those with respect to
which a net earnings certificate is not required, or with respect to which a net
earnings certificate made and signed by an independent public accountant has
previously been furnished to the Trustee) is ten per centum (10%) or more of the
aggregate principal amount of the bonds at the time outstanding; but no net
earnings certificate need be made and signed by any person other than an
accountant, as to dates or periods not covered by annual reports required to be
filed by the Company, in the case of conditions precedent which depend upon a
state of facts as of a date or dates or for a period or periods different from
that required to be covered by such annual reports."
6. Section 7.05 of the Original Indenture shall be amended by changing
the second percentage therein from "sixty per centum (60%)" to "seventy per
centum (70%)".
G. Section 7.15 of the Original Indenture shall be deleted.
60
<PAGE>
H. Section 7.06 of the Original Indenture shall be amended by
substituting for the amount of "$50,000", wherever the same appears therein, the
phrase "an amount equal to the greater of $10,000,000 and 3% of the aggregate
principal amount of the bonds then outstanding hereunder".
I. The first paragraph of Section 10.04 shall be amended to read
as follows:
"The Trustee shall, whenever from time to time requested by
the Company, such request to be evidenced by an officer's certificate,
without requiring compliance with any of the foregoing provisions of
Section 10.03 hereof unless, under the provisions of said Section
10.03, the Company would then be required to furnish an independent
engineer's certificate, in which event this paragraph shall not be
applicable, release from the lien hereof any property, the fair value
of which shall be stated in an engineer's certificate delivered to the
Trustee simultaneously with such officer's certificate, which property,
as stated in such engineer's certificate, is not useful or necessary in
the conduct of the business of the Company, and provided further that
the aggregate fair value of all property released pursuant to this
Section in any calendar year shall not exceed an amount equal to the
greater of $5,000,000 and 3% of the aggregate principal amount of bonds
outstanding hereunder. Said engineer's certificate shall also state
that such release will not impair the security under this Indenture in
contravention of the provisions thereof. The Company covenants that it
will deposit with the Trustee the consideration, if any, received by it
upon the sale or other disposition of any property so released."
J. A new Section 15.04 reading as follows shall be added:
"Section 15.04.
(a) Nothing in this Indenture shall be deemed to prevent or restrict
any consolidation or merger after the consummation of which the Company
would be the surviving or resulting corporation or any conveyance or
other transfer or lease, subject to the lien of this Indenture, of any
part of the mortgaged and pledged property which does not constitute
the entirety, or substantially the entirety, thereof.
(b) Unless, in the case of a consolidation or merger described in
subsection (a) of this Section, an indenture supplemental hereto shall
otherwise provide, this Indenture shall not become or be, or be
required to become or be, a lien upon any of the properties acquired by
the Company in or as a result of such transaction or any improvements,
extensions or additions to such properties or any renewals,
replacements or substitutions of or for any part or parts of such
properties."
K. Section 7.16 of the Original Indenture shall be amended by
deleting the word "independent" therefrom wherever it appears.
L. The proviso at the end of paragraph (1) of Section 10.02 of
the Original Indenture shall be deleted.
Section 2.03. Additional amendments requiring consent of holders of all
outstanding bonds. Each holder of a bond of the Fifty-third Series, by his
acceptance thereof, shall thereby consent that at any time after the requisite
consents, if any, of the holders of the bonds of other Series shall have been
given as hereinafter provided, the Mortgage shall be amended in the following
respects:
<PAGE>
A. Section 2.12 of the Original Indenture and all references to Section
2.12 within the Mortgage shall be deleted.
B. Clause (a) of Section 1.11 of the Original Indenture shall be amended to
read as follows:
"(a) ten-sevenths (10\7ths) of the aggregate principal amount of bonds
theretofore authenticated and delivered upon the basis of unfunded net property
additions (other than bonds deposited with the Trustee in satisfaction of
sinking fund requirements under former Section 2.12 hereof) or for the
authentication and delivery of which upon such basis any other application is
then pending;"
The amendments to the Mortgage set forth above shall become effective at
the earlier of (a) such date as no bonds created prior to the bonds of the
Fifty-third Series shall remain outstanding or (b) such date as the holders of
all then outstanding bonds of all series created prior to the bonds of the
Fifty-third Series shall have consented thereto. No further vote or consent of
the holders of bonds of the Fifty-third Series shall be required to permit such
amendments to become effective.
ARTICLE THREE
SUNDRY PROVISIONS
Section 3.01. This Supplemental Indenture is executed and shall be
construed as an indenture supplemental to the Original Indenture, and shall form
a part thereof, and the Original Indenture as heretofore supplemented is hereby
confirmed and adopted by the Company as its obligation. All terms used in this
Supplemental Indenture shall be taken to have the same meaning as in the
Original Indenture except in cases where the context clearly indicates
otherwise.
Section 3.02. All recitals in this Supplemental Indenture are made by the
Company only and not by the Trustee; and all of the provisions contained in the
Original Indenture as heretofore supplemented in respect of the rights,
privileges, immunities, powers and duties of the Trustee shall be applicable in
respect hereof as fully and with like effect as if set forth herein in full. The
Trustee shall not be responsible in any manner whatsoever for or in respect of
the validity or sufficiency of this Supplemental Indenture or the due execution
hereof by the Company.
Section 3.03. Although this Supplemental Indenture is dated for
convenience and for the purpose of reference as of May 1, 1999 the actual date
or dates of execution by the Company and by the Trustee are as indicated by
their respective acknowledgments hereto annexed.
Section 3.04. Nothing in this Supplemental Indenture contained shall, or
shall be construed to, confer upon any person other than a holder of bonds
issued under the Mortgage, the Company and the Trustee any right or interest to
avail himself of any benefit under any provision of the Mortgage.
Section 3.05. This Supplemental Indenture may be simultaneously executed
in several counterparts and all such counterparts executed and delivered, each
as an original, shall constitute but one and the same instrument.
Section 3.06. The headings of Articles, Sections and subsections contained
in this Supplemental Indenture are included for convenient reference only and
shall not be deemed to be a part of this Supplemental Indenture.
