Exhibit 10.01
SCANA CORPORATION
VOLUNTARY DEFERRAL PLAN
as amended and restated
effective as of
October 21, 1997
124
SCANA CORPORATION
VOLUNTARY DEFERRAL PLAN
TABLE OF CONTENTS
Page
SECTION 1. ESTABLISHMENT AND PURPOSE................................. 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 Continued Participation............................. 5
SECTION 4. ELECTION TO DEFER......................................... 6
4.1 Deferral Election................................... 6
4.2 Deferral Period..................................... 7
4.3 Manner of Payment Election.......................... 7
4.4 Election to Defer a Previously Deferred Amount...... 8
SECTION 5. DEFERRED COMPENSATION ACCOUNT.............................. 9
5.1 Participant Accounts................................. 9
5.2 Growth Increments.................................... 9
5.3 Charges Against Accounts............................. 9
SECTION 6. PAYMENT OF DEFERRED AMOUNTS............................... 10
6.1 Payment of Deferred Amounts......................... 10
6.2 Acceleration of Payments............................ 10
6.3 Financial Emergency................................. 10
SECTION 7. BENEFICIARY DESIGNATION................................... 12
7.1 Designation of Beneficiary.......................... 12
7.2 Death of Beneficiary................................ 12
7.3 Ineffective Designation............................. 13
SECTION 8. CHANGE IN CONTROL DISTRIBUTIONS........................... 14
8.1 Accelerated Distributions Upon Change in Control.... 14
8.2 Tax Computation..................................... 14
8.3 No Subsequent Recalculation of Tax Liability........ 14
8.4 Successors...........................................15
8.5 Amendment and Termination After Change in Control....15
SECTION 9. GENERAL PROVISIONS........................................ 16
9.1 Contractual Obligation.............................. 16
9.2 Unsecured Interest.................................. 16
9.3 "Rabbi" Trust....................................... 16
9.4 Employment/Participation Rights..................... 16
9.5 Nonalienation of Benefits........................... 17
9.6 Severability........................................ 17
9.7 No Individual Liability............................. 17
9.8 Applicable Law...................................... 17
SECTION 10. PLAN ADMINISTRATION, AMENDMENT AND TERMINATION........... 18
10.1 In General.......................................... 18
10.2 Claims Procedure.................................... 18
10.3 Finality of Determination........................... 18
10.4 Delegation of Authority............................. 18
10.5 Expenses............................................ 18
10.6 Tax Withholding..................................... 18
10.7 Incompetency........................................ 18
10.8 Action by Corporation............................... 19
10.9 Notice of Address................................... 19
10.10 Amendment and Termination........................... 19
SECTION 11. EXECUTION................................................ 20
- 142 -
SCANA CORPORATION
VOLUNTARY DEFERRAL PLAN
(As Amended and Restated)
SECTION 1. ESTABLISHMENT AND PURPOSE
1.1 Establishment of the Plan. SCANA Corporation has established, effective
as of October 15, 1986, a deferred compensation plan for executives as
described, amended and restated herein effective as of October 15,
1986, which is known as the "SCANA Corporation Voluntary Deferral Plan"
(hereinafter called the "Plan"). Effective June 24, 1987, this Plan is
also applicable to members of the Board. The Plan was amended from time
to time thereafter, with the latest amendments effective as of October
21, 1997.
1.2 Description of the Plan. This Plan is intended to constitute a
non-qualified 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. The purpose of this Plan is to enable the Company
to attract and retain persons of outstanding competence, to provide
incentive benefits to a very select group of key management employees
who contribute materially to the continued growth, development, and
future business success of the Company, and to provide a means whereby
certain amounts payable by the Company to selected executives may be
deferred to some future period.
SECTION 2. DEFINITIONS
2.1 Definitions. Whenever used herein, the following terms shall have the
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:
(a) "Beneficial Owner" shall have the meaning ascribed to such term in
Rule 13d-3 of the General Rules and Regulations under the Exchange Act.
(b) "Beneficiary" means any person or entity who, upon the
Participant's death, is entitled to receive the Participant's benefits
under the Plan in accordance with Section 7 hereof.
