Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
Under THE SECURITIES ACT OF 1933
SCANA Corporation
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(Exact name of registrant as specified in its charter)
South Carolina
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(State or other jurisdiction of incorporation or organization)
57-0784499
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(I.R.S. employer identification number)
1426 Main Street, Columbia, South Carolina 29201
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(Address of principal executive offices) (Zip code)
SCANA Corporation Stock Purchase-Savings Plan
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(Full title of the plan)
H. Thomas Arthur
Senior Vice President, General Counsel and Assistant Secretary
SCANA Corporation
1426 Main Street, Columbia, South Carolina 29201
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(Name and address of agent for service)
(803) 217-8547
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(Telephone number, including area code, of agent for service)
Copy To:
Elizabeth B. Anders
McNair Law Firm, P.A.
1301 Gervais Street
17th Floor
Columbia, SC 29201
(803) 799-9800
CALCULATION OF REGISTRATION FEE
Proposed Proposed
maximum maximum
Title of each class Amount offering aggregate Amount of
of securities to to be price offering registration
be registered(1) registered per share(2) price(2) fee(2)
Common Stock
no par value 5,000,000 $27.45 $137,250,000 $12,627
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
(2) Estimated pursuant to Rule 457(h) under the Securities Act of 1933, as
amended, solely for the purpose of calculating the registration fee
based on the average of the high and low prices for the Common Stock of
the registrant as reported on the New York Stock Exchange, Inc.
Composite Transactions Reporting System on July 29, 2002.
Part II
Item 3. Incorporation of Documents by Reference
This registration statement on Form S-8 hereby incorporates the following
documents which are not presented herein:
1) Annual Report of the registrant on Form 10-K for the year ended
December 31, 2001.
2) Annual Report of the registrant's Stock Purchase-Savings Plan (the
"Plan") for the year ended December 31, 2001 as filed on Form 10-K/A.
3) Quarterly Report of the registrant on Form 10-Q for the quarter ended
March 31, 2002
4) The registration statement for Common Stock of the registrant under
the Exchange Act on Form 8-B dated November 7, 1984, as amended May
26, 1995.
5) Current Reports on Form 8-K filed on January 24, 2002 and July 29,
2002.
All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this registration statement and to
be a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
registration statement to the extent that a statement contained herein or in any
other subsequently filed document that also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this registration statement.
Item 4. Description of Securities.
Not Applicable
Item 5. Interests of Named Experts and Counsel.
At July 31, 2002, H. Thomas Arthur, Esquire, who is Senior Vice President,
General Counsel and Assistant Secretary, and a full-time employee of the
registrant, owned beneficially 17,092 (and options to purchase 70,930) shares of
the registrant's Common Stock, including shares acquired by the trustee under
the Plan by use of contributions made by Mr. Arthur and earnings thereon, and
including shares purchased by the trustee by use of contributions by the
registrant and earnings thereon.
Item 6. Indemnification of Directors and Officers
The South Carolina Business Corporation Act of 1988 permits the
indemnification of the Registrant's directors and officers in a variety of
circumstances, which may include indemnification for liabilities under the
Securities Act. Under Sections 33-8-510, 33-8-550 and 33-8-560 of the South
Carolina Business Corporation Act of 1988, a South Carolina corporation is
authorized generally to indemnify its directors and officers in civil or
criminal actions if they acted in good faith and reasonably believed their
conduct to be in the best interests of the corporation and, in the case of
criminal actions, had no reasonable cause to believe that the conduct was
unlawful. In addition, the Registrant carries insurance on behalf of directors,
officers, employees or agents that may cover liabilities under the Securities
Act. The registrant's Restated Articles of Incorporation provide that no
director of the registrant shall be liable to the registrant or its shareholders
for monetary damages for breach of his fiduciary duty as a director occurring
after April 26, 1989, except for (i) any breach of the director's duty of
loyalty to the registrant or its shareholders, (ii) acts or omissions not in
good faith or which involve gross negligence, intentional misconduct or a
knowing violation of law, (iii) certain unlawful distributions or (iv) any
transaction from which the director derived an improper personal benefit.
Item 7. Exemption from Registration Claimed.
Not Applicable
Item 8. Exhibits
Exhibits required to be filed with this registration statement are listed in
the Exhibit Index following the signature pages. Certain of such exhibits which
have heretofore been filed with the Securities and Exchange Commission and which
are designated by reference to their exhibit numbers in prior filings are hereby
incorporated herein by reference and made a part hereof. The Registrant
undertakes to submit the Plan, and any future amendments thereto, to the
Internal Revenue Service (the "IRS") in a timely manner and to make all changes
required by the IRS in order to continue to qualify the Plan.
Item 9. Undertakings
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(A) To include any prospectus required by Section 10(a) (3) of the
Securities Act of 1933;
(B) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement; and
(C) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
PROVIDED, HOWEVER, that clauses (1)(A) and (1)(B) do not apply if the
information required to be included in a post-effective amendment by those
clauses is contained in periodic reports filed with or furnished to the
Securities and Exchange Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in this registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the Registrant's annual report pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (and each filing of the
Plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Columbia, State of South Carolina, on this 2nd
day of August 2002.
(REGISTRANT) SCANA Corporation
By: s/W. B. Timmerman
(Name & Title): W. B. Timmerman, Chairman of the Board, Chief
Executive Officer, President and Director
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and on the
date indicated.
(i) Principal executive officer and director:
By: s/W. B. Timmerman
(Name & Title): W. B. Timmerman, Chairman of the Board,
Chief Executive Officer,
President and Director
Date: August 2, 2002
(ii) Principal financial officer:
By: s/K. B. Marsh
(Name & Title): K. B. Marsh, Senior Vice President -Finance
and Chief Financial Officer
Date: August 2, 2002
(iii) Principal accounting officer:
By: s/J. E. Swan, IV
(Name & Title): J. E. Swan, IV, Controller
Date: August 2, 2002
(iv) Other directors:
* B. L. Amick, J. A. Bennett, W. B. Bookhart, Jr., W. C. Burkhardt,
E. T. Freeman, D. M. Hagood, W. H. Hipp, L. M. Miller, M. K. Sloan,
G. S. York
* Signed on behalf of each of these persons:
s/K. B. Marsh
K. B. Marsh
(Attorney-in-Fact)
Directors who did not sign:
H. C. Stowe
The Plan. Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Columbia, State of South
Carolina, on August 2, 2002.
(PLAN) SCANA Corporation Stock
Purchase-Savings Plan
By: (Signature and Title) s/K. B. Marsh
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K. B. Marsh
Chairman of the SCANA
Corporation Stock Purchase-
Savings Plan Committee
s/L. E. Cope
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L. E. Cope
Member of the SCANA
Corporation Stock Purchase-
Savings Plan Committee
EXHIBIT INDEX
Exhibit Description
No.
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4.01 Restated Articles of Incorporation of SCANA Corporation as adopted on
April 26, 1989 (Filed as Exhibit 3-A to Registration Statement No.
33-49145 and incorporated by reference herein)
4.02 Articles of Amendment of SCANA Corporation, dated April 27, 1995
(Filed as Exhibit 4-B to Registration Statement No. 33-62421 and
incorporated by reference herein)
4.03 ByLaws of SCANA Corporation as amended and restated on
December 13, 2001 (Filed as Exhibit 3.01 to Registration Statement
No. 333-68266)
4.04 SCANA Corporation Stock Purchase-Savings Plan as amended and
restated from January 1, 1989 to and as of January 1, 2002 (Filed
herewith)
4.05 Trust Agreement SCANA Corporation Stock Purchase-Savings Plan dated
January 15, 1999 (Filed as Exhibit 4.05 to Registration Statement No.
333-87281 and incorporated by reference herein)
5.01 Opinion Re Legality (Filed herewith)
23.01 Consent of Deloitte & Touche LLP (Filed herewith)
23.02 Consent of Deloitte & Touche LLP (Filed herewith)
23.03 Consent of H. Thomas Arthur, II (Included in his opinion in Exhibit
5.01)
24.01 Power of Attorney (Filed herewith)
SCANA CORPORATION
STOCK PURCHASE-SAVINGS PLAN
(As amended and restated from January 1, 1989,
to and as of January 1, 2002)
SCANA CORPORATION
STOCK PURCHASE-SAVINGS PLAN
(As amended and restated from January 1, 1989
to and as of January 1, 2002)
TABLE OF CONTENTS
Article Page
ARTICLE I. PURPOSE..................................................7
ARTICLE I-A. MERGER.................................................8
ARTICLE II. DEFINITIONS.............................................8
2.01.....Additional Contributions 8
2.02 Adjustment Factor 9
2.03 Affiliate 9
2.04 Beneficiary 9
2.05 Break in Service 9
2.06 Code 10
2.07 Committee 10
2.08 Common Stock 10
2.09 Common Stock Fund 10
2.10 Company 10
2.11 Date of Distribution 10
2.12 Deferrals 10
2.13 Disability 10
2.14 Eligible Earnings 10
2.15 Eligible Employee 11
2.16 Employee 11
2.17 Employee Plans Committee 11
2.18 Employer 11
2.19 Employer Contribution 12
2.20 Highly Compensated Employee 12
2.21 Inactive Participant 12
2.22 Investment Committee 13
2.23 Investment Fund 13
2.24 Money Market Fund 13
2.25 Participant 13
2.26 Plan 13
2.27 Plan Administrator 13
2.28 Plan Manager 13
2.29 Plan Year 13
2.30 Regular Contributions 13
2.31 Spouse 13
2.32 Termination of Employment 13
2.33 Trust (or Trust Fund) 13
2.34 Trustee 13
2.35 Valuation Date 13
2.36 Valuation Price 14
ARTICLE III. ELECTION OF PARTICIPATION................................. 14
3.1 Election to Participate 14
3.2 Election Authorization 14
ARTICLE IV. EMPLOYEE DEFERRALS AND CONTRIBUTIONS.........................14
4.1..... Deferrals 14
4.2 Regular Contributions 14
4.3 Additional Contributions 14
4.4 Timing of Contributions 14
4.5 Changes in Contributions 14
4.6 Suspension of Contributions 14
4.7 Rounding of Amounts 15
4.8 Rollover Contributions 15
ARTICLE V. EMPLOYER CONTRIBUTIONS........................................15
5.1......Employer Contributions 15
5.2 Corrective Contributions/Reallocations 15
ARTICLE VI. PLAN INVESTMENTS.............................................16
6.1......Investment Funds 16
6.2 Employee Deferrals, Regular Contributions, Additional
Contributions, and Rollover Contributions 16
6.3 Change in Investment Designation of Future Employee Deferrals,
Regular Contributions, Additional Contributions, and
Rollover Contributions........................16
6.4 Transfers of Existing Employee Deferrals, Regular
Contributions, Additional Contributions,
and Rollover Contributions Among Investment Funds......16
6.5 Employer Contributions 16
6.6 Investments in Common Stock Fund 16
6.7 Dividends on Common Stock 17
6.8 Uninvested Cash 17
6.9 Diversification of Amounts in the Common Stock Fund 18
ARTICLE VII. INVESTMENT ACCOUNTS......................................19
7.1......Separate Accounts 19
7.2 Account Information 19
7.3 Applicable Valuation Date 20
7.4 Fiduciary Responsibility 20
ARTICLE VIII. WITHDRAWALS/DISTRIBUTIONS...............................20
8.1......Withdrawals Before Termination of Employment 20
8.2 Frequency of Withdrawal 23
8.3 Form of Withdrawal 23
8.4 Notice of Withdrawal 23
8.5 Distribution on Termination of Employment or Disability 24
8.6 Distribution on Death 24
8.7 Promptness of Distribution 24
8.8 Amount of Distribution 24
8.9 Form of Distribution 24
8.10 Fractional Shares 25
8.11 Limitations on Commencement of Benefits 25
8.12 Employee Transfers from the Employer to an Affiliate 26
8.13 Distributions with Respect to Qualified Domestic
Relations Orders 26
8.14 Direct Rollover Distributions 26
8.15 Definitions 27
ARTICLE IX. LOANS TO PARTICIPANTS........................................27
9.1......Amount of Loan 27
9.2 Terms of Loan 27
9.3 Commencement of Loans 31
9.4 Employee Transfers from the Employer to an Affiliate 31
9.5 Specific Information 31
ARTICLE X. VESTING......................................................31
10.1.....Vesting 31
10.2 Employee Transfers from the Employer to an Affiliate 31
ARTICLE XI. FORFEITURES................................................31
11.1.....Termination of Employment 31
11.2 Repayments 31
11.3 Lost Participants or Beneficiaries 32
11.4 Application of Forfeitures 32
ARTICLE XII. LIMITATIONS ON CONTRIBUTIONS AND BENEFITS.................32
12.1.....Definition of Annual Additions 32
12.2 Maximum Annual Addition 32
12.3 Limitation on Annual Additions 32
12.4 Definitions 33
12.5 Special Rules 33
12.6 Limitation of Benefits and Contributions 34
12.7 Transitional Rule 34
12.8 Effective Date 35
12.9 Maximum Amount of Deferrals 35
12.10 Non-Discrimination Limitation on Deferral Contributions 36
12.11 Nondiscrimination Limitations on Regular Contributions and
Employer Contributions 37
12.12 Definitions 39
ARTICLE XIII. TOP HEAVY PROVISIONS....................................41
13.1.....General Rule 41
13.2 Vesting Provisions 42
13.3 Minimum Benefit Provisions 42
13.4 Limitation on Benefits 42
13.5 Coordination with Other Plans 42
13.6 Top-Heavy Plan Definition 42
13.7 Key Employee 43
13.8 Non-Key Employee 44
13.9 Collective Bargaining Rules 44
13.10 Distribution to Key Employees 44
13.11 EGTRRA Modifications to Article 13 44
ARTICLE XIV. VOTING OF STOCK.............................................46
14.1.....Voting of Stock 46
14.2 Tender Offer Rights With Respect to Stock 46
ARTICLE XV. ADMINISTRATION............................................. 46
15.1.....Plan Administrator 46
15.2 Powers and Duties of the Committee 46
15.3 Claims Procedure 47
15.4 Claims Review Procedure 47
15.5 Plan Expenses 48
15.6 Actions Via Electronic or Telephonic Media 48
15.7 Authority and Duties 48
15.8 Operation of the Investment Committee 48
15.9 Disbursements from Trust Fund 49
ARTICLE XVI. TRUSTEE...................................................49
ARTICLE XVII. FIDUCIARY LIABILITIES.................................. 50
ARTICLE XVIII. AMENDMENT OR TERMINATION................................ 50
18.1 General Provision 50
18.2 Special Provision 50
ARTICLE XIX. GENERAL PROVISIONS..........................................51
19.1 Source of Distributions 51
19.2 Non-Alienation of Benefits 51
19.3 Merger or Consolidation 51
19.4 Transfer from Affiliate 51
19.5 No Right to Employment 51
19.6 Controlling Law 51
19.7 Military Service 52
SIGNATURES..............................................................52
APPENDIX I..............................................................53
APPENDIX II.............................................................58
SCANA CORPORATION
STOCK PURCHASE-SAVINGS PLAN
(As amended and restated from January 1, 1989,
to and as of January 1, 2002)
ARTICLE I. PURPOSE
SCANA Corporation, as successor corporation to South Carolina
Electric & Gas Company, pursuant to a Plan of Exchange effective December 31,
1984, adopted the South Carolina Electric & Gas Company Stock Purchase-Savings
Plan for Employees (effective July 1, 1964, as amended through September 1,
1984) on behalf of itself and as agent for each subsidiary which elects to have
its employees participate in this Plan in order to provide an opportunity for
employees to become shareholders of SCANA Corporation and to encourage them to
save on a regular basis by setting aside part of their earnings. Such Plan was
further amended, effective December 31, 1984 and was amended and restated,
effective July 1, 1985, and subsequently amended effective June 10, 1986 and
July 1, 1986 with a restatement as of the latter date. The Plan was amended and
restated effective January 1, 1989, to comply with the Internal Revenue Code of
1986 and Treasury Department Regulations with the effective dates of certain
subsequent provisions otherwise indicated. The Plan was amended on June 26, 1991
at Section 4.3 to increase from 5% to 9% the maximum allowable unmatched
Employee contributions, and at sections 8.3A and 8.9A to permit withdrawals and
distributions to be in cash, all such amendments effective as of October 11,
1991. The Plan was amended on October 15, 1991 by adding "Date of Distribution"
as a defined term under Article II; Plan Sections 4.1, 4.1A, 4.2, 6.3, 8.1, 8.6,
8.7, 8.10, 9.1, 9.1A, 9.2, 15.2, 15.3, 15.4, 15.5, and Articles I, V, XVI, and
XVIII were also amended. The Plan was amended effective March 7, 1992 regarding
the admission of South Carolina Real Estate Development Company, Inc. and MPX
Systems, Inc. as participating Employers. The Plan was amended on June 16, 1992
with respect to loans, minimum required distributions after age 70 1/2, the
withdrawal by Participants of Employer contributions, the admission of SCANA
Petroleum Resources, Inc. and SCANA Energy Marketing, Inc. (formerly SCANA
Hydrocarbons, Inc.) as participating Employers, and the Plan restated. The Plan
was amended effective January 1, 1995 regarding the admission of ServiceCare,
Inc. as a participating employer.
The Plan was amended and restated as of July 1, 1994 to incorporate
various amendments, including the amendments necessary to comply with the
Unemployment Compensation Amendments of 1993 (effective January 1, 1993), the
merger of the SCANA Corporation Employee Stock Ownership Plan with and into the
Plan (effective April 30, 1993), the creation of the Employee Plans Committee as
the entity with general Plan amendment authority (effective December 15, 1993),
and various other clarifying or compliance-related matters.
The Plan was amended effective December 1, 1995 to prohibit the
borrowing of additional amounts through Plan loan refinancings.
The Plan was amended and restated generally as of January 1, 1997
with respect to allowing for rollover contributions; to incorporate various
amendments necessary to comply with the Uniformed Services Employment and
Reemployment Act of 1994 and the Small Business Job Protection Act of 1996 and
related legislation, regulations and other guidance; and to include certain
other amendments related to the Trustee's responsibility.
The Plan was amended and restated as of January 1, 1999 to permit
Participants to invest their contributions (pre-tax and after-tax) in a Money
Market Fund and to provide for related amendments.
The rights of any Employee who terminated employment with an adopting
Employer before the effective date of each applicable amendment included in the
restated Plan will be governed by that provision as it was in effect on the
Employee's termination date.
The Plan was amended effective December 1, 1999 to add an employee
stock ownership plan feature. Thus, the Plan consists of two portions beginning
December 1, 1999. The first portion is a profit sharing plan intended to qualify
under Code Sections 401(a), 401(k) and 401(m). The second portion (the assets of
which are invested in the Common Stock Fund) is both a stock bonus plan and an
employee stock ownership plan intended to qualify under Code Sections 401(a) and
4975(e)(7), respectively, and as such is designed to invest primarily in
qualifying employer securities of SCANA Corporation.
Effective January 1, 2000, SCANA Services Company was admitted as a
participating Employer. Effective March 1, 2000, Public Service Company of North
Carolina, Inc. was admitted as a participating Employer.
The Plan was amended effective January 1, 2001, to permit
participants to direct the investment of all contributions other than Employer
Contributions among the Investment Funds offered under the Plan and to include
certain other amendments related to contribution and investment changes,
withdrawals and loans.
The Plan is amended, effective January 1, 2002 (unless otherwise
indicated), to implement certain changes required or permitted by the Economic
Growth and Tax Relief Reconciliation Act of 2001.
ARTICLE I-A. MERGER
Merger of Carolina Pipeline Company, Inc. Employee Stock Purchase
Thrift Plan into the SCANA Corporation Stock Purchase-Savings Plan. On April 22,
1982, Carolina Pipeline Company, Inc., was acquired by South Carolina Electric &
Gas Company. Effective April 22, 1982, contributions to the Carolina Pipeline
Company, Inc., Employee Stock Purchase Thrift Plan amended as of April 22, 1979
(hereinafter referred to as the "CPC Plan") were suspended and Participants in
the CPC Plan became eligible to participate in the South Carolina Electric & Gas
Company Stock Purchase-Savings Plan. As a result of the above, former employees
of Carolina Pipeline Company, Inc., were Participants in the CPC Plan by virtue
of Account balances in the CPC Plan Trust and also Participants in this Plan by
virtue of meeting the eligibility requirements and making appropriate
contributions to this Plan. Effective June 10, 1986, the CPC Plan was merged
into this Plan. All Participants with Account balances in the CPC Plan Trust
Fund on June 9, 1986, had such Account balances transferred to this Plan on June
10, 1986, and will be eligible to receive benefits as set forth in the
provisions of this Plan, as amended by the applicable provisions of Appendix I.
Merger of SCANA Corporation Employee Stock Ownership Plan into the
SCANA Corporation Stock Purchase-Savings Plan. Effective April 30, 1993, the
SCANA Corporation Employee Stock Ownership Plan was merged with and into the
SCANA Corporation Stock Purchase-Savings Plan. As a result of this merger, all
Account balances held under the ESOP were transferred to this Plan and became
eligible to receive benefits as set forth in the provisions of this Plan, as
amended by the applicable provisions of Appendix I.
Merger of Public Service Company of North Carolina, Incorporated and
Subsidiaries Special Savings and Retirement Plan and Trust into the SCANA
Corporation Stock Purchase-Savings Plan. Effective September 1, 2000, the Public
Service Company of North Carolina, Incorporated and Subsidiaries Special Savings
and Retirement Plan and Trust (the "PSNC Plan") was merged with and into the
SCANA Corporation Stock Purchase-Savings Plan. As a result of this merger, all
Account balances held under the PSNC Plan were transferred to this Plan and
became eligible to receive benefits as set forth in the provisions of this Plan,
as amended by the applicable provisions of Appendix I. This Plan, as set forth
herein, hereby amends the PSNC Plan to comply with the requirements of the
Uruguay Round Agreements Act ("GATT"), the Uniformed Services Employment and
Reemployment Rights Act of 1994 ("USERRA"), the Taxpayers Relief Act of 1997
("TRA `97"), the Internal Revenue Service Restructuring Act of 1998 and the
Community Renewal Tax Relief Act of 2000 ("CRA").
ARTICLE II. DEFINITIONS
For the purpose of this Plan the following terms shall have the
meanings as set forth below unless the context requires otherwise:
2.01 Additional Contributions: Eligible Earnings which a Participant
elects to contribute to the Plan in accordance with Section 4.3.
