Exhibit 4.03
SCANA CORPORATION
DIRECTOR COMPENSATION AND DEFERRAL PLAN
January 1, 2001
SCANA CORPORATION
DIRECTOR COMPENSATION AND DEFERRAL PLAN
TABLE OF CONTENTS
Page
SECTION 1. ESTABLISHMENT AND PURPOSE 3
1.1 Establishment of the Plan 3
1.2 Purpose of the Plan 3
SECTION 2. DEFINITIONS 3
2.1 Definitions 3
2.2 Gender and Number 5
SECTION 3. ELIGIBILITY AND PARTICIPATION 5
3.1 Eligibility 5
3.2 Election of Compensation Payment 5
3.3 Payment of Company Stock 6
3.4 Stock 6
3.5 Issuance of Company Stock 6
3.6 Effect of Stock Dividends and Other Changes
in Capital Structure 6
3.7 Limitation on Ownership 7
SECTION 4. ELECTION TO DEFER 7
4.1 Deferral Election 7
4.2 Deferral Period 7
4.3 Election to Defer a Previously Deferred Amount 8
SECTION 5. CREDITING AND INVESTMENT OF DEFERRALS 8
5.1 DCD Ledger 8
5.2 Adjustment of Amounts Credited to Growth Increment Ledger 8
5.3 Adjustment of Amounts Credited to Company Stock Ledger 8
5.4 Deemed Investments Not Actual Investments 9
5.5 Charges Against DCD Ledger 9
SECTION 6. PAYMENT OF DEFERRED AMOUNTS 9
6.1 Payment of Deferred Amounts 9
6.2 Manner of Payment 9
6.3 Form of Payment 9
6.4 Acceleration of Payments 10
6.5 Financial Emergency 10
SECTION 7. BENEFICIARY DESIGNATION 10
7.1 Designation of Beneficiary 10
7.2 Death of Beneficiary 11
7.3 Ineffective Designation 11
SECTION 8. CHANGE IN CONTROL PROVISIONS 11
8.1 Accelerated Distributions Upon Change in Control 11
8.2 Tax Computation 12
8.3 No Subsequent Recalculation of Tax Liability 12
8.4 Successors 12
8.5 Amendment and Termination After Change in Control 13
SECTION 9. GENERAL PROVISIONS 13
9.1 Contractual Obligation 13
9.2 Unsecured Interest 13
9.3 "Rabbi" Trust 13
9.4 Nonalienation of Benefits 13
9.5 Severability 14
9.6 No Individual Liability 14
9.7 Applicable Law 14
SECTION 10. PLAN ADMINISTRATION, AMENDMENT AND TERMINATION 14
10.1 In General 14
10.2 Claims Procedure 14
10.3 Finality of Determination 14
10.4 Delegation of Authority 14
10.5 Expenses 14
10.6 Tax Withholding 15
10.7 Incompetency 15
10.8 Action by Company 15
10.9 Notice of Address 15
10.10 Amendment and Termination 15
SECTION 11. EXECUTION 16
SCANA CORPORATION
DIRECTOR COMPENSATION AND DEFERRAL PLAN
SECTION 1. ESTABLISHMENT AND PURPOSE
1.1 Establishment of the Plan. SCANA Corporation (the "Company") established the
SCANA Corporation Nonemployee Director Stock Plan, effective as of January 1,
1997. Effective as of January 1, 2001, the plan is renamed the "SCANA
Corporation Director Compensation and Deferral Plan" (hereinafter called the
"Plan") and amended and restated to include a deferred compensation component.
1.2 Purpose of the Plan. The purpose of the Plan is to promote the achievement
of long-term objectives of the Company by linking the personal interests of
Nonemployee Directors, as defined in Section 2(r) herein, to those of the
Company's shareholders and to attract and retain Nonemployee Directors of
outstanding competence by mandating that sixty percent (60%) (plus a round-up
amount in lieu of any fractional share) of the Retainer Fee of each Participant
as defined in Section 2(u) herein, be paid in Company Stock, unless such amount
is voluntarily deferred to a future date in accordance with the Plan's terms.