(c) "Board" means the Board of Directors of the Corporation.
(d) "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 (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 of Directors of SCANA 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.
(e) "Code" means the Internal Revenue Code of 1986, as amended.
(f) "Committee" means the Management Development and Corporate
Performance Committee of the Board.
(g) "Company" means the Corporation and any subsidiaries of the
Corporation and their successor(s) or assign(s) that adopt this Plan
through execution of Agreements with any of their Employees or
otherwise.
(h) "Compensation" means the gross Salary, Bonuses, and Long-Term
Incentive Awards payable to a Participant during a Year by the Company,
and, with respect to Board of Director-Participants, cash retainer
fees, meeting attendance and conference fees payable to such a
Participant during a Year by the Corporation. The term "Compensation"
specifically does not include retainer fee amounts required to be paid
in shares of SCANA Corporation common stock pursuant to the SCANA
Corporation Nonemployee Director Stock Plan. For purposes of this Plan,
the following terms have the following meanings:
(i) "Salary" means all regular, basic compensation, before
reduction for amounts deferred or foregone pursuant to this
Plan or any other plan of the Corporation (including, without
limitation, any tax-qualified or non-qualified plans of
deferred compensation and any cafeteria plans, as defined in
section 125 of the Internal Revenue Code), otherwise payable
in cash to a Participant for services during the Year, and for
services during the last days of the immediately preceding
Year as to which payment is not receivable until the Year for
which the election is made and which has not yet been earned
at the time of making this election, exclusive of any Bonuses
or Long-Term Incentive Awards, special fees or awards,
allowances, or amounts designated by the Corporation as
payments toward or reimbursement of expenses.
(ii) "Bonus" or "Bonuses" means any annual Bonus payable from
any SCANA Corporation short term incentive plan by the
Corporation to a Participant in a Year.
(iii) "Long-Term Incentive Award" means any amount payable in
cash from any long-term incentive plan by the Corporation to a
Participant in a Year, including distributions made under the
SCANA Corporation Performance Share Plan. In no event shall
any amounts attributable to Long-Term Incentive Awards which
are to be paid in shares of SCANA Corporation common stock be
eligible for deferral under this Plan.
(i) "Corporation" means SCANA Corporation, a South Carolina
corporation, or any successor thereto.
(j) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(k) "Growth Increment" means the amount of interest credited to a
Participant's deferred amounts.
(l) "Participant" means an individual satisfying the eligibility
requirements of Section 3.
(m) "Retirement" means retirement as defined under the SCANA
Corporation Retirement Plan.
(n) "Year" means the calendar year.
2.2 Gender and Number. Except when otherwise indicated by the context, any
masculine terminology used herein also shall 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. Key executives in the employ of the Company as Officers
thereof and all members of the Board, shall automatically be eligible
to participate in this Plan.
3.2 Continued Participation. Once an individual is eligible to participate
in this Plan, he shall continue to be eligible to participate for all
future years unless and until the Committee shall designate that
individual as ineligible to participate. If a Participant becomes
ineligible to participate for future deferrals under this Plan, he
shall retain all the rights described under this Plan with respect to
deferrals previously made while an active Participant.
SECTION 4. ELECTION TO DEFER
4.1 Deferral Election. Subject to the conditions set forth in this Plan, a
Participant may elect to defer amounts of Compensation as follows:
(a) At least 10 days before the beginning of the Year, a Participant other
than a member of the Board may irrevocably elect, by written notice to
the Secretary of SCANA Corporation (or his designate), to defer up to
25% of Salary payable during the Year, and/or all or a percentage of
the Bonus, and/or all or a percentage of the Long-Term Incentive
Award. Each deferral election is independent of the other and must be
at least $5,000 for Salary and a minimum of $2,500 or 50% of the
Bonus, or Long-Term Incentive Award to the extent payable in cash,
whichever is less. As a part of his prior Year deferral election, a
Participant may also elect to defer all or a specified percentage or
dollar amount of any and all Salary increases that may be awarded to
him during the Year to which his election pertains, or make a new
election with respect to a Salary raise as further explained in
Subsection 4.1(g) below, provided that no more than 25% of Salary
payable during the Year is deferred and the Deferral Period Election
and Manner of Payment Election are the same for both Salary and
increases in Salary.