2.02 Adjustment Factor: The cost of living adjustment factor
prescribed by the Secretary of the Treasury under Section 415(d) of the Code for
years beginning after December 31, 1987, as applied to such items and in such
manner as the Secretary shall provide.
2.03 Affiliate: All corporations, trades or businesses which are (a)
a member, with the Company, of a controlled group of organizations within the
meaning of Code Section 1563(a) determined without regard to Code Sections
1563(a)(4) and (e)(3)(C); (b) a member with the Company of a group of trades or
businesses (whether or not incorporated) under common control, as determined by
the Secretary of the Treasury in regulations adopted under Code Section 414(c);
(c) any organization (whether or not incorporated) which is a member with the
Company of an affiliated service group as defined in Code Section 414(m); and
(d) any other entity to the extent required to be aggregated with the Company
under final regulations issued pursuant to Code Section 414(o).
2.04 Beneficiary: The surviving Spouse of the Participant, unless
such surviving Spouse has previously consented to the designation of another
person, estate, trust, or organization as Beneficiary in a writing acknowledging
the effect of such designation, which writing is witnessed by a notary public.
The Beneficiary of an unmarried Participant or of a married Participant with
consenting Spouse shall mean any person(s) who, or estate, trust, or
organization which becomes entitled to receive benefits upon the death of a
Participant. A Participant shall file with the Plan Manager a designation of
Beneficiary. Such a designation may be changed or revoked by a notice filed with
the Plan Manager; however, such a change must be properly consented to by the
Participant's Spouse, if the Spouse is not named as Beneficiary. In the case of
a Participant with no Spouse, any designation of a non-Spouse Beneficiary shall
automatically be revoked upon the marriage or remarriage of the Participant. Any
individual who is designated as an alternate payee in a qualified domestic
relations order (as defined in Section 414(p) of the Code) relating to a
Participant's benefits under this Plan shall be treated as a Beneficiary
hereunder, to the extent provided by such order.
2.05 Break in Service: For periods of service occurring before July
1, 1989 (the date as of which all Employer Contributions became fully vested
pursuant to Article X):
(a) A "Break in Service" means a 12-consecutive month period
(Computation Period) during which an Employee does not have
more than 500 hours of Service with the Employer.
(b) An "Hour of Service" means each hour for which an Employee
is directly or indirectly paid, or entitled to payment, by
the Employer. Hours in which duties are performed shall be
credited to the Computation Period in which the duties are
performed. Hours in which no duties are performed but for
which payment is made for reasons such as vacations,
holidays, illness, incapacity (including disability),
layoff, jury duty, military duty, or leave of absence and
hours for which back pay is awarded or agreed to shall be
credited to the Computation Period to which the payment
pertains. No duplicate credit shall be given on account of
an award or agreement for back pay.
(c) A "Year of Service" is a Computation Period during which the
Employee completes at least 1,000 Hours of Service.
(d) "Computation Period" is the 12-consecutive month period
beginning with the day the Employee first performs an Hour
of Service for the Employer and each anniversary thereof.
(e) "Break in Service" shall have the following consequences:
(1) Employee with Vested Benefit: The pre-break and
post-break Years of Service of an Employee who had
satisfied the requirements of Article X for a vested
benefit before commencement of a Break in Service
shall be added together for the purpose of
determining his or her rights and benefits.
(2) Employee with no Vested Benefit: The pre-break Years
of Service of an Employee who had not earned a
vested benefit before commencement of a Break in
Service shall be lost unless (1) the Employee
acquires at least 1,000 Hours of Service in a
12-consecutive month period (Computation Period)
which follows the Break in Service and (2) the
number of consecutive one-year Breaks in Service is
less than the number of earlier Years of Service or
five, whichever is greater.
(3) Solely for purposes of determining whether a Break
in Service has occurred, an individual who is absent
from work for maternity or paternity reasons shall
receive credit for the Hours of Service which would
otherwise have been credited to such individual but
for such absence, or in any case in which such hours
cannot be determined, eight hours of service per day
of such absence. For purposes of this paragraph, an
absence from work for maternity or paternity reasons
means an absence (1) by reason of the pregnancy of
the individual, (2) by reason of a birth of a child
of the individual, (3) by reason of the placement of
a child with the individual in connection with the
adoption of such child by such individual, or (4)
for purposes of caring for such child for a period
beginning immediately following such birth or
placement. The Hours of Service credited under this
paragraph shall be credited (1) in the Computation
Period in which the absence begins if the crediting
is necessary to prevent a Break in Service in that
period, or (2) in all other cases, in the following
Computation Period.
2.06 Code: The Internal Revenue Code of 1986, as amended from time to
time.
2.07 Committee: The SCANA Corporation Stock Purchase-Savings Plan
Committee appointed by the Chief Executive Officer of the Company is the
administrator of the Plan. The members of the Committee shall serve at the
pleasure of the Chief Executive Officer.
2.08 Common Stock: The common stock of SCANA Corporation, also
referred to as "shares" or "stock" allocated or to be allocated to
Participants' Accounts.
2.09 Common Stock Fund: An Investment Fund under which the Trustee
holds all of the assets in the employee stock ownership portion of the Plan,
including any shares of Common Stock and any cash dividends declared on Common
Stock. From time to time, the Common Stock Fund may be referred to as the "ESOP
Fund."
2.10 Company: The term "Company" shall mean SCANA Corporation.
2.11 Date of Distribution: The date on which the Plan Manager
processes the distribution from the Participant's Account, with shares valued
for purposes of such Date of Distribution at the Valuation Price.
2.12 Deferrals: Contributions made to the Plan during the Plan Year
by the Employer, at the election of the Participant, in lieu of cash
compensation and shall include contributions made pursuant to a salary reduction
agreement on a pre-tax basis.
2.13 Disability: A disability of the Participant that causes the
Participant to be incapable of performing his customary duties and entitles the
Participant to benefits under the SCANA Long Term Disability Plan.
2.14 Eligible Earnings: Effective for periods prior to January 1,
2000 (and for periods prior to January 1, 2001 for Eligible Employees whose
employment is covered by the collective bargaining agreement with the
International Brotherhood of Electrical Workers ("IBEW Employees"), the term
"Eligible Earnings" shall mean an Eligible Employee's regular annual base wages
or salary plus amounts deferred under Sections 4.1 and 4.3 of the Plan and
pre-tax amounts deferred under Code Section 401(k) under any other plan of the
Employer and amounts contributed by the Eligible Employee on a pre-tax basis
under a cafeteria plan maintained by the Employer under Code Section 125 and
amounts received as a qualified transportation fringe under Code Section 132(f).
The term "Eligible Earnings" shall not include commissions, drawing accounts,
bonuses, overtime, or any other special payments, fees and allowances
Effective for Eligible Employees other than IBEW Employees, for periods on or
after January 1, 2000 but before July 1, 2000, the term "Eligible Earnings"
shall mean an Eligible Employee's regular annual base wages or salary, plus
overtime, commissions and bonuses (other than bonuses paid to officers and key
employees under the Long Term Incentive Plan). Eligible Earnings also includes
amounts deferred under Sections 4.1 and 4.3 of the Plan and pre-tax amounts
deferred under Code Section 401(k) under any other plan of the Employer and
amounts contributed by the Eligible Employee on a pre-tax basis under a
cafeteria plan maintained by the Employer under Code Section 125 and amounts
received as a qualified transportation fringe under Code Section 132(f).
Effective for Eligible Employees other than IBEW Employees for periods on or
after July 1, 2000, and for IBEW Employees for periods on or after January 1,
2001, the term "Eligible Earnings" shall mean an Eligible Employee's annual base
salary or regular wages, plus overtime, commissions, bonuses, shift
differential, license pay and other incentive pay (except for long-term
incentive pay) plus amounts deferred under Sections 4.1 and 4.3 of the Plan and
pre-tax amounts deferred under Code Section 401(k) under any other plan of the
Employer and amounts contributed by the Eligible Employee on a pre-tax basis
under a cafeteria plan maintained by the Employer under Code Section 125 and
amounts received as a qualified transportation fringe under Code Section 132(f).
The term "Eligible Earnings" shall not include payment for unused flex credits,
payments in lieu of overtime meals, posthumous pay, relocation payments, per
diem payments, car allowances, severance payments and any non-cash compensation
(including, but not limited to, imputed income).
For Plan Years beginning after December 31, 1988, Eligible Earnings in excess of
$200,000 shall be disregarded. For Plan Years beginning after December 31, 1993,
Eligible Earnings in excess of $150,000 shall be disregarded. For Plan Years
beginning after December 31, 2001, Eligible Earnings in excess of $200,000 shall
be disregarded. Such dollar limitations on Eligible Earnings shall be adjusted
at the same time and in such manner as permitted under Code Section 401(a)(17)
and the regulations and other guidance issued thereunder.
2.15 Eligible Employee: An Employee who has attained age 18 and who
receives Eligible Earnings from an Employer or would be receiving Eligible
Earnings except for a leave of absence authorized by the Employer under the
Employer's established personnel practices; provided, however, that any Employee
otherwise eligible to become an Eligible Employee may voluntarily waive
participation in the Plan. Notwithstanding the foregoing, the term Eligible
Employee shall not include:
(a) a leased employee as defined in Section 414(n) of the Code;
(b) employees who do not receive payment for services directly
from the Company's payroll; employees of employment agencies
which are not Affiliates; and persons whose services are
rendered pursuant to written arrangements which expressly
recite that the service provider is not eligible for
participation in the Plan.
2.16 Employee: A common law employee of the Company or any Affiliate,
including employees covered by a collective bargaining agreement and a leased
employee, as defined in Section 414(n) of the Code; provided, however, that the
term "Employee" shall not include any leased employee (as defined in Section
414(n) of the Code) covered by a plan described in Section 414(n)(5) of the Code
unless all leased employees constitute more than 20 percent of the total
workforce of the Company and its Affiliates.
2.17 Employee Plans Committee: The Employee Plans Committee as
appointed by the Chief Executive Officer of the Company in consultation
with the Chairman of the Management Development and Corporate Performance
Committee of the Company's Board of Directors.
2.18 Employer: The term "Employer" shall mean SCANA Corporation,
South Carolina Electric & Gas Company, and South Carolina Pipeline Corporation.
The term "Employer" shall also mean any other Affiliate, the Board of Directors
of which shall elect to have its Employees participate in this Plan, and as to
which such election is also approved by the Board of Directors of SCANA
Corporation; in this regard:
(a) effective as to Eligible Earnings earned on and after March
7, 1992, South Carolina Real Estate Development Company,
Inc. (SCANA Development Corporation following a name change
authorized by the Board on August 25, 1993 and filed with
the Secretary of State on August 26, 1993) and SCANA
Communications, Inc. (formerly MPX Systems, Inc.) are
participating Employers in the Plan for purposes of the
participation of their Employees;
(b) effective as to Eligible Earnings earned on and after July
16, 1992, SCANA Petroleum Resources, Inc. and SCANA Energy
Marketing, Inc. (formerly SCANA Hydrocarbons, Inc.) are
participating Employers in the Plan for purposes of the
participation of their Employees;
(c) effective as to Eligible Earnings earned on and after
January 1, 1995, ServiceCare, Inc. is a participating
Employer in the Plan for purposes of the participation of
its Employees;
(d) effective as to Eligible Earnings earned on and after
January 1, 2000, SCANA Services Company is a participating
Employer in the Plan for purposes of the participation of
its Eligible Employees;
(e) effective as to Eligible Earnings earned on and after March
1, 2000, Public Service Company of North Carolina, Inc. is a
participating Employer in the Plan for purposes of the
participation of its Eligible Employees.
2.19 Employer Contribution: A contribution made by an Employer
pursuant to Article V.
2.20 Highly Compensated Employee: "Highly Compensated Employees"
include those Employees who meet the definition of "Highly Compensated Employee"
as determined under Section 414(q) of the Code and the regulations issued
thereunder, as set forth herein. Effective January 1, 1997, the term "Highly
Compensated Employee" includes "Highly Compensated Active Employees" and "Highly
Compensated Former Employees" and shall be determined as follows:
(a) A "Highly Compensated Active Employee" means an
Employee of the Company or an Affiliate who during
the current Plan Year performs services for the
Company or an Affiliate and:
(1) received Compensation for the preceding
Plan Year in excess of $80,000 (adjusted at
the same time and in the same manner as
under Section 415(d) of the Code), or
(2) the Employee was at any time during the
current Plan Year or the preceding Plan
Year a five percent (5%) owner of the
Employer as defined in Section 416(i)(1) of
the Code.
(b) For purposes of determining Highly Compensated
Employees, "Compensation" for a Plan Year shall be
determined in the same manner as "Compensation" in
Section 12.4 of the Plan, increased for Plan Years
beginning before January 1, 1998, by Deferrals under
this Plan and any pre-tax elective contributions
under a cafeteria plan (as defined in Section 125 of
the Code) maintained by the Company or similar
contributions under a plan maintained by an
Affiliate. (For Plan Years beginning on and after
January 1, 1998, the foregoing amounts are included
pursuant to Section 12.4 of the Plan.)
(c) Notwithstanding the foregoing, the determination of
Highly Compensated Employees may be made under the
"top-paid group" election under the regulations or
any other guidance issued pursuant to Code Section
414(q).
2.21 Inactive Participant: Any Eligible Employee or former Eligible
Employee who is not an active Participant in the Plan and who has amounts
credited to his Account under the Plan.
2.22 Investment Committee: The Investment Committee is the fiduciary for
all financial responsibilities of the Plan. The Investment Committee consists of
the Chief Executive Officer, the Chief Financial Officer and such other persons
designated by
the Chief Executive Officer.
2.23 Investment Fund: A fund established in the Trust for investment of
contributions made to a Participant's Accounts.
2.24 Money Market Fund: An Investment Fund which is invested in short
term money market instruments, including, but not by way of limitation, short
term securities of the United States or any agency or instrumentality thereof or
in one or more investment companies commonly known as "money market" mutual
funds.
2.25 Participant: An Eligible Employee who is an active Participant in the
Plan and who has amounts credited to his Account under the Plan.
2.26 Plan: The SCANA Corporation Stock Purchase-Savings Plan, the Plan set
forth herein, as amended from time to time.
2.27 Plan Administrator: The SCANA Corporation Stock Purchase-Savings Plan
Committee ("Committee").
2.28 Plan Manager: The person appointed by the Committee to have primary
responsibility for management of the regular operations of the Plan. The Plan
Manager shall report to the Committee. The Plan Manager may delegate its
responsibilities to any individual or entity and references in the Plan to the
Plan Manager shall be deemed to refer to the Plan Manager's delegate, if any.
2.29 Plan Year: Effective January 1, 1989, the term "Plan Year" shall mean
the twelve (12) month period commencing January 1st and ending on the last day
of December next following. For purposes of this Plan, the plan year shall also
constitute the "Limitation Year" for purposes of Section 415 of the Code.
2.30 Regular Contributions: Eligible Earnings which a Participant elects to
contribute to the Plan on an after-tax basis in accordance with Section 4.2.
2.31 Spouse: That person who is legally married to the Employee according
to the law of the Employee's residence.
2.32 Termination of Employment: The ending of the employment
relationship between the Employer and an Employee for a cause other than death.
A leave of absence authorized by the Employer under the Employer's established
and nondiscriminatory personnel practices is not a termination of employment.
Notwithstanding the above, a transfer by a Participant from the Employer to an
Affiliate which has not adopted this Plan shall not be deemed to be a
Termination of Employment.
2.33 Trust (or Trust Fund): The fund or funds maintained under the trust
agreement executed between the Company and the Trustee to receive and invest the
amounts contributed on behalf of Participants, and from which distributions will
be made.
2.34 Trustee: The individual(s) or corporation(s) appointed by the Company,
pursuant to a trust agreement, to hold and manage the Trust Fund.
2.35 Valuation Date: Any day on which the New York Stock Exchange or any
successor to its business is open for trading or any other date designated from
time to time by the Plan Manager for determining the value of a Participant's
Account for all purposes under the Plan, including the determination of amounts
available for loans, withdrawals, and distributions.
2.36 Valuation Price: The closing New York Stock Exchange market price for
Common Stock for the date a distribution request is received by the Plan
Manager.
ARTICLE III. ELECTION OF PARTICIPATION
3.1 Election to Participate: An Eligible Employee may elect to
participate in the Plan by giving notice to the Plan Manager on or before the
day on which such Eligible Employee's participation is to commence. Such
Eligible Employee's participation will commence as of the first day of the pay
period which begins following the date the Employer receives the notice.
3.2 Election Authorization: The notice of election to participate
under Section 3.1 shall authorize (a) an Eligible Earnings deferral election as
permitted under Section 4.1 and/or (b) a payroll deduction election as permitted
under Section 4.2. Such notice may also authorize additional contributions under
the provisions of Section 4.3, an Investment Fund designation pursuant to
Section 6.2, and a dividend retention election pursuant to Section 6.7.
ARTICLE IV. EMPLOYEE DEFERRALS AND CONTRIBUTIONS
4.1 Deferrals: Subject to the applicable limitations of Article XII,
a Participant may elect to defer receipt on a pre-tax basis of 1, 2, 3, 4, 5 or
6 percent of Eligible Earnings under the Plan, such amount to be contributed to
his Account under the Plan. The total of the amount elected under this Section
4.1 and Section 4.2 shall not exceed 6 percent of the Participant's Eligible
Earnings.
4.2 Regular Contributions: Subject to the applicable limitations of
Article XII, instead of electing to defer receipt of a portion of his Eligible
Earnings under Section 4.1, a Participant may elect to contribute to the Plan,
by means of payroll deductions on an after-tax basis, 1, 2, 3, 4, 5 or 6 percent
of Eligible Earnings, such amount to be contributed to his Account under the
Plan. The total of the amount elected under this Section 4.2 and Section 4.1
shall not exceed 6 percent of the Participant's Eligible Earnings.
4.3 Additional Contributions: Subject to the applicable limitations
of Article XII, if a Participant has elected to defer receipt of a portion of
his Eligible Earnings under Section 4.1 or has elected to make Regular
Contributions under Section 4.2, he may authorize Additional Contributions of
whole percentages from 1 percent to 9 percent of Eligible Earnings, which
Additional Contributions may be made all or a portion in the form of Deferrals
on a pre-tax basis under Section 4.1 or Regular Contributions on an after-tax
basis under Section 4.2. Such Additional Contributions shall not be considered
in determining the amount of Employer Contributions.
4.4 Timing of Contributions: All Deferrals, Regular Contributions,
and Additional Contributions shall be contributed to the Trust by the Employer
as soon as practical after amounts are subject to payroll deduction, but in all
events all such Deferrals and Contributions shall be contributed to the Trust by
the Employer in accordance with the requirements set forth in regulations and
other guidance issued by the Department of Labor.
4.5 Changes in Contributions: Effective January 1, 1989, a
Participant may change his contribution election under Sections 4.1, 4.2, and
4.3 as of the first day of the Plan Year which begins following the date the
Plan Administrator receives a notice of change. Notice of any such change shall
be given on a form to be provided by the Employer, signed by the Participant,
and delivered to the Employer at least thirty (30) days before the first Plan
Year affected by the change. Effective October 1, 2000, a Participant may change
his contribution election under Sections 4.1, 4.2, and 4.3 at any time by
applying to make such change in the manner prescribed by the Plan Administrator
(including telephonic or electronic application). Any such change shall become
effective as soon as practicable following the date the Participant applies to
make such change, provided that the effective date shall be the first day of a
payroll period.
4.6 Suspension of Contributions: A Participant may suspend Deferrals,
Regular Contributions or Additional Contributions by giving notice on a form
provided by the Employer at least ten days before the start of the first payroll
period affected by the suspension. On any pay day on which a deduction would
normally be made from a Participant's Eligible Earnings, the deduction will be
automatically suspended without notice if his net Eligible Earnings due on such
pay day is insufficient to permit the deduction to be made in full.
A Participant whose Deferrals, Regular Contributions or Additional
Contributions have been suspended may resume contributions by executing a new
authorization with his Employer. The authorization shall be effective as soon as
it is administratively feasible.
4.7 Rounding of Amounts: Amounts of payroll deductions may be rounded
or determined on a bracket basis in a manner determined by the Plan Manager for
the purpose of facilitating administration of the Plan.
4.8 Rollover Contributions:
(a) An Employee, without regard to whether the Employee is an
Eligible Employee or whether the Employee has elected to
participate in the Plan, may, with the approval of the
Committee, make a Rollover Contribution. Such Employee's
Rollover Contribution shall be paid to the Trustee as soon
as practicable and shall be credited to his Account, in
accordance with his designation (including Investment Fund
designation), as of the date the Rollover Contribution is
made. The Plan Manager is authorized to establish procedures
to determine whether and the extent to which a Rollover
Contribution may be made to the Plan.
(b) The term "Rollover Contribution" means any distribution as
provided in Code Section 402(c)(4), or any other provision
of the Code which may permit rollovers to the Plan from time
to time, from an eligible retirement plan as that term is
defined in Code Section 402(c)(8).
(c) Once accepted by the Trust, an amount rolled over pursuant
to this Section 4.8 shall be credited to the Employee's
"Rollover Contribution Account" under his Accounts, and
thereafter, such Rollover Contributions shall be
administered and invested in accordance with Article VI and
subject to the distribution provisions set forth in Articles
VIII. The limitations of Article XII shall not apply to
Rollover Contributions. All Rollover Contributions shall be
made in cash and shall be fully vested. No Employer
Contributions shall be made with respect to Rollover
Contributions.
ARTICLE V. EMPLOYER CONTRIBUTIONS
5.1 Employer Contributions: Subject to the applicable limitations of
Article XII, each Employer shall contribute, out of current or accumulated
earnings as determined under generally accepted accounting principles and
practices or from other sources of funds without regard to current or
accumulated profits, on behalf of each of the Participants in its employ an
amount equal to one hundred percent of all Deferrals and Regular Contributions
under the provisions of Sections 4.1 and 4.2, to the extent such contributions,
when combined, do not exceed six percent (6%) of Eligible Earnings. Employer
Contributions will be made as soon as practicable after the end of each month.
No Employer Contributions will be made with respect to Additional Contributions
pursuant to Section 4.3 or Rollover Contributions pursuant to Section 4.8.