The Plan is intended to conform to the provisions of Rule 16b-3 of the
Securities Exchange Act of 1934, as amended, or any replacement rule in effect
from time to time ("Rule 16b-3"). The Plan also provides a means by which
Nonemployee Directors may defer certain additional amounts 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) "Act" means the Securities Exchange Act of 1934, as amended.
(b) "Beneficial Owner" shall have the meaning ascribed to such term in Rule
13d-3 of the General Rules and Regulations under the Exchange Act.
(c) "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.
(d) "Board of Directors" means the board of directors of the Company.
(e) "Change in Control" means a change in control of the Company 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 Company
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 Company;
(ii) During any period of two (2) consecutive years (not including any
period prior to the execution of this Plan) there shall cease to be a majority
of the Board of Directors comprised as follows: individuals who at the beginning
of such period constitute the Board of Directors and any new director(s) whose
election by the Board of Directors or nomination for election by the Company'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 Company's voting shares of capital stock; or
(iv) The shareholders of the Company approve a merger or consolidation
of the Company with any other corporation, other than a merger or consolidation
which would result in the voting shares of capital stock of the Company
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 Company or such surviving
entity outstanding immediately after such merger or consolidation; or the
shareholders of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company of all or
substantially all of the Company's assets.
(f) "Code" means the Internal Revenue Code of 1986, as amended.
(g) "Company" means SCANA Corporation, a South Carolina corporation, or any
successor thereto.
(h) "Company Stock" means the no par value common stock of the Company. In the
event of a change in the capital structure of the Company (as provided in
Section 3.6), the shares resulting from such a change shall be deemed to be
Company Stock within the meaning of the Plan.
(i) "Company Stock Ledger" means an appropriate bookkeeping record established
in the DCD Ledger for which amounts credited are converted into hypothetical
credited shares of Company Stock.
(j) "Compensation" means Retainer Fees, meeting attendance fees and conference
fees payable to such a Participant during a Service Period by the Company.
(k) "Director" means an individual who is a member of the Board of Directors.
(l) "DCD Ledger" means an appropriate bookkeeping record which shall be
established for each Participant which shall reflect: (1) the amounts deferred
on behalf of each Participant; and (2) the crediting of deemed investments (and
hypothetical earnings on those deemed investments) with respect to amounts
deferred on behalf of each Participant.
(m) "Exchange Act" means the Securities Exchange Act of 1934, as amended.
(n) "Fair Market Value" of Company Stock shall mean:
(i) if the Company Stock is original issue stock, the average
of the high and low sale prices of a share of the Company Stock reported on the
New York Stock Exchange Composite Tape as published in The Wall Street Journal
for the trading date immediately preceding the date Company Stock is awarded to
a Participant;
(ii) if the Company Stock is purchased on the open market,
the cost incurred by the Company to purchase such Company Stock;
(iii) in the case of any distribution, the closing price for
shares of Company Stock on the New York Stock Exchange on the date of
distribution; and
(iv) in the case of any other transaction hereunder designed
to track the investment or reinvestment of Company Stock, the closing price for
shares of Company Stock on the New York Stock Exchange on the measuring date.
(o) "Growth Increment" means the amount of interest credited to amounts credited
to a Participant's Growth Increment Ledger.
(p) "Growth Increment Ledger" means an appropriate bookkeeping record
established in the DCD Ledger for which amounts are credited with Growth
Increments.
(q) "Investor Plan" means the SCANA Investor Plus Plan.
(r) "Nonemployee Director" means a Director who is not currently employed by the
Company or any subsidiary of the Company (without regard to whether such
individual was previously employed by the Company).
(s) "Participant" means a Nonemployee Director satisfying the eligibility
requirements of Section 3.
(t) "Plan" means the SCANA Corporation Director Compensation and Deferral Plan.
(u) "Retainer Fees" means the amount of compensation payable to each Participant
with respect to services rendered to the Company as a Director for the Service
Period. Such term does not include fees for attending meetings of the Board of
Directors or committees of the Board of Directors and also does not include
conference fees.
(v) "Rule 16b-3" means Rule 16b-3 of the Act, as amended, or any replacement
rule in effect from time to time.
(w) "Service Period" means a 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. All Nonemployee Directors shall automatically be eligible
to participate in this Plan.
