SUPPLEMENTARY EXECUTIVE BENEFIT PLAN
as established effective as of
January 1, 2009
SUPPLEMENTARY EXECUTIVE BENEFIT PLAN
TABLE OF CONTENTS
SUPPLEMENTARY EXECUTIVE BENEFIT PLAN
SECTION 1. ESTABLISHMENT AND PURPOSE
1.1 Establishment of the Plan . SCANA Corporation established a plan for certain executives to be known as the “SCANA Corporation Supplementary Executive Benefit Plan” (the “Plan”), effective as of July 1, 2001. The Plan was amended and restated, effective as of January 1, 2007. The Plan is hereby amended and restated as provided herein, effective as of January 1, 2009, to comply with the requirements of Code Section 409A.
1.2 Description of the Plan . This Plan is intended to constitute a severance benefits plan which is unfunded and established primarily for the purpose of providing severance benefits for a select group of management or highly compensated employees.
1.3 Purpose of the Plan . The purpose of this Plan is to advance the interests of the Company by providing highly qualified Company executives and other key personnel with an assurance of equitable treatment in terms of compensation and economic security and to induce continued employment with the Company in the event of certain spin-offs, divestitures, or an acquisition or other Change in Control. The Corporation believes that an assurance of equitable treatment will enable valued executives and key personnel to maintain productivity and focus during a period of significant uncertainty inherent in such situations and that a severance compensation plan of this kind will aid the Company in attracting and retaining the highly qualified professionals who are essential to its success.
SECTION 2. DEFINITIONS
2.1 Definitions . Whenever used herein, the following terms shall have the meanings set forth below, unless otherwise expressly provided herein or unless a different meaning is plainly required by the context, and when the defined meaning is intended, the term is capitalized:
(a) “ Agreement ” means a contract between an Eligible Employee and the Company permitting the Eligible Employee to participate in the Plan and delineating the benefits (if any) that are to be provided to the Eligible Employee in lieu of or in addition to the benefits described under the terms of this Plan.
(b) “ Base Salary ” means the base rate of compensation payable to a Participant as annual salary, not reduced by any pre-tax deferrals under any tax-qualified plan, non-qualified deferred compensation plan, qualified transportation fringe benefit plan under Code Section 132(f), or cafeteria plan under Section 125 maintained by the Company, but excluding amounts received or receivable under all incentive or other bonus plans.
(c) “ Beneficial Owner ” shall have the meaning ascribed to such term in Rule 13d-3 of the General Rules and Regulations under the Exchange Act.
(d) “ Beneficiary ” means any person or entity who, upon the Participant’s death, is entitled to receive the Participant’s benefits under the Plan in accordance with Section 5 hereof.
(e) “ Board ” means the Board of Directors of the Corporation.
(f) “ Change in Control ” means a change in control of the Corporation of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Exchange Act, whether or not the Corporation is then subject to such reporting requirements; provided that, without limitation, such a Change in Control shall be deemed to have occurred if:
(i) Any Person (as defined in Section 3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d) thereof, including a “group” as defined in Section 13(d)) is or becomes the Beneficial Owner, directly or indirectly, of twenty five percent (25%) or more of the combined voting power of the outstanding shares of capital stock of the Corporation;
(ii) During any period of two (2) consecutive years (not including any period prior to December 18, 1996) there shall cease to be a majority of the Board comprised as follows: individuals who at the beginning of such period constitute the Board and any new director(s) whose election by the Board or nomination for election by the Corporation’s stockholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved;
(iii) The issuance of an Order by the Securities and Exchange Commission, under Section 9(a)(2) of the Public Utility Holding Company Act of 1935, as amended (the “1935 Act”), authorizing a third party to acquire five percent (5%) or more of the Corporation’s voting shares of capital stock;
(iv) The shareholders of the Corporation approve a merger or consolidation of the Corporation with any other corporation, other than a merger or consolidation which would result in the voting shares of capital stock of the Corporation outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting shares of capital stock of the surviving entity) at least eighty percent (80%) of the combined voting power of the voting shares of capital stock of the Corporation or such surviving entity outstanding immediately after such merger or consolidation; or the shareholders of the Corporation approve a plan of complete liquidation of the Corporation or an agreement for the sale or disposition by the Corporation of all or substantially all of the Corporation’s assets; or
(v) The shareholders of the Corporation approve a plan of complete liquidation, or the sale or disposition of South Carolina Electric & Gas Company (hereinafter SCE&G), South Carolina Pipeline Corporation, or any subsidiary of the Corporation designated by the Board as a “Material Subsidiary,” but such event shall represent a Change in Control only with respect to a Participant who has been exclusively assigned to SCE&G, South Carolina Pipeline Corporation, or the affected Material Subsidiary.