(b) At least 10 days before the beginning of the Year, a
Participant who is a member of the Board irrevocably may
elect, by written notice to the Secretary of SCANA Corporation
(or his designate), to defer up to 100% of his Compensation.
(c) With respect to Salary deferrals, the deferral percentage
elected shall be applied to the Participant's Salary for each
pay period of the Year to which the deferral election applies.
(d) With respect to Bonus deferrals, the deferral percentage
elected shall apply only to the Participant's Bonus to be
earned in the upcoming Year and payable, if at all, in the
immediately following Year.
(e) With respect to Long-Term Incentive Award deferrals attributable to
amounts under the SCANA Corporation Performance Share Plan
("Performance Share Plan"), the deferral percentage shall be elected
no later than the end of the second Year of any three-year award cycle
established under the Performance Share Plan, and shall apply to the
Participant's award that is otherwise payable, if at all, in the Year
following the Year beginning immediately after the date the deferral
election is made. With respect to all other Long-Term Incentive Award
deferrals, the deferral percentage shall be elected at a time
prescribed by the Committee prior to the date that the amounts
otherwise earned or to be earned are determinable. Further, in the
event that a Participant's elected deferral hereunder with respect to
the Long-Term Incentive Award conflicts with the mandated payout for
any year in SCANA Corporation common stock under the Performance Share
Plan, the Participant's deferral election hereunder shall be modified
(reduced) as needed without the consent of the Participant so as to no
longer conflict with the payment in shares by the Performance Share
Plan.
(f) With respect to Board member Compensation deferrals, the
deferral percentage elected shall be applied to the
Participant's Compensation for each pay period of the Year to
which the deferral election applies.
(g) If a Participant is notified of an increase in his Salary, he may
amend in writing his existing Salary deferral to reflect a deferral of
any or all of his increase in Salary, or he may initiate a Salary
deferral if one had not previously been elected, provided, however,
that such election shall be applicable as of the beginning of the
second full bi-weekly period for which compensation has not yet been
earned, determined relative to the date that such written notice is
received by the Secretary of SCANA Corporation, and provided, however,
that the exercise of this election does not result in a cumulative
deferral for such Year of more than 25% of Salary. An amending
election for an increase in Salary shall not alter either the Deferral
Period Election (Section 4.2 below) nor the Manner of Payment Election
(Section 4.3 below) for any Salary previously elected to be deferred
for the Year, but shall be deferred for the same period and in the
same manner that Salary has elected to be deferred for said Year.
4.2 Deferral Period. With respect to deferrals made in accordance with
Section 4.1, each Participant must elect the deferral period for each
separate deferral. Subject to the additional deferral provisions of
Section 4.4 and the acceleration provisions of Section 6, a
Participant's deferral period may be for a specified number of years or
until a specified date, subject to any limitations that the Committee
in its discretion may choose to apply. However, notwithstanding the
deferral period otherwise specified, payments shall be paid or begin to
be paid following the earliest to occur of:
(a) Death,
(b) Disability as defined by the SCANA Corporation Long-Term
Disability Benefit Plan for Employees where the prognosis is
that such condition will not change,
(c) Retirement,
(d) Severance of employment, or
(e) With respect to members of the Board, departure from the Board
by reason of death, resignation or otherwise.
4.3 Manner of Payment Election. At the same time as the election made
pursuant to Section 4.1, and subject to the acceleration provisions of
Section 6, each Participant must also irrevocably elect the manner in
which his deferred amounts will be paid. A Participant may elect to
have a different manner of payment apply to each separate deferral
election and each separate category of Compensation deferred.
Participants must choose to have payment made in accordance with any of
the following distribution forms:
(a) a lump sum,
(b) a designated number of installments payable monthly, quarterly
or annually, as elected,
which shall be paid or commence to be paid as soon as practicable after
the conclusion of the deferral period elected pursuant to Section 4.2.