5.2 Corrective Contributions/Reallocations: If, with respect to a
Plan Year, an administrative error results in a Participant's Accounts not being
properly credited with the amounts of Deferrals, Regular Contributions,
Additional Contributions, Rollover Contributions, or Employer Contributions, or
earnings on any such amounts, corrective Employer contributions or account
reallocations may be made in accordance with this Section. Solely for the
purpose of placing any affected Participant's Account in the position that it
would have been in if no error had been made, the Company may make additional
contributions to such Participant's Accounts, or the Committee may reallocate
existing Contributions among the Accounts of affected Participants.
ARTICLE VI. PLAN INVESTMENTS
6.1 Investment Funds: In the sole discretion of the Plan Administrator,
one or more funds (to be designated as "Investment Funds") shall be established
in the Trust which may include, but shall not be limited to, the Investment
Funds listed in Appendix II.
6.2 Employee Deferrals, Regular Contributions, Additional
Contributions, and Rollover Contributions: Effective November 1, 1988 and for
periods prior to January 1, 1999, all Deferrals, Regular Contributions,
Additional Contributions, and Rollover Contributions made during any Plan Year
shall be invested entirely in Common Stock. Effective January 1, 1999, each
Participant, as part of his election to make Deferrals, Regular Contributions,
Additional Contributions, and Rollover Contributions, shall designate the
Investment Fund in which such contributions, if any, shall be invested.
Effective January 1, 1999 and for periods prior to October 1, 2000, the
designation shall indicate that such contributions shall be invested either 100%
in the Common Stock Fund or 100% in the Money Market Fund. Effective October 1,
2000, the designation shall indicate, in whole percentage increments, the
Investment Funds that such contributions, if any, shall be invested. If a
Participant fails to designate the investment of such contributions, he shall be
deemed to have elected to have such contributions invested in the IRT Stable
Value Fund.
6.3 Change in Investment Designation of Future Employee Deferrals,
Regular Contributions, Additional Contributions, and Rollover Contributions: A
Participant may change the Investment Fund into which any future Employee
Deferrals, Regular Contributions, Additional Contributions, and Rollover
Contributions are invested, by notifying the Trustee at any time and in the
manner prescribed by the Plan Manager (including, if such procedures are
authorized, telephonic or electronic notice). Effective for periods prior to
October 1, 2000, any change in the designated Investment Fund shall be such that
all such future contributions shall be invested either 100% in the Common Stock
Fund or 100% in the Money Market Fund. Effective October 1, 2000, any change in
the designation shall indicate, in whole percentage increments, the Investment
Funds that all such future contributions, if any, shall be invested. Any such
change in the designation of Investment Funds shall be effective as soon as
practicable after such notice is received by the Trustee.
6.4 Transfers of Existing Employee Deferrals, Regular Contributions,
Additional Contributions, and Rollover Contributions Among Investment Funds: A
Participant may change the Investment Fund in which the existing balances of his
Employee Deferrals, Regular Contributions, Additional Contributions, and
Rollover Contributions are invested by notifying the Trustee at any time in the
manner prescribed by the Plan Manager (including, if such procedures are
authorized, telephonic or electronic notice). The Participant may transfer all
or part of his existing balances in such percentages or dollar amounts as
permitted by the Plan Manager and as applied to all similarly situated
Participants. Any such transfer of amounts from one Investment Fund to another
Investment Fund shall be effective as soon as practicable after the Participant
notifies the Trustee.
6.5 Employer Contributions: Employer Contributions under Article V
shall be invested solely in the Common Stock Fund.
6.6 Investments in Common Stock Fund:
(a) All Deferrals, Regular Contributions, Additional
Contributions, and Rollover Contributions which are to be
invested in the Common Stock Fund and Employer Contributions
shall be transferred to the Trustee for investment in the
Common Stock Fund. The Trustee shall invest such Deferrals,
Regular Contributions, Additional Contributions, Rollover
Contributions, and Employer Contributions in Company Stock
as directed by the Plan Manager as a named fiduciary of the
Plan.
(b) All amounts which are to be invested in the Common Stock
Fund shall be pooled and so invested each month and shall be
proportionately allocated to the Account of each Participant
on whose behalf such purchase is made.
(c) When the Plan Manager shall direct the Trustee to purchase
shares of Common Stock, the Trustee shall purchase shares of
Common Stock in the open market or in privately negotiated
transactions (as directed by the Plan Manager), or
alternatively from SCANA Corporation holdings of authorized
but unissued stock or of treasury stock as this latter
alternative may be directed by SCANA Corporation in its sole
discretion.
(d) Common Stock purchased by the Trustee shall be carried in
the Participant's Accounts at the cost thereof to the
Trustee, after deducting taxes and brokerage commissions, if
any.
(e) Effective August 3, 1992, the Trustee shall, if necessary,
directly or via an agent, sell Participant shares in the
open market on the NYSE in accordance with Article IX of the
Plan to provide funds to borrowing Participants as loan
disbursements.
6.7 Dividends on Common Stock: The following provisions shall apply
with respect to any cash dividends on shares of Common Stock held in the ESOP
portion of the Plan (the Common Stock Fund) that are declared and paid on or
after December 1, 1999:
(a) Unless an Eligible Participant (as defined in subsection (b)
below) makes a dividend retention election pursuant to subsection
(b), all cash dividends paid on the shares of Common Stock held
in a Participant's or Inactive Participant's Accounts shall be
distributed directly to such individual as soon as
administratively practicable following the date the dividends are
paid to the Plan, but in no event later than 90 days after the
end of the Plan Year in which the dividends are paid to the Plan.
(b) Notwithstanding the provisions of subsection (a), each
Participant and each Inactive Participant who is performing
services for an Affiliate (each such Participant and Inactive
Participant shall be referred to herein as an "Eligible
Participant") shall be entitled to make an annual dividend
retention election under which any cash dividends paid on the
shares of Common Stock held in the Eligible Participant's
Accounts shall be retained for investment in Common Stock. Each
such Eligible Participant's dividend retention election shall be
made in the manner prescribed by the Plan Manager, including in
the case of an Eligible Participant who is an active Participant,
as part of his election to make Deferrals, Regular Contributions,
Additional Contributions and Rollover Contributions pursuant to
Section 3.2. An Eligible Participant's dividend retention
election shall remain in effect until changed by the Eligible
Participant. An Eligible Participant may change his dividend
retention election as of the first day of the Plan Year which
begins following the date the Plan Administrator receives a
notice of change. Notice of any such change shall be given on a
form provided by the Employer, signed by the Eligible
Participant, and delivered to the Employer at least thirty (30)
days before the first Plan Year affected by the change.
(c) In addition to the election described in (b) above,
effective January 1, 2002 and as soon as administratively
practicable thereafter, each Eligible Participant (as
defined in (b) above) shall be entitled to make an
additional dividend retention election under which the
Eligible Participant may elect to have any cash dividends
previously paid to the Plan during calendar year 2001 and
retained for investment in Common Stock either distributed
to such Eligible Participant no later than March 31, 2002,
or retained for investment in Common Stock.
6.8 Uninvested Cash: Subject to the payment of cash dividends under
Section 6.7 above, any uninvested cash in the Account of a Participant or
inactive Participant at the end of a Plan Year may be carried over to the next
Plan Year, and then invested in accordance with the investment designation
otherwise applicable under this Article VI.
6.9 Diversification of Amounts in the Common Stock Fund:
(a) Notwithstanding any other provision of this Plan, and
consistent with the requirements of Code Section
4975(e)(7) and the regulations thereunder, each
"Qualified Participant" (as hereinafter defined) may
direct, within the 90-day period following the close of
each Plan Year during the Participant's "Qualified
Election Period" (as hereinafter defined), the
distribution or reinvestment of up to: (i) 25% of the
sum of the value of the Participant's Accounts held in
the Common Stock Fund (determined as of the last
preceding Valuation Date) plus the amounts previously
distributed or transferred from the employee stock
ownership portion of the Plan pursuant to this
subsection (a), less (ii) the amounts previously
diversified (whether by transfer, distribution or
otherwise) to meet the requirements of this subsection
(a), within the time determined under subsection (b)
below. For purposes of this subsection (a), if the
Qualified Participant elects to receive a distribution
of the amount described in the preceding sentence, the
Qualified Participant may elect to receive such amount
in a single sum in cash or in shares of Common Stock.
With respect to the 25% limitation described in the preceding
paragraph, a Qualified Participant may, within 90 days after
the close of the last Plan Year in the Participant's
Qualified Election Period, direct the application of a
percentage of up to 50% rather than 25%.
(b) Within 180 days after the close of each Plan Year during the
Qualified Election Period, the portion of a Qualified
Participant's Accounts held in the Common Stock Fund to be
diversified under subsection (a) shall be distributed or
reinvested, as directed by such Participant, and if
distributed, shall be subject to the cash or shares election
described in subsection (a). Any such distribution or
reinvestment shall be derived from the Participant's Accounts
to the extent invested in the Common Stock Fund in the order
set forth in the list below. Such amounts shall be not
derived from any Account until the portion of all Accounts
previously listed that are invested in the Common Stock Fund
have been exhausted.
(1) An amount equal to all or part of the Participant's
before-1987 Regular Contributions made to his
Account under Sections 4.2 and 4.3, to the extent
required to exhaust such amounts.
(2) An amount equal to all or part of the remaining
amounts allocated to the Participant's Regular
Contribution Account under Section 4.2 and 4.3.
(3) An amount equal to all or part of the amounts
allocated to the Participant's Rollover Contribution
Account under Section 4.8.
(4) An amount equal to all or part of the amounts
allocated to the Participant's Employer
Contributions Account under Article V.
(5) If the Participant has reached age 59 1/2, an amount
equal to all or part of the amounts allocated to the
Participant's Deferral Account under Sections 4.1
and 4.3.
(c) For purposes of this Section 6.9, the terms "Qualified
Participant" and "Qualified Election Period" shall have the
following meanings: "Qualified Participant" means any
Participant who attained age 55 and completed at least ten
"years of participation." "Years of participation" shall
include only years of participation on and after December 1,
1999 (the original effective date of the employee stock
ownership plan portion of the Plan). "Qualified Election
Period" means the six Plan Year period beginning with the
first Plan Year in which the individual first became a
Qualified Participant.
ARTICLE VII. INVESTMENT ACCOUNTS
7.1 Separate Accounts: Separate Accounts for each Participant for
each Plan Year shall be set up to reflect the form and source of contribution
(Deferrals, Regular Contributions, Additional Contributions, Rollover
Contributions, and Employer Contributions). The Committee shall establish a
separate Account for each Participant to which shall be credited the
Participant's allocable share of:
(a) Deferrals under Sections 4.1 and 4.3 (including any Qualified
Nonelective Contributions treated as Salary Deferral Contributions
under Section 12.10(d)) made on his or her behalf and the earnings and
losses thereon, which separate Account shall take into account gains,
losses, withdrawals, and other credits or charges attributable to such
amounts in accordance with the requirements of Treas. Reg. ss.
1.401(k)-1(e)(3) and any further guidance issued thereunder;
(b) Regular Contributions under Sections 4.2 and 4.3 made by a Participant
and the earnings and losses thereon; and
(c) Rollover Contributions under Section 4.8 made by an Employee and the
earnings and losses thereon; and
(d) Employer Contributions under Article V (including any Qualified
Nonelective Contributions treated as Employer Contributions under
Section 12.11(c)) made on his behalf and the earnings and losses
thereon.
Amounts allocated to a Participant's Accounts for a Plan Year may be
consolidated with amounts allocated for earlier Plan Years two years after the
Plan Year has ended.
7.2 Account Information:
(a) Accounting: Shares of Common Stock shall be accounted for on
the basis of both numbers of shares and cost of the shares
to the Trustee. Notwithstanding anything to the contrary in
the Plan, the fair market value of the Trust Fund shall be
determined each Plan Year, as of the last day of the Plan
Year.
(b) Valuation:
(1) Common Stock Fund: In accordance with the provisions
of Article VI, shares of Common Stock are allocated
to each Participant's Accounts. The earnings and/or
losses and increases/decreases in the fair market
value of each Participant's Account balance invested
in the Common Stock Fund shall be determined as of
each Valuation Date based on the number of shares in
the Participant's Accounts multiplied by the price
of those shares on the Valuation Date.
(2) To the extent that Participants' Accounts are
invested in mutual funds or other assets for which
daily pricing is available ("Daily Pricing Media"),
all amounts contributed to the Trust Fund will be
invested at the time of the actual receipt by the
Daily Pricing Media, and the balance of each Account
shall reflect the results of such daily pricing from
the time of actual receipt until the time of
distribution.
(3) To the extent any Participant's Accounts are not
invested in the Common Stock Fund or Daily Pricing
Media, earnings and/or losses and
increases/decreases in the fair market value of each
Participant's Account balance are allocated to
Participants' Accounts in proportion to their
Account balances. Each Participant's share of such
earnings and/or losses will be that portion of the
total net investment income or losses and realized
and unrealized capital gains or losses of such
Investment Fund which bears the same ratio to such
total as the balance of his Account attributable to
such Investment Fund as of the preceding Valuation
Date.
(4) The fair market value for the Trust Fund as a whole as of any
Valuation Date shall be determined as the sum of the individual
Participants' Accounts.
7.3 Applicable Valuation Date: Whenever a distribution or withdrawal
by a Participant is made, the amount paid to the Participant shall be based on
the value of his or her Accounts as of the Valuation Date determined in
accordance with Article VIII. Whenever a loan to a Participant is made, the
amount of such loan shall be based on the value of his or her Accounts as of the
Valuation Date determined in accordance with Article IX.
7.4 Fiduciary Responsibility: The portion of the Plan that is not an
ESOP is intended to constitute a plan described in ERISA Section 404(c). To the
extent that a Participant exercises control over the assets in his Participant
Account, as determined under regulations prescribed by the Secretary of Labor,
neither the Company, any Employer, the Committee, the Plan Manager, the Trustee
nor any other fiduciary or designee shall be liable for any loss, or by reason
of any breach, which results from such Participant's exercise of control and
investment direction. Neither the Company, any Employer, the Committee, the Plan
Manager, the Trustee nor any other fiduciary or designee who complies with the
standards set forth in Article XVII hereof shall be liable for any loss which
results from investment performance under any of the Investment Funds including,
but not limited to, depreciation in the value of stock or other property held
under any of the Investment Funds. The Trustee and the Committee or their
designees shall provide information to Participants consistent with ERISA
Section 404(c) and the regulations and other guidance issued thereunder.
ARTICLE VIII. WITHDRAWALS/DISTRIBUTIONS
8.1 Withdrawals Before Termination of Employment:
A Participant may elect at any time during the Plan Year to make
withdrawals from his Accounts in the order set forth in the lists
below. Withdrawals shall be made pro rata over all Investment Funds
except where the Participant requests to receive Common Stock.
(a) Any withdrawals made from Accounts invested in Investment
Funds other than the Common Stock Fund shall be made in the
order set forth in the list below. Withdrawals may not be
made from any Account until all Accounts previously listed
have been exhausted.
(1) An amount equal to all or part of the Participant's
before-1987 Regular Contributions made to his
Account under Sections 4.2 and 4.3, to the extent
required to exhaust such amounts; provided, however,
that if the value of all amounts attributable to
Regular Contributions plus earnings thereon is less
than the net amount of before-1987 Regular
Contributions, no more than such value may be
withdrawn.
(2) An amount equal to all or part of the remaining
amounts allocated to the Participant's Regular
Contribution Account under Sections 4.2 and 4.3.
(3) An amount equal to all or part of the amounts
allocated to the Participant's Rollover Contribution
Account under Section 4.8.
(4) If the Participant has reached age 59 1/2, an amount
equal to all or part of the amounts allocated to the
Participant's Deferral Account pursuant to Sections
4.1 and 4.3. The Participant, in application for
such withdrawal, shall include evidence of the
Participant's age and a statement of other facts
required by the Plan Manager.
(b) Any withdrawals made from Accounts invested in the Common
Stock Fund shall be made in the order set forth in the list
below. Except as provided in Sections 8.1(e) and (f), such
withdrawals may not be made from any Account until all
Accounts previously listed have been exhausted.
(1) An amount equal to all or part of the Participant's
before-1987 Regular Contributions made to his
Account under Sections 4.2 and 4.3 to the extent
required to exhaust such amounts; provided, however,
that if the value of all amounts attributable to
Regular Contributions plus earnings thereon is less
than the net amount of before-1987 Regular
Contributions, no more than such value may be
withdrawn.
(2) An amount equal to all or part of the remaining
amounts allocated to the Participant's Regular
Contribution Accounts under Sections 4.2 and 4.3.
(3) An amount equal to all or part of the amounts
allocated to the Participant's Rollover Contribution
Account under Section 4.8.
(4) If the Participant is credited with at least 60
months of participation in the Plan, an amount equal
to all or part of the amounts allocated to his
Employer Contributions Account.
(5) If the Participant is credited with less than 60
months of participation in the Plan, an amount equal
to all or part of the amounts allocated to his
Employer Contributions Account which have been so
allocated for at least two years following the close
of the Plan Year of contribution.
(c) A Participant may at any time after reaching age 59 1/2 and after
having exhausted the amounts described in Section 8.1(b)(1)
through (4) elect to make withdrawals from his Deferral Account.
The Participant, in application for such withdrawal, shall
include evidence of the Participant's age and a statement of any
other facts required by the Plan Manager.
(d) Tax Accounting: Notwithstanding any provision of the Plan to the
contrary, for purposes of calculating a Participant's tax
liability for a withdrawal, the withdrawal shall be deemed to be
made in the following order:
(1) An amount equal to all or part of any before-1987 Regular
Contributions allocated to the Participant's Account.
(2) An amount equal to all or part of any post-1986 Regular
Contributions and all earnings on Regular Contributions
allocated to the Participant's Account.
(3) An amount equal to all or part of any Rollover
Contributions, Employer Contributions, Deferral amounts and
all earnings on such amounts allocated to the Participant's
Account.
(e) Hardship Withdrawals: A Participant may request a withdrawal from his
Deferral Account in the order set forth in Section 8.1(g) if he suffers a
hardship. Effective January 1, 1989, a hardship will be determined by the
Plan Manager to exist if the withdrawal is necessary in light of an
immediate and heavy financial need of the Participant, and if funds to
alleviate such financial need are not reasonably available from other
resources, including those assets of the Participant's spouse and minor
children (not to include any property held under the Uniform Gifts to
Minors Act) that are reasonably available to the Participant. A withdrawal
is deemed to be on account of an immediate and heavy financial need of the
Participant and will be permitted under this Plan, only if the withdrawal
is for:
(1) Expenses for medical care described in Code Section 213(d)
previously incurred by the Participant, the Participant's spouse,
or any dependents of the Participant (as defined in Code Section
152) or necessary for these persons to obtain medical care
prescribed in Code Section 213(d);
(2) Costs directly related to the purchase of a principal residence
for the Participant (excluding mortgage payments);
(3) Payment of tuition, related educational fees, and room and board
expenses for the next 12 months of post-secondary education for
the Participant, or the Participant's spouse, children, or
dependents (as defined in Code Section 152);
(4) Payments necessary to prevent the eviction of the Participant
from the Participant's principal residence or foreclosure on the
mortgage on that residence; or
(5) Any other deemed need as may be authorized by the Commissioner of
the Internal Revenue Service through the publication of Revenue
Rulings, Notices, or other documents of general applicability.
A financial need may be immediate and heavy even if
it was reasonably foreseeable or voluntarily
incurred by the Participant. The determination of
whether any such immediate and heavy financial need
exists shall be based upon a nondiscriminatory,
objective review of all relevant facts and
circumstances by the Plan Manager.
(f) Hardship withdrawals shall be carried out under the following rules:
(1) The withdrawal date and eligible withdrawal amount
(excluding post 1988 earnings) shall be fixed by the
Plan Manager after application by the Participant
under procedures approved by the Committee.
(2) The application for withdrawal shall include a
statement of the facts causing financial hardship
and any other facts required by the Plan Manager.
The application will state that the Participant's
need can not be relieved through any other resources
such as reimbursement or compensation by insurance
or otherwise, reasonable liquidation of assets
available to the Participant as noted in Subsection
(e) above to the extent such liquidation would not
cause an immediate and heavy financial need,
stopping deferrals or after-tax employee
contributions, or other distributions or nontaxable
loans from plans maintained by the Employer or any
other employer, or by borrowing from commercial
sources on reasonable terms.
(3) The Plan Manager may delay, upon circumstances of
reasonable cause, payment of an approved withdrawal
to permit a special valuation, to permit liquidation
of necessary assets or for other pertinent reasons.
(4) Accounts shall be adjusted as of the last regular or
special Valuation Date on or before the withdrawal
unless the Plan Manager elects to have a special
Valuation Date, which will then control.
(5) The withdrawal may not be in excess of the amount of
the immediate and heavy financial need of the
Participant. The amount of an immediate and heavy
financial need may include any amounts necessary to
pay any federal, state, or local income taxes or
penalties reasonably anticipated to result from the
distribution.
(6) The Participant must obtain all withdrawals, other
than hardship withdrawals, and all nontaxable loans
currently available under all plans maintained by
the Employer, including nonqualified plans of the
Employer, before a hardship withdrawal will be
allowed. Notwithstanding the foregoing, if taking
such a nontaxable loan would not alleviate the
financial hardship for the Participant or if
repayment of such a loan would cause the Participant
to incur a financial hardship, taking of such a loan
shall not be required.
(7) After the Participant receives his hardship
withdrawal, the Plan Manager will suspend his
employee contributions to this Plan (to include all
Deferrals, Regular Contributions and Additional
Contributions) and shall cause his employee
contributions to be suspended as to any other plan
of deferred compensation, qualified or nonqualified
(but not including any health or welfare benefit
plan), maintained by the Employer for the suspension
period indicated below, and the Participant will
consent to this suspension on a form to be furnished
by the Plan Manager.
Effective for hardship withdrawals made before
January 1, 2001, the suspension period referred to
above shall be 12 months from the date of the
withdrawal. Effective for hardship withdrawals made
during calendar year 2001, the suspension period
referred to above shall be a period equal to the
greater of 6 months or the number of months from the
date of the withdrawal until January 1, 2002.
Effective for hardship withdrawals made after
December 31, 2001, the suspension period referred to
above shall be 6 months.