(g) “ Code ” means the Internal Revenue Code of 1986, as amended.
(h) “ Committee ” means the Human Resources Committee of the Board. Any references in this Plan to the “Committee” shall be deemed to include references to the designee appointed by the Committee under Section 7.4.
(i) “ Company ” means the Corporation and any subsidiaries of the Corporation and their successor(s) or assign(s) that adopt this Plan through execution of Agreements with any of their Employees or otherwise. When the term “Company” is used with respect to an individual Participant, it shall refer to the specific company at which the Participant is employed, unless otherwise required by the context.
(j) “ Corporation ” means SCANA Corporation, a South Carolina corporation, or any successor thereto.
(k) “ Effective Date of Termination ” means the date on which a Qualifying Termination occurs which triggers SEBP Benefits hereunder.
(l) “ Eligible Employee ” means an Employee who is employed by the Company in a high-level management or administrative position, including employees who also serve as officers of the Company, as determined under the SCANA Corporation Executive Benefit Plan.
(m) “ Employee ” means a person who is actively employed by the Company and who falls under the usual common law rules applicable in determining the employer-employee relationship.
(n) “ Exchange Act ” means the Securities Exchange Act of 1934, as amended.
(o) “ Good Reason ” means, without the Participant’s written consent, the occurrence after a Change in Control of the Company of any one or more of the following:
(i) A material diminution in the Participant’s Base Salary;
(ii) A material diminution in the Participant’s authority, duties, or responsibilities;
(iii) A material diminution in the authority, duties, or responsibilities of the supervisor to whom the Participant is required to report, including a requirement that the Participant report to a Company officer or Employee instead of reporting directly to the Board;
(iv) A material diminution in the budget over which the Participant retains authority;
(v) A material change in the geographic location at which the Participant must perform the services; and
(vi) Any other action or inaction that constitutes a material breach by the Company of the agreement under which the Participant provides services.
A Participant’s right to terminate his or her employment for Good Reason shall not be affected by his or her incapacity due to physical or mental illness. A Participant’s continued employment shall not constitute consent to, or a waiver of rights with respect to, any circumstance constituting Good Reason herein.
(p) “ Just Cause ” means any one or more of the following:
(i) Willful and continued failure by a Participant to substantially perform his or her duties with the Company (other than any such failure resulting from a Qualifying Termination), after a demand for substantial performance is delivered to the Participant that specifically identifies the manner in which the Company believes that the Participant has not substantially performed his/her duties, and the Participant has failed to resume substantial performance of his/her duties on a continuous basis within fourteen (14) days of receiving such demand;
(ii) The willful engaging by a Participant in conduct which is demonstrably and materially injurious to the Company, monetarily or otherwise; or
(iii) A Participant’s conviction of a felony or conviction of a misdemeanor which impairs his/her ability substantially to perform his/her duties with the Company.
For purposes of this Section 2.1(p), no act, or failure to act, on a Participant’s part shall be deemed “willful” unless done, or omitted to be done, by a Participant not in good faith and without reasonable belief that the Participant’s action or omission was in the best interest of the Company.
(q) “ Participant ” means any Eligible Employee who is participating in the Plan in accordance with the provisions herein set forth.