Unless otherwise specifically elected, payments of all deferred amounts
will be made in a single lump sum cash payment made as soon as
practicable after the conclusion of the deferral period elected
pursuant to Section 4.2.
4.4 Election to Defer a Previously Deferred Amount.
(a) A Participant may request that the Committee (or its delegate) approve
an additional deferral period of at least twelve (12) months with
respect to any previously deferred amount. Any such request must be
made by written notice to the Committee (or its delegate) at least
twelve (12) months before the expiration of the deferral period for
any previously deferred amount with respect to which an additional
deferral election is requested. Such additional deferral election
request may be made for each separate deferral previously made. Each
such additional deferral election request shall include a newly
designated manner of payment election in accordance with the provision
of Section 4.3 above.
(b) Notwithstanding the additional deferral election requests made by the
Participant pursuant to Subsection 4.4(a) above, neither the deferral
period elected nor the related manner of payment elected shall be
automatically binding upon the Corporation by the mere fact of the
election requests having been made. The Committee (or its delegate)
shall review each such election submitted and determine whether or not
it is in the best interest of the Corporation to accept the elections
as submitted. Such Committee review will be made on a case-by-case
basis and all determinations shall be made by the Committee (or its
delegate) in its sole and complete discretion after consideration of
such factors as it deems relevant, including broad economic and policy
implications to the Corporation of approving any request. The
Committee, or its designate, shall notify each Participant in writing
within the first sixty (60) days of the twelve (12) month period noted
in Section 4.4(a) above as to whether the deferral period and related
manner of payment elections are accepted by the Committee as
submitted, and if not, the terms upon which such elections would be
accepted; in the latter instance, the Participant shall, no later than
on the seventy-fifth (75th) day of the twelve (12) month period noted
in Section 4.4(a), inform the Committee in writing of his acceptance
or rejection of the terms proffered by the Committee or its delegate.
All determinations made by the Committee or its delegate shall be
final and binding on all parties.
SECTION 5. DEFERRED COMPENSATION ACCOUNT
5.1 Participant Accounts. The Corporation shall establish and maintain for
each Participant a bookkeeping account for deferrals made by such
Participant. This account shall be credited as of the date the amount
deferred otherwise would have become due and payable.
5.2 Growth Increments. The Corporation will provide for Growth Increments
to be credited to the deferred accounts based on the prime interest
rate charged from time to time by the Wachovia Bank of South Carolina,
N.A. The Committee will have the authority to change the interest rate
that may be applied to the deferred amounts. The Participant's account
shall be credited on the first day of each calendar quarter, with a
Growth Increment computed on the average balance in the Participant's
account during the preceding calendar quarter. The Growth Increment
shall be equal to said account balance multiplied by the average
interest rate selected by the Committee during the preceding calendar
quarter times a fraction the numerator of which is the number of days
during such quarter and the denominator of which is 365. Growth
Increments will continue to be credited until all of a Participant's
benefits have been paid out of the Plan. Notwithstanding the foregoing,
and subject to Section 9.2, no Participant shall have a right to
designate the specific investment of deferred amounts.
5.3 Charges Against Accounts. There shall be charged against each
Participant's account any payments made to the Participant or to his
Beneficiary in accordance with Section 6 hereof.
SECTION 6. PAYMENT OF DEFERRED AMOUNTS
6.1 Payment of Deferred Amounts. Payment of a Participant's Deferred
Compensation Account balance, including accumulated Growth Increments
attributable thereto (adjusted to reflect any change since the most
recent Growth Increment calculation), shall be paid in cash commencing
with the conclusion of the deferral period selected by the Participant
in Section 4.2 or Section 4.4 hereof. The payments shall be made in the
manner selected by the Participant under Section 4.3 of this Plan. The
amount of each payment shall be equal to a Participant's then
distributable account balance multiplied by a fraction, the numerator
of which is one and the denominator of which is the number of
installment payments remaining.