3.2 Election of Compensation Payment.
(a) Unless otherwise deferred in accordance with Section 4, sixty
percent (60%) of each Participant's Retainer Fee amounts shall be paid to the
Participant as soon as practicable after the beginning of each calendar quarter
(as determined by the Board of Directors (or its delegate)) and such payment
shall be made entirely in shares of Company Stock.
(b) Unless otherwise deferred in accordance with Section 4, the
remaining forty percent (40%) of each Participant's Retainer Fee as well as one
hundred percent (100%) of each Participant's meeting attendance and conference
fees shall be paid to the Participant at such times determined by the Board of
Directors or its delegate. Within a reasonable period of time before any amounts
are paid under this Section 3.2(b), each Participant shall elect (in accordance
with procedures established by the Board of Directors or its delegate) whether
to receive the amounts otherwise payable under this Section 3.2(b) all in cash
or all in shares of Company Stock.
(c) With respect to all payments in Company Stock under this Section
3.2, and subject to Section 3.3, each Participant shall be entitled to a number
of shares of Company Stock equal to the smallest number of whole shares of
Company Stock which, when multiplied by Fair Market Value would equal no less
than the equivalent amount of Compensation otherwise payable to the Participant.
Any remaining amounts owed shall be paid in cash.
3.3 Payment of Company Stock. In connection with amounts to be paid during a
Service Period under Section 3.2 which are paid in the form of Company Stock,
each Participant may elect to have the shares of Company Stock to be issued to
him pursuant to the Plan during the Service Period registered in his name. In
such case, all shares of Company Stock to be paid shall be issued as promptly as
practicable after the amounts are otherwise payable. If a Participant does not
make such an election, all shares issued pursuant to the Plan during the Service
Period will be deposited into an account in his name in the Investor Plan. If
the Participant is elected to be a Nonemployee Director during the Service
Period, the election to have the shares registered in his name may be made at
any time between his election and the next regularly scheduled Board of
Directors' meeting. All cash dividends paid on shares deposited in the Investor
Plan will be reinvested in additional shares of Company Stock unless the
Participant notifies the Investor Plan in accordance with the terms thereof that
he does not want to reinvest such dividends. During the last quarter of each
calendar year in which there is a change in the prospectus for the Investor
Plan, all Participants who have not been provided previously with a copy of such
changed prospectus shall be provided with a copy of the then-current prospectus.
In addition, each newly-elected Participant who is not a participant in the
Investor Plan shall be given an Investor Plan prospectus shortly after his
election.
3.4 Stock. Company Stock issued pursuant to the Plan may be either original
issue or stock purchased on the open market. The Company has reserved an
aggregate of 100,000 shares of original issue Company Stock for issuance
pursuant to the Plan and has registered 100,000 shares with the Securities and
Exchange Commission on a Form S-8. The maximum number of shares that may be
issued pursuant to this Plan is 100,000 shares subject to adjustment as provided
in Section 3.6. In the event of a change in the capital structure of the Company
(as provided in Section 3.6), the shares resulting from such change shall be
deemed to be Company Stock within the meaning of the Plan. The aggregate number
of shares of Company Stock reserved shall be reduced by the issuance of shares
under the Plan.
3.5 Issuance of Company Stock. Notwithstanding anything in this Plan to
the contrary:
(a) The Company shall not be required to issue or deliver any
certificate for shares of Company Stock to a Participant before (i) such shares
have been admitted to listing on the New York Stock Exchange, (ii) the Company
has received any required registration or other qualification of such shares
under any state or federal law or regulation that the Company's counsel shall
determine is necessary or advisable and (iii) the Company is satisfied that all
applicable legal requirements have been complied with. The Company may place on
a certificate representing Company Stock any legend deemed necessary by the
Company's counsel to comply with federal or state securities laws. Until the
Participant has been issued a certificate for the shares of Company Stock
acquired, the Participant shall possess no shareholder rights with respect to
the shares.
(b) If at any time there may not be sufficient shares available under
the Plan to permit the awards of Company Stock, the awards shall be reduce pro
rata (to zero, if necessary) so as not to exceed the number of shares then
available for issuance under the Plan.