(r) “ Potential Change in Control ” means and includes the event of any one or more of the following occurrences:
(i) The Corporation enters into an agreement, the consummation of which would result in the occurrence of a Change in Control of the Corporation;
(ii) Any person including the Corporation publicly announces an intention to take or to consider taking actions which if consummated, would constitute a Change of Control of the Corporation;
(iii) Any person, other than a trustee or other fiduciary holding securities under an employee benefit plan of the Corporation (or corporation owned, directly or indirectly, by the stockholders of the Corporation in substantially the same proportions as their ownership of stock of the Corporation), becomes the Beneficial Owner, directly or indirectly, of securities of the Corporation representing eight and one-half percent (8.5%) or more of the combined voting power of the Corporation’s then outstanding securities;
(iv) The filing of an application by a third party with the Securities and Exchange Commission under Section 9(a)(2) of the 1935 Act for authorization to acquire shares so as to hold, own or control, directly or indirectly, five percent (5%) or more of the voting stock of the Corporation; or
(v) The Board adopts a resolution to the effect that for purposes of the SCANA Corporation Executive Benefit Plan Trust and affected plans, a Potential Change in Control has occurred.
(s) “ Qualifying Termination ” means any of the events described in Section 4.2 herein, the occurrence of which triggers the payment of SEBP Benefits hereunder.
(t) “ Retirement ” means the retirement of a Participant at the “normal retirement age,” as defined in the SCANA Corporation Retirement Plan, as in effect on July 1, 2000, and as may be further amended and in effect from time to time, or in accordance with any retirement arrangement established with the Participant’s consent with respect to the Participant.
(u) “ SEBP Benefit ” means the benefits as provided in Section 4.3 herein.
(v) “ Total and Permanent Disability ” means a physical or mental condition which:
(i) Renders a Participant unable to discharge his/her normal work responsibility with the Company and which, in the opinion of a licensed physician selected by the Participant, based upon significant medical evidence, can be reasonably expected to continue for a period of at least one (1) year; or
(ii) Causes a Participant to be absent from the full-time performance of his/her duties with the Company for six (6) consecutive months and, within thirty (30) days after the Company delivers to the Participant written notice of termination, the Participant does not return to the full-time performance of his/her duties.
2.2 Gender and Number . Except when otherwise indicated by the context, any masculine terminology used herein also shall include the feminine and the feminine shall include the masculine, and the use of any term herein in the singular may also include the plural and the plural shall include the singular.
SECTION 3. ELIGIBILITY AND PARTICIPATION
3.1 Eligibility . An Eligible Employee who is a Participant for purposes of the SCANA Corporation Executive Benefit Plan shall be a Participant automatically for purposes of this Plan.
3.2 Termination of Participation . A Participant in this Plan under Section 3.1 shall remain covered hereunder until the earliest of (i) the date the Participant is notified, in a writing signed by the Corporation’s Chief Executive Officer, that the Participant is no longer covered by the provisions of this Plan or the SCANA Corporation Executive Benefit Plan; (ii) the date upon which the Participant’s employment terminates for any reason, provided, however, the Participant shall remain covered under the Plan after termination of employment so long as any benefits are payable from this Plan; or (iii) the date of termination of the Plan, provided, however, the Plan shall remain in effect with respect to the Participant so long as any benefits are payable to the Participant from this Plan.
SECTION 4. BENEFITS
4.1 Right to SEBP Benefits . A Participant shall be entitled to receive from the Corporation SEBP Benefits as described in Section 4 herein, if there has been a Change in Control and if, within twenty-four (24) calendar months thereafter, the Participant’s employment with the Company shall end for any reason specified in Section 4.2 herein as being a Qualifying Termination. The amount of all SEBP Benefits described in Section 4 herein shall be calculated by the Committee in its sole discretion.
4.2 Qualifying Termination . Subject to the terms of this Plan, the occurrence of any one (1) of the following events within twenty-four (24) calendar months after a Change in Control shall trigger the payment of SEBP Benefits under th