6.2 Acceleration of Payments. Notwithstanding the election made pursuant
to Section 4.2 or Section 4.4:
------------------------
(a) if a Participant dies prior to the payment of all or a portion
of his deferred compensation account balance, the balance of
any amount payable shall be paid in a lump sum to the
Beneficiaries designated under Section 7 hereof;
(b) if a Participant's account balance is less than $5,000 at the
time for payment specified, such amount shall be paid in a
lump sum; and
(c) if applicable, the provisions of Section 8 shall apply.
6.3 Financial Emergency. The Committee (or its delegate), at its sole
discretion, may alter the timing or manner of payment of deferred
amounts if the Participant establishes, to the satisfaction of the
Committee (or its delegate), an unanticipated and severe financial
hardship that is caused by an event beyond the Participant's control.
In such event, the Committee (or its delegate) may:
(a) provide that all, or a portion of, the amount previously
deferred by the Participant immediately shall be paid in a
lump sum cash payment,
(b) provide that all, or a portion of, the installments payable
over a period of time immediately shall be paid in a lump sum,
or
(c) provide for such other installment payment schedules as
it deems appropriate under the circumstances,
as long as the amount distributed shall not be in excess of that amount
which is necessary for the Participant to satisfy the financial
emergency. Severe financial hardship will be deemed to have occurred in
the event of the Participant's or a dependent's sudden, lengthy and
serious illness as to which considerable medical expenses are not
covered by insurance or relative to which there results a significant
loss of family income, or other unanticipated events of similar
magnitude. The Committee's decision (or that of its delegate) in
passing on the severe financial hardship of the Participant and the
manner in which, if at all, the payment of deferred amounts shall be
altered or modified shall be final, conclusive, and not subject to
appeal.
SECTION 7. BENEFICIARY DESIGNATION
7.1 Designation of Beneficiary.
(a) A Participant shall designate a Beneficiary or Beneficiaries who, upon
the Participant's death, are to receive the amounts that otherwise
would have been paid to the Participant. All designations shall be in
writing and signed by the Participant. The designation shall be
------- ------ effective only if and when delivered to the Corporation
during the lifetime of the Participant. The Participant also may
change his Beneficiary or Beneficiaries by a signed, written
instrument delivered to the Corporation. The payment of amounts shall
be in accordance with the last unrevoked written designation of
Beneficiary that has been signed and delivered to the Corporation. All
Beneficiary designations shall be addressed to the Secretary of SCANA
Corporation and delivered to his office, and shall be processed as
indicated in subsection (b) below by the Secretary or by his
authorized designee.
(b) The Secretary of SCANA Corporation (or his authorized
designee) shall, upon receipt of the Beneficiary designation:
(1) ascertain that the designation has been signed,
and if it has not been, return it to
the Participant for his signature;
(2) if signed, stamp the designation "Received",
indicate the date of receipt, and initial the
designation in the proximity of the stamp.
7.2 Death of Beneficiary.
(a) In the event that all of the Beneficiaries named in Section
7.1 predecease the Participant, the amounts that otherwise
would have been paid to said Beneficiaries shall, where the
designation fails to redirect to alternate Beneficiaries in
such circumstance, be paid to the Participant's estate as the
alternate Beneficiary.
(b) In the event that two or more Beneficiaries are named, and one
or more but less than all of such Beneficiaries predecease the
Participant, each surviving Beneficiary shall receive any
dollar amount or proportion of funds designated or indicated
for him per the designation of Section 7.1, and the dollar
amount or designated or indicated share of each predeceased
Beneficiary which the designation fails to redirect to an
alternate Beneficiary in such circumstance shall be paid to
the Participant's estate as an alternate Beneficiary.
7.3 Ineffective Designation.
(a) In the event the Participant does not designate a Beneficiary,
or if for any reason such designation is entirely ineffective,
the amounts that otherwise would have been paid to the
Beneficiary shall be paid to the Participant's estate as the
alternate Beneficiary.
(b) In the circumstance that designations are effective in part
and ineffective in part, to the extent that a designation is
effective, distribution shall be made so as to carry out as
closely as discernable the intent of the Participant, with
result that only to the extent that a designation is
ineffective shall distribution instead be made to the
Participant's estate as an alternate Beneficiary.