(8) The Participant's annual limitation on his
Deferrals, as imposed by Code Section 402(g) and
provided for in Section 12.9 of the Plan (Maximum
Amount of Deferrals), for the Plan Year following
the Plan Year in which he received his hardship
withdrawal will be reduced by the amount of the
Deferrals that he made during the Plan Year in which
he received his hardship withdrawal.
(g) Hardship Withdrawals shall be charged pursuant to the
Participant's election in the following order:
(1) Withdrawal of amounts in Deferral Accounts under
Sections 4.1 and 4.3 in Investment Funds other than the Common
Stock Fund.
(2) Withdrawal of amounts in Deferral Accounts under
Sections 4.1 and 4.3 in the Common Stock Fund.
8.2 Frequency of Withdrawal: A Participant who has made a withdrawal
under Sections 8.1(a), 8.1(b) or 8.1(c) may not made another withdrawal under
Sections 8.1(a), 8.1(b) or 8.1(c) until after the expiration of the 180 calendar
day period following the date of the previous withdrawal.
8.3 Form of Withdrawal: To the extent a Participant's Account is
invested in Common Stock, withdrawals may be in kind (Common Stock), except for
(a) uninvested cash and (b) cash for fractional shares in accordance with
Section 8.10, or may in the alternative at the election of the Participant be
wholly in cash with respect to SCANA Corporation Common Stock only, the cash
alternative to be based on the Valuation Price.
Effective August 3, 1992 regarding the cash-option alternative
described in the previous paragraph, the Trustee shall, if necessary, at the
direction of the Plan Manager as a named fiduciary of the Plan, directly or via
an agent, sell Participant shares of Common Stock in the open market on the
NYSE; the number of shares to be sold in the open market and the authorization
for such sale shall be specified on form(s) approved by the Plan Manager, who
shall directly or via duly designated Company employee(s) review the same, and
following approval, direct the Trustee to carry out the sale of shares
indicated. The Participant shall bear all risk of a declining market price to
the time of sale, and the sales commissions and any transactional taxes inherent
to the sale and payable at such time shall be charged to the Participant's
Account.
8.4 Notice of Withdrawal: Notice of withdrawal must be given by a
Participant at least sixty (60) days (or such lesser number of days as the
Committee may specify) prior to the date of withdrawal. Such notice must be
given to the Plan Manager on a form provided by the Plan Manager (or its
designee) for such purpose (including telephonic, electronic or other means)
specifying that the Participant elects a withdrawal option set forth in Section
8.1. Subject to Section 8.14 (Direct Rollover Distributions), payment pursuant
to such notice shall be made as soon as practicable upon receipt by the
Employer. Notwithstanding the foregoing, no withdrawal may be made under this
Article VIII by a Participant during the period in which the Committee is making
a determination of whether a domestic relations order affecting the
Participant's Account is a qualified domestic relations order, within the
meaning of Section 414(p) of the Code. Further, if the Committee is in receipt
of written notice that a qualified domestic relations order affecting a
Participant's Account is being sought, it may prohibit such Participant from
making a withdrawal under this Article VIII until a final determination with
respect to such order has been made (or a determination has been made that such
order will not be submitted within a reasonable period of time after the
Committee was notified of such an order). Finally, if the Committee is in
receipt of a qualified domestic relations order with respect to any
Participant's Account, it may prohibit such Participant from making a withdrawal
under this Article VIII until the alternate payee's rights under such order are
satisfied.
DISTRIBUTIONS
8.5 Distribution on Termination of Employment or Disability: In the
event of Termination of Employment of a Participant or the Participant's
Disability, he shall be eligible to receive, in a single sum, the balance in his
entire Account, in cash or in kind, subject to the remaining provisions of this
Article VIII. Effective January 1, 2002, a Participant's entire Account shall be
distributable on account of the Participant's severance from employment
(regardless of when the severance from employment occurred). However, such a
distribution shall be subject to the other provisions of the Plan regarding
distributions, other than provisions that require a separation from service
before such amounts may be distributed.
8.6 Distribution on Death: If a Participant's employment with an
Employer is terminated by reason of death, or the Participant's death occurs
after Termination of Employment and before a distribution of his Account has
been made, the entire balance credited to the Participant's Account shall be
distributed to the Participant's Beneficiary in a single sum, in cash or in
kind, as determined under Section 8.9. Such distribution shall be made as soon
as practicable after the Participant's death and in no event later than 60 days
after the close of the Plan Year in which that death occurs. In the case of
distributions to surviving Spouses, the direct rollover provisions of Section
8.14 shall apply.
8.7 Promptness of Distribution: If the market value of a
Participant's entire Account balance does not exceed $5,000 ($3,500 for periods
before January 1, 1998), determined as of the Valuation Date coincident with or
immediately following his Termination of Employment, a distribution of the
amounts allocated to his Account shall be made to him as soon as practicable
thereafter. If the market value of a Participant's entire Account balance
exceeds $5,000 ($3,500 for periods before January 1, 1998), determined as of the
Valuation Date coincident with or immediately following his Termination of
Employment, a distribution of the amounts allocated to his Account shall be made
to him as soon as practicable after he consents to the distribution of his
Account. If such a Participant terminates employment before age 65 and fails to
consent to a distribution as soon as practicable after his Termination of
Employment, such a distribution may be made upon the Participant's request in
which case, the distribution will be determined as of the Valuation Date
coincident with or immediately following such Participant consent. In all
events, however, distribution shall be made as soon as practicable after the
earlier of his attainment of age 65 or death and in no event later than 60 days
after the Plan Year in which the earlier of his attainment of age 65 or death
occurs. Effective with respect to distributions made after December 31, 2001 on
behalf of Participants who terminate employment after December 31, 2001, for
purposes of this Section 8.7, the value of a Participant's Account balance shall
be determined without regard to that portion of the Account balance that is
attributable to Rollover Contributions (and earnings allocable thereto).
Notwithstanding the foregoing, all distributions shall be made in accordance
with the remaining provisions of this Article VIII.
8.8 Amount of Distribution: A distribution from a Participant's Account
shall include all amounts vested under Article X.
8.9 Form of Distribution: Distributions may be in kind (SCANA
Corporation Common Stock), except for (a) amounts invested in Investment Funds
other than the Common Stock Fund, (b) uninvested cash, and (c) cash for
fractional shares in accordance with Section 8.10, or may in the alternative at
the election of the Participant (or of the surviving spouse or other beneficiary
in the event of death) be wholly in cash with respect to Common Stock. Effective
August 3, 1992, to effectuate the cash alternative, the Trustee shall, at the
direction of the Plan Manager as a named fiduciary of the Plan, directly or via
an agent, sell Participant shares in the open market on the NYSE; the
Participant shall bear all risk of a declining market price to the time of sale,
and the sales commissions and any transactional taxes inherent to the sale and
payable at such time shall be charged to the Participant's Account and paid from
the sales proceeds, the net amount being distributable. The number of shares to
be sold in the open market and the authorization for such sale shall be
specified on form(s) approved by the Plan Manager, who shall directly or via
duly designated Company employee(s) review the same, and following approval,
direct the Trustee to carry out the sale of shares indicated. However, in those
circumstances where, subsequent to termination processing due to receipt of
amounts attributable to final contributions and/or allocated earnings, there are
amounts that were not previously recognized, such amounts shall be paid in cash.
8.10 Fractional Shares: No fractional shares of Common Stock shall be
distributed. The amount of cash for fractional shares shall be based
on the Valuation Price of the stock as of the Date of Distribution.
Any fractional share associated with a Participant's requested
cash-option or share-option Withdrawal or Distribution will either be valued and
purchased by the Trustee on behalf of the Plan at the appropriate Valuation
Price, or, depending upon the circumstances, may be sold on the NYSE in
aggregation with the fractional shares of other similarly situated Participants
as part of some whole number of shares with the net proceeds allocated among the
respective Participants.
8.11 Limitations on Commencement of Benefits:
(a) Required Benefit Commencement -- In General. Unless the
Participant elects otherwise, the payment of the
Participant's benefits will not commence later than the 60th
day after the end of the Plan Year in which occurs the
latest of the date when: (1) the Participant reaches age 65;
(2) the tenth anniversary of the date the Participant
commenced participation in the Plan; or (3) the
Participant's employment termination date.
(b) Minimum Required Distributions After Age 70 1/2
(1) Notwithstanding any other provision of the Plan, at
the Participant's election, each Participant's
entire interest in the Plan will be distributed, or
minimum distribution of a Participant's interest in
the Plan will commence, no later than the April 1
following the calendar year in which the Participant
reaches age 70 1/2, whether or not the Participant
has then terminated employment. Prior to January 1,
1997, in the absence of any election by the
Participant, minimum annual distributions will
commence to be paid no later than the required
beginning date. In accordance with Code Section
401(a)(9) and the regulations thereunder, a minimum
distribution shall be in an annual minimum amount
calculated with respect to the period of the life
expectancy of the Participant.
(2) Effective January 1, 1997, if a participant shall
attain age 70 1/2 on or after January 1, 1997 or
attained age 70 1/2 on or after January 1, 1996 and
has not yet commenced receiving minimum required
distributions in accordance with Code Section
401(a)(9) prior to January 1, 1997, such participant
shall commence receiving minimum required
distributions in accordance with the requirements of
the Code and the regulations and other guidance
thereunder not later than the "required beginning
date," which shall be the April 1 following the
close of the later of (i) the calendar year in which
the participant attains age 70 1/2, or (ii) the
calendar year in which the participant terminates
employment.
(3) Life expectancy will not be recalculated annually
for purposes of determining required minimum
distribution amounts for any such minimum
distribution required to be made on and after the
required beginning date.
(4) Computation of a required minimum distribution
amount shall take into account the applicable
incidental benefit requirements of Code Section
401(a)(9) and the regulations thereunder.
(5) Any other applicable provisions concerning minimum
required distributions as are prescribed by Code
Section 401(a)(9) and the regulations issued
thereunder shall also be complied with and are
hereby incorporated by reference.
(6) In the event that a Participant dies after minimum
required distributions have begun to be made, the
balance credited to the Participant's Account will
be distributed in accordance with the procedure of
Section 8.6 of the Plan.
8.12 Employee Transfers from the Employer to an Affiliate: A transfer
by a Participant from the Employer to an Affiliate which has not adopted this
Plan shall not affect his Participation under this Article VIII of the Plan,
nor, for purposes of the Plan, shall it be deemed to be a Termination of
Employment.
8.13 Distributions with Respect to Qualified Domestic Relations
Orders: Distributions may be made in accordance with the terms of a Qualified
Domestic Relations Order ("QDRO," as defined by Code Section 414(p)), to an
Alternate Payee (as defined by Code Section 414(p)(8)) in the form of
distribution otherwise provided for under this Article VIII with respect to a
Participant. In all events, immediate distributions may be made pursuant to the
terms of a QDRO even before the Participant has attained "earliest retirement
age," as defined in Code Section 414(p). Further, if the Committee is in receipt
of written notice that a QDRO affecting a Participant's Account is being sought,
it may prohibit such Participant from commencing to receive a distribution until
a final determination with respect to such order has been made (or a
determination has been made that such order will not be submitted within a
reasonable period of time after the Committee was notified of such an order).
The amount payable to the Participant and to any other person other than the
alternate payee named in the order shall be adjusted accordingly.
8.14 Direct Rollover Distributions:
(a) At the request of a Participant, a surviving Spouse of a Participant,
or a Spouse or former Spouse of a Participant that is an alternate
payee under a Qualified Domestic Relations Order, under Section 8.14
(referred to as the "distributee") and upon receipt of the direction
of the Committee or its designee, the Trustee shall effectuate a
Direct Rollover Distribution of the amount requested by the
distributee, in accordance with Section 401(a)(31) of the Code, to an
Eligible Retirement Plan. Such amount may constitute all or any whole
percent of any distribution from the Plan otherwise to be made to the
distributee, provided that such distribution constitutes an Eligible
Rollover Distribution. All Direct Rollover Distributions shall be made
in accordance with the following Subsections 8.14(b) through 8.14(h).
(b) A distributee may not elect to have a Direct Rollover Distribution
made to more than one Eligible Retirement Plan.
(c) Direct Rollover Distributions shall be made, in accordance with such
forms and procedures as may be established by the Committee, in shares
of Common Stock otherwise distributable under the Plan to the
distributee, with cash for fractional shares of Common Stock, which
shares shall be registered in a manner necessary to effectuate a
Direct Rollover Distribution plus cash for any amounts invested in
Investment Funds other than the Common Stock Fund; provided, however,
that the distributee may request that such Direct Rollover
Distribution be made entirely in cash in the manner described above
and in accordance with the terms of the Plan governing cash
distributions in this Article VIII.
(d) No amounts of Regular Contributions under Sections 4.2 or 4.3 may be
distributed to an Eligible Retirement Plan through a Direct Rollover
Distribution.
(e) No Direct Rollover Distribution shall be made unless the distributee
furnishes the Committee with such information as the Committee shall
require and deems to be sufficient.
(f) A distributee may elect to divide an Eligible Rollover Distribution
into two components, with one portion paid as a Direct Rollover
Distribution and the remainder paid to the distributee, provided that
such division of payments shall be permitted only if the amount of the
Direct Rollover Distribution is at least equal to $500.
(g) No Direct Rollover Distributions shall be permitted unless the amount
of the distribution exceeds $200.
(h) Direct Rollover Distributions shall be treated as all other
distributions under the Plan and shall not be treated as a direct
trustee-to-trustee transfer of assets and liabilities.
8.15 Definitions: For purposes of Section 8.14, the following terms have
the following meanings:
(a) The term "Direct Rollover Distribution" means a payment by
the plan to the Eligible Retirement Plan specified by the
distributee.
(b) The term "Eligible Rollover Distribution" means any
distribution as provided in Code Section 402(c)(4), or any
other provision of the Code which may permit rollovers to
the Plan from time to time.
(c) The term "Eligible Retirement Plan" means an eligible
retirement plan as that term is defined Code Section
402(c)(8).
ARTICLE IX. LOANS TO PARTICIPANTS
9.1 Amount of Loan: Loans from the Plan may be made to all
Participants and Beneficiaries who are "parties in interest" within the meaning
of Section 3(14) of the Employee Retirement Income Security Act of 1974, as
amended. Such individuals are referred to herein as "Eligible Borrowers." An
Eligible Borrower may request a loan from his Deferral, Regular Additional, and
Rollover Contribution Accounts, including increments attributable to earnings
thereon. The Plan Manager shall, in the exercise of uniform and
nondiscriminatory procedures, grant such loan request where the requested loan
amount when added to the outstanding balance (if any) of all other loans to the
Eligible Borrower from this Plan, does not exceed the lesser of:
(a) $50,000 reduced by the excess (if any) of the highest
outstanding balance of loans from the Plan to the Eligible
Borrower during the 1-year period ending on the day before
the date on which the latest such loan is made, over the
outstanding balance of loans from the Plan to the Eligible
Borrower on the date on which the latest such loan is made,
or
(b) one-half of the present value of the Eligible Borrower's entire
interest in the Plan,except that an Eligible Borrower's application
for a loan to acquire his principal residence must evidence compliance
with Code purposes and provisions as indicated in Section 9.2(c).
9.2 Terms of Loan: In addition to such rules and regulations as the
Committee may adopt, all loans shall comply with the following terms and
conditions:
(a) An application for a loan by an Eligible Borrower shall be made
to the Plan Manager.
(b) The period of repayment for any loan, except as set forth in
Subsection (c) below, shall be arrived at by mutual
agreement between the Plan Manager and the borrower. The
terms of each loan shall require repayment on a
substantially level amortization basis (with payments not
less frequently than quarterly) over a period not to exceed
five (5) years except as may otherwise be applicable with
respect to an approved leave of absence without pay per
Subsection (d) below or as otherwise provided in Subsection
(c) below.
(c) Notwithstanding the above, the period of repayment for any
loan used to acquire the principal residence of an Eligible
Borrower shall be arrived at by mutual agreement between the
Plan Manager and the borrower. The applying Eligible
Borrower shall provide such documentation as shall be
required in the discretion of the Plan Manager to assure
compliance with Code purposes for principal residence
acquisition loans where the Eligible Borrower is seeking a
loan term greater than five (5) years. The Plan Manager
shall not approve such loan for a term greater than five (5)
years where Code compliance is not evidenced.
(d) Loan Payment Suspension During Approved Leave of Absence without
Pay.
(1) The level amortization requirement does not apply to
a period of up to one year during which the Eligible
Borrower is on a leave of absence without pay which
has been properly approved by the Employer of the
Eligible Borrower. However, interest shall continue
to accrue during such period of nonpayment. Except
as otherwise provided below, if the Eligible
Borrower does not pay all of the interest accrued
during the period of leave promptly upon returning
to work, the loan shall be reamortized as a new,
refinanced loan (which may constitute a second
refinancing of the original loan as an exception to
the one-refinancing rule of Subsection (j)(1)) to
establish a new level payment schedule over the
remaining period of the original loan term as
reduced by the period of leave using the loan
balance inclusive of the unpaid accrued interest
amounts; if the Eligible Borrower does promptly upon
returning to work pay all interest accrued during
the period of leave, a revision of payment amounts
and due dates to assure compliance with the
applicable loan term limitation may yet require
refinancing.
(2) The period of a leave of absence without pay shall
not extend the term of the loan, as based upon the
date of the original loan, beyond the term
limitations noted with respect to refinancing
Subsection (j)(3)(C). Thus, in the circumstance
where it is reasonably anticipated that the period
of a leave of absence without pay would terminate
at, after or within 6 months before the expiration
of the applicable loan term limitation, the Eligible
Borrower will be required to continue making
payments according to the initial level amortization
schedule during the period of leave.
(e) Each loan shall be made against collateral which must
include, but need not be limited to, that portion of the
borrower's Deferral, Regular, Additional and Rollover
Contribution Accounts to the maximum extent of 50 percent of
his entire interest in the Plan supported by the borrower's
collateral promissory note payable to the Plan.
(f) Each loan shall bear interest at a reasonable rate
established by the Plan Manager. In determining such
interest rate, the Plan Manager shall take into
consideration interest rates being charged by banks or other
financial institutions for comparable loans at the time the
loan is made.
(g) The minimum loan amount shall be determined by the Plan Manager
but shall not be less than $500.
(h) Repayment of loans shall be made by payroll deduction. An
Eligible Borrower waives any right to discontinue payroll
deductions for loan payment purposes until the promissory
note is paid in full. Notwithstanding the foregoing, an
Eligible Borrower may prepay the entire amount due under the
loan at any time without penalty; partial prepayments are
not allowed.
(i) Effective August 3, 1992, an Eligible Borrower may have two
(2) loans from this Plan outstanding at a time, one (1) of
which may be a loan for the acquisition of the Eligible
Borrower's principal residence which has a term greater than
five (5) years.
(j) Effective for loans made on or after August 3, 1992, and prior to
October 1, 2000:
(1) Each loan may be refinanced one (1) time after thirteen (13)
scheduled payments have been made, except as otherwise provided
in Subsection (d)(1).
(2) Loans made prior to August 1, 1992 that have
previously been refinanced under Plan rules
applicable at the time will not be eligible for
refinancing on or after August 3, 1992.
(3) (A) Loan refinancing will not extend the
term of the original loan, calculated from
the original date of the loan, so as to
exceed the five (5) year term limitation
applicable to loans other than to a loan
used to acquire the principal residence of
the Eligible Borrower.
(B) The refinancing of a loan used to acquire
the principal residence of an Eligible
Borrower will not extend the term of the
original loan, calculated from the original
date of the loan.
(4) (A) (i) Refinancing shall not
require that the Eligible Borrower
borrow any additional amount,
except as is inherent in the
reamortization of a loan to
include unpaid interest following
an approved leave of absence
without pay per Subsection (d)(1)
above.
(ii) Effective December 1, 1995, refinancing shall not
be permitted for the purposes of borrowing an additional
amount.
(B) The refinancing of a loan used to acquire
the principal residence of an Eligible
Borrower shall not involve the borrowing of
any additional amount, except as is
inherent in the reamortization of a loan to
include unpaid interest following an
approved leave of absence without pay per
Subsection (d)(1) above.
Effective October 1, 2000, no additional refinancings of
outstanding loans shall be permitted.
(k) Loan proceeds shall be derived from the Participant's
Accounts and Investment Funds in the order set forth in the
list below. Such proceeds shall be not derived from any
Account until all Accounts previously listed have been
exhausted.
(1) An amount equal to all or part of the amounts
allocated to the Participant's Deferral Account
under Sections 4.1 and 4.3 and invested in
Investment Funds other than the Common Stock Fund.
(2) An amount equal to all or part of the amounts
allocated to the Participant's Deferral Account
under Sections 4.1 and 4.3 and invested in the
Common Stock Fund.
(3) An amount equal to all or part of the amounts
allocated to the Participant's Rollover Contribution
Account under Section 4.8 and invested in Investment
Funds other than the Common Stock Fund.
(4) An amount equal to all or part of the amounts
allocated to the Participant's Rollover Contribution
Account under Section 4.8 and invested in the Common
Stock Fund.
(5) An amount equal to all or part of the amounts
allocated to the Participant's Regular Contributions
Account under Sections 4.2 and 4.3 and invested in
Investment Funds other than the Common Stock Fund.
(6) An amount equal to all or part of the amounts
allocated to the Participant's Regular Contributions
Account under Sections 4.2 and 4.3 and invested in
the Common Stock Fund.
Effective for all repayments of new and existing Plan loans
on and after January 1, 1999, all repayments of Plan loans,
including interest, shall be invested in the Investment
Funds in accordance with the Participant's current
investment election.
(l) To the extent the requested loan is derived from amounts invested
in the Common Stock Fund, a whole-share amount from his Account
as equivalent to, without exceeding, the requested loan amount as
possible, shall be sold in the open market on the NYSE by or on
behalf of the Trustee, at the direction of the Plan Manager,
after which the proceeds shall be treated as the loan amount, and
shall be so indicated in the promissory note signed by the
Eligible Borrower. The Eligible Borrower shall bear all risk of a
declining market price to the time of sale, and the sales
commissions and any transactional taxes inherent to the sale and
payable at such time shall be charged to the Participant's
Account. The number of shares to be sold in the open market and
the authorization for such sale shall be specified on form(s)
approved by the Plan Manager, who shall directly or via duly
designated Company employee(s) review the same, and following
approval, as a named fiduciary of the Plan, direct the Trustee to
carry out the sale of shares indicated.