<PAGE>
Section 3.07. The Company gives notice that it claims the benefit of
Sections 29-1-10 and 29-3-80, S.C. Code of Laws (1976), as amended, concerning
the continuation of the lien until satisfied or released of record and
attachment to after-acquired real property of the lien of both the Original
Indenture, dated as of January 1, 1945, and all supplements and amendments
thereto, consisting of Fifty-two Supplemental Indentures (and various other
unnumbered, but recorded supplemental mortgages of after-acquired property for
individual tracts or parcels), including the Fourth Supplemental Indenture,
dated as of April 1, 1950, under which the Company assumed the Original
Indenture as described on page two herein. The Original Indenture and the
Fifty-two Supplemental Indentures and unnumbered supplements are recorded in the
mortgage book of the appropriate counties; the Original Indenture and the Fourth
Supplemental Indenture being recorded at the book and page numbers in such
counties as set forth on Exhibit A attached hereto. The notice on the cover of
this Fifty-third Supplemental Indenture is given pursuant to the aforesaid laws.
Section 3.08. This Supplemental Indenture is intended by the parties
hereto, as to properties now or hereafter encumbered by the Mortgage and located
within the State of Georgia, to operate and is to be construed as granting a
lien only on such properties and not as a deed passing title thereto.
The debtor and its mailing address are South Carolina Electric & Gas
Company, 1426 Main Street, Columbia, South Carolina 29218. The secured party and
its address from which information concerning the security interest may be
obtained are The Chase Manhattan Bank, 450 West 33rd, New York, New York 10001.
<PAGE>
IN WITNESS WHEREOF, South Carolina Electric & Gas Company has caused this
Supplemental Indenture to be executed in its corporate name by its President or
one of its Vice Presidents and its corporate seal to be hereunto affixed and to
be attested by its Secretary or one of its Assistant Secretaries, and The Chase
Manhattan Bank, to evidence its acceptance hereof, has caused this Supplemental
Indenture to be executed in its corporate name by its President or one of its
Vice Presidents or Assistant Vice Presidents and its corporate seal to be
hereunto affixed and to be attested by its Secretary or one of its Assistant
Secretaries, in several counterparts, all as of the day and year first above
written.
SOUTH CAROLINA ELECTRIC & GAS
COMPANY
(SEAL)
By ...............................................
President or Vice President
Attest:
.................................................
Secretary or Assistant Secretary
In the presence of:
.................................................
.................................................
THE CHASE MANHATTAN BANK
(SEAL)
By ....................................................
Vice President
Attest:
.............................................
Assistant Secretary
In the presence of:
.............................................
.............................................
<PAGE>
CONSENT
The Bank of New York, as successor to NationsBank of Georgia, N.A.,
as the holder under the Indenture of the South Carolina Electric & Gas Company,
dated as of April 1, 1993, as supplemented, of $1,115,035,000 principal amount
of the First and Refunding Mortgage Bonds, hereby consents to the amendments set
forth in Sections 2.02 and 2.03 of the Fifty-third Supplemental Indenture of
South Carolina Electric & Gas Company dated as of May 1, 1999.
THE BANK OF NEW YORK, as successor to NATIONSBANK OF GEORGIA, N.A.
(SEAL)
By ...............................................
Its ..................................................
ATTEST:
By .....................................................................
Its ......................................................................
65
<PAGE>
STATE OF SOUTH CAROLINA ) ss.:
COUNTY OF RICHLAND )
Personally appeared before me _______________, and, being duty sworn, made
oath that she saw the corporate seal of SOUTH CAROLINA ELECTRIC & GAS COMPANY
affixed to the above written Supplemental Indenture, and that she also saw
______________, the ___________________, with ____________, Secretary, of said
SOUTH CAROLINA ELECTRIC & GAS COMPANY sign and attest the same, and that she,
deponent, with ______________, witnessed the execution and delivery thereof as
the act and deed of SOUTH CAROLINA ELECTRIC & GAS COMPANY.
Kelly Elkins
Subscribed and sworn to before me this
____ day of _______________, ______. (NOTARIAL SEAL)
Patricia K. Haltiwanger
Notary Public for South Carolina
My Commission Expires May 15, 2006.
STATE OF SOUTH CAROLINA ) ss.:
COUNTY OF RICHLAND )
On this 1st day of May, in the year one thousand nine hundred and
ninety-nine, before me personally came Kevin Marsh, to me known, who, being by
me duly sworn, did depose and say that he resides at 1003 Steeple Ridge Road,
Irmo, South Carolina; that he is the Senior Vice President and Chief Financial
Officer of SOUTH CAROLINA ELECTRIC & GAS COMPANY, the corporation described in
and which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by order of the Board of Directors of said corporation;
and that he signed his name thereto by like order.
Patricia K. Haltiwanger...................
Notary Public for South Carolina
My Commission Expires May 15, 2006
(NOTARIAL SEAL)
66
<PAGE>
STATE OF NEW YORK ) ss:
COUNTY OF NEW YORK )
Personally appeared before me Eric Butler, and, being duly sworn, made
oath that he saw the corporate seal of THE CHASE MANHATTAN BANK affixed to the
above Supplemental Indenture, and that he also saw Glenn G. McKeever, Vice
President, with William G. Keenan, Trust Officer, of said THE CHASE MANHATTAN
BANK, sign and attest the same, and that he, deponent, with Natalia Rodriguez,
witnessed the execution and delivery thereof as the act and deed of THE CHASE
MANHATTAN BANK.
Subscribed and sworn to before me this Eric Butler 1st day of May, 1999.
Emily Fayan (NOTARIAL SEAL)
Notary Public, State of New York
No. 24-4737006
Qualified in Kings County
Certificate filed in New York County
Commission Expires December 31, 1999
STATE OF NEW YORK ) ss:
COUNTY OF NEW YORK )
On this 1st day of May, in the year one thousand nine hundred and
ninety-nine, before me personally came Glenn G. McKeever, to me known, who,
being by me duly sworn, did depose and say that he resides at 213-08 73rd
Avenue, Bayside, New York; that he is a Vice President of THE CHASE MANHATTAN
BANK, the corporation described in and which executed the foregoing instrument;
that he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by order of the Board
of Directors of said corporation, and that he signed his name thereto by like
order.
Emily Fayan
Notary Public, State of New York
No. 24-4737006
Qualified in Kings County
Certificate filed in New York County
Commission Expires December 31, 1999 (NOTARIAL SEAL)
Exhibit 5.01
SOUTH CAROLINA ELECTRIC & GAS COMPANY
1426 Main Street
Columbia, South Carolina 29201
August 31, 1999
Securities and Exchange Commission
450 Fifth Street, NW
Washington, DC 20549
Gentlemen:
I refer to the proposed issue and sale from time to time in one or more
series of up to $300,000,000 principal amount of First Mortgage Bonds (the
"Bonds") by South Carolina Electric & Gas Company (the "Company"), with respect
to which the Company proposes to file a Registration Statement on Form S-3 with
the Securities and Exchange Commission under the Securities Act of 1933, as
amended, and Rule 415 thereof.