3.6 Effect of Stock Dividends and Other Changes in Capital Structure.
Appropriate adjustments shall be made automatically to the number and kind of
shares to be issued under the Plan, as well as to any deferred amounts credited
to a Participant's Company Stock Ledger and any other relevant provisions of the
Plan, if there are any changes in the Company Stock by reason of a stock
dividend, stock split, combination of shares, spin-off, reclassification,
recapitalization, merger, consolidation or other change in the Company's capital
stock (including, but not limited to, the creation or issuance to shareholders
generally of rights, options, or warrants for the purchase of common stock or
preferred stock of the Company). If the adjustment would produce fractional
shares, the fractional shares shall be eliminated by rounding to the nearest
whole share. Any adjustments shall be made in a manner consistent with Rule
16b-3. Any such adjustments shall neither enhance nor diminish the rights of a
Participant and the Company shall pay all costs of administering the Plan,
including all commissions with respect to open market purchases.
3.7 Limitation on Ownership. No single officer or director may acquire under the
Plan more than one percent of the shares of Company Stock outstanding at the
time the Plan is adopted. In addition, together with all plans of SCANA
Corporation (not otherwise exempt from shareholder approval under Rule 312.03 of
the New York Stock Exchange) this Plan shall not authorize the issuance of more
than five percent of Company Stock outstanding at the time the Plan is adopted.
SECTION 4. ELECTION TO DEFER
4.1 Deferral Election. Subject to the conditions set forth in this Plan,
and such procedures established by the Board of Directors, a Participant may
elect to defer amounts of Compensation as follows:
(a) At least 10 days before the beginning of each Service Period, a
Participant irrevocably may elect, by written notice to the Company's Secretary
(or his designee), to defer a portion of his Compensation for such Service
Period. In the case of a Participant elected to the Board of Directors during
the Service Period, the Participant may elect, within 30 days of his election to
the Board of Directors, to defer a portion of his Compensation payable
subsequent to his election. Such election shall specify either that:
(i) the Participant elects to defer one hundred percent (100%)
of his Compensation and designates that all such deferrals shall be
credited to the Company Stock Ledger on his behalf; or
(ii) the Participant elects to defer up to forty percent (40%)
of his Retainer Fee and up to one hundred percent (100%) of his meeting
attendance and conference fees and designates that all such deferrals
shall be credited on his behalf one hundred percent (100%) to the
Growth Increment Ledger or one hundred percent (100%) to the Company
Stock Ledger. In addition, the Participant may elect to defer the
remaining sixty percent (60%) of his Retainer Fee provided that such
deferral shall be credited on his behalf one hundred percent (100%)
only to the Company Stock Ledger.
(b) The deferral election specified in (a) above shall be applied to
the Participant's Compensation for each Service Period to which the deferral
election applies.
(c) If a Participant makes a deferral election under Section 4.1(a)
whereby amounts are credited to the Company Stock Ledger on his behalf, such
Participant shall also elect, in conjunction with that deferral election,
whether amounts equal to dividends attributable to shares of Company Stock
credited to his Company Stock Ledger shall be paid directly to him in cash or
deemed reinvested pursuant to Section 5.3.
4.2 Deferral Period. With respect to deferrals made in accordance with Section
4.1, each Participant must elect a deferral period for each annual deferral.
Subject to the additional deferral provisions of Section 4.3 and the
acceleration provisions of Section 6.4, a Participant's deferral period may be
for a specified number of years or until a specified date, subject to any
limitations that the Board of Directors (or its delegate) in its discretion may
choose to apply.
4.3 Election to Defer a Previously Deferred Amount.
(a) Subject to the acceleration provisions of Section 6.4, a
Participant may request that the Board of Directors (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 Board of Directors (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.
(b) Notwithstanding the additional deferral election requests made by
the Participant pursuant to Subsection 4.3(a) above, neither the deferral period
elected nor the related manner of payment elected shall be automatically binding
upon the Company by the mere fact of the election requests having been made. The
Board of Directors (or its delegate) shall review each such election submitted
and determine whether or not it is in the best interest of the Company to accept
the elections as submitted. Such Board of Directors (or delegate) review will be
made on a case-by-case basis and all determinations shall be made by the Board
of Directors (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 Company of approving any request. The Board of
Directors, or its delegate, shall notify each Participant in writing within the
first sixty (60) days of the twelve (12) month period noted in Section 4.3(a)
above as to whether the deferral period and related manner of payment elections
are accepted by the Board of Directors 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 4.3(a), inform the Board of Directors (or its delegate)
in writing of his acceptance or rejection of the terms proffered by the Board of
Directors (or its delegate). All determinations made by the Board of Directors
or its delegate shall be final and binding on all parties.