SECTION 8. CHANGE IN CONTROL PROVISIONS
8.1 Accelerated Distributions Upon Change in Control. Notwithstanding
anything in this Plan to the contrary and subject to the terms of an
individual Participant agreement, if any, 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
amounts (or remaining amounts) held in each Participant's Deferred
Compensation Account under this Plan as of the date of such Change in
Control (referred to as each Participant's "VDP Benefit") shall become
immediately due and payable. All VDP 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 cash payment, 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 VDP Benefit and the
Gross-Up Payment provided for by this Section 8 shall be equal to the
value of the Participant's VDP Benefit. Such payment shall be made by
the Corporation (or to the extent assets are transferred to the SCANA
Corporation Executive Benefit Plan Trust 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 SCANA
Corporation 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 and paid under
the otherwise applicable provisions of the Plan and/or any individual
Participant 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 VDP
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 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 the SCANA
Corporation Executive Benefit Plan Trust. 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 Plan to the contrary, and
subject to the terms of an individual Participant agreement, if any,
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 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
Plan, and any individual Participant agreement, based on amounts
credited to each Participant's Deferred Compensation Account as of the
date of such Change in Control plus accumulated Growth Increments
attributable thereto (adjusted to reflect any change from the most
recent Growth Increment calculation to the end of the month prior to
the month such amounts are distributed to each Participant). In such
case, any successor to the Company shall not be required to provide for
additional deferral 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 Plan
to provide for an automatic lump sum distribution of the then current
value of Participants' Deferred Compensation Account, including
accumulated Growth Increments attributable thereto (adjusted to reflect
any change since the most recent Growth Increment calculation)
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 this Section 8, no amendment, modification or
termination of the Plan may be made, and no Participants may be added
to the 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 Plan's Participants covered by the Plan at such
time. In all events, however, the Corporation reserves the right to
amend, modify or delete the provisions of 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.
SECTION 9. GENERAL PROVISIONS
9.1 Contractual Obligation. It is intended that the Corporation is under a
contractual obligation to make payments from a Participant's account
when due. Payment of account balances shall be made out of the general
funds of the Corporation as determined by the Board without any
restriction of the assets of the Corporation relative to the payment of
such contractual obligations; the Plan is, and shall operate as, an
unfunded plan.
9.2 Unsecured Interest. No Participant or Beneficiary shall have any
interest whatsoever in any specific asset of the Corporation. To the
extent that any person acquires a right to receive payment under this
Plan, such right shall be no greater than the right of any unsecured
general creditor of the Corporation.
9.3 "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,
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.
9.4 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 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 Corporation.
9.5 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.
(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.
9.6 Severability. If any particular provision of the 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 Plan, and the Plan shall be construed and enforced as
if the illegal or unenforceable provision had not been included.
9.7 No Individual Liability. It is declared to be the express purpose and
intention of the 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 Plan.
9.8 Applicable Law. This Plan shall be governed and construed in accordance
with the laws of the State of South Carolina except to the extent
governed by applicable Federal law.
SECTION 10. PLAN ADMINISTRATION, AMENDMENT AND TERMINATION
10.1 In General. This Plan shall be administered by the Committee, which
shall have the sole authority to construe and interpret the terms and
provisions of the 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 this 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.
10.2 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.
10.3 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.
10.4 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.
10.5 Expenses. The cost of payment from this Plan and the expenses of
administering the Plan shall be borne
--------
by the Corporation.
10.6 Tax Withholding. The Corporation shall have the right to deduct from
all payments made from the Plan any federal, state, or local taxes
required by law to be withheld with respect to such payments.
10.7 Incompetency. Any person receiving or claiming benefits under the Plan
shall be conclusively presumed to be mentally competent and of age
until the Company 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 Company finds that any
person to whom a benefit is payable under the 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 Company 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 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 Company. Any payment made under the provisions of this
Section 10.7 shall be a complete discharge of liability therefor under
the Plan.
10.8 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.
10.9 Notice of Address. Any payment made to a Participant or to his
Beneficiary 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 Beneficiary.
