Exhibit 10.04
SCANA
CORPORATION
DIRECTOR COMPENSATION AND
DEFERRAL PLAN
January 1, 2009
SCANA
CORPORATION
DIRECTOR COMPENSATION AND
DEFERRAL PLAN
TABLE OF
CONTENTS
|
SECTION
1.
|
ESTABLISHMENT AND PURPOSE
|
1
|
|
|
|
|
|
1.1
|
ESTABLISHMENT
OF THE PLAN
|
1
|
|
1.2
|
PURPOSE OF THE
PLAN
|
1
|
|
|
|
|
|
SECTION
2.
|
DEFINITIONS
|
2
|
|
|
|
|
|
2.1
|
DEFINITIONS
|
2
|
|
2.2
|
GENDER AND
NUMBER
|
4
|
|
|
|
|
|
SECTION
3.
|
ELIGIBILITY
AND PARTICIPATION
|
5
|
|
|
|
|
|
3.1
|
ELIGIBILITY
|
5
|
|
3.2
|
ELECTION OF
COMPENSATION PAYMENT
|
5
|
|
3.3
|
PAYMENT OF
COMPANY STOCK
|
5
|
|
3.4
|
STOCK
|
5
|
|
3.5
|
ISSUANCE OF
COMPANY STOCK
|
6
|
|
3.6
|
EFFECT OF STOCK
DIVIDENDS AND OTHER CHANGES IN CAPITAL STRUCTURE
|
6
|
|
|
|
|
|
SECTION
4.
|
ELECTION TO
DEFER
|
7
|
|
|
|
|
|
4.1
|
DEFERRAL
ELECTION
|
7
|
|
4.2
|
DEFERRAL
PERIOD
|
7
|
|
4.3
|
ELECTION TO
DEFER A PREVIOUSLY DEFERRED AMOUNT OR CHANGE THE MANNER OF
PAYMENT
|
8
|
|
4.4
|
ELECTION TO
CHANGE THE DEFERRAL PERIOD AND/OR FORM OF PAYMENT FOR POST-2004 DCD
LEDGERS
|
9
|
|
|
|
|
|
SECTION
5.
|
CREDITING
AND INVESTMENT OF DEFERRALS
|
10
|
|
|
|
|
|
5.1
|
DCD
LEDGER
|
10
|
|
5.2
|
ADJUSTMENT OF
AMOUNTS CREDITED TO GROWTH INCREMENT LEDGER
|
10
|
|
5.3
|
ADJUSTMENT OF
AMOUNTS CREDITED TO COMPANY STOCK LEDGER
|
10
|
|
5.4
|
DEEMED
INVESTMENTS NOT ACTUAL INVESTMENTS
|
10
|
|
5.5
|
CHARGES AGAINST
DCD LEDGER
|
10
|
|
|
|
|
|
SECTION
6.
|
PAYMENT OF
DEFERRED AMOUNTS
|
11
|
|
|
|
|
|
6.1
|
PAAYMENT OF
DEFERRED AMOUNTS
|
11
|
|
6.2
|
MANNER OF
PAYMENT
|
11
|
|
6.3
|
FORM OF
PAYMENT
|
11
|
|
6.4
|
ACCELERATIOH OF
PAYMENTS
|
12
|
|
6.5
|
FINANCIAL
EMERGENCY
|
13
|
|
6.6
|
COMPLIANCE WITH
DOMESTIC RELATIONS ORDER
|
14
|
|
|
|
|
|
SECTION
7.
|
BENEFICIARY
DESIGNATION
|
15
|
|
|
|
|
|
7.1
|
DESIGNATION OF
BENEFICIARY
|
15
|
|
7.2
|
DEALTH OF
BENEFICIARY
|
15
|
|
7.3
|
INEFFECTIVE
DESIGNATION
|
15
|
|
|
|
|
|
SECTION
8.
|
CHANGE IN
CONTROL PROVISIONS
|
17
|
|
|
|
|
|
8.1
|
ACCELERATION
DISTRIBUTIONS UPON CHANGE IN CONTROL
|
17
|
|
8.2
|
SUCCESSORS
|
17
|
|
8.3
|
AMENDMENT AND
TERMINATION AFTER CHANGE IN CONTROL
|
18
|
|
|
|
|
|
SECTION
9.