SECTION 5. CREDITING AND INVESTMENT OF DEFERRALS
5.1 DCD Ledger. The Board of Directors shall establish for each Participant a
DCD Ledger which shall reflect the amounts deferred on behalf of each
Participant. In the sole discretion of the Board of Directors, one or more
appropriate bookkeeping records shall be established in the DCD Ledger to
reflect the deemed investments (and hypothetical earnings) made by each
Participant in accordance with this Section 5 which shall include, but not be
limited to, the Company Stock Ledger and the Growth Increment Ledger.
5.2 Adjustment of Amounts Credited to Growth Increment Ledger. All deferrals
credited to each Participant's Growth Increment Ledger will be credited with
Growth Increments based on the prime interest rate charged from time to time by
the Wachovia Bank, N.A. The Board of Directors will have the authority to change
the interest rate that may be applied to the Growth Increment Ledger. The
Participant's Growth Increment Ledger shall be credited on the first day of each
calendar quarter, with a Growth Increment computed on the average balance in the
Participant's Growth Increment Ledger during the preceding calendar quarter. The
Growth Increment shall be equal to the amount in said Growth Increment Ledger
multiplied by the average interest rate selected by the Board of Directors
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.
5.3 Adjustment of Amounts Credited to Company Stock Ledger. All deferrals
credited to each Participant's Company Stock Ledger will be converted into
hypothetical credited shares of Company Stock based on the Fair Market Value of
the Company Stock on the date the deferrals would otherwise have been paid to
the Participant. The value of each Participant's Company Stock Ledger shall be
adjusted from time to time to reflect increases and decreases in shares of
Company Stock as well as any stock or cash dividends, stock splits, or other
changes in the capital structure of the Company (as provided in Section 3.6),
that may from time to time be declared. Unless a Participant has elected
pursuant to Section 4.1(c) that amounts equivalent to dividends on Company Stock
be paid to the Participant, all dividends attributable to hypothetical shares of
Company Stock credited to each Participant's Company Stock Ledger shall be
converted to additional credited shares of Company Stock as though reinvested as
of the next business day after the dividend is paid. If a Participant has
elected pursuant to Section 4.1(c) that deemed dividends be paid to the
Participant in cash, such amount shall be paid to the Participant as soon as
practicable after the deemed dividend is credited to the Participant's Company
Stock Ledger.
5.4 Deemed Investments Not Actual Investments. Nothing in this Plan shall be
construed to require the investment of any deferrals in shares of Company Stock
or any other investment or give a Participant any rights whatsoever with respect
to any shares of Company Stock or with respect to any other investment.
5.5 Charges Against DCD Ledger. There shall be charged against each
Participant's DCD Ledger 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. The aggregate amounts payable under Section 6.2
as charges against the Participant's amount credited in the DCD Ledger shall be
paid commencing with the conclusion of the deferral period selected by the
Participant pursuant to Section 4.2 or Section 4.3 hereof. The payments shall be
made in the manner selected by the Participant under Section 6.2 of this Plan.
6.2 Manner of Payment. At the same time as the election made pursuant to Section
4.1, and subject to the acceleration provisions of Section 6.4, 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. Participants must choose to have payment made
in accordance with any of the following distribution forms:
(i) a single payment, or
(ii) 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 or Section 4.3. Unless otherwise
specifically elected, payments of all deferred amounts will be made in
a single payment made as soon as practicable after the conclusion of
the deferral period elected pursuant to Section 4.2 or Section 4.3.
6.3 Form of Payment. Amounts credited to a Participant's Growth Increment
Ledger and Company Stock Ledger shall be paid as follows:
(a) Amounts credited to the Participant's Growth Increment Ledger shall
be paid in cash. If a Participant's benefit hereunder is to be paid in
installments, the amount of each payment shall be equal to the amount credited
to the Participant's Growth Increment Ledger at the time of payment multiplied
by a fraction, the numerator of which is one and the denominator of which is the
number of installment payments remaining.