In connection therewith, I have examined (a) the proposed Registration
Statement, dated _August 31, 1999 (the "Registration Statement"), to which this
opinion is attached as an exhibit; (b) the Indenture of Mortgage, dated as of
January 1, 1945, made by South Carolina Power Company to Central Hanover Bank
and Trust Company (now The Chase Manhattan Bank), as trustee, as supplemented by
three supplemental indentures thereto executed by South Carolina Power Company
and by fifty-three supplemental indentures thereto executed by the Company (the
"Class A Mortgage"); (c) the Indenture dated as of April 1, 1993 between the
Company and NationsBank of Georgia, National Association, as trustee, as
supplemented by two supplemental indentures thereto executed by the Company (the
"Mortgage"); and (d) such other corporate documents, proceedings and matters of
law as I have considered necessary.
Based on the foregoing, I am of the opinion that, with respect to the Bonds
of each series, when (a) the Registration Statement, and any amendments thereto,
have become effective under the Securities Act of 1933, as amended, (b) the
Mortgage has been qualified under the Trust Indenture Act of 1939, as amended,
(c) an appropriate order relating to such Bonds has been obtained from The
Public Service Commission of South Carolina, (d) the Board of Directors of the
Company has authorized the issuance and sale of the Bonds of such series, (e) a
prospectus supplement relating to such series has been filed with the Securities
and Exchange Commission and (f) the Bonds of such series have been duly
executed, authenticated, issued and delivered in accordance with the Mortgage
and the corporate and governmental authorizations aforesaid, the Bonds of such
series will be duly authorized and will constitute legal, valid and binding
obligations of the Company and will be entitled to the benefits and security of
the Mortgage.
I hereby consent to the filing of this opinion with the Registration
Statement and to the use of my name under the caption "Experts" included
therein.
Sincerely,
s/H. Thomas Arthur, II
H. Thomas Arthur, II
General Counsel
SCANA Corporation
Exhibit 10.01
SCANA CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
as amended and restated
effective as of
October 21, 1997
<PAGE>
SCANA CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
TABLE OF CONTENTS
Page
SECTION 1. ESTABLISHMENT OF THE PLAN....................................... 1
1.1 Establishment of the Plan................................. 1
1.2 Description of the Plan................................... 1
1.3 Purpose of the Plan....................................... 1
SECTION 2. DEFINITIONS................................................... 2
2.1 Definitions............................................... 2
2.2 Gender and Number......................................... 4
SECTION 3. ELIGIBILITY AND PARTICIPATION.................................. 5
3.1 Eligibility............................................... 5
3.2 Termination of Participation.............................. 5
3.3 Reemployment of Former Participant........................ 5
SECTION 4. BENEFITS....................................................... 6
4.1 Eligibility for Benefits.................................. 6
4.2 Amount of Retirement Benefit.............................. 6
4.3 Commencement, Form and Duration of Payment................ 6
4.4 Pre-retirement Spouse Benefit............................. 7
4.5 Documentation............................................. 7
SECTION 5. FINANCING...................................................... 8
5.1 Financing of Benefits..................................... 8
5.2 "Rabbi" Trust............................................. 8
SECTION 6. GENERAL PROVISIONS.............................................. 9
6.1 Employment/Participation Rights............................ 9
6.2 Nonalienation of Benefits.................................. 9
6.3 Severability............................................... 9
6.4 No Individual Liability................................... 10
6.5 Applicable Law............................................ 10
SECTION 7. PLAN ADMINISTRATION, AMENDMENT AND TERMINATION................. 11
7.1 In General................................................ 11
7.2 Claims Procedure.......................................... 11
7.3 Finality of Determination................................. 11
7.4 Delegation of Authority................................... 11
7.5 Expenses.................................................. 11
7.6 Tax Withholding........................................... 11
7.7 Incompetency.............................................. 11
7.8 Action by Corporation..................................... 12
7.9 Notice of Address......................................... 12
7.10 Amendment and Termination................................. 12
SECTION 8. CHANGE IN CONTROL PROVISIONS................................... 13
8.1 Accelerated Distributions Upon Change in Control.......... 13
8.2 Tax Computation........................................... 13
8.3 No Subsequent Recalculation of Tax Liability.............. 13
8.4 Successors.................................................14
8.5 Amendment and Termination after Change in Control..........14
SECTION 10. EXECUTION ................................................ 15
<PAGE>
SCANA CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
SECTION 1. ESTABLISHMENT OF THE PLAN
1.1 Establishment of the Plan. SCANA CORPORATION (the "Corporation") established
the SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN (the "Supplemental Plan") effective
as of January 1, 1994. The Supplemental Plan was amended and restated, effective
December 18, 1996, and is hereby further amended and restated effective as of
October 21, 1997.
1.2 Description of the Plan. This Supplemental Plan is intended to constitute a
nonqualified deferred compensation plan which, in accordance with ERISA Sections
201(2), 301(a)(3) and 401(a)(1), is unfunded and established primarily for the
purpose of providing deferred compensation for a select group of management or
highly compensated employees.
1.3 Purpose of the Plan. In addition to the description of the Supplemental Plan
as set forth in subsection 1.2 above, the primary objective of the Corporation
in establishing this Supplemental Plan is to provide supplemental retirement
income to certain employees of the Company whose benefits under the SCANA
Corporation Retirement Plan are limited in accordance with the limitations
imposed by Code Section 415 on the amount of annual retirement benefits payable
to employees from qualified pension plans, by Code Section 401(a)(17) on the
amount of annual compensation that may be taken into account for all qualified
plan purposes, or by certain other design limitations on determining
compensation under the Qualified Plan.
SECTION 2. DEFINITIONS
2.1 Definitions. Whenever used in the Supplemental Plan, the following terms
shall have the respective meanings set forth below, unless otherwise expressly
provided herein or unless a different meaning is plainly required by the
context, and when the defined meaning is intended, the term is capitalized.
Capitalized terms not defined herein shall have the respective meanings set
forth in the Qualified Plan.
(a) "Actuarial Equivalent" shall mean the actuarial equivalent factors
applied under the Qualified Plan. In applying Actuarial Equivalent factors under
this Supplemental Plan, the same procedures shall apply as would apply under the
Qualified Plan under similar circumstances.