(m) Upon Termination of Employment or death, the outstanding balance
of the loan plus interest due must be repaid in full before any
distribution will be made to the Eligible Borrower or the
Eligible Borrower's Beneficiary. In the absence of such
repayment, the value of the Eligible Borrower's Account shall be
reduced by the amount outstanding on the loan and the net amount
shall be distributed to the Eligible Borrower or Beneficiary. The
Eligible Borrower's consent to the loan shall be treated as a
consent to a reduction in his Account balance in the event of a
failure to repay such loan. The amount of such Account adjustment
shall be treated as a distribution under the Plan. Under no
circumstances, however, shall any unpaid loan be charged against
an Eligible Borrower's Account so long as he remains employed by
the Employer unless a distribution of Deferrals could otherwise
be made under Section 401(k) of the Code and the regulations
issued thereunder.
(n) Any scheduled loan payment shall be regarded as delinquent upon
the 15th day following the due date. If substantially level
repayments of an Eligible Borrower's loan are not made at least
quarterly, such loan shall be treated as in default and the
entire amount outstanding on such loan shall become immediately
due and payable. In no event, however, shall a foreclosure on
such loan (by reduction of the Eligible Borrower's Account
balance) occur earlier than the time permitted for distributions
under Section 401(k) of the Code and the regulations issued
thereunder. The foregoing provisions shall not apply during the
period of suspension of loan payments during an Employer approved
leave of absence without pay which satisfies the provisions of
Subsection (d) above.
(o) Notwithstanding anything herein to the contrary, no loans may be
made under this Article IX by an Eligible Borrower during the
period in which the Committee is making a determination of
whether a domestic relations order affecting the Eligible
Borrower's Account is a qualified domestic relations order,
within the meaning of Section 414(p) of the Code. Further, if the
Committee is in receipt of written notice that a qualified
domestic relations order affecting an Eligible Borrower's Account
is being sought, it may prohibit such Eligible Borrower from
making a loan under this Article IX until a final determination
with respect to such order has been made (or a determination has
been made that such order will not be submitted within a
reasonable period of time after the Committee was notified of
such an order). If the Committee is in receipt of a qualified
domestic relations order with respect to any Eligible Borrower's
Account, it may prohibit such Eligible Borrower from making a
loan under this Article IX until the alternate payee's rights
under such order are satisfied. A domestic relations order shall
not be qualified if it attempts to assign to an alternate payee
an amount in excess of the non-loaned portion of any
Participant's Account. No alternate payee shall be eligible for a
loan under this Plan unless the alternate payee otherwise
qualifies as an Eligible Borrower as defined in Section 9.1.
(p) Loan repayments will be suspended under the Plan as permitted
under Section 414(u) of the Code.
9.3 Commencement of Loans: No loans shall be made under this Article prior
to January 1, 1987.
9.4 Employee Transfers from the Employer to an Affiliate: A transfer
by an Eligible Borrower from the Employer to an Affiliate which has not adopted
this Plan shall not affect his Participation under this Article IX of the Plan,
nor, for purposes of the Plan, shall it be deemed to be a Termination of
Employment.
9.5 Specific Information: The Committee must adopt, announce, and
publish as part of this Plan, additional rules on borrowing under the Plan that
are not inconsistent with the provisions of the Plan and this Section 9. These
rules on the administration of this Plan's loan program must include rules and
provisions on:
(a) the persons or positions authorized to assist in the
administration of the loan program;
(b) the procedure for applying for loans;
(c) the basis on which loans will be approved or denied;
(d) the limitations (if any) on the types and amounts of loans
offered;
(e) the procedure for determining a reasonable rate of interest;
(f) the types of collateral that may secure a loan; and
(g) the events that constitute a default and the steps that will be
taken to preserve Plan assets in the event of such default.
ARTICLE X. VESTING
10.1 Vesting: A Participant's Deferral, Regular, Additional and
Rollover Contribution Accounts (and earnings thereon) shall be fully vested and
nonforfeitable at all times. Employer contributions made under Article V with
respect to any Plan Year and earnings thereon shall be fully vested and
nonforfeitable at all times.
10.2 Employee Transfers from the Employer to an Affiliate: A transfer
by a Participant from the Employer to an Affiliate which has not adopted this
Plan shall not affect his participation under this Article X of the Plan, nor,
for purposes of the Plan, shall it be deemed to be a Termination of Employment.
ARTICLE XI. FORFEITURES
11.1 Termination of Employment: Unless vested under Article X,
Employer Contributions and earnings thereon shall be forfeited upon Termination
of Employment.
11.2 Repayments: A reemployed Participant who received a distribution
from the Plan as a result of a Termination of Employment and forfeited any
Employer Contributions on account of such prior distribution (based on the
vesting requirements in effect prior to July 1, 1989), may repay the full amount
of the distribution provided the Participant is reemployed before incurring five
consecutive Breaks in Service and repays the distribution within five years of
reemployment. All repayments and forfeitures shall be credited to the
Participant's Regular Contribution Account under Section 4.2 for the year of
repayment. All repayments shall be made in accordance with uniform rules adopted
by the Committee.
11.3 Lost Participants or Beneficiaries: If a Participant or
Beneficiary cannot be located by reasonable efforts of the Committee within a
reasonable period of time after the latest date such benefits are otherwise
payable under the Plan, the amounts in the Participant's Account shall be
forfeited; provided, however, that such forfeited amount shall be restored
(without earnings) if, at any time, the Participant or Beneficiary who was
entitled to receive such benefit when it first became payable shall, after
furnishing proof of their identity and right to make such claim to the
Committee, filed a request for such benefit with the Committee.
11.4 Application of Forfeitures: All amounts which are forfeited
under this Article shall be applied to reduce any subsequent contributions of
the Employer by which the Participant is employed at the time of the forfeiture.
If the Plan is terminated or if Employer Contributions are completely
discontinued, forfeitures shall be credited ratably to the Accounts of all
Participants at the time of termination or discontinuance of contributions. In
all cases, forfeitures shall be so applied no later than as of the end of the
Plan Year in which the forfeiture occurs.
ARTICLE XII. LIMITATIONS ON CONTRIBUTIONS AND BENEFITS
12.1 Definition of Annual Additions: For purposes of the Plan, Annual
Addition shall mean the amount allocated to a Participant's Account during the
Limitation Year that constitutes:
(a) Employer Contributions,
(b) Employee Contributions
(c) Forfeitures, and
(d) Amounts described in Sections 415(l)(1) and 419A(d)(2) of the Code.
12.2 Maximum Annual Addition:
(a) The maximum Annual Addition that may be contributed or allocated
to a Participant's Account under the Plan for any Limitation Year shall not
exceed the lesser of:
(1) the Defined Contribution Dollar Limitation, or
(2) 25 percent of the Participant's Compensation, as defined in Section
12.4.
(b) Anything to the contrary herein notwithstanding, this subsection
12.2(b) shall be effective for Limitation Years beginning after December 31,
2001 and modifies the rules in this Section 12.2 for such Limitation Years. The
Annual Additions that may be contributed or allocated to the Participant's
Account under the Plan for any Limitation Year shall not exceed the lesser of:
(1) $40,000, as adjusted for increases in the cost-of-living under
Section 415(d) of the Code; or
(2) 100 percent of the Participant's Compensation as defined in Section
12.4 for such Limitation Year.
12.3 Limitation on Annual Additions: If, notwithstanding the
foregoing provisions of Section 12.2, the limitations with respect to Annual
Additions prescribed hereunder are exceeded with respect to any Participant and
such excess arises as a consequence of the allocation of forfeitures, a
reasonable error in estimating the Participant's compensation, a reasonable
error in determining the amount of Deferrals that may be made with respect to
any individual under the limits of Code Section 415, or under other limited
facts and circumstances that the Internal Revenue Service approves, the excess
amounts attributable to Deferrals may be returned to the affected Participant to
the extent necessary to reduce the excess amounts in the Participant's Accounts.
Such returned amounts shall not be taken into account in applying the
limitations of Section 12.10.
(a) To the extent excess amounts remain in the Participant's
Accounts, so much of the Participant's Regular Contributions
under Sections 4.2 and 4.3 which cause the Participant's
Accounts to exceed the maximum Annual Additions shall be
returned to the Participant.
(b) To the extent excess amounts remain in the Participant's
Accounts, such excess shall be utilized to reduce future
Employer Contributions on behalf of the Participant for the
next succeeding Limitation Year and succeeding Limitation
Years as necessary. If the Participant is no longer employed
in such a succeeding Limitation Year, such excess amounts
will be held unallocated in a suspense Account which shall
be used to reduce future Employer Contributions on behalf of
the other Participants entitled to an allocation.
(c) Any amount returned to a Participant pursuant to Section
12.3(a) shall be withdrawn first from any amounts invested
in Investment Funds other than the Common Stock Fund and
then, if necessary, from the Common Stock Fund.
12.4 Definitions: For purposes of Section 12.2:
(a) Defined Contribution Dollar Limitation shall mean $30,000,
as adjusted for increases in the cost of living pursuant to
Section 415(d) of the Code.
(b) Compensation shall mean wages within the meaning of Section
3401(a) of the Code (without regard to any rules under
Section 3401(a) that limit the remuneration included in
wages based on the nature or location of the employment or
the services performed (such as the exception for
agricultural labor in Section 3401(a)(2)) and all other
payments of compensation to an Employee by the Company (in
the course of the Company's trade or business) for which the
Company is required to furnish the Employee a written
statement under Sections 6401(d), 6051(a)(3) and 6052 of the
Code (a Form W-2), and effective for Limitation Years
beginning on and after January 1, 1998, all amounts
currently not included in the Employee's gross income by
reason of Sections 125, 132(f)(4) and 402(e)(3) of the Code.
(c) Limitation Year shall mean the Plan Year.
12.5 Special Rules:
(a) The Compensation limitation referred to in Section
12.2(a)(2) or 12.2(b)(2) shall not apply to:
(1) Any contribution for medical benefits (within the
meaning of Section 419A(f)(2) of the Code) after
separation from service which is otherwise treated as
an Annual Addition, or
(2) Any amount otherwise treated as an Annual Addition
under Section 415(l)(1) of the Code.
(b) Recomputation Not Required. The Annual Addition for any
Limitation Year beginning before January 1, 1987 shall not
be recomputed to treat all Employee Contributions as an
Annual Addition.
(c) Adjustment of Defined Benefit Plan Fraction. If the Plan
satisfied the applicable requirements of Section 415 of the
Code as in effect for all Limitation Years beginning before
January 1, 1987, an amount shall be subtracted from the
numerator of the defined benefit plan fraction (not
exceeding such numerator) as prescribed by the Secretary of
the Treasury so that the sum of the defined benefit plan
fraction and defined contribution plan fraction computed
under Section 415(e)(1) of the Code (as revised by this
Section) does not exceed 1.0 for such Limitation Year.
12.6 Limitation of Benefits and Contributions:
(a) Effective for Limitation Years beginning prior to January 1,
2000, if an Employee is or was a Participant in one or more
defined benefit plans and one or more defined contribution plans
maintained by the Employer, the sum of the Defined Benefit Plan
Fraction and his Defined Contribution Plan Fraction (as defined
herein) shall not exceed 1.0 for any year. If the sum of the
Defined Benefit Plan Fraction and the Defined Contribution Plan
Fraction shall exceed 1.0 in any year for any Participant in this
Plan, the Employer shall adjust the numerator of the Defined
Benefit Plan Fraction so that the sum of the Defined Benefit Plan
Fraction and the Defined Contribution Plan Fraction shall not be
in excess of 1.0 in any year for such Participant in accordance
with the provisions set forth above, specifically incorporated by
reference thereto.
(b) For the purpose of this section, the term "Defined Benefit
Plan Fraction" for any year shall mean a fraction, the
numerator of which is the projected annual benefit payable
to a Participant as of the close of the then current year
under all plans maintained by the Employer and the
denominator of which is the lesser of:
(1) The product of 1.25 multiplied by the maximum dollar
limitation for the Plan Year concerned as provided
under Internal Revenue Code Section 415, or
(2) The product of 1.4 multiplied by the applicable
percentage of compensation limit as defined for this
purpose under Internal Revenue Code Section 415.
(c) The term "Defined Contribution Plan Fraction" for any year
shall mean a fraction the numerator of which is the
aggregate amount of annual additions made to a Participant's
Accounts under all plans maintained by the Employer as of
the close of the then current year and the denominator of
which is the sum of the lesser of the following amounts
determined for such year and for each prior Year of Service
with the Employer:
(1) The product of 1.25 multiplied by the maximum dollar
limitation for the Plan Year concerned as provided
under Internal Revenue Code Section 415, or
(2) The product of 1.4 multiplied by the applicable
percentage of Compensation limit as defined for this
purpose under Internal Revenue Code Section 415.
12.7 Transitional Rule: At the Committee's election, with respect to
any year ending after December 31, 1982, the amount taken into account in
determining the Defined Contribution Plan Fraction with respect to each
Participant for all years ending before January 1, 1983, shall be an amount
equal to the product of (a) and (b), where:
(a) Is the Defined Contribution Plan Fraction in effect for the Plan
Year ending in 1982, and
(b) Is the Transition Fraction.
"Transition Fraction" means a fraction the numerator of which is the
lesser of $51,874 or 1.4 multiplied by 25% of the Compensation of the
Participant for the year ending in 1981, and the denominator of which is the
lesser of $41,500 or 25% of the Compensation of the Participant for the year
ending in 1981.
If the plan is a Top-Heavy Plan, as defined by the Tax Equity and
Fiscal Responsibility Act of 1982, then $41,500 shall be substituted for $51,874
in the numerator of the Transition Fraction.
12.8 Effective Date: The provisions of the foregoing Sections 12.1 through
12.7 shall become effective for Plan Years beginning on and after
January 1, 1987.
12.9 Maximum Amount of Deferrals: Effective January 1, 1987:
(a) In no event shall the aggregate of Deferrals under Section 4.1
(including Additional Contributions made as Deferrals under
Section 4.3) and such other elective deferrals as defined in
Section 402(g)(3) of the Code made on a Participant's behalf
under the Plan and all other qualified cash or deferred
arrangements maintained by the Company or any Affiliate with
respect to any calendar year exceed the dollar limit in effect
with respect to such year in accordance with Section 402(g)(5) of
the Code and the regulations thereunder. Notwithstanding the
foregoing, the Committee shall be empowered to prescribe such
nondiscriminatory rules as it deems necessary or advisable to
facilitate the ease of administration of this limit, including
but not limited to, permitting more frequent changes in
contribution rates than are otherwise permitted under Section
4.5.
(b) Notwithstanding any other provision of the Plan, if the aggregate
of Deferrals (including Additional Contributions made as
Deferrals under Section 4.3) and such other elective deferrals as
defined in Section 402(g)(3) of the Code made on a Participant's
behalf under the Plan and all other qualified cash or deferred
arrangements maintained by the Company or any Affiliate with
respect to any calendar year exceed the dollar limit in effect
with respect to such year in accordance with Section 402(g)(5) of
the Code and the regulations thereunder, the Excess Deferral (as
hereinafter defined) and earnings thereon shall be distributed to
the Participant as soon as practicable after the Plan Manager
determines that the Excess Deferral was made, but no later than
the April 15 of the year following the calendar year in which the
Excess Deferral arose. Any amount returned to a Participant
pursuant to this Section 12.9(b) shall be withdrawn first from
any amounts invested in Investment Funds other than the Common
Stock Fund, and then, if necessary, from the Common Stock Fund.
(c) Notwithstanding any other provision of the Plan, if the aggregate
of Deferrals (including Additional Contributions made as
Deferrals under Section 4.3) and such other elective deferrals as
defined in Section 402(g)(3) of the Code made on a Participant's
behalf under any other qualified cash or deferred arrangement not
maintained by the Company or any Affiliate with respect to any
calendar year exceed the dollar limit in effect with respect to
such year in accordance with Section 402(g)(5) of the Code and
the regulations thereunder, the Excess Deferrals (as hereinafter
defined) and earnings allocable thereto may be distributed no
later than April 15 of the calendar year following the calendar
year of the deferral, to Participants who claim such allocable
Excess Deferrals for the preceding calendar year.
(d) For purposes of this Section 12.9, "Excess Deferrals" shall mean
the amount of "elective deferrals" (within the meaning of Section
402(g)(3) of the Code) for a calendar year that are in excess of
the applicable dollar limitation under Section 402(g) of the Code
and are allocable to this Plan.
(e) For purposes of Section 12.9(c), a Participant's claim shall be
in writing; shall be submitted to the Plan Manager no later than
March 1 of the calendar year following the calendar year in which
the Excess Deferrals were contributed; shall specify the
Participant's Excess Deferrals for the preceding calendar year;
and shall be accompanied by the Participant's written statement
that if such amounts are not distributed, such Excess Deferrals,
when added to amounts deferred under other plans or arrangements
described in Sections 401(k), 408(k), 403(b) or 501(c)(18) of the
Code for the calendar year, exceeds the limit imposed on the
Participant under Section 402(g) of the Code for such calendar
year. In the absence of such written notice, the amount of such
Excess Deferrals shall be subject to all limitations on
withdrawals and distributions applicable to Deferrals.
(f) The amount of Excess Deferrals that may be distributed under this
Section 12.9 with respect to any Participant for any calendar
year shall be reduced by the amount of any Excess Deferral
Contributions previously distributed or recharacterized pursuant
to Section 12.10, if any, for the Plan Year, in accordance with
regulations issued under Section 402(g) of the Code. The Excess
Deferrals distributed to a Participant with respect to a year
shall be adjusted for earnings and losses for the Plan Year in
accordance with the provisions of Article VII and shall in no
event exceed the Participant's Deferral Account under the Plan.
12.10 Non-Discrimination Limitation on Deferral Contributions: Effective
January 1, 1997:
(a) Notwithstanding any other provision of the Plan to the
contrary, the Plan Manager shall limit the amount of
Deferral Contributions made on behalf of each Highly
Compensated Employee for each Plan Year, in addition to all
such salary reduction contributions under all other
qualified cash or deferred arrangements (as defined in
Section 401(k) of the Code) maintained by the Company or an
Affiliate in which the Participant participates, to the
extent necessary to ensure that either of the following
tests is satisfied:
(1) the Actual Deferral Percentage (as hereinafter
defined) for the group of Highly Compensated
Employees who are eligible to participate in the
Plan is not more than the Actual Deferral Percentage
for the preceding Plan Year of all other Employees
who were eligible to participate in the Plan during
such preceding Plan Year multiplied by 1.25; or
(2) the excess of the Actual Deferral Percentage for the
group of Highly Compensated Employees who are
eligible to participate in the Plan over the Actual
Deferral Percentage for the preceding Plan Year of
all other Employees who are eligible to participate
in the Plan is not more than two percentage points,
and the Actual Deferral Percentage for the group of
Highly Compensated Employees who are eligible to
participate in the Plan is not more than the Actual
Deferral Percentage for the preceding Plan Year of
all other Employees who are eligible to participate
in the Plan multiplied by 2.0.
(3) Notwithstanding the foregoing, the Plan Manager may
elect to determine the permissible Actual Deferral
Percentage for Highly Compensated Employees who are
eligible to participate in the Plan for any Plan
Year beginning on or after January 1, 1997 on the
basis of the Actual Deferral Percentage for the
current Plan Year rather than the preceding Plan
Year, of all other Employees who are eligible to
participate in the Plan, in accordance with such
regulations, notices or other guidance issued under
Section 401(k) of the Code
(b) If it is determined prior to any payroll period that the amount
of Deferral Contributions elected to be made thereafter under
Section 4.1 or Section 4.3 would cause the limitation prescribed
in this Section 12.10 to be exceeded, the amount of Deferral
Contributions allowed to be made on behalf of Highly Compensated
Employees shall be reduced, notwithstanding the limitations on
contribution rate changes in Section 4.5. Except as is
hereinafter provided, the Participants to whom such reduction is
applicable and the amount of such reduction shall be determined
pursuant to such nondiscriminatory rules as the Plan Manager
shall prescribe.
(c) In addition to the reductions set forth in Subsection 12.10(b),
if the limitations under Subsection 12.10(a) are exceeded in any
Plan Year, the Committee may, in accordance with regulations
issued under Section 401(k)(3) of the Code, authorize or require
the recharacterization of Excess Deferral Contributions as
Regular Contributions, provided that the recharacterization
actually occurs within two and a half (2 1/2) months after the
close of the Plan Year and pursuant to Section 4.2 for the Plan
Year so that the limitations in that Plan Year are not exceeded.
Any Regular Contributions under the Plan that result from the
recharacterization of Excess Deferral Contributions in accordance
with this Subsection, shall be nonforfeitable when made and are
distributable only in accordance with the distribution and
withdrawal provisions that are applicable to Salary Deferral
Contributions under the Plan.
(d) To the extent such Deferral Contributions exceeding the
limitations under Subsection 12.10(a) are not recharacterized,
the Company may, in its discretion, authorize the Employer to
make Qualified Nonelective Contributions to the Accounts of
certain Participants who are not Highly Compensated Employees.
(e) To the extent the limitations under Subsection 12.10(a) continue
to be exceeded following such recharacterization or making of
Qualified Nonelective Contributions, if any, the Excess Deferral
Contributions made on behalf of Highly Compensated Employees with
respect to a Plan Year and income allocable thereto for the Plan
Year shall then be distributed to such Highly Compensated
Employees as soon as practicable after the end of such Plan Year,
but no later than twelve months after the close of such Plan
Year. The amount of income allocable to Excess Deferral
Contributions for the Plan Year shall be determined in accordance
with the regulations issued under Section 401(k) of the Code and
the provisions of Article VII. The amount of Excess Deferral
Contributions distributed to any Participant under this
subparagraph for any Plan Year shall be reduced by any Excess
Deferrals previously distributed to such Participant pursuant to
Section 12.9, if any, for such Plan Year. Any amount returned to
a Participant pursuant to this Section 12.10(e) shall be
withdrawn first from any amounts invested in Investment Funds
other than the Common Stock Fund, and then, if necessary, from
the Common Stock Fund.
(f) The Plan Manager is authorized to implement rules under which any
combination of the methods described in the foregoing Subsections
12.10(b), 12.10(c), 12.10(d) and 12.10(e) may be utilized to
assure that the limitations of Subsection 12.10(a) are satisfied.