10.10 Amendment and Termination. The Corporation expects the 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 Plan at any time by action of its
Board; provided, however, that any such action shall not diminish
retroactively any amounts, both deferred Compensation and Growth
Increments thereon, which have been credited to any Participant's
Deferred Compensation Account. If the Board amends the Plan to cease
future deferrals hereunder or terminates the Plan, the Board may, in
its sole discretion, direct that the value of each Participant's
Deferred Compensation Account be paid to each Participant (or
Beneficiary, if applicable) in an immediate lump sum payment. In the
absence of any such direction from the Board, the Plan shall continue
as a "frozen" plan under which no future deferrals will be recognized
(however, Growth Increments shall continue to be recognized) and each
Participant's benefits shall be paid in accordance with the otherwise
applicable terms of the Plan.
SECTION 11. EXECUTION
IN WITNESS WHEREOF, the Company has caused this SCANA Corporation
Voluntary Deferral Plan to be executed by its duly authorized officer this
______ day of __________________________, 199___, to be effective as of October
21, 1997.
SCANA Corporation
By:________________________________
Title:_______________________________
ATTEST:
- ------------------------------------
Secretary
- 146 -
SCANA CORPORATION
VOLUNTARY DEFERRAL PLAN
ELECTION TO DEFER EXECUTED
FOR CALENDAR YEAR 199___
As a Participant in the SCANA Corporation Voluntary Deferral Plan, I
hereby elect to defer amounts set forth below and to have such amounts paid to
me as set forth in this election form. I understand and agree that all deferrals
shall be subject to the terms of the Plan, a copy of which has been provided to
me. I understand that the decision to participate in this Plan is voluntary and
that the Corporation is not responsible for advising me with respect to the tax
or financial consequences of my participation in this Plan.
Deferral Election(s):
[ ] I hereby elect to defer in accordance with this Plan Salary
compensation to be payable during calendar year 19___ in the amount of
$__________, which amount is at least $5,000 and does not exceed 25% of
the Salary compensation payable to me during the subject calendar year.
[ ] Concurrently with this election, I also hereby elect to defer
[ ] ___% of each increase in Salary compensation which
I may become entitled to receive
during the subject calendar year, or
[ ] $__________ of each increase in Salary compensation
which I may become entitled to
receive during the subject calendar year,
provided that this election with regard to Salary increases
shall be reduced if necessary such that the total amount of
Salary and Salary increases deferred during the subject
calendar year does not exceed 25% of my Salary compensation
otherwise payable to me during the subject calendar year in
accordance with Sections 1.2(d)(i) and 4.1 of the Plan.
[ ] I hereby elect to defer in accordance with this Plan:
[ ] a. 100% of the Bonus payable to me during calendar year
19___, or
[ ] b. ___% of the Bonus payable to me during calendar year
19___ (which is at least the lesser
of 50% of the Bonus amount or $2,500).
[ ] I hereby elect to defer in accordance with this Plan (exclusive of
any amount required to be paid to me in shares of SCANA Corporation
common stock):
[ ] a. 100% of the Long-Term Incentive Award otherwise
payable to me in cash during calendar
year 19___, or
[ ] b. $__________ of the Long-Term Incentive Award
otherwise payable to me in cash during calendar year
19___ (which is at least the lesser of 50% of the
Long-Term Incentive Award cash amount or $2,500).
[ ] I hereby elect to defer in accordance with this Plan ____% of each and
all of:
[ ] a. cash retainer fees (exclusive of the amounts required
to be paid to me in shares of SCANA
Corporation common stock)
[ ] b. meeting attendance fees
[ ] c. conference fees
payable to me as a member of the Board of Directors during calendar
year 19___.
Deferral Period(s):
[ ] Salary deferred above per this election shall be deferred:
[ ] a. ____ years from the close of the calendar year for
which this election is made so as to
be payable in whole or in part under the Manner of
Payment Election indicated below as of
.
(Month - Day - Year)
or
[ ] b. until my retirement from the Corporation (subject
to my earlier death, total and
permanent disability or termination of employment
as indicated in Section 4.2 of this Plan).