(b) "Agreement" means a contract between an Eligible Employee and the
Company permitting the Eligible Employee to participate in the Supplemental Plan
and delineating the benefits (if any) that are to be provided to the Eligible
Employee in lieu of or in addition to the benefits described under the terms of
this Supplemental Plan.
(c) "Beneficial Owner" shall have the meaning ascribed to such term in
Rule 13d-3 of the General Rules and Regulations under the Exchange Act.
(d) "Beneficiary" means the individual designated by the Participant
(on such form as prescribed by the Committee) to receive the Participant's
benefits under Section 8 if the Participant shall have died prior to receipt
thereof. In the absence of an effective Beneficiary designation, such amounts
shall be paid to the Participant's Beneficiary determined under the Qualified
Plan.
(e) "Board" means the Board of Directors of the Corporation.
(f) "Change in Control" means a change in control of the Corporation of
a nature that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Exchange Act, whether or
not the Corporation is then subject to such reporting requirements; provided
that, without limitation, such a Change in Control shall be deemed to have
occurred if:
i) Any Person (as defined in Section 3(a)(9) of the Exchange
Act and used in Sections 13(d) and 14(d) thereof, including a "group" as defined
in Section 13(d)) is or becomes the Beneficial Owner, directly or indirectly, of
twenty five percent (25%) or more of the combined voting power of the
outstanding shares of capital stock of the Corporation;
ii) During any period of two (2) consecutive years (not
including any period prior to December 18, 1996) there shall cease to be a
majority of the Board comprised as follows: individuals who at the beginning of
such period constitute the Board and any new director(s) whose election by the
Board or nomination for election by the Corporation's stockholders was approved
by a vote of at least two-thirds (2/3) of the directors then still in office who
either were directors at the beginning of the period or whose election or
nomination for election was previously so approved;
iii) The issuance of an Order by the Securities and Exchange
Commission (SEC), under Section 9(a)(2) of the Public Utility Holding Company
Act of 1935 as amended (the "1935 Act"), authorizing a third party to acquire
five percent (5%) or more of the Corporation's voting shares of capital stock;
iv) The shareholders of the Corporation approve a merger or
consolidation of the Corporation with any other corporation, other than a merger
or consolidation which would result in the voting shares of capital stock of the
Corporation outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting shares of
capital stock of the surviving entity) at least eighty percent (80%) of the
combined voting power of the voting shares of capital stock of the Corporation
or such surviving entity outstanding immediately after such merger or
consolidation; or the shareholders of the Corporation approve a plan of complete
liquidation of the Corporation or an agreement for the sale or disposition by
the Corporation of all or substantially all of the Corporation's assets; or
v) The shareholders of the Corporation approve a plan of
complete liquidation, or the sale or disposition of South Carolina Electric &
Gas Company (hereinafter SCE&G), South Carolina Pipeline Corporation, or any
subsidiary of SCANA designated by the Board as a "Material Subsidiary," but such
event shall represent a Change in Control only with respect to a Participant who
has been exclusively assigned to SCE&G, South Carolina Pipeline Corporation, or
the affected Material Subsidiary.
(g) "Code" means the Internal Revenue Code of 1986, as amended.
(h) "Code Limitations" means the limitations imposed by Code Section
415 on the amount of annual retirement benefits payable to employees from
qualified pension plans and by Code Section 401(a)(17) on the amount of annual
compensation that may be taken into account for all qualified plan purposes.
(i) "Committee" means the Management Development and Corporate
Performance Committee of the Board.
(j) "Company" means the Corporation and any subsidiaries of the
Corporation and their successor(s) or assign(s) that adopt this Supplemental
Plan through execution of Agreements with any of their Employees or otherwise.
(k) "Compensation" means "Compensation" as determined under the
Qualified Plan, without regard to the limitation under Section 401(a)(17) of the
Code and including any amounts deferred under any non-qualified deferred
compensation plan of the Corporation (excluding the Supplemental Plan).
(l) "Corporation" means SCANA Corporation, a South Carolina
corporation, or any successor thereto.
(m) "Effective Date" means December 18, 1996.
(n) "Eligible Employee" means an Employee who is employed by the
Company in a high-level management or administrative position, including
employees who also serve as officers and/or directors of the Company.
(o) "Employee" means a person who is actively employed by the Company
and who falls under the usual common law rules applicable in determining the
employer-employee relationship.
(p) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(q) "Participant" means any Eligible Employee who is participating in
the Supplemental Plan in accordance with the provisions herein set forth.
(r) "Qualified Plan" means the SCANA Corporation Retirement Plan, as in
effect on the Effective Date, and as may be further amended and in effect from
time to time.
(s) "Supplemental Plan" means this plan, the SCANA Corporation
Supplemental Executive Retirement Plan.
2.2 Gender and Number. Except when otherwise indicated by the context, any
masculine terminology used herein shall also include the feminine and the
feminine shall include the masculine, and the use of any term herein in the
singular may also include the plural and the plural shall include the singular.
SECTION 3. ELIGIBILITY AND PARTICIPATION
3.1 Eligibility. An Eligible Employee shall become a Participant in the
Supplemental Plan on the first day on which:
-----------
(a) his accrued benefit calculated under the Qualified Plan is limited
in accordance with either of the Code Limitations or due to his participation in
a non-qualified deferred compensation plan of the Corporation (other than this
Supplemental Plan); and
(b) he enters into an Agreement with the Company regarding his
participation in the Supplemental Plan.
3.2 Termination of Participation. An Eligible Employee who is eligible to
participate in this Supplemental Plan under subsection 3.1 above shall remain
covered hereunder until the date upon which his employment terminates for any
reason and, thereafter, so long as any benefits are payable from this
Supplemental Plan. Unless the terms of the Participant's Agreement provide to
the contrary, if the Participant is not eligible for benefits in accordance with
the provisions of Section 4.1 at the time his employment terminates, the
Participant shall terminate his participation in the Supplemental Plan when his
employment with the Company terminates.
3.3 Reemployment of Former Participant. Notwithstanding any provision of the
Supplemental Plan or an Agreement to the contrary, any person reemployed as an
Employee who previously participated in and received benefits under the
Supplemental Plan shall not be eligible to participate again in the Supplemental
Plan, and any payments or future rights to payments under the Supplemental Plan
made or to be made with respect to such Participant shall not be discontinued on
account of such reemployment.