(b) Amounts credited to the Participant's Company Stock Ledger shall be
paid in shares of Company Stock with any amount representing a partial share of
Company Stock paid in cash. A payment of an amount credited to the Participant's
Company Stock Ledger shall be converted into actual shares of Company Stock as
soon as practicable prior to each payment being made to the Participant. If a
Participant's benefit hereunder is to be paid in installments, the amount of
each payment shall be equal to the number of shares of Company Stock then
credited to the Participant's Company Stock Ledger multiplied by a fraction, the
numerator of which is one and the denominator of which is the number of
installment payments remaining. Any amounts attributable to a partial share of
Company Stock as of any installment payment date shall be paid in cash with each
installment.
6.4 Acceleration of Payments. Notwithstanding the election made pursuant
to Section 4.2 or Section 4.3:
(a) payments shall be paid or begin to be paid as soon as practicable
following the Participant's departure from the Board of Directors by reason of
death, resignation, or otherwise;
(b) if a Participant dies prior to the payment of all or a portion of
the amounts credited to his DCD Ledger, the balance of any amount payable shall
be paid in a cash lump sum to the Beneficiaries designated under Section 7
hereof;
(c) if a Participant ceases to be a Nonemployee Director but thereafter
becomes an employee of the Company (or any of its subsidiaries or affiliates),
all amounts otherwise deferred under this Plan shall be paid as soon as
practicable after such individual becomes an employee of the Company (or any of
its subsidiaries or affiliates) in a single sum payment;
(d) if a Participant's DCD Ledger balance is less than $5,000 at the
time for payment specified, such amount shall be paid in a single sum payment;
and
(e) if applicable, the provisions of Section 8 shall apply.
6.5 Financial Emergency. The Board of Directors (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 Board of Directors (or its
delegate), an unanticipated and severe financial hardship that is caused by an
event beyond the Participant's control. In such event, the Board of Directors
(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 cash payment, 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 Board of
Directors' 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 Company during the lifetime of the Participant. The Participant
also may change his Beneficiary or Beneficiaries by a signed, written instrument
delivered to the Company. The payment of amounts shall be in accordance with the
last unrevoked written designation of Beneficiary that has been signed and
delivered to the Company. All Beneficiary designations shall be addressed to the
Company's Secretary 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 Company's Secretary (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 pursuant to
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 proportion or amount of funds designated
or indicated for him per the designation under Section 7.1, and the 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 the 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, 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) credited to each
Participant's DCD Ledger under this Plan as of the date of such Change in
Control (referred to as each Participant's "DCD Benefit") shall become
immediately due and payable. All DCD 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 DCD Benefit and the Gross-Up
Payment provided for by this Section 8 shall be equal to the value of the
Participant's DCD Benefit. Such payment shall be made by the Company (or to the
extent assets are transferred to the SCANA Corporation Director Compensation
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 Director Compensation 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.
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 DCD 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 Company
(whether pursuant to the terms of this Plan or any other plan, arrangement, or
agreement with the Company, any person whose actions result in a Change in
Control of the Company or any person affiliated with the Company 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 Management Development and Corporate Performance Committee of the Board of
Directors in 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
Company or the SCANA Corporation Director Compensation 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, 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, based on amounts credited to each
Participant's DCD Ledger 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' DCD Ledger,
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
Company 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 of Directors
resolution adopted by a vote of two-thirds (2/3) of the Board of Directors
members then serving on the Board of Directors.
SECTION 9. GENERAL PROVISIONS
9.1 Contractual Obligation. It is intended that the Company is under a
contractual obligation to make payments from a Participant's DCD Ledger when
due. Payment of amounts credited to a Participant's DCD Ledger shall be made out
of the general funds of the Company as determined by the Board of Directors
without any restriction of the assets of the Company 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 Company. 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 Company.