[ ] The Bonus deferred above per this election shall be deferred:
[ ] a. ____ years from the close of the calendar year for
which this election is made so as to
be payable in whole or in part under the Manner of
Payment Election indicated below as of
.
(Month - Day - Year)
or
[ ] b. until my retirement from the Corporation (subject
to my earlier death, total and
permanent disability or termination of employment
as indicated in Section 4.2 of this Plan).
[ ] The Long-Term Incentive Award deferred above per this election shall be
deferred:
[ ] a. ____ years from the close of the calendar year for
which this election is made so as to
be payable in whole or in part under the Manner of
Payment Election indicated below as of
.
(Month - Day - Year)
or
[ ] b. until my retirement from the Corporation (subject
to my earlier death, total and
permanent disability or termination of employment
as indicated in Section 4.2 of this Plan).
[ ] Board of Directors' fees deferred above per this election shall be
deferred:
[ ] a. ____ years from the close of the calendar year for
which this election is made so as to
be payable in whole or in part under the Manner of
Payment Election indicated below as of
.
(Month - Day - Year)
or
[ ] b. until my departure from the Board of Directors as
indicated in Section 4.2 of this Plan
by reason of death, resignation or otherwise.
Manner of Payment Election(s):
I understand and agree that, with respect to all deferred amounts,
unless I elect otherwise, the amounts will be paid to me at the time otherwise
specified in the form of a single lump sum payment.
[ ] The Salary deferred above per this election shall be at the
conclusion of the deferral period above be paid (subject to an
Acceleration of Payments under Section 6.2 or Forfeiture under Section
7 of the Plan):
[ ] a. in a lump sum, or
[ ] b. in installment payments, payable:
(Number)
[ ] monthly
or
[ ] quarterly
or
[ ] annually.
[ ] The Bonus deferred above per this election shall at the conclusion of
the deferral period above be paid (subject to an Acceleration of
Payments under Section 6.2 or Forfeiture under Section 7 of the Plan):
[ ] a. in a lump sum, or
[ ] b. in installment payments, payable:
(Number)
[ ] monthly
or
[ ] quarterly
or
[ ] annually.
[ ] The Board of Directors fees deferred above per this election shall be
paid (subject to an Acceleration of Payments under Section 6.2 of the
Plan):
[ ] a. in a lump sum, or
[ ] b. in installment payments, payable:
(Number)
[ ] monthly
or
[ ] quarterly
or
[ ] annually.
Name _________________________________
SS # __________________________________
Employee # ___________________________
- ----------------------------- ---------------------------------------
Secretary, SCANA Corporation Employee's or Board Member's Signature
- ------------- ------------
Date Date
(Rev. Jan. 1997)
SCANA CORPORATION
VOLUNTARY DEFERRAL PLAN
DESIGNATION OF BENEFICIARY
To: Secretary of SCANA Corporation
I hereby designate the following person(s), trust(s) or estate, to be the
recipient(s) of any and all amounts
which may become payable or may remain to be paid upon my death under the SCANA
Corporation Voluntary Deferral Plan.
=================================-----------------------------------============
Beneficiary's Name
and Social Security Relationship
or Employer Beneficiary's to Dollars or
Identification No. Address Participant % Share
================================================================================
================================================================================
I hereby designate the following person, trust or estate as Alternate
Beneficiary with respect to the contingency events described in Sections 7.2(a)
and 7.2(b) of this Plan.
=====================================----------------------=====================
Alternate Beneficiary's
Name and Social Alternate Relationship
Security or Employer Beneficiary's to
Identification No. Address Participant
================================================================================
================================================================================
Spouse's Consent: (Community Property States Only -- S.C.domiciliaries ignore):
I hereby agree to the Beneficiary(ies) designated above:
- ----------------------------------- ------------------------
Spouse's Signature Date
I hereby revoke any Beneficiary designation previously made by me and reserve
the right to change this designation at any time by filing a new Designation of
Beneficiary form.
Signature of Participant
Date Social Security Number
Signature of Corporate Secretary
Date Received
(Rev. 1997)