<PAGE>
SECTION 4. BENEFITS
4.1 Eligibility for Benefits. A Participant shall be eligible to commence
receipt of a benefit under the Supplemental Plan in accordance with and subject
to the provisions of the Supplemental Plan, upon the later of the Participant's
termination of employment with the Company or the Participant's Earliest
Retirement Date or in an Agreement; provided, however, that, except as provided
in the following sentence or as may otherwise be provided by an Agreement, no
benefit shall be payable under this Supplemental Plan with respect to a
Participant who terminates employment with the Company prior to becoming vested
in his accrued benefit under the Qualified Plan. Notwithstanding the foregoing,
if a Participant is involuntarily terminated following or incident to a Change
in Control and prior to becoming fully vested in his accrued benefit under the
Qualified Plan, a benefit will be paid under this Supplemental Plan, based on
the Participant's Compensation and Years of Benefit Service at the time of the
Participant's termination of employment.
4.2 Amount of Retirement Benefit. Unless otherwise provided in an Agreement, the
amount of any retirement benefit payable to a Participant pursuant to this
Supplemental Plan shall be determined at the time the Participant first becomes
eligible to receive benefits under the Supplemental Plan and shall be equal to
the excess, if any, of:
i) The monthly pension amount that would have been payable at Normal
Retirement Age or, if applicable, Delayed Retirement Age under the Qualified
Plan to the Participant determined based on Compensation as defined under this
Supplemental Plan and disregarding the Code Limitations and any reductions due
to the Participant's deferral of compensation under any nonqualified deferred
compensation plan of the Company (other than this Supplemental Plan); over
ii) The monthly pension amount payable at Normal Retirement Age or, if
applicable, Delayed Retirement Age under the Qualified Plan to the Participant.
If such benefit is scheduled to commence prior to a Participant's
Normal Retirement Date, the benefit to be paid under this Plan shall be reduced
in accordance with the Early Retirement reduction factors and Actuarial
Equivalent factors under the Qualified Plan as of the date of determination.
4.3 Commencement, Form and Duration of Payment. Unless the terms of the
Participant's Agreement provide to the contrary:
------------------------------------------
(a) Participant's Benefit. Monthly benefit payments for a Participant
shall begin as of the first day of the calendar month next following the later
of the date the Participant's employment with the Company terminates or the
Participant's Earliest Retirement Date under the Qualified Plan and shall be
paid under the normal form of benefit payment under the Qualified Plan; and
(b) Post-Retirement Spouse Benefit. If the Participant dies after
benefit payments have commenced, and he has an eligible Spouse, such Spouse will
then receive monthly benefits equal to 60 percent of the Participant's benefit
for the rest of the Spouse's lifetime.
4.4 Pre-retirement Spouse Benefit. Unless the terms of the Participant's
Agreement provide to the contrary, if a Participant dies on or after the
Effective Date, and satisfies the following conditions:
(a) on the date of his death, he was legally married and had
been so married to the same spouse for at least one year;
and
(b) on the date of his death, he was entitled to a benefit
pursuant to Section 4.1; and
(c) he had not begun to receive payments under this Supplemental
Plan,
his Spouse shall be eligible for a pre-retirement Spouse benefit under
this Supplemental Plan. The Participant's surviving Spouse shall be entitled to
receive monthly benefits beginning on the first of the month next following the
Participant's death and continuing for the remainder of the Spouse's lifetime.
The surviving Spouse's Pre-retirement Spouse Benefit shall be equal to the
excess, if any, of:
i) The monthly pension amount that would have been payable
under the Qualified Plan to the surviving Spouse (as a 60 percent survivor
annuity) determined based on the Participant's Compensation as defined under
this Supplemental Plan and disregarding the Code Limitations and any reductions
due to the Participant's deferral of compensation under any nonqualified
deferred compensation plan of the Company (other than this Supplemental Plan);
over
ii) The actual monthly pension amount payable to the surviving
Spouse under the Qualified Plan.
4.5 Documentation. Each person eligible for a benefit under the Supplemental
Plan shall furnish the Corporation with such documents, evidence, data or
information in support of such application as the Corporation considers
necessary or desirable.
SECTION 5. FINANCING
5.1 Financing of Benefits. Participants shall not be required or permitted to
make any contribution under the Supplemental Plan. Benefits shall be payable,
when due, by the Corporation, out of its current operating revenue to the extent
not paid from a trust created pursuant to Section 5.2. The Corporation's
obligation to make payments to the recipient when due shall be contractual in
nature only, and participation in the Supplemental Plan will not create in favor
of any Participant any right or lien against the assets of the Corporation. No
benefits under the Supplemental Plan shall be required to be funded by a trust
fund or insurance contracts or otherwise. Prior to benefits becoming due, the
Corporation shall expense the calculated liabilities in accordance with policies
determined appropriate by the Corporation and its auditors.
5.2 "Rabbi" Trust. In connection with this Plan, the Board shall establish a
grantor trust (known as the "SCANA Corporation Executive Benefit Plan Trust")
for the purpose of accumulating funds to satisfy the obligations incurred by the
Corporation under this Plan (and such other plans and arrangements as determined
from time to time by the Corporation). At any time prior to a Change in Control,
as that term is defined in such Trust, the Corporation may transfer assets to
the Trust to satisfy all or part of the obligations incurred by the Corporation
under this Plan, as determined in the sole discretion of the Committee or its
designee, subject to the return of such assets to the Corporation at such time
as determined in accordance with the terms of such Trust. Any assets of such
Trust shall remain at all times subject to the claims of creditors of the
Corporation in the event of the Corporation's insolvency; and no asset or other
funding medium used to pay benefits accrued under the Plan shall result in the
Plan being considered as other than "unfunded" under ERISA. Notwithstanding the
establishment of the Trust, the right of any Participant to receive future
payments under the Plan shall remain an unsecured claim against the general
assets of the Corporation.
SECTION 6. GENERAL PROVISIONS
6.1 Employment/Participation Rights.
(a) Nothing in the Plan shall interfere with or limit in any way the
right of the Company to terminate any Participant's employment at any time, nor
confer upon any Participant any right to continue in the employ of the Company.
(b) Nothing in the Plan shall be construed to be evidence of any
agreement or understanding, express or implied, that the Company will continue
to employ a Participant in any particular position or at any particular rate of
remuneration.
(c) No employee shall have a right to be selected as a
Participant, or, having been so selected, to be selected again
as a Participant.
(d) Nothing in this Supplemental Plan shall affect the right of a
recipient to participate in and receive benefits under and in accordance with
any pension, profit-sharing, deferred compensation or other benefit plan or
program of the Company.