9.3 "Rabbi" Trust. In connection with this Plan, the Board of Directors shall
establish a grantor trust (known as the "SCANA Corporation Director Compensation
Trust") for the purpose of accumulating funds to satisfy the obligations
incurred by the Company under this Plan (and such other plans and arrangements
as determined from time to time by the Company). At any time prior to a Change
in Control, as that term is defined in such Trust, the Company may transfer
assets to the Trust to satisfy all or part of the obligations incurred by the
Company under this Plan, as determined in the sole discretion of the Board of
Directors, subject to the return of such assets to the Company 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 Company in
the event of the Company'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 Company.
9.4 Nonalienation of Benefits.
(a) No right or benefit under this Plan shall be subject to
anticipation, alienation, sale, assignment, pledge, encumbrance, or charge, and
any attempt to anticipate, alienate, sell, assign, pledge, encumber or charge
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 charge
any right or benefit hereunder, then such right or benefit shall, in the
discretion of the Board of Directors, cease, and the Board of Directors shall
direct in such event that the Company 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 Board of Directors may deem proper. 9.5 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.
9.6 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 Company or any
representative appointed hereunder by the Company, under or by reason of any of
the terms or conditions of the Plan.
9.7 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. The terms of this Plan are also subject to all present
and future rulings of the Securities and Exchange Commission with respect to
Rule 16b-3. If any provision of the Plan would cause the Plan to fail to meet
the requirements of Rule 16b-3, then that provision of the Plan shall be void
and of no effect.
SECTION 10. PLAN ADMINISTRATION, AMENDMENT AND TERMINATION
10.1 In General. This Plan shall be administered by the Board of Directors,
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 Board of Directors shall not exercise any discretion
with respect to the administration of this Plan, except as may be permitted by
Rule 16b-3. The Board of Directors 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 Board of Directors may adopt such rules as it
deems necessary, desirable or appropriate in administering this Plan and the
Board of Directors may act at a meeting, in a writing without a meeting, or by
having actions otherwise taken by a member of the Board of Directors pursuant to
a delegation of duties from the Board of Directors.
10.2 Claims Procedure. Any person dissatisfied with the Board of Directors'
determination of a claim for benefits hereunder must file a written request for
reconsideration with the Board of Directors (or its delegate). This request must
include a written explanation setting forth the specific reasons for such
reconsideration. The Board of Directors 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 Board of Directors with respect to such explanation.
The Board of Directors 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 Board of Directors shall be conclusive,
binding, and final upon all claimants under this Plan.
10.3 Finality of Determination. The determination of the Board of Directors 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 Board of Directors may, in its discretion,
delegate its duties to a committee of the Board of Directors or 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 Company.
10.6 Tax Withholding. The Company 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 Company. Any action required or permitted to be taken hereunder
by the Company or its Board of Directors shall be taken by the Board of
Directors, or by any person or persons authorized by the Board of Directors.
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
Company, shall constitute a complete acquittance and discharge to the Company
and any director or officer with respect thereto, unless the Company shall have
received prior written notice of any change in the condition or status of the
distributee. Neither the Company 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 Company expects the Plan to be permanent
but, since future conditions affecting the Company cannot be anticipated or
foreseen, the Company reserves the right to amend, modify, or terminate the Plan
at any time by action of its Board of Directors (including, but not limited to,
as may be necessary to ensure compliance with Rule 16b-3); provided, however,
that any such action shall not diminish retroactively any amounts which have
been credited to any Participant's DCD Ledger. If the Board of Directors amends
the Plan to cease future deferrals hereunder or terminates the Plan, the Board
of Directors may, in its sole discretion, direct that the value of each
Participant's DCD Ledger 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 of Directors, the Plan shall continue as a "frozen"
plan under which no future deferrals will be recognized (however, Growth
Increments and dividends attributable to hypothetical shares of Company Stock
credited to each Participant's Company Stock Ledger 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 Director
Compensation and Deferral Plan to be executed by its duly authorized officer
this ______ day of __________________________, ______, to be effective as of
January 1, 2001.
SCANA Corporation
By:________________________________
Title:_______________________________
ATTEST:
- ------------------------------------
Secretary
SCANA CORPORATION
DIRECTOR COMPENSATION AND DEFERRAL PLAN
ELECTION TO DEFER EXECUTED
FOR CALENDAR YEAR _____
As a Participant in the SCANA Corporation Director Compensation and Deferral
Plan (the "Plan"), I hereby make the elections set forth below. I understand and
agree that all elections shall be subject to the terms of the Plan, a copy of
which has been provided to me. I understand that elections under the Plan are
voluntary and that the Company is not responsible for advising me with respect
to the tax or financial consequences of my participation in this Plan. All
capitalized terms have the meaning set forth in the Plan document.
