Exhibit 10-A
SCANA CORPORATION
VOLUNTARY DEFERRAL PLAN
as amended and restated
effective as of
October 21, 1997
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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
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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
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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
2.1Definitions. 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.
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(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
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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.
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(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
3.1Eligibility. 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.
3.2Continued 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.
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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
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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,
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(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
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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.
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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
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(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.
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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
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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.
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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.
38
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.
39
(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.
40
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.
41
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,
42
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 11th day of December, 1997, to be effective
as of October 21, 1997.
SCANA Corporation
By: s/William B. Timmerman
William B. Timmerman
Title: Chairman, President and Chief
Executive Officer
ATTEST:
s/Lynn M. Williams
Lynn M. Williams
Secretary
43
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).
44
[ ] 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:
45
[ ] 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.
46
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.
47
Name _________________________________
SS # __________________________________
Employee#___________________________
________________________________________________________________
Secretary, SCANA Corporation Employee's or Board Member's
Signature
_____________ ____________
Date Date
(Rev. Jan. 1997)
48
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)
49