|
GENERAL
PROVISIONS
|
19
|
|
9.1
|
CONTRACTUAL
OBLIGATION
|
19
|
|
9.2
|
UNSECURED
INTEREST
|
19
|
|
9.3
|
“RABBI” TRUST
|
19
|
|
9.4
|
NONALIENATION
OF BENEFITS
|
19
|
|
9.5
|
SEVERABILITY
|
20
|
|
9.6
|
NO INDIVIDUAL
LIABILITY
|
20
|
|
9.7
|
APPLICABLE
LAW
|
20
|
|
|
|
|
|
SECTION
10.
|
PLAN
ADMINISTRATION, AMENDMENT AND TERMINATION
|
21
|
|
|
|
|
|
10.1
|
IN
GENERAL
|
21
|
|
10.2
|
CLAIMS
PROCEDURE
|
21
|
|
10.3
|
FINALITY OF
DETERMINATION
|
21
|
|
10.4
|
DELEGATION OF
AUTHORITY
|
21
|
|
10.5
|
EXPENSES
|
21
|
|
10.6
|
TAX
WITHHOLDING
|
21
|
|
10.7
|
INCOMPETENCY
|
21
|
|
10.8
|
ACTION BY
COMPANY
|
22
|
|
10.9
|
NOTICE OF
ADRESS
|
22
|
|
10.10
|
AMENDMENT AND
TERMINATION
|
22
|
|
10.11
|
PLAN TO COMPLY
WITH CODE SECTION 409A
|
22
|
|
|
|
|
|
SECTION
11.
|
EXECUTION
|
23
|
|
|
|
|
SCANA
CORPORATION
DIRECTOR COMPENSATION AND
DEFERRAL PLAN
SECTION 1.
ESTABLISHMENT
AND PURPOSE
|
|
Establishment of the Plan
. SCANA Corporation (the
“Company”) established the SCANA Corporation
Nonemployee Director Stock Plan, effective as of January 1,
1997. Effective as of January 1, 2001, the plan was
renamed the “SCANA Corporation Director Compensation and
Deferral Plan” (hereinafter called the “Plan”)
and amended and restated to include a deferred compensation
component. Effective as of January 1, 2009, the Plan is
amended and restated as provided herein to comply with the
requirements of Code Section 409A.
|
|
|
Purpose of
the Plan . The
purpose of the Plan is to promote the achievement of long-term
objectives of the Company by linking the personal interests of
Nonemployee Directors, as defined in Section 2(q) herein, to those
of the Company’s shareholders and to attract and retain
Nonemployee Directors of outstanding competence by mandating that a
certain portion as may be determined from time to time of the
Retainer Fee of each Participant as defined in Section 2(t) herein,
be paid in Company Stock, unless such amount is voluntarily
deferred to a future date in accordance with the Plan’s
terms. The Plan is intended to conform to the provisions
of Rule 16b-3 of the Securities Exchange Act of 1934, as amended,
or any replacement rule in effect from time to time (“Rule
16b-3”). The Plan also provides a means by which
Nonemployee Directors may defer certain additional amounts to some
future period.
|
|
|
Definitions . Whenever used herein, the following
terms shall have the meanings set forth below, unless otherwise
expressly provided herein or unless a different meaning is plainly
required by the context, and when the defined meaning is intended,
the term is capitalized:
|
(a) “
Act ” means the Securities Exchange Act of 1934, as
amended.
(b) “
Beneficial Owner ” shall have the meaning ascribed to
such term in Rule 13d-3 of the General Rules and Regulations under
the Act.
(c) “
Beneficiary ” means any person or entity who, upon the
Participant’s death, is entitled to receive the
Participant’s benefits under the Plan in accordance with
Section 7 hereof.
(d) “
Board of Directors ” means the board of directors of
the Company.