6.2 Nonalienation of Benefits.
(a) No right or benefit under this Plan shall be subject to
anticipation, alienation, sale, assignment, pledge, encumbrance, or change, and
any attempt to anticipate, alienate, sell, assign, pledge, encumber or change
the same shall be void; nor shall any such disposition be compelled by operation
of law, except as may be applicable in the circumstance of death of a
Participant under South Carolina law.
(b) No right or benefit hereunder shall in any manner be liable for or
subject to the debts, contracts, liabilities, or torts of the person entitled to
benefits under the Plan.
(c) If any Participant or Beneficiary hereunder should become bankrupt
or attempt to anticipate, alienate, sell, assign, pledge, encumber, or change
any right or benefit hereunder, then such right or benefit shall, in the
discretion of the Committee, cease, and the Committee shall direct in such event
that the Corporation hold or apply the same or any part thereof for the benefit
of the Participant or Beneficiary in such manner and in such proportion as the
Committee may deem proper.
6.3 Severability. If any particular provision of the Supplemental Plan shall be
found to be illegal or unenforceable for any reason, the illegality or lack of
enforceability of such provision shall not affect the remaining provisions of
the Supplemental Plan, and the Supplemental Plan shall be construed and enforced
as if the illegal or unenforceable provision had not been included.
6.4 No Individual Liability. It is declared to be the express purpose and
intention of the Supplemental Plan that no liability whatsoever shall attach to
or be incurred by the shareholders, officers, or directors of the Corporation or
any representative appointed hereunder by the Corporation, under or by reason of
any of the terms or conditions of the Supplemental Plan.
6.5 Applicable Law. The Supplemental Plan shall be governed by and construed in
accordance with the laws of the State of South Carolina except to the extent
governed by applicable Federal law.
SECTION 7. PLAN ADMINISTRATION, AMENDMENT AND TERMINATION
7.1 In General. The Supplemental Plan shall be administered by the Committee,
which shall have the sole authority to construe and interpret the terms and
provisions of the Supplemental Plan and determine the amount, manner and time of
payment of any benefits hereunder. The Committee shall maintain records, make
the requisite calculations and disburse payments hereunder, and its
interpretations, determinations, regulations and calculations shall be final and
binding on all persons and parties concerned. The Committee may adopt such rules
as it deems necessary, desirable or appropriate in administering the
Supplemental Plan and the Committee may act at a meeting, in a writing without a
meeting, or by having actions otherwise taken by a member of the Committee
pursuant to a delegation of duties from the Committee.
7.2 Claims Procedure. Any person dissatisfied with the Committee's determination
of a claim for benefits hereunder must file a written request for
reconsideration with the Committee. This request must include a written
explanation setting forth the specific reasons for such reconsideration. The
Committee shall review its determination promptly and render a written decision
with respect to the claim, setting forth the specific reasons for such denial
written in a manner calculated to be understood by the claimant. Such claimant
shall be given a reasonable time within which to comment, in writing, to the
Committee with respect to such explanation. The Committee shall review its
determination promptly and render a written decision with respect to the claim.
Such decision upon matters within the scope of the authority of the Committee
shall be conclusive, binding, and final upon all claimants under this Plan.
7.3 Finality of Determination. The determination of the Committee as to any
disputed questions arising under this Plan, including questions of construction
and interpretation, shall be final, binding, and conclusive upon all persons.
7.4 Delegation of Authority. The Committee may, in its discretion, delegate its
duties to an officer or other employee of the Company, or to a committee
composed of officers or employees of the Company.
7.5 Expenses. The cost of payment from this Plan and the expenses of
administering the Supplemental Plan shall be borne by the Corporation.
7.6 Tax Withholding. The Corporation shall have the right to deduct from all
payments made from the Supplemental Plan any federal, state, or local taxes
required by law to be withheld with respect to such payments.
7.7 Incompetency. Any person receiving or claiming benefits under the
Supplemental Plan shall be conclusively presumed to be mentally competent and of
age until the Corporation receives written notice, in a form and manner
acceptable to it, that such person is incompetent or a minor, and that a
guardian, conservator, statutory committee under the South Carolina Code of
Laws, or other person legally vested with the care of his estate has been
appointed. In the event that the Corporation finds that any person to whom a
benefit is payable under the Supplemental Plan is unable to properly care for
his affairs, or is a minor, then any payment due (unless a prior claim therefor
shall have been made by a duly appointed legal representative) may be paid to
the spouse, a child, a parent, or a brother or sister, or to any person deemed
by the Corporation to have incurred expense for the care of such person
otherwise entitled to payment.
In the event a guardian or conservator or statutory committee of the
estate of any person receiving or claiming benefits under the Supplemental Plan
shall be appointed by a court of competent jurisdiction, payments shall be made
to such guardian or conservator or statutory committee provided that proper
proof of appointment is furnished in a form and manner suitable to the
Corporation. Any payment made under the provisions of this Section 7.7 shall be
a complete discharge of liability therefor under the Supplemental Plan.
7.8 Action by Corporation. Any action required or permitted to be taken
hereunder by the Corporation or its Board shall be taken by the Board, or by any
person or persons authorized by the Board.
7.9 Notice of Address. Any payment made to a Participant or to his surviving
Spouse at the last known post office address of the distributee on file with the
Corporation, shall constitute a complete acquittance and discharge to the
Corporation and any director or officer with respect thereto, unless the
Corporation shall have received prior written notice of any change in the
condition or status of the distributee. Neither the Corporation nor any director
or officer shall have any duty or obligation to search for or ascertain the
whereabouts of the Participant or his Spouse.
7.10 Amendment and Termination. The Corporation expects the Supplemental Plan to
be permanent, but since future conditions affecting the Corporation cannot be
anticipated or foreseen, the Corporation reserves the right to amend, modify, or
terminate the Supplemental Plan at any time by action of its Board; provided,
however, that if the Supplemental Plan is amended to discontinue or reduce the
amount of Supplemental Plan benefit payments (except as may be required pursuant
to any plan arising from insolvency or bankruptcy proceedings): (a) Participants
who have retired under the Supplemental Plan or their surviving Spouses shall
continue to be paid in the amount and manner (as provided under Section 4
hereof) as they were being paid at the time of the amendment or discontinuance
of the Supplemental Plan, and (b) the accrued benefits under the Supplemental
Plan of any future retirees shall not be reduced below the level accrued as of
the date of amendment. If the Board amends the Supplemental Plan to cease future
accruals hereunder or terminates the Supplemental Plan, the Board may, in its
sole discretion, direct that the actuarial equivalent present value of each
Participant's accrued benefits be paid to each Participant (or surviving Spouse,
if applicable) in an immediate lump sum payment (with such Actuarial Equivalent
present value being determined in the manner indicated in Section 4); in the
absence of any such direction from the Board, the Supplemental Plan shall
continue as a "frozen" plan under which no future accruals will be recognized
and each Participant's benefits shall be paid in accordance with Section 4.