12.11 Nondiscrimination Limitations on Regular Contributions and
Employer Contributions: Effective January 1, 1997:
(a) Notwithstanding any other provision of the Plan to the
contrary, for each Plan Year, the Plan Manager shall limit
the amount of Regular Contributions under Sections 4.2 and
4.3 (including any recharacterized Deferrals pursuant to
Section 12.10) and Employer Contributions under Section 5.1
made by or on behalf of each Highly Compensated Employee to
the extent necessary to ensure that either of the following
tests is satisfied:
(1) the Actual Contribution Percentage for the group of
Highly Compensated Employees who are eligible to
participate in the Plan is not more than the Actual
Contribution Percentage for the preceding Plan Year
of all other Employees who are eligible to
participate in the Plan multiplied by 1.25; or
(2) the excess of the Actual Contribution Percentage for
the group of Highly Compensated Employees who are
eligible to participate in the Plan over the Actual
Contribution Percentage for the preceding Plan Year
of all other Employees who are eligible to
participate in the Plan is not more than two
percentage points, and the Actual Contribution
Percentage for the group of Highly Compensated
Employees who are eligible to participate in the
Plan is not more than the Actual Contribution
Percentage for the preceding Plan Year of all other
Employees who are eligible to participate in the
Plan multiplied by 2.0.
(3) Notwithstanding the foregoing, the Plan Manager may
elect to determine the permissible Actual
Contribution Percentage for Highly Compensated
Employees who are eligible to participate in the
Plan for any Plan Year beginning on or after January
1, 1997 on the basis of the Actual Contribution
Percentage for the current Plan Year rather than the
preceding Plan Year, of all other Employees who are
eligible to participate in the Plan, in accordance
with such regulations, notices or other guidance
issued under Section 401(k) of the Code.
(b) If it is determined prior to any payroll period that the
Regular Contributions under Section 4.2 or Section 4.3 to be
contributed thereafter would cause the limitation prescribed
in this Section 12.11 to be exceeded, the amount of such
contributions allowed to be made by or on behalf of Highly
Compensated Employees shall be reduced, notwithstanding the
limitations on contribution rate changes in Section 4.5.
Except as is hereinafter provided, the Participants to whom
such reduction is applicable and the amount of such
reduction shall be determined pursuant to such
nondiscriminatory rules as the Plan Manager shall prescribe.
(c) Notwithstanding the foregoing paragraph, if with respect to
any Plan Year amounts contributed by or on behalf of Highly
Compensated Employees exceed the applicable limit set forth
in Subsection 12.11(a), the Company may, in its discretion,
authorize the making of additional contributions to the
Accounts of Participants who are not Highly Compensated
Employees, which additional contributions shall either be
Qualified Nonelective Contributions or additional Employer
Contributions under Section 5.1. In addition, in accordance
with regulations issued under Section 401(m) of the Code,
the Plan Manager may elect to treat amounts attributable to
Deferrals as such additional Employer Contributions solely
for the purposes of satisfying the limitations of Subsection
12.11(a).
(d) If the limitations under Subsection 12.11(a) continue to be
exceeded following such Qualified Nonelective Contributions
or additional Employer Contribution amounts, if any, the
Excess Aggregate Contributions made with respect to Highly
Compensated Employees with respect to such Plan Year, and
any income attributable thereto, shall be distributed to
Highly Compensated Employees in an amount equal to each such
Participant's Regular Contributions under Section 4.3
(including recharacterized Deferral Contributions).
(e) If the limitations under Subsection 12.11(a) continue to be
exceeded following the distributions described in Subsection
(d), the Regular Contributions under Section 4.2 and
associated Employer Contributions along with earnings
attributable to such amounts for the Plan Year shall be
distributed (to the extent already vested and, if not
vested, forfeited) to the extent of the remaining Excess
Aggregate Contributions, as determined pursuant to such
rules and regulations as shall be prescribed by the Internal
Revenue Service under Section 401(m) of the Code and the
provisions of Article VII, to the affected Highly
Compensated Employees. Any such forfeitures shall be
utilized no later than as of the last day of the Plan Year
in which such forfeiture occurs to reduce future Employer
Contributions and to defray administrative expenses of the
Plan.
(f) All Excess Aggregate Contributions and any income allocable
thereto shall be forfeited or distributed, as described
above, as soon as practicable after the close of the Plan
Year, but no later than twelve months after the close of the
Plan Year in which they occur. The amount of income
allocable to Excess Aggregate Contributions shall be
determined in accordance with the regulations issued under
Section 401(m) of the Code and the provisions of Article
VII. The Plan Manager is authorized to implement rules under
which any combination of the methods described in the
foregoing Subsections 12.11(b), 12.11(c), 12.11(d), and
12.11(e) may be utilized to assure that the limitations of
Subsection 12.11(a) are satisfied. Any amount returned to a
Participant pursuant to Section 12.11(d) or Section 12.11(e)
shall be withdrawn first from any amounts invested in
Investment Funds other than the Common Stock Fund, and then,
if necessary, from the Common Stock Fund.
(g) Notwithstanding anything to the contrary in Sections 12.10
or 12.11, effective January 1, 1989, Deferrals, Regular
Contributions, and Employer Contributions may not be made to
this Plan in violation of the rules prohibiting multiple use
of the alternative limitation described in Sections
401(k)(3)(A)(ii)(II) and 401(m)(2)(A)(ii) of the Code and
the provisions of Treasury Regulation section 1.401(m)-2(b)
and any further guidance issued thereunder. If such multiple
use occurs, the Actual Contribution Percentages for all
Highly Compensated Employees (determined after applying the
foregoing provisions of Sections 12.10 and 12.11) shall be
reduced in accordance with Treasury Regulation section
1.401(m)-2(c) and any further guidance issued thereunder in
order to prevent such multiple use of the alternative
limitation.
Anything herein to the contrary notwithstanding, the
aggregate limit on contributions (the "multiple use test")
described in Treasury Regulation section 1.401(m)-2 and this
Section 12.11(g) shall not apply for Plan Years beginning
after December 31, 2001.
(h) Notwithstanding anything in the Plan to the contrary, if the
rate of Employer Contributions, determined after application
of the corrective mechanisms described in Section 12.10 and
the foregoing provisions of Section 12.11, discriminates in
favor of Highly Compensated Employees, any such amounts
attributable to any Excess Deferral Contributions, Excess
Aggregate Contributions, or Excess Deferrals (as described
in Subsection 12.9(d)) of each affected Highly Compensated
Employee shall be forfeited so that the rate of contribution
is nondiscriminatory. Any such forfeitures shall be made no
later than the end of the Plan Year following the Plan Year
for which the contribution was made. Forfeitures, if any,
shall be used no later than as of the end of the Plan Year
in which they occur to reduce future Employer Contributions
or to defray administrative expenses of the Plan. Any amount
forfeited pursuant to this Section 12.11(h) shall be
forfeited first from any amounts invested in Investment
Funds other than the Common Stock Fund, and then, if
necessary, from the Common Stock Fund.
12.12 Definitions: For purposes of Sections 12.9, 12.10, and 12.11
(as well as such other provisions of the Plan specifically referring to a
definition in this Section 12.12), the following terms have the following
meanings:
(a) The term "Actual Deferral Percentage" means, for a specified
group of Employees who are eligible to participate in the
Plan for a Plan Year, the average of the ratios (calculated
separately for each person in such group) of:
(1) the aggregate of the Deferral contributions (including
any Additional Contributions treated as Deferrals) and
any Qualified Non-elective Contributions (as
hereinafter defined) which, in accordance with the
rules set forth in Treasury Regulation Section
1.401(k)-1(b)(4) and (5) are, at the election of the
Plan Manager, in fact taken into account with respect
to such Plan Year, to
(2) such Employee's Compensation taken into account for the
Plan Year.
In determining the Actual Deferral Percentages for a Plan
Year, any Participant who is suspended from participation
pursuant to Section 8.1 and, to the extent required by
Section 401(k) of the Code and the regulations and other
guidance issued thereunder, any Employee who waives
participation under Section 2.14 shall be treated as an
eligible Participant. In all events, Actual Deferral
Percentages shall be determined in accordance with all of
the applicable requirements (including, to the extent
applicable, the plan aggregation requirements) of Section
401(k) of the Code, and the regulations and other guidance
issued thereunder.
(b) The term "Actual Contribution Percentage" means, for a
specified group of Employees who are eligible to participate
in the Plan, the average of the ratios (calculated
separately for each person in such group) of:
(1) the aggregate of the Regular Contributions and
Employer Contributions (including Additional
Contributions treated as Regular Contributions,
in addition to such other contributions,
including Qualified Nonelective Contributions
or Deferrals and including all such
Contributions made under all other plans
subject to Section 401(m) of the Code
maintained by the Company or an Affiliate in
which the Participant participates, which, in
accordance with applicable rules and
regulations promulgated by the Internal Revenue
Service, the Plan Manager elects to aggregate
with such Regular Contributions for purposes of
demonstrating compliance with the requirements
of Section 401(m)(2) of the Code) which are
paid to the Trust Fund by or on behalf of each
such Employee for a Plan Year, to
(2) such Employee's Compensation taken into account for
such Plan Year. In determining the Actual Contribution
Percentage for a Plan Year, any Participant who is
suspended from participation pursuant to Section 8.1
and, to the extent required by Section 401(m) of the
Code and the regulations and other guidance issued
thereunder, any Employee who waives participation under
Section 2.15 shall be treated as an eligible
Participant. In all events, Actual Contribution
Percentages shall be determined in accordance with all
of the applicable requirements (including, to the
extent applicable, the plan aggregation requirements)
of Section 401(m) of the Code, and the regulations and
other guidance issued thereunder.
(c) The term "Compensation" means wages within the meaning
of Section 3401(a) of the Code (without regard to any
rules under Section 3401(a) that limit the remuneration
included in wages based on the nature or location of
the employment or the services performed (such as the
exception for agricultural labor in Section 3401(a)(2))
and all other payments of compensation to an Employee
by the Company (in the course of the Company's trade or
business) for which the Company is required to furnish
the Employee a written statement under Sections
6401(d), 6051(a)(3) and 6052 of the Code (a Form W-2),
modified to include all amounts currently not included
in the Employee's gross income by reason of Sections
125, 132(f)(4) and 402(e)(3) of the Code (for Plan
Years beginning on and after January 1, 1998); provided
that the total amount of Compensation taken into
account for any Plan Year shall not exceed the
applicable annual compensation limitation in effect
under Section 401(a)(17) of the Code, as adjusted by
the Internal Revenue Service for increases in the cost
of living in accordance with Section 401(a)(17) of the
Code and the regulations and other guidance issued
thereunder. If the Plan Year consists of fewer than
twelve months, the foregoing annual Compensation limit
will be multiplied by a fraction, the numerator of
which is the number of months in the Plan Year, and the
denominator of which is twelve. In the case of an
Employee who begins, resumes, or ceases to be eligible
to make contributions during a Plan Year, the amount of
Compensation included in the Actual Deferral Percentage
and Actual Contribution Percentage test is the amount
of Compensation received by the Employee during the
entire Plan Year.
(d) The term "Excess Aggregate Contributions" means, with
respect to each Highly Compensated Employee, the amount
equal to the total amount of Regular Contributions
under Section 4.2 (including Additional Contributions
treated as Regular Contributions) and Employer
Contributions under Section 5.1 (determined prior to
the application of the leveling procedure described
below) ("Aggregate Contributions") minus the product of
the Employee's Actual Contribution Percentage
(determined after the leveling procedure described
below) multiplied by the Employee's Compensation. In
accordance with the regulations issued under Section
401(m) of the Code, Excess Aggregate Contributions
shall be determined by a leveling procedure under which
the Actual Contribution Percentage of the Highly
Compensated Employee with the highest such percentage
shall be reduced to the extent required to enable the
limitation of Section 12.11(a) to be satisfied, or, if
it results in a lower reduction, to the extent required
to cause such Highly Compensated Employee's Actual
Contribution Percentage to equal that of the Highly
Compensated Employee with the next highest percentage.
This leveling procedure shall be repeated until the
limitations of Subsection 12.11(a) are satisfied. Once
the leveling procedure has been completed, the total
dollar amounts of Excess Aggregate Contributions shall
be determined. This amount shall be distributed in
accordance with a distribution procedure under which
the dollar amount of Aggregate Contributions of the
Highly Compensated Employee with the highest dollar
amount of Aggregate Contributions shall be reduced to
the extent required to distribute the total amount of
Excess Aggregate Contributions or, if it results in a
lower reduction, to the extent required to cause such
Highly Compensated Employee's dollar amount of
Aggregate Contributions to equal the dollar amount of
Aggregate Contributions of the Highly Compensated
Employee with the next highest dollar amount of
Aggregate Contributions. This distribution procedure
shall be repeated until all Excess Aggregate
Contributions have been distributed.
(e) "Excess Deferral Contributions" means, with respect to
each Highly Compensated Employee, the amount equal to
total Employee Deferrals on behalf of the Employee
(determined prior to the application of the leveling
procedure described below) minus the product of the
Employee's Actual Deferral Percentage (determined after
application of Section 12.10 and after the leveling
procedure described below) multiplied by the Employee's
Compensation. In accordance with the regulations issued
under Section 401(k) of the Code, Excess Deferral
Contributions shall be determined by a leveling
procedure under which the Actual Deferral Percentage of
the Highly Compensated Employee with the highest such
percentage shall be reduced to the extent required to
enable the limitation of Section 12.10(a) to be
satisfied, or, if it results in a lower reduction, to
the extent required to cause such Highly Compensated
Employee's Actual Deferral Percentage to equal the
Actual Deferral Percentage of the Highly Compensated
Employee with the next highest Actual Deferral
Percentage. This leveling procedure shall be repeated
until the limitations of Section 12.10(a) are
satisfied. Once the leveling procedure has been
completed, the total dollar amounts of Excess Deferral
Contributions shall be determined. This amount shall be
distributed in accordance with a distribution procedure
under which the dollar amount of Employee Deferrals of
the Highly Compensated Employee with the highest dollar
amount of Employee Deferrals shall be reduced to the
extent required to distribute the total amount of
Excess Deferral Contributions or, if it results in a
lower reduction, to the extent required to cause such
Highly Compensated Employee's dollar amount of Employee
Deferrals to equal the dollar amount of Employee
Deferrals of the Highly Compensated Employee with the
next highest dollar amount of Employee Deferrals. This
distribution procedure shall be repeated until all
Excess Deferral Contributions have been distributed.
(f) "Qualified Nonelective Contributions" means
contributions that are made pursuant to Sections
12.10(c) or 12.11(c), meet the requirements of Section
401(m)(4)(C) of the Code and the regulations issued
thereunder, and which are designated as a Qualified
Nonelective Contribution for purposes of satisfying the
limitations of Sections 12.10(a) or 12.11(a). Qualified
Nonelective Contributions shall be nonforfeitable when
made and are distributable only in accordance with the
distribution and withdrawal provisions that are
applicable to Tax Deferred Contributions under the
Plan; provided, however, that Qualified Nonelective
Contributions may not be withdrawn on account of
financial hardship. If any Qualified Nonelective
Contributions are made, the Company shall keep such
records as necessary to reflect the amount of such
contributions made for purposes of satisfying the
limitations of Section 12.10(a) or Section 12.11(a).
Qualified Nonelective Contributions may be taken into
account for purposes of the limitations in Sections
12.10(a) or 12.11(a) only if the nondiscrimination and
plan aggregation conditions described in Treasury
Regulation sections 1.401(m)-1(b)(5) and
1.401(k)-1(b)(5) and any other guidance issued
thereunder are satisfied.
ARTICLE XIII. TOP HEAVY PROVISIONS
13.1 General Rule: For any Plan Year for which the Plan is a
"Top-Heavy Plan" as defined in Section 13.7 below, any other provisions of the
Plan to the contrary notwithstanding, this Plan shall be subject to the
following provisions:
(a) The vesting provisions of Section 13.2.
(b) The minimum benefit provisions of Section 13.3.
(c) The limitation on benefits set by Section 13.4.
13.2 Vesting Provisions: Each Participant shall have a
nonforfeitable right to the Employer's Contributions and
earnings thereon as provided in Article X.
13.3 Minimum Benefit Provisions: Each Participant who is a Non-Key
Employee (as defined in Section 13.9 below) shall be entitled to an Employer
Contribution of the lesser of (i) three percent of such Participant's annual
Compensation as defined in Section 12.4(b) or (ii) the highest actual percentage
Employer Contributions made or required to be made on behalf of any Key
Employee. Notwithstanding the preceding sentence, a Participant shall not be
entitled to any minimum Employer Contribution under this Section 13.3 if the
Employer maintains a defined benefit plan providing benefits on behalf of
Participants in this Plan and the defined benefit plan provides a minimum top
heavy benefit.
13.4 Limitation on Benefits: In the event that the Employer also
maintains a defined benefit plan providing benefits on behalf of Participants in
this Plan, one of the two following provisions shall apply:
(a) If for the Plan Year this Plan would not be a "Top-Heavy
Plan" as defined in Section 13.7 below if "90 percent" were
substituted for "60 percent," then Section 13.3 shall apply
for such Plan Year as if amended so that the minimum
Employer Contribution is four percent of the Participant's
annual compensation.
(b) Effective for Limitation Years beginning prior to January 1,
2000, if for the Plan Year this Plan would continue to be a
"Top-Heavy Plan" as defined in Section 13.7 below if "90
percent" were substituted for "60 percent," then the
denominator of both the Defined Contribution Plan Fraction
and the Defined Benefit Plan Fraction shall be calculated as
set forth in Section 12.6 for the Limitation Year by
substituting "1.0" for "1.25" in each place such figure
appears, except with respect to any individual for whom
there are no Employer Contributions, forfeitures or
voluntary nondeductible contributions allocated or accruals
for such individual under the defined benefit plan.
13.5 Coordination with Other Plans: In the event that another defined
contribution or defined benefit plan maintained by the Employer provides
contributions or benefits on behalf of Participants in this Plan, such other
plan shall be treated as a part of this Plan pursuant to applicable principles
(such as Rev. Rul. 81-202 or any successor ruling) in determining whether this
Plan satisfies the Top-Heavy requirements.
13.6 Top-Heavy Plan Definition: This Plan shall be a "Top-Heavy Plan"
for any Plan Year if, as of the Determination Date (as defined in (a) below),
the aggregate of the Account balances for Participants (including former
Participants) who are Key Employees (as defined in Section 13.8 below) exceeds
60 percent of the aggregate of the Account balances for all Participants or if
this Plan is required to be in an Aggregation Group (as defined in (b) below)
which for such Plan Year is a Top-Heavy Group (as defined in (c) below).
(a) "Determination Date" means for any Plan Year the last day of the
immediately preceding Plan Year.
(b) "Aggregation Group" means the group of plans, if any, that includes
both the group of plans that are required to be aggregated and the
group of plans that are permitted to be aggregated.
(1) The group of plans that are required to be aggregated (the
"Required Aggregation Group") includes:
(i) Each plan of the Employer in which a Key Employee is a
participant, and
(ii) Each other plan of the Employer which enables a Plan in
which a Key Employee is a participant to meet the
requirements of either Code Sections 401(a)(4) or 410.
(2) The group of plans that are permitted to be aggregated (the
"Permissive Aggregation Group") includes any plan that is
not part of the Required Aggregation Group that the
Committee certifies as constituting a plan within the
Permissive Aggregation Group. Such plans may be added to the
Permissive Aggregation Group only if, after the addition,
the Aggregation Group as a whole continues to meet the
requirements of both Code Sections 401(a)(4) and 410.
(c) "Top-Heavy Group" means the Aggregation Group, if as of the
applicable Determination Date, the sum of the actuarial
present value of the cumulative accrued benefits for Key
Employees under all defined benefit plans included in the
Aggregation Group plus the aggregate of the Accounts of Key
Employees under all defined contribution plans included in
the Aggregation Group exceeds 60 percent of the sum of the
actuarial present value of the cumulative accrued benefits
for Key Employees under all such defined benefit plans plus
the aggregate Accounts for all employees under such defined
contribution plans.
(d) Effective for Plan Years beginning after December 31, 1986,
solely for the purpose of determining if the Plan, or any
other plan included in a required aggregation group of which
this Plan is a part, is top-heavy (within the meaning of
Section 416(g) of the Code) the accrued benefit of an
Employee other than a key employee (within the meaning of
Section 416(i)(l) of the Code) shall be determined under (a)
the method, if any, that uniformly applies for accrual
purposes under all plans maintained by the Affiliated
Employer, or (b) if there is no such method, as if such
benefit accrued not more rapidly than the slowest accrual
rate permitted under the fractional accrual rate of Section
411(b)(1)(C) of the Code.
(e) In determining whether this plan constitutes a "Top-Heavy
Plan," the Committee (or its agent) shall make the following
adjustments in connection therewith:
(1) In determining the actuarial present value of the
cumulative accrued benefit or the amount of the
Account of any Employee, such actuarial present
value or Account shall include the amount in dollar
value of the aggregate distributions made to such
Employee under the applicable plan during the
five-year period ending on the Determination Date.
Such amounts shall also include distributions to
Employees which represented the entire amount
credited to their Accounts under the applicable
plan.
(2) Further, in making such determination such actuarial
present value or such Account shall not include any
rollover contribution (or similar transfer)
initiated by the Employee and made after December
31, 1983, to an applicable plan with respect to
whether such plan is Top-Heavy or the Aggregation
Group of which it is a part is a Top-Heavy Group.
(3) Further, in making such determination, in any case
where an individual is a "Non-Key Employee," as
defined below, with respect to an applicable plan
but was a Key Employee with respect to such plan for
any prior Plan Year, any accrued benefit and any
Account of such Employee shall be altogether
disregarded. For this purpose, to the extent that a
Key Employee is deemed to be a Key Employee if he or
she met the definition of Key Employee within any of
the four preceding Plan Years, this provision shall
apply following the end of such period of time.
13.7 Key Employee: The term "Key Employee" means any Participant (and
any beneficiary of a Participant) under this Plan who, at any time during the
Plan Year of the Determination Date or during any of the four preceding Plan
Years, is or was one of the following:
(a) An officer of the Employer having an annual compensation
greater than 150% of the dollar limit on contributions under
Internal Revenue Code Section 415(c)(1)(A) in effect for any
such Plan Year. For any such Plan Year, there shall be
treated as officers no more than the lesser of:
(1) 50 Employees, or
(2) 10 percent of the Employees, or if greater than 10
percent, three Employees.