A. Deferral Election(s) or Election Not to Defer:
[ ] 1. I do not wish to defer any amounts payable to me as a member of the Board
of Directors during calendar year ________ . (Please complete Sections C and D
below.)
[ ] 2. I hereby elect to defer in accordance with this Plan one hundred percent
(100%) of those amounts payable to me as a member of the Board of Directors
during calendar year _____ including Retainer Fees, meeting attendance fees and
conference fees and have those amounts credited to the Company Stock Ledger on
my behalf.
[ ] 3. I hereby elect to defer in accordance with this Plan those
amounts payable to me as a member of the Board of Directors during calendar year
_____ as follows (complete both a. and b.):
[ ] a. I elect to defer ___ percent (up to forty percent
(40%) of my Retainer Fees as well as ___ percent (up to one hundred percent
(100%)) of my meeting attendance and conference fees.
[ ] i. I elect that all such deferrals be credited to the
Growth Increment Ledger on my behalf.
[ ] ii. I elect that all such deferrals be credited to the
Company Stock Ledger on my behalf.
[ ] b. As to the remaining sixty percent (60%) of my Retainer Fees, I
elect to defer all such Retainer Fees and have all such deferrals credited to
the Company Stock Ledger on my behalf.
B. Dividend Reinvestment Election (only complete if elected to have amounts
credited to the Company Stock Ledger under Deferral Election above):
[ ] a. I hereby elect that all amounts equal to dividends attributable
to amounts credited to the Company Stock Ledger on my behalf shall be deemed to
be reinvested in shares of Company Stock.
[ ] b. I hereby elect that all amounts equal to dividends
attributable to amounts credited to the Company Stock Ledger on my behalf shall
be paid to me in cash.
C. Compensation Election (only complete if not deferring one hundred percent
(100%) of Compensation under the Deferral Election above):
With respect to amounts not otherwise deferred under the Plan, I hereby
elect to receive in accordance with this Plan those amounts payable to me as a
member of the Board of Directors during calendar year ______ and payable as
Retainer Fees (exclusive of the amounts otherwise required to be paid to me in
shares of Company Stock), meeting attendance fees and conference fees in the
form of:
[ ] a. Company Stock
[ ] b. Cash
D. Investment Election (only complete if elected to receive Company Stock under
Compensation Election above):
[ ] a. I hereby elect that the shares of Company Stock to be
issued to me during calendar year _____ be registered in my name.
[ ] b. I hereby elect that the shares of Company Stock to be
issued to me during calendar year ______ be deposited into an account in my name
in the SCANA Investor Plus Plan.
E. Deferral Period(s):
Board of Directors' fees deferred above per this election shall be
deferred (subject to an acceleration of payments under Section 6.4 of the Plan):
[ ] 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 soon as practicable after
January 1, _______.
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 or the date I am no longer a Nonemployee Director.
F. 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 Board of Directors fees deferred
above per this election shall be paid (subject to an acceleration of payments
under Section 6.4 of the Plan):
[ ] a. in a lump sum, or
[ ] b. in installment payments, payable:
(Number)
[ ] monthly
or
[ ] quarterly
or
[ ] annually.
Name _________________________________
SS # __________________________________
- ----------------------------- ---------------------------------------
Secretary, SCANA Corporation Board Member's Signature
- ------------- ------------
Date Date
(Rev. Jan. 2001)
SCANA CORPORATION
DIRECTOR COMPENSATION AND 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 Director Compensation and
Deferral Plan.
- ------------------------- --------------------- ---------------- ---------------
Beneficiary's Name
and Social Security Beneficiary's Relationship Dollars or
or Employer Address to % Share
Identification No. Participant
- ------------------------- --------------------- ---------------- ---------------
- ------------------------- --------------------- ---------------- ---------------
- ------------------------- --------------------- ---------------- ---------------
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. 2001)