<PAGE>
SECTION 8. CHANGE IN CONTROL PROVISIONS
8.1 Accelerated Distributions Upon Change in Control. Notwithstanding anything
in this Supplemental Plan to the contrary, and subject to the terms of any
Agreement, upon the occurrence of a Change in Control where there has not been a
termination of the SCANA Corporation Key Employee Severance Benefits Plan prior
thereto, the Present Value of all amounts (or remaining amounts) owed under this
Supplemental Plan and each underlying Agreement as of the date of such Change in
Control (referred to as each Participant's "SERP Benefit") shall become
immediately due and payable. All SERP Benefits payable under this Section 8.1
shall be paid to each Participant (and his or her Beneficiary) in the form of a
single lump sum payment of the Actuarial Equivalent present value of all such
amounts owed, together with an amount (the "Gross-Up Payment") such that the net
amount retained by each Participant after deduction of any excise tax imposed by
Section 4999 of the Code (or any similar tax that may hereafter be imposed) on
such benefits (the "Excise Tax") and any Federal, state, and local income tax
and Excise Tax upon the SERP Benefit and the Gross-Up Payment provided for by
this Section 8 shall be equal to the Actuarial Equivalent present value of the
Participant's SERP Benefit. Such payment shall be made by the Corporation (or to
the extent assets are transferred to a "rabbi trust" for such purpose, by the
trustee of such trust in accordance with the trust's terms) to the Participant
(or his or her Beneficiary) as soon as practicable following the Change in
Control, but in no event later than the date specified by the terms of the SCANA
Corporation Executive Benefit Plan Trust. In all events, if the Key Employee
Severance Benefits Plan was terminated prior to such Change in Control, then the
provisions of this Section shall not apply and Participants' benefits shall be
determined under the other applicable provisions of this Supplemental Plan
and/or any Agreement.
8.2 Tax Computation. For purposes of determining the amount of the Gross-Up
Payment referred to in Section 8.1, whether any of a Participant's SERP Benefit
will be subject to the Excise Tax, and the amounts of such Excise Tax: (i) there
shall be taken into account all other payments or benefits received or to be
received by a Participant in connection with a Change in Control of the
Corporation (whether pursuant to the terms of this Supplemental Plan or any
other plan, arrangement, or agreement with the Corporation, any person whose
actions result in a Change in Control of the Corporation or any person
affiliated with the Corporation or such person); and (ii) the amount of any
Gross-Up Payment payable with respect to any Participant (or his or her
Beneficiary) by reason of such payment shall be determined in accordance with a
customary "gross-up formula," as determined by the Committee it its sole
discretion.
8.3 No Subsequent Recalculation of Tax Liability. The Gross-Up Payments
described in the foregoing provisions of this Section 8 are intended and hereby
deemed to be a reasonably accurate calculation of each Participant's actual
income tax and Excise Tax liability under the circumstances (or such tax
liability of his or her Beneficiary), the payment of which is to be made by the
Corporation or any "rabbi trust" established by the Corporation for such
purposes. All such calculations of tax liability shall not be subject to
subsequent recalculation or adjustment in either an underpayment or overpayment
context with respect to the actual tax liability of the Participant (or his or
her Beneficiary) ultimately determined as owed.
8.4 Successors. Notwithstanding anything in this Supplemental Plan to the
contrary, and subject to the terms of an Agreement, upon the occurrence of a
Change in Control, and only if the SCANA Corporation Key Employee Severance
Benefits Plan ("KESBP") was terminated prior to such Change in Control, the
Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation, or otherwise) of all or substantially all of the business
and/or assets of the Company or of any division or subsidiary thereof to
expressly assume and agree to perform this Supplemental Plan in the same manner
and to the same extent that the Company would be required to perform it if no
such succession had taken place, subject to the remaining provisions of this
Section 8.4. In the event of such a Change in Control where the KESBP is
terminated, Participants shall become entitled to benefits hereunder in
accordance with the terms of this Supplemental Plan, and/or any Agreement, based
on benefits earned to the date of such Change in Control, with no requirement
for a successor to provide for accruals of benefits beyond the date of such
Change in Control. In addition, and notwithstanding Section 8.5 to the contrary,
if there is a Change in Control and the KESBP is terminated prior to such Change
in Control, a successor to the Company may amend this Supplemental Plan to
provide for an automatic lump sum distribution of the Actuarial Equivalent of
Participants' benefits hereunder without such amendment being treated as an
amendment reducing any benefits earned.
8.5 Amendment and Termination After Change in Control. Notwithstanding the
foregoing, and subject to Section 8, no amendment, modification or termination
of the Supplemental Plan may be made, and no Participants may be added to the
Supplemental Plan, upon or following a Change in Control if it would have the
effect of reducing any benefits earned (including optional forms of
distribution) prior to such Change in Control without the written consent of all
of the Supplemental Plan's Participants covered by the Supplemental Plan at such
time. In all events, however, the Corporation reserves the right to amend,
modify or delete the provisions of this Section 8 at any time prior to a Change
in Control, pursuant to a Board resolution adopted by a vote of two-thirds (2/3)
of the Board members then serving on the Board.
IN WITNESS WHEREOF, SCANA Corporation has caused this instrument to be
executed by its duly authorized officers and its corporate seal to be hereunto
affixed, this _____ day of __________, 1997, effective as of October 21, 1997.