For this purpose, the highest paid officers shall be selected.
(b) One of the 10 Employees owning (or considered as owning, in
accordance with applicable principles, such as Internal
Revenue Code Section 318 or a successor provision) the
largest interests in the Employer.
(c) Any person who owns (or is considered as owning, in
accordance with applicable principles, such as Internal
Revenue Code Section 318 or a successor provision) more than
five percent of the outstanding stock of the Employer or
stock possessing more than five percent of the combined
total voting power of all stock of the Employer.
(d) Any person who owns (or is considered as owning, in
accordance with applicable principles, such as Internal
Revenue Code Section 318 or a successor provision) more than
one percent of the outstanding stock of the Employer or
stock possessing more than five percent of the combined
total voting power of all stock of the Employer and receives
annual compensation from the Employer of more than $150,000.
13.8 Non-Key Employee: The term "Non-Key Employee" means any
Employee (and any beneficiary of an Employee) who is not
a Key Employee.
13.9 Collective Bargaining Rules: The provisions of Sections 13.2,
13.3 and 13.4 above do not apply with respect to any Employee included in a unit
of employees covered by a collective bargaining agreement and who is covered by
such agreement unless the application of such Sections has been agreed upon with
the collective bargaining agent.
13.10 Distribution to Key Employees: Notwithstanding any other
provision of this Plan, the entire interest in this Plan of each Participant who
is or at any time has been a Key Employee shall be distributed (or distribution
of such interest shall have begun) to such Participant not later than April 1 of
the taxable year of the Participant in which the Participant attains age 70 1/2.
13.11 EGTRRA Modifications to Article 13: Notwithstanding any other
provision of this Article 13, this Section 13.11 shall apply for purposes of
determining whether the Plan is a top-heavy plan under Code Section 416(g) of
for Plan Years beginning after December 31, 2001, and whether the Plan satisfies
the minimum benefits requirements of Code Section 416(c) for such years. This
Section modifies the rules in this Article 13 for Plan Years beginning after
December 31, 2001.
(a) Determination of top-heavy status.
(1) Key Employee. Key Employee means any Employee or
former Employee (including any deceased Employee) who at any
time during the Plan Year that includes the Determination
Date was an officer of the Employer having annual
compensation greater than $130,000 (as adjusted under Code
Section 416(i)(1) for Plan Years beginning after December
31, 2002), a 5-percent owner of the Employer, or a 1-percent
owner of the Employer having annual compensation of more
than $150,000. For this purpose, annual compensation means
compensation within the meaning of Code Section 415(c)(3).
The determination of who is a Key Employee will be made in
accordance with Code Section 416(i)(1) and the applicable
regulations and other guidance of general applicability
issued thereunder.
(2) Determination of present values and amounts.
This paragraph (2) shall apply for purposes of determining
the present values of accrued benefits and the amounts of
account balances of Employees as of the Determination Date.
(A) Distributions during year ending on the
Determination Date. The present values of accrued
benefits and the amounts of account balances of an
Employee as of the Determination Date shall be
increased by the distributions made with respect to
the Employee under the Plan and any plan aggregated
with the Plan under Code Section 416(g)(2) during the
1-year period ending on the Determination Date. The
preceding sentence shall also apply to distributions
under a terminated plan which, had it not been
terminated, would have been aggregated with the Plan
under Code Section 416(g)(2)(A)(i). In the case of a
distribution made for a reason other than separation
from service, death, or disability, this provision
shall be applied by substituting 5-year period for
1-year period.
(B) Employees not performing services during year
ending on the Determination Date. The accrued
benefits and accounts of any individual who has not
performed services for the Employer during the 1-year
period ending on the Determination Date shall not be
taken into account.
(b) Minimum benefits/Matching contributions. Employer matching
contributions shall be taken into account for purposes of satisfying
the minimum contribution requirements of Code Section 416(c)(2) and the
Plan. The preceding sentence shall apply with respect to matching
contributions under the Plan or, if the Plan provides that the minimum
contribution requirement shall be met in another plan, such other plan.
Employer matching contributions that are used to satisfy the minimum
contribution requirements shall be treated as matching contributions
for purposes of the actual contribution percentage test and other
requirements of Code Section 401(m).
(c) The top-heavy requirements of Code Section 416 and this
Article 10 shall not apply in any year beginning after December 31,
2001, in which the Plan consists solely of a cash or deferred
arrangement which meets the requirements of Code Section 401(k)(12) and
matching contributions with respect to which the requirements of Code
Section 401(m)(11) are met.
ARTICLE XIV. VOTING OF STOCK
14.1 Voting of Stock: Each Participant (or Beneficiary of a deceased
Participant) is, for purposes of this Section 14.1, hereby designated as a
"named fiduciary" (within the meaning of ERISA) with respect to the shares of
SCANA Corporation Common Stock credited to his Account and shall have the right
to direct the Trustee with respect to the vote of the shares of SCANA
Corporation Common Stock credited to his Account, on each matter brought before
any meeting of the stockholders of the Company. Before each such meeting of
stockholders, the Company shall cause to be furnished to each Participant (or
Beneficiary) a copy of the proxy solicitation material, together with a form
requesting confidential directions to the Trustee on how such shares of SCANA
Corporation Common Stock credited to such Participant's (or Beneficiary's)
Account shall be voted in each such matter. Upon timely receipt of such
directions, the Trustee shall on each such matter vote as directed the number of
shares (including fractional shares) of SCANA Corporation Common Stock credited
to such Participant's (or Beneficiary's) Account, and the Trustee shall have no
discretion in such matter. The instructions received by the Trustee from
Participants (or Beneficiaries) shall be held in confidence and shall not be
divulged or released to any person, including the Committee, officers or
employees of the Company or an affiliate. The Trustee shall vote shares of SCANA
Corporation Common Stock for which it has not received direction in the same
proportion as directed shares are voted, and the Trustee shall have no
discretion in such matter.
14.2 Tender Offer Rights With Respect to Stock: The provisions of
this Section 14.2 shall apply in the event a tender or exchange offer,
including, but not limited to, a tender offer or exchange offer within the
meaning of the Securities Exchange Act of 1934, as from time to time amended and
in effect (hereinafter, a "tender offer") for SCANA Corporation Common Stock is
commenced by a person or persons. The Trustee shall have no discretion or
authority to sell, exchange or transfer any of such shares pursuant to such
tender offer except to the extent, and only to the extent, as provided in this
Plan and the trust agreement. Each Participant (or Beneficiary) is, for purposed
of this Section 14.2, hereby designated as a "named fiduciary" (within the
meaning of ERISA) with respect to the shares of SCANA Corporation Common Stock
credited to his Account and shall have the right, to the extent of the number of
whole shares of SCANA Corporation Common Stock credited to his Account, to
direct the Trustee in writing as to the manner in which to respond to a tender
offer with respect to shares of SCANA Corporation Common Stock. The Company
shall use its best efforts to timely distribute or cause to be distributed to
each Participant (or Beneficiary) such information as will be distributed to
stockholders of the Company in connection with any such tender offer. Upon
timely receipt of such instructions, the Trustee shall respond as instructed
with respect to such shares of SCANA Corporation Common Stock. The instructions
received by the Trustee from Participants (or Beneficiaries) shall be held by
the Trustee in confidence and shall not be divulged or released to any person,
including the Committee, officers or employees of the Company or an affiliate.
If the Trustee shall not receive timely instructions from a Participant (or
Beneficiary) as to the manner in which to respond to such a tender offer, the
Trustee shall not tender or exchange any shares of SCANA Corporation Common
Stock with respect to which such Participant (or Beneficiary) has the right of
direction, and the Trustee shall have no discretion in such matter.
ARTICLE XV. ADMINISTRATION
15.1 Plan Administrator: The Plan shall be administered by the
Committee, as defined in Section 2.06.
15.2 Powers and Duties of the Committee: The Committee is the
fiduciary that shall have all such powers as may be necessary to discharge its
duties hereunder, including, but not by way of limitation, the power, in its
discretion, to (a) interpret or construe the Plan, (b) determine all questions
of eligibility, (c) determine the classification, status and rights of
Employees, Participants and beneficiaries of Participants, (d) determine the
amount, manner and time and type of any distribution hereunder, and (e) fix
minimum periods of notice where notice is required, all in a manner not
inconsistent with the terms of the Plan. Benefits under the Plan shall be paid
only if the Committee (or its delegate) determines in its discretion that the
Participant (or beneficiary) is entitled to them. All rules and decisions of the
Committee shall be consistently applied to all persons in similar circumstances
and shall be conclusive and binding upon all persons affected thereby. The
Committee shall be entitled to rely upon certificates of the Employer and the
Trustee as to information pertinent to any determination made pursuant to the
Plan.
The Committee shall cause to be maintained such books of accounts,
records and other data as may be necessary or advisable in its judgment for the
purpose of the proper administration of the Plan.
The Committee shall direct the Trustee concerning all payments that
shall be made from the Trust pursuant to the Plan.
The Committee, with respect to the Claims Review Procedure specified
in Section 15.4 of the Plan, assigns to the Plan Manager the responsibility for
making all initial claims determinations. The Committee shall serve in an
appeals review capacity as to those claims denied by the Plan Manager which the
Participant timely submits in writing to the Committee for review.
If, in the Committee's judgment, any person to whom a distribution is
due is lacking in capacity because of illness, accident or otherwise, the
Committee may authorize a distribution to any person or institution that in the
Committee's judgment is responsible for caring for the person who is entitled to
the distribution.
The Committee may act at a meeting or in writing without a meeting.
It may adopt such rules and regulations as it deems desirable for the conduct of
its affairs. Decisions by the Committee shall be made by the vote or assent of a
majority of its members. The Committee shall have the power to assign or
allocate any of its responsibilities among its members and to designate one or
more persons (including persons who are not members of the Committee) to carry
out its responsibilities. The Committee delegates and assigns to the Plan
Manager primary responsibility for management of the regular operations of the
Plan.
Any action by the Committee on matters within its discretion shall be
final and binding upon all interested parties.
15.3 Claims Procedure: Claims for benefits under the Plan shall
be submitted to the Plan Manager in writing.
15.4 Claims Review Procedure:
(a) The Plan Manager, as the assignee of the Committee per Plan
Section 15.2, shall make all claims determinations for
benefits under the Plan. Within 90 days after any denial of
benefits under the Plan (unless special circumstances
require an extension of time not to exceed an additional 90
days for processing the claim, in which event written notice
of extension shall be furnished to the claimant prior to the
termination of the initial 90-day period, and shall indicate
both the special circumstances requiring an extension and
the date by which the Plan Manager expects to render the
final decision), the Plan Manager shall give to the
Participant whose claim has been denied, in whole or in
part, a written notice stating the following information:
(1) the specific reason or reasons for denial of the claim;
(2) a specific reference to pertinent provisions of the
Plan on which the denial is based;
(3) a description of any additional material or information
necessary for the Participant to perfect his claim and
an explanation of why such material or information is
necessary; and
(4) an explanation of the claims review procedure set forth
below.
(b) (1) A Participant may request, in writing, a review
of his claim provided such request is submitted to
the Committee within 60 days after receipt of
written notification of the denial of his claim.
Failure of the participant to submit a written
request for a review of his claim within the
allowable 60-day period shall constitute an
irrevocable consent by the Participant to the Plan
Manager's decision denying the benefit claimed, and
the Plan Manager's written notice shall so state.
(2) For the purpose of presenting his claim for review,
the Participant may review any pertinent documents
of the Plan and submit any issues and comments in
writing to the Committee.
(c) The Committee shall make a decision with regard to the claim
for review within 60 days after receipt of such request for
review. The decision on the review shall be in writing and
shall include the specific reason or reasons for the
decision and references to the pertinent Plan provisions on
which the decision is based and will be final.
15.5 Plan Expenses: Expenses of administering the Plan shall be
paid by the Plan as otherwise provided herein, except
to the extent such expenses are paid by the Employer.
15.6 Actions Via Electronic or Telephonic Media: Any reference in the
Plan to a requirement for a written designation, application or consent shall be
met if the designation, application or consent is communicated via telephonic,
electronic, or other media in a manner prescribed by the Plan Manager.
15.7 Authority and Duties: The duties of the Investment Committee
are as follows:
(a) The Investment Committee is responsible for establishing
guidelines of investment philosophy and strategy, for
establishing and carrying out a funding policy and method in
accordance with ERISA Section 403, and for adding or
eliminating Investment Funds from the Plan.
(b) The Investment Committee will (1) review the Trustee's actions
and render reports to the Board of Directors and (2) direct
the Trustee to make transfers of assets of the Trust Fund when
it has been decided that a particular investment should be
changed. The Investment Committee may prepare an annual report
(and such other periodic reports as may be requested) of its
activities for the Board of Directors.
(c) Reports: The Board of Directors will receive and review
reports periodically from the Chairman of the Investment
Committee with respect to the investment and custody of the
Trust.
15.8 Operation of the Investment Committee:
(a) Membership: The Investment Committee will elect a Chairman from
among its members.
(b) Actions: Action by a majority of the members of the Investment
Committee will be requisite and sufficient at all times to
constitute action of the Investment Committee. However, in the
event majority action is not possible, the Chairman of the
Investment Committee will decide the action.
(c) Term: Members of the Investment Committee will serve for such
periods so long as they remain in the positions specified in
Section 2.22, unless a member shall otherwise terminate in
accordance with Section 15.8(d).
(d) Termination: Whenever any member of the Investment Committee
ceases to be an employee of the Corporation or to hold the office
by reason of which he is serving as such a member, his term of
office as a member of the Investment Committee will terminate.
(e) Delegation: The members of the Investment Committee may allocate
among themselves any of their responsibilities under the Plan.
The Investment Committee may also delegate to a person who is not
a member of the Investment Committee the performance of any
fiduciary or nonfiduciary duty. Any such delegation or allocation
will be in writing and will be retained in the records of the
Investment Committee. The Investment Committee or the person to
whom the delegation or allocation was made will have the
authority to terminate such delegation or allocation at any time,
with or without cause.
(f) Limitation of Liability: Neither the Board of Directors nor any
individual member thereof will be liable for any act or omission
of the Investment Committee or any person carrying out
responsibilities as provided above, except to the extent that:
(1) the Board of Directors or a member thereof knowingly
participated in or knowingly undertook to conceal an
act or omission of the Investment Committee, or knew
that an act or omission was a breach of such person's
fiduciary duty; or
(2) it is clearly imprudent for the Board of Directors to
name the Investment Committee as the fiduciary to
whom such responsibility is assigned or to continue
the Investment Committee as the named fiduciary.
15.9 Disbursements from Trust Fund: The Investment Committee shall
determine the form in which disbursements shall be made from the Trust. The
Investment Committee shall determine the due qualifications of persons
authorized to approve and sign the same.
(a) Benefits payable under the provisions of this Plan shall be made
from the Trust.
(b) Expenses incurred in administering the Plan and Trust, as
provided in Section 15.5, including fees and charges of
actuaries, attorneys, accountants, consultants, and the Trustee,
and all expenses directly incurred in connection with the
investment of Plan assets, shall be paid from the Trust, unless
they are paid by the Corporation or another Participating
Employer.
ARTICLE XVI. TRUSTEE
All contributions under this Plan shall be paid to a Trustee who
shall invest and account for all such amounts and earnings thereon as directed
by provisions of Article VI of this Plan and the related Trust Agreement. The
Trustee shall have such rights, powers and duties as are set forth in the Trust
agreement, including the responsibility of voting the shares of SCANA
Corporation Common Stock held by the Plan in the manner directed under Article
XIV of the Plan. All assets of the Trust shall be held and invested in
accordance with the provisions of the Trust Agreement and the Plan for the sole
benefit of Participants and their beneficiaries. The Trustee shall be
responsible solely for the investment of the assets of the Trust and for the
market sale of whole share amounts for loans, cash-option in-service withdrawals
and cash-option distributions, and for fractional share cash outs associated
with cash-option or share withdrawals and distributions, all as directed by the
Plan Manager and for the safekeeping of the assets of the Trust. In giving such
directions to the Trustee, the Plan Manager is acting in its capacity as a named
fiduciary of the Plan. The Trustee shall be a directed Trustee with respect to
the investment of Plan assets and shall have no discretion regarding the
investment of the Plan's assets (except as otherwise provided in the Trust
Agreement with respect to the making of short-term cash investments and except
to the extent otherwise required by ERISA). The Trustee shall have no
responsibility for the operation or administration of the Plan. The Trustee
shall make only those disbursements and any market sales of whole and fractional
shares related thereto as directed by the Committee or by the Plan Manager
acting under direct authority or on behalf of the Committee in accordance with
Section 15.2 of this Plan and Section 2.3 and the related Trust Agreement.
ARTICLE XVII. FIDUCIARY LIABILITIES
The Employer, Officers and Directors of the Employer, the Committee
(including the individual members thereof), the Investment Committee (including
the individual members thereof), the Trustee, the Plan Manager and any person
who is deemed to be a fiduciary under the Plan (these persons and entities are
referred to below as "they") shall not be liable for a breach of fiduciary
responsibility of another fiduciary under the Plan except to the extent (a) they
shall have participated knowingly in, or knowingly undertaken to conceal, an act
or omission of such fiduciary, knowing such act or omission was a breach of such
fiduciary's responsibilities, (b) they shall have through a breach of their
fiduciary responsibilities enabled such fiduciary to commit a breach of its
fiduciary responsibilities, or (c) they shall have knowledge of a breach of
fiduciary responsibilities by such fiduciary, unless they made reasonable
efforts to remedy the breach.
They also shall not be liable for the acts or omissions of any person
or persons to whom any authority, power or responsibility has been allocated or
who have been designated to carry out their responsibilities, except to the
extent they shall have violated their fiduciary responsibilities with respect to
such allocation or designation or would otherwise be liable under provisions of
the immediately preceding paragraph.
The Committee (including the individual members thereof), the
Investment Committee (including the individual members thereof) and other
fiduciaries who are employed by the Employer shall be indemnified by the
Employer or from proceeds under insurance policies purchased by the Employer
against any and all liabilities arising by reason of any act or failure to act
made in good faith pursuant to the provisions of the Plan, including expenses
reasonably incurred in the defense of any claim relating thereto.
The Employer, the Committee, the Investment Committee, the Plan
Manager, the Trustee, and, to the extent provided in Section 7.4 and Article
XIV, the Participants are the named fiduciaries of the Plan. Each named
fiduciary shall have only those responsibilities with respect to the control and
management of the operation and administration of the Plan as are expressly
provided under the terms of the Plan and Trust, or as otherwise required by
ERISA.
ARTICLE XVIII. AMENDMENT OR TERMINATION
18.1 General Provision: Except to the extent provided in Section
18.2, the Plan may be amended or terminated by action of the Board of Directors
of SCANA Corporation, but no amendment or termination shall cause any of the
assets of the Trust to be used for or be diverted to any purpose other than the
exclusive benefit of Participants or their beneficiaries and no amendment may
reduce or eliminate any Participant's accrued benefit (including the form and
timing of all optional forms of benefit) in violation of Section 411(d)(6) of
the Code and the regulations thereunder.
18.2 Special Provision:
(a) Authority to Amend. Effective December 15, 1993, the Employee
Plans Committee will have the authority to amend the Plan from
time to time subject to Section 18.2(d).
(b) Amendment Procedure. The Employee Plans Committee will determine
that an amendment is appropriate, and will direct that it be
drafted. A majority of the Employee Plans Committee members must
approve the draft. The Employee Plans Committee will deliver a
copy of each amendment to the Company and each adopting
subsidiary within 30 days after adoption.
(c) Prohibited Amendments. No amendment under this Section 18.2 will
be permitted which would have the effect of:
(1) permitting any part of the assets of the Trust to be used
for purposes other than the exclusive benefit of
Participants;
(2) revesting in any Employer any portion of the assets of the
Trust; or
(3) eliminating or reducing any Participant's accrued benefit
(including the form and timing of all optional forms of
benefit) in violation of Section 411(d)(6) of the Code and
the regulations thereunder.
(d) Authority to Terminate. The Employee Plans Committee shall
have the authority to terminate the Plan at any time but
only if the substantial purpose of the Plan is continued by
another plan maintained by the Company.
ARTICLE XIX. GENERAL PROVISIONS
19.1 Source of Distributions: Distributions under this Plan shall be
made only out of the Trust. No persons shall have any rights under the Plan with
respect to the Trust, or against the Trustee or the Employer, except as
specifically provided for herein.
19.2 Non-Alienation of Benefits: Except as otherwise provided by law,
no person shall have the right to assign, alienate, transfer, hypothecate or
otherwise subject to lien an interest in or benefit under the Plan nor shall
benefits under the Plan be subject to the claims of any creditor.
Notwithstanding the preceding paragraph, in the event that a
qualified domestic relations order (as defined in Section 414(p) of the Code) is
received by the Committee, benefits shall be payable in accordance with such
order and Section 8.13 of the Plan. The Committee is authorized to issue
procedures to effectuate the requirements for administering qualified domestic
relations orders.
19.3 Merger or Consolidation: In case of a merger or consolidation
with, or transfer of assets or liabilities to, any other plan, each Participant
shall have a benefit at least as large as the benefit he would have been
entitled to had the Plan been terminated immediately before the merger,
consolidation or transfer. The Employee Plans Committee shall have the authority
to direct the merger, consolidation or transfer of assets and liabilities of the
Plan with and into another qualified plan; provided, however, that the Employee
Plans Committee may only merge, consolidate or transfer all of the Plan's assets
and liabilities to another plan if the substantial purpose of the Plan is
continued by another Plan maintained by the Company.
19.4 Transfer from Affiliate: A Participant in the Plan who was a
participant in a qualified defined contribution plan of an Affiliate that has
not adopted the Plan (the "Prior Employer"), may elect, with the consent of the
Plan Administrator, to transfer his Account from the Prior Employer's plan to
the Plan if such Participant meets the following requirements:
(a) the Participant's most recent employment prior to his employment
with an Employer was with the Prior Employer; and
(b) the Participant was not deemed to have incurred a termination of
employee and therefore was not entitled to a distribution under
the Prior Employer's plan as a result of the change in
employment.
Any such transfer under this Section 19.4 shall comply with the requirements of
Code Section 411(d)(6).
19.5 No Right to Employment: The Plan confers no right upon any
Employee to continue employment with the Employer.
