Exhibit 10-A
SCANA CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
as amended and restated
effective as of
October 21, 1997
276
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
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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
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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.
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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;
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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.
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(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.
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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.
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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:
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(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 desirabl
285
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.
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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.
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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.
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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.
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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
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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.
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.
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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
292
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.
293
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 11th day of December, 1997, effective as
of October 21, 1997.
SCANA CORPORATION
By: s/William B. Timmerman
William B. Timmerman
Title: Chairman, President
and Chief Executive
Officer
ATTEST:
By: s/Lynn M. Williams
Lynn M. Williams
Secretary
294