SCANA CORPORATION
By: ________________________
Title: ______________________
ATTEST:
By: __________________________
Secretary
<TABLE>
Exhibit 12.01
SOUTH CAROLINA ELECTRIC & GAS COMPANY
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
For the Twelve Months Ended June 30, 1999 and Each of the Five Years Ended December 31, 1998
(Millions of Dollars)
12 Months
Ended June 30,
Year Ended December 31,
1999 1998 1997 1996 1995 1994
---- ---- ---- ---- ---- ----
Fixed Charges as defined:
<S> <C> <C> <C> <C> <C> <C>
Interest on long-term debt................ $ 92.7 $ 92.7 $ 94.7 $ 94.8 $ 96.2 $ 85.4
Amortization of debt premium, discount
and expense (net)......................... 2.4 2.3 2.3 2.3 2.2 2.0
Interest on debt to affiliate............. - - - - - -
Other interest expense.................... 11.5 6.2 4.9 7.4 9.2 5.1
Interest component of rentals............. 0.8 0.8 1.8 2.3 2.8 2.7
------ ------ ------ ------ ------ ------
Total Fixed Charges (A)............... $107.4 $102.0 $103.7 $106.8 $110.4 $ 95.2
====== ====== ====== ====== ====== ======
Earnings, as defined:
Income.................................... $207.9 $227.2 $194.7 $190.5 $169.2 $152.0
Income taxes............................. 121.8 132.2 100.6 108.1 97.3 82.7
Total fixed charges above................. 107.4 102.0 103.7 106.8 110.4 95.2
------ ------ ------ ------ ------ ------
Total Earnings (B).................... $437.1 $461.1 $399.0 $405.4 $376.9 $329.9
====== ====== ====== ====== ====== ======
Ratio of Earnings to Fixed Charges (B/A).... 4.07 4.52 3.85 3.80 3.41 3.46
==== ==== ==== ==== ==== ====
</TABLE>
Exhibit 23.01
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of South Carolina Electric & Gas Company on Form S-3 of the report dated
February 8, 1999 appearing in the Annual Report on Form 10-K of South Carolina
Electric & Gas Company for the year ended December 31, 1998, and to the
reference to us under the heading "Experts" in the Prospectus, which is part of
this Registration Statement.
s/Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Columbia, South Carolina
August 31, 1999
Exhibit 24.01
POWER OF ATTORNEY
Each of the undersigned directors of South Carolina Electric & Gas Company
(the "Company") hereby appoints W. B. Timmerman and K. B. Marsh, and each of
them severally, his or her true and lawful attorney or attorneys, with 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-3, and any and all amendments thereto with respect to the
issuance and sale of up to $300,000,000 of such Company's mortgage bonds.
Dated: February 16, 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/F. C. McMaster
J. A. Bennett F. C. McMaster
Director Director
s/W. B. Bookhart, Jr. s/L. M. Miller
W. B. Bookhart, Jr. L. M. Miller
Director Director
s/W. T. Cassels, Jr. s/J. B. Rhodes
W. T. Cassels, 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/W. B. Timmerman
E. T. Freeman W. B. Timmerman
Director Director
s/L. M. Gressette, Jr.
L. M. Gressette, Jr.
Director
===============================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
South Carolina Electric & Gas Company
(Exact name of obligor as specified in its charter)
South Carolina 57-0248695
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1426 Main Street
Columbia, South Carolina 29201
(Address of principal executive offices) (Zip code)
----------------------
First Mortgage Bonds
(Title of the indenture securities)
===============================================================================
<PAGE>
1. General information. Furnish the following information as to the
Trustee:
(a) Name and address of each examining or supervising authority to which it
is subject.
- ----------------------------------------------------------------------------
Name
Address
- ----------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to
Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and 17
C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No.
33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed
with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in the City of Atlanta, and
State of Georgia, on the 1st day of September 1999.
THE BANK OF NEW YORK
By: /s/ Elizabeth T. Talley
Name: Elizabeth T. Talley
Title: Agent
<PAGE>
EXHIBIT 7 TO FORM T-1
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business March 31, 1999, published in accordance with a
call made by the Federal Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
Dollar Amounts
in
Thousands
ASSETS
Cash and balances due from
depository institutions:
Noninterest-bearing balances
and currency and coin............................. 4,508,742
Interest-bearing balances........................... 4,425,071
Securities:
Held-to-maturity securities......................... 836,304
Available-for-sale securities....................... 4,047,851
Federal funds sold and securities
purchased under agreements to resell................. 1,743,269
Loans and lease financing receivables:
Loans and leases,
net of unearned income. . . . . 39,349,679
LESS: Allowance for loan and
lease losses. . . . . . . . . . 603,025
LESS: Allocated transfer
risk reserve. . . . . . . . . . 15,906
Loans and leases, net of unearned
income and allowance and reserve................. 38,730,748
Assets held in trading accounts............................. 1,571,372
Premises and fixed assets (including
capitalized leases)................................ 685,674
Other real estate owned..................................... 10,331
Investments in unconsolidated
subsidiaries and associated
companies.......................................... 182,449
Customers' liability to this bank
on acceptances outstanding......................... 1,184,822
Intangible assets........................................... 1,129,636
Other assets................................................ 2,632,309
Total assets................................................ $61,688,578
LIABILITIES
Deposits:
In domestic offices............................... $25,731,036
Noninterest-bearing . . . . . . . 10,252,589
Interest-bearing. . . . . . . . . 15,478,447
In foreign offices, Edge and
Agreement subsidiaries, and IBFs.................. 18,756,302
Noninterest-bearing . . . . . . . 111,386
Interest-bearing. . . . . . . . . 18,644,916
Federal funds purchased and securities sold under agreements to repurchase in
domestic offices of the bank and of its Edge and Agreement
subsidiaries, and in IBFs:
Federal funds purchased............................. 3,276,362
Demand notes issued to the
U.S. Treasury....................................... 230,671
Trading liabilities.......................................... 1,554,493
Other borrowed money:
With remaining maturity of one year
or less........................................... 1,154,502
With remaining maturity of more
than one year through three years................. 465
With remaining maturity of more
than three years.................................. 31,080
Bank's liability on acceptances
executed and outstanding.......................... 1,185,364
Subordinated notes and debentures............................ 1,308,000
Other liabilities............................................ 2,743,590
-----------
Total liabilities............................................ 55,971,865
===========
EQUITY CAPITAL
Common stock.............................................. 1,135,284
Surplus................................................... 764,443
Undivided profits and capital
reserves......................................... 3,807,697
Net unrealized holding gains (losses)
on available-for-sale securities................. 44,106
Cumulative foreign currency
translation adjustments.......................... ( 34,817)
-----------
Total equity capital...................................... 5,716,713
-----------
Total liabilities and equity capital...................... $61,688,578
===========
.........I, Thomas J. Masiro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
........Thomas J. Masiro
.........We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
.........Thomas A. Renyi )
.........Gerald L. Hassell ) Directors
.........Allen R. Griffith )