19.6 Controlling Law: The Plan shall be governed by the laws
of the state of South Carolina, except to the extent preempted by the laws of
the United States.
19.7 Military Service: Notwithstanding any provision of this Plan to
the contrary, effective as of December 12, 1994, contributions, benefits and
service credit with respect to qualified military service will be provided in
accordance with Section 414(u) of the Code.
This restatement shall be effective from January 1, 1989, to and as
of January 1, 2002.
SIGNATURES
IN WITNESS WHEREOF the undersigned has caused this instrument to be
executed by the duly authorized officer, this 5th day of December, 2001.
SCANA CORPORATION
BY: s/William B. Timmerman
-----------------------------------
William B. Timmerman, Chairman
of the Board and Chief Executive
Officer
Attest: s/Lynn M. Williams
------------------------------------------
Lynn M. Williams
Secretary
APPENDIX I
Special Provisions for Merged Plans of Acquired or Related Companies
(A) Effective June 10, 1986, the following special provisions shall
apply under this Plan to all Participants in the CPC Plan on June 9, 1986,
having Account balances in the CPC Plan Trust:
1. All Account balances for Participants in the CPC
Plan on June 9, 1986 ("CPC Plan Participants") had
their Account balances transferred to this Plan as
of June 10, 1986.
2. All other provisions of this Plan, as modified by
the provisions of this Appendix I(A), shall apply to
the CPC Plan Participants. The provisions of
Appendix I(A) shall not apply to any other
Participants.
3. Employment with Carolina Pipeline Company, Inc.,
shall be considered as employment with the Employer
for all purposes relating to service and eligibility
under this Plan.
4. Notwithstanding the provisions of Article X of this
Plan, the CPC Plan Trust Accounts of the CPC Plan
Participants shall be fully vested and
nonforfeitable at all times.
5. The value of the Account of each Participant
described above in the CPC Plan Trust shall be
determined as of June 10, 1986. The balance in that
Account shall be transferred to the Trust of this
Plan as of that date, shall constitute a balance in
the Account of that person, and shall thereafter be
subject to all provisions of this Plan relating to
Accounts under this Plan.
6. Any amount forfeited under the CPC Plan during the
period after the most recent reallocation of
forfeitures and prior to June 10, 1986, shall be
reallocated under the terms of the CPC Plan as of
June 9, 1986.
(B) Effective April 30, 1993, the following special provisions shall
apply under this Plan to all Participants in the SCANA Corporation Employee
Stock Ownership Plan ("ESOP") on April 29, 1993, having Account balances in the
ESOP:
1. All Account balances for Participants in the ESOP on April
29, 1993 ("ESOP Participants") had their Account balances
transferred to this Plan as of April 30, 1993.
2. All other provisions of this Plan, as modified by the
provisions of this Appendix I(B), shall apply to the ESOP
Participants. The provisions of Appendix I(B) shall not
apply to any other Participants.
3. Periods of participation in the ESOP shall count as periods
of participation in this Plan for all purposes of Article
VIII. Periods during which assets were invested in shares of
Common Stock under the ESOP shall be aggregated with all
such periods of investment under this Plan for purposes of
Article VIII.
4. The ESOP Accounts of the ESOP Participants shall be fully
vested and nonforfeitable at all times.
5. Notwithstanding anything in Article VIII to the contrary,
shares of Common Stock attributable to the ESOP shall be
distributable to ESOP Participants after such amounts have
been allocated to the Participant's Account for 84 months,
including periods during which such assets were invested
under the ESOP prior to its merger with this Plan. Following
such 84-month holding period, a Participant may elect to
make withdrawals from his transferred ESOP Account in the
following order: (a) Employee voluntary matching
contributions; (b) Company contributions (unmatched); and
(c) Company matching contributions. Such withdrawals may not
be made from any Account until all Accounts previously
listed have been exhausted. An ESOP Participant may make a
withdrawal under this Appendix I(B)(6) once in any six-month
period. Any such withdrawal shall be subject to the
otherwise applicable provisions of Article VIII.
6. In no event shall the accrued benefit under the ESOP for any
ESOP Participant (including the form and timing of all
optional forms of benefit) be modified in violation of
Section 411(d)(6) of the Code and the regulations
thereunder, except to the extent required to comply with
applicable requirements of the Code.
(C) Effective September 1, 2000, the following special provisions
shall apply under this Plan to all participants in the Public Service Company of
North Carolina, Inc. Special Savings and Retirement Plan and Trust (the "PSNC
Plan") on August 31, 2000, having Account balances in the PSNC Plan:
1. All Account balances for participants in the PSNC Plan on
August 31, 2000 ("PSNC Participants") had their Account
balances transferred to this Plan as of September 1, 2000.
2. All other provisions of this Plan, as modified by the
provisions of this Appendix I(C), shall apply to the PSNC
Participants. The provisions of Appendix I(C) shall not
apply to any other Participants.
3. Periods of participation in the PSNC Plan shall count as
periods of participation in this Plan for all purposes of
Article VIII.
4. The value of the Account of each PSNC Participant described
above in the PSNC Plan shall be determined as of September
1, 2000. The balance in that Account shall be transferred to
the Trust of this Plan as of that date, shall constitute a
balance in the Account of that person, and shall thereafter
be subject to all provisions of this Plan relating to
Accounts under this Plan.
5. Any amount forfeited under the PSNC Plan during the period
after the most recent reallocation of forfeitures and prior
to September 1, 2000, shall be reallocated under the terms
of the PSNC Plan as of August 31, 2000.
6. In connection with the transfer of Accounts from the PSNC
Plan to this Plan, all amounts attributable to PSNC
Participants' pre-tax elective deferrals, after-tax employee
contributions, and other employer contributions (including
matching contributions under the PSNC Plan) have been
allocated to corresponding Deferral, Regular Contributions,
and Employer Contributions Accounts in this Plan. Such
amounts shall retain their character as pre-tax elective
deferrals, after-tax employee contributions, or employer
contributions as determined under the PSNC Plan and shall be
invested in this Plan in accordance with PSNC Participants'
direction. Notwithstanding the foregoing, if a PSNC
Participant is credited with less than 60 months of
participation in the Plan (including service in the PSNC
Plan), an amount equal to the amount attributable to
matching contributions under the PSNC Plan transferred on
behalf of such Participant from the PSNC Plan shall not be
considered an amount available for withdrawal under Section
8.1(b)(7) of the Plan until January 1, 2002. In no event
shall the accrued benefit of any PSNC Participant in the
PSNC Plan (including the availability of all optional forms
of benefit) be modified in violation of Code Section
411(d)(6) and the regulations thereunder, except to the
extent, if any, required to comply with the applicable
requirements of the Code.
7. Notwithstanding the otherwise applicable provisions of
Article 8 of the Plan, a PSNC Participant who has not
separated from service with the Company or an Affiliate
shall have the right to withdraw, in accordance with
otherwise applicable procedures set forth in Article 8 and
as established by the Plan Manager, any or all of the amount
to the credit of such PSNC Participant in such PSNC
Participant's Prior Employee Contributions Account or Prior
Employer Contribution Account as transferred from the PSNC
Plan. All other amounts transferred from the PSNC Plan to
this Plan shall be available for withdrawal in accordance
with the otherwise applicable terms of the Plan.
8. Notwithstanding the otherwise applicable language of Article
8 of the Plan, effective for distributions made before
January 1, 2001, the following provisions are applicable to
the amounts transferred from the PSNC Plan (In accordance
with IRS regulations issued under Code Section 411(d)(6) the
following provisions shall not apply to any distributions
made on or after January 1, 2001.):
(a) Qualified Annuity Requirement. Except as provided in
Paragraph 7(c), the Qualified Annuity requirement of
this Paragraph 7(a) shall apply with respect to a
Participant if such Participant was alive on August 2,
1984 and had at least one (1) Hour of Service under the
PSNC Plan on or after August 23, 1984. If such
requirement applies to a Participant and a Distribution
to such Participant commences on or after January 1,
1985, then (i) where there is no Qualified Waiver in
effect with respect to the Qualified Annuity form of
Distribution, the method of Distribution to such
Participant shall be by purchasing a Qualified Annuity
with the amount distributable to such Participant and
distributing such Qualified Annuity to such
Participant, and (ii) where there is a Qualified Waiver
in effect with respect to the Qualified Annuity form of
Distribution, the method of Distribution to such
Participant shall be in the form of a single cash
payment.
(b) Qualified Preretirement Annuity Requirement. Except as
provided in Paragraph 7(c), the Qualified Preretirement
Annuity requirement of this Paragraph 7(b) shall apply
with respect to a Participant if such Participant was
alive on August 23, 1984 and had at least one (1) Hour
of Service under the PSNC Plan on or after August 23,
1984. If such requirement applies with respect to a
Participant and such Participant dies prior to the
commencement of Distribution and is survived by such
Participant's spouse, then:
(i) where there is no Qualified Waiver with respect to the
Qualified Preretirement Survivor Annuity form of
Distribution in effect at the time of such
Participant's death, the spouse shall be the
Participant's Beneficiary and the method of
Distribution to the Beneficiary shall be (A) by
purchasing a Qualified Preretirement Survivor Annuity
with the amount distributable to such Beneficiary and
distributing such Qualified Preretirement Survivor
Annuity to such Beneficiary or (B) at such
Beneficiary's election, in a single cash payment; and
(ii) where there is a Qualified Waiver in effect with
respect to the Qualified Preretirement Survivor Annuity
form of Distribution, the Beneficiary shall be as
provided in or permitted by the Qualified Waiver and
the method of Distribution to such Beneficiary shall be
a single cash payment.
(c) Exceptions. The Qualified Annuity requirement of
Paragraph 7(a) and the Qualified Preretirement Survivor
Annuity requirement of Paragraph 7(b) (as the case may
be) shall not apply with respect to:
(i) any Participant who first becomes a Participant in the
PSNC Plan on or after April 1, 1985;
(ii) to the extent permitted by applicable law, any
Participant who first becomes a Participant in the PSNC
Plan prior to April 1, 1985;
(iii)any Distribution commencing on or after January 1,
2000; and
(iv) any Distribution with respect to a Participant whose
Accounts do not exceed Five Thousand Dollars ($5,000)
in the aggregate.
(d) Notice Requirements. The Committee shall
provide each Participant with respect to whom the
Qualified Joint and Survivor Annuity requirement of
Paragraph 7(a) applies, within a reasonable period
of time prior to the commencement of Distribution,
with a written explanation of (i) the terms and
conditions of the Qualified Annuity, (ii) such
Participant's right to make, and the effect of, a
Qualified Waiver with respect to the Qualified
Annuity form of Distribution, (iii) the rights of
such Participant's spouse as to spousal consent with
respect to the Qualified Waiver and (iv) the right
to make, and the effect of, a revocation of a
Qualified Waiver. The Committee shall also provide
each Participant with respect to whom the Qualified
Preretirement Survivor Annuity requirement of
Paragraph 7(b) applies with a written explanation
with respect to the Qualified Preretirement Survivor
Annuity that is comparable to the explanation
hereinabove required with respect to the Qualified
Annuity. The Committee shall provide such written
explanation with respect to the Qualified
Preretirement Survivor Annuity within the period (i)
beginning on the first day of the Plan Year in which
such Participant attains age thirty-two (32) and
(ii) ending with the close of the Plan Year in which
such Participant attains age thirty-five (35). If
such Participant becomes a Participant in the Plan
after the first day of the Plan Year in which such
Participant attains age thirty-two (32), however,
the Committee shall provide the written explanation
with respect to the Qualified Preretirement Survivor
Annuity to such Participant no later than the close
of the second Plan Year following such Participant's
becoming a Participant in the Plan.
(e) Definitions. For purposes of this Paragraph 7, the
following terms shall have the ----------- following
meanings:
(i) Applicable Election Period means:
(A) in the case of a Participant's election to waive the
Qualified Annuity form of Distribution, the ninety (90)
day period ending on the date of commencement of
Distribution; and
(B) in the case of a Participant's election to waive the
Qualified Preretirement Survivor Annuity form of
Distribution, the period which begins on the first day
of the Plan Year in which such Participant attains age
thirty-five (35) and ends on the date of such
Participant's death; provided, however, in the case
such Participant separates from Service, such period
under this subparagraph (B), with respect to benefits
accrued before the date of such separation from
Service.
(ii) Qualified Annuity means: -----------------
(A) with respect to a married Participant, an annuity for
the life of such Participant with a survivor annuity
for the life of such Participant's spouse which is not
less than fifty percent (50%), nor greater than one
hundred percent (100%), of the amount which is payable
during the joint lives of such Participant and such
spouse; and
(B) with respect to an unmarried Participant, an annuity
for the life of such Participant.
(iii)Qualified Preretirement Survivor Annuity means, with
respect to the surviving spouse of a Participant, an
annuity for the life of such surviving spouse.
(iv) Qualified Waiver means, with respect to a Participant,
a written election by such Participant to waive the
Qualified Annuity form of Distribution or the Qualified
Preretirement Survivor Annuity form of Distribution (as
the case may be). Such election must be in writing and
delivered to the Committee at any time during the
Applicable Election Period with respect to such
election. If the Participant is married, such election
shall not be effective unless (A) the spouse of such
Participant consents in writing to such election and
such spouse's said consent acknowledges the effect of
such election and is witnessed by a member of the
Committee or other representative of the Plan or by a
notary public or (B) it is established to the
satisfaction of the Committee or other representative
of the Plan that such consent may not be obtained
because there is no spouse, because such spouse cannot
be located, or because of such circumstances as may be
prescribed by applicable Code regulations. Any such
consent by a spouse, or establishment that the consent
of a spouse may not be obtained, shall be effective
only with respect to that spouse. Any Qualified Waiver
by a Participant may be revoked without the consent of
such Participant's spouse to such revocation, at any
time during the Applicable Election Period with respect
to such Qualified Waiver by written notice of
revocation delivered to the Committee during such
Applicable Election Period. Following any such
revocation, such Participant may make another Qualified
Waiver pursuant to the provisions set forth above.
APPENDIX II
Investment Funds
Investment Funds may be added or eliminated from the Plan at any time at the
discretion of the Employee Plans Committee or its delegate. Effective November
1, 2000, Investment Funds may be added or eliminated from the Plan at any time
at the discretion of the Investment Committee. The following Investment Funds
are available under the Plan on and after November 1, 2000:
IRT Stable Value Fund: The Fund seeks to
preserve value while providing
consistently high levels of current
income and liquidity. The Fund invests in
a diversified portfolio of investment
companies issued by large insurance
companies, banks and other financial
institutions as determined by the Fund's
investment manager.
PIMCO Total Return Fund: This Fund seeks to achieve total return
consistent with preservation of
capital. As determined by the Fund's
investment manager, the Fund invests at
least 65% of assets in debt securities,
including U.S. government and
corporate bonds, and mortgage-related
securities, and it may invest up to 20%
of assets in securities denominated in
foreign currencies. The portfolio
duration generally ranges from three to six
years.
American Century Income & Growth The American Century Income & Growth Fund
Fund: seeks dividend growth, current
income, and capital appreciation. As
determined by the Fund's investment
manager, the Fund invests primarily in
common stocks selected from a universe of
the 1,500 largest companies traded in the
United States. The Fund may also invest a
small portion of assets in foreign
securities.
IRT 500 Index Fund: As determined by the Fund's investment
manager, the Fund seeks to achieve
investment returns that closely replicate
the total returns generated by the
Standard & Poor's 500 Composite Stock Index,
an unmanaged index comprised of
U.S. common stocks weighted to companies
with large market capitalizations.
The portfolio is broadly diversified and
consists of large cap, "blue chip"
stocks.
INVESCO Blue Chip Growth Fund: The Fund seeks to
achieve long-term capital growth with
investment income as a secondary
objective. As determined by the Fund's
investment manager, investment policies
mainly focus on large-capitalization
common stocks with the potential for
above-average earnings growth.
MAS Mid-Cap Value Fund: The Fund seeks total return consistent with
reasonable risk. As determined
by the Fund's investment manager, the Fund
normally invests at least 65% of
assets in equities of companies that are
undervalued and fall in the range of
the S&P MidCap 400 Index. The Fund aims
to achieve a lower P/E ratio than
the S&P 400. It may invest up to 5% of
assets in foreign securities,
excluding ADRs. The Fund may also invest in
preferred stocks, convertibles, corporate
debt, and U.S. government obligations.
The MFS Mid-Cap Growth Fund: The Fund seeks long-term growth of
capital. As determined by the Fund's
investment manager, the Fund normally
invests at least 65% of assets in
equity securities of companies with
medium market capitalizations. The Fund's
investment manager determines market
capitalization by selecting companies
that fall within the range of the S&P
MidCap 400 index . It may invest up to
20% in debt rated below BBB and up to
35% of assets in foreign securities,
not including ADRs. The Fund is
nondiversified.
Berger Small Cap Value Fund: The Fund seeks to
achieve capital appreciation by investing
in common stocks. As determined by the
Fund's investment manager, the Fund may
invest in special situations (companies
experiencing reorganizations, mergers or
particular tax advantages) and unseasoned
companies, as well as in options.
INVESCO Small Company Growth Fund: The Fund seeks
to achieve maximum long-term capital
growth by investing its assets
principally in a diversified group of
equity securities as determined by the
Fund's investment manager. These are the
securities of small or undiscovered
companies that show potential for
increased size, profitability, and
industry/market awareness. Current income
is not an objective of the Fund.
EuroPacific Growth Fund: The Fund normally invests at least 65%
of assets in equity securities of
issuers domiciled in Europe or the
Pacific Basin as determined by the Fund's
investment manager. It may invest up to
20% of assets in securities issued
in developing countries. In addition to
direct foreign investment, the Fund
may purchase American depository receipts.
It may also invest in convertible
securities and straight debt securities;
no more than 5% of assets may be
invested in debt securities rated below
investment-grade.
SCANA Stock Fund: The SCANA Stock choice
consists of SCANA Common Stock. The
investment objective is to provide
participants with the opportunity for
capital appreciation and dividend income,
while participating in the financial
future of SCANA. Because this is only one
stock, it is considered riskier than
other investment options that consist of
many different securities.
IRT Intermediate Return Fund: The Fund seeks
to provide high total return through
current income and capital appreciation
from four asset classes: stable value,
bond, value equity, and growth equity. As
determined by the Fund's investment
manager, the target mix of the Fund is
40% stable value, 20% bond, and 30% value
equity and 10% growth equity.
IRT Growth and Income Fund: The Fund seeks to provide high total
return through current income and
capital appreciation from four asset classes:
stable value, bond, value equity, and growth
equity. As determined by the Funds' investment
manager, the target mix of the Fund is 20%
stable value, 20% bond, 30% value equity
and 30% growth equity.
IRT Maximum Appreciation Fund: The Fund seeks
to achieve capital appreciation as a
primary objective, with current income as
a secondary goal, from four asset
classes: stable value, bond, value equity
and growth equity. As determined by the
Fund's investment manager, the target mix
of the Fund is 10% stable value, 10%
bond, 30% value equity, and 50% growth
equity.
Exhibit 5.01
August , 2002
SCANA Corporation
1426 Main Street
Columbia, South Carolina 29201
Dear Sirs:
SCANA Corporation (the "Company") proposes to file with the Securities and
Exchange Commission a Registration Statement on Form S-8 for the registration
under the Securities Act of 1933 of a proposed public offering and sale of up to
5,000,000 shares of the Company's Common Stock, without par value (the "Stock"),
which may be issued under the Company's Stock Purchase-Savings Plan (the
"Plan").
I have participated in the preparation of the aforesaid Registration
Statement and am familiar with all other proceedings of the Company in
connection with the Plan and the proposed issuance of the Stock thereunder. I
have also made such further investigation as I have deemed pertinent and
necessary as a basis for this opinion.
Based upon the foregoing, I advise you that, upon (a) the aforesaid
Registration Statement becoming effective; (b) issuance of the Stock in
accordance with the terms of the Plan; (c) the due execution, registration and
countersignature of the certificates for the Stock; and (d) the delivery of the
Stock to the purchasers thereof against receipt of the purchase price therefor;
in my opinion the Stock will have been duly authorized and legally and validly
issued and will be fully paid and nonassessable.
I hereby consent to the use of this opinion in connection with the
aforesaid Registration Statement.
Very truly yours,
s/H. Thomas Arthur
H. Thomas Arthur
Senior Vice President, General Counsel
and Assistant Secretary
Exhibit 23.01
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of SCANA Corporation on Form S-8 of our report dated February 8, 2002 (March 1,
2002 as to Note 16), appearing in the Annual Report on Form 10-K of SCANA
Corporation for the year ended December 31, 2001.
s/DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
Columbia, South Carolina
August 2, 2002
Exhibit 23.02
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of SCANA Corporation on Form S-8 of our report dated March 15, 2002, appearing
in the Annual Report on Form 10-K of SCANA Corporation Stock Purchase-Savings
Plan for the year ended December 31, 2001.
s/DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
Columbia, South Carolina
August 2, 2002
Exhibit 24.01
POWER OF ATTORNEY
Each of the undersigned directors of SCANA Corporation (the "Company"),
hereby appoint W. B. Timmerman, Kevin B. Marsh and H. Thomas Arthur, and each of
them severally, his or her true and lawful attorney or attorneys, with the power
to act with or without the others, and with full power of substitution and
re-substitution, to execute in his or her name, place and stead in his or her
capacity as director of the Company and to file with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, a registration
statement on Form S-8 and any and all amendments thereto with respect to the
issuance and sale of an additional 5,000,000 shares of the Company's common
stock pursuant to the Company's Employee Stock Purchase-Savings Plan.
Dated: August 1, 2002
Columbia, South Carolina
s/B. L. Amick s/W. H. Hipp
----------------------- ------------------------
B. L. Amick W. H. Hipp
Director Director
s/J. A. Bennett s/L. M. Miller
----------------------- ------------------------
J. A. Bennett L. M. Miller
Director Director
s/W. B. Bookhart, Jr. s/M. K. Sloan
----------------------- ------------------------
W. B. Bookhart, Jr. M. K. Sloan
Director Director
s/W. C. Burkhardt
----------------------- -------------------------
W. C. Burkhardt H. C. Stowe
Director Director
s/E. T. Freeman s/W. B. Timmerman
----------------------- --------------------------
E. T. Freeman W. B. Timmerman
Director Director
s/D. M. Hagood s/G. S. York
------------------------ ---------------------------
D. M. Hagood G. S. York
Director Director