(e) “
Change in Control ” means a change in control of the
Company of a nature that would be required to be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A promulgated
under the Act, whether or not the Company is then subject to such
reporting requirements; provided that, without limitation, such a
Change in Control shall be deemed to have occurred if:
(i) Any
Person (as defined in Section 3(a)(9) of the Act and used in
Sections 13(d) and 14(d) thereof, including a “group”
as defined in Section 13(d)) is or becomes the Beneficial Owner,
directly or indirectly, of twenty-five percent (25%) or more of the
combined voting power of the outstanding shares of capital stock of
the Company;
(ii) During
any period of two (2) consecutive years (not including any period
prior to the execution of this Plan) there shall cease to be a
majority of the Board of Directors comprised as follows:
individuals who at the beginning of such period constitute the
Board of Directors and any new director(s) whose election by the
Board of Directors or nomination for election by the
Company’s stockholders was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who either
were directors at the beginning of the period or whose election or
nomination for election was previously so approved;
(iii) The
issuance of an Order by the Securities and Exchange Commission,
under Section 9(a)(2) of the Public Utility Holding Company Act of
1935 (the “1935 Act”), authorizing a third party to
acquire five percent (5%) or more of the Company’s voting
shares of capital stock; or
(iv) The
shareholders of the Company approve a merger or consolidation of
the Company with any other corporation, other than a merger or
consolidation which would result in the voting shares of capital
stock of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by
being converted into voting shares of capital stock of
the surviving
entity) at least eighty percent (80%) of the combined voting power
of the voting shares of capital stock of the Company or such
surviving entity outstanding immediately after such merger or
consolidation; or the shareholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the
Company’s assets.
|
|
|
“
Code ” means the Internal Revenue Code of 1986, as
amended.
|
(g) “
Company ” means SCANA Corporation, a South Carolina
corporation, or any successor thereto.
|
|
“
Company Stock ” means the no par value common stock of
the Company. In the event of a change in the capital
structure of the Company (as provided in Section 3.6), the shares
resulting from such a change shall be deemed to be Company Stock
within the meaning of the Plan.
|
|
|
“
Company Stock Ledger ” means an appropriate
bookkeeping record established in the DCD Ledger for which amounts
credited are converted into hypothetical credited shares of Company
Stock.
|
(j) “
Compensation ” means Retainer Fees, meeting attendance
fees and conference fees payable to such a Participant during a
Service Period by the Company.
(k) “
Director ” means an individual who is a member of the
Board of Directors.
|
|
“ DCD
Ledger ” means an appropriate bookkeeping record which
shall be established for each Participant which shall reflect: (1)
the amounts deferred on behalf of each Participant; and (2) the
crediting of deemed investments (and hypothetical earnings on those
deemed investments) with respect to amounts deferred on behalf of
each Participant. Each DCD Ledger shall separately
reflect the pre-2005 and post-2004 deferrals and hypothetical
earnings thereon, and the portion of the post-2004 deferrals and
hypothetical earnings thereon payable at a date certain and the
portion payable when the Participant separates from service from
the Board of Directors (referred to herein as a Participant’s
“pre-2005 DCD Ledger” and “post-2004 DCD
Ledger”). A Participant’s pre-2005 DCD
Ledger shall reflect amounts deferred hereunder before January 1,
2005 (and the earnings credited thereon before, on or after January
1, 2005) for which (i) the Participant had a legally binding right
as of December 31, 2004, to be paid the amount, and (ii) such right
to the amount was earned and vested as of December 31, 2004
and was credited to the Participant’s DCD Ledger
hereunder. Pre-2005 DCD Ledgers are treated as
“grandfathered” for the purposes of Code Section 409A,
and are governed by the terms of the Plan in effect as of October
3, 2004.
|
(m) “
Fair Market Value ” of Company Stock shall
mean:
(i) if
the Company Stock is original issue stock, the average of the high
and low sale prices of a share of the Company Stock reported on the
New York Stock
Exchange
Composite Tape as published in The Wall Street Journal for the
trading date immediately preceding the date Company Stock is
awarded to a Participant;
(ii) if
the Company Stock is purchased on the open market, the cost
incurred by the Company to purchase such Company Stock;
(iii) in
the case of any distribution, the closing price for shares of
Company Stock on the New York Stock Exchange on the date of
distribution; and
(iv) in
the case of any other transaction hereunder designed to track the
investment or reinvestment of Company Stock, the closing price for
shares of Company Stock on the New York Stock Exchange on the
measuring date.
(n) “
Growth Increment ” means the amount of interest
credited to amounts credited to a Participant’s Growth
Increment Ledger.
|
|
“
Growth Increment Ledger ” means an appropriate
bookkeeping record established in the DCD Ledger for which amounts
are credited with Growth Increments.
|
|
|
“
Investor Plan ” means the SCANA Investor Plus
Plan.
|
|
|
“
Nonemployee Director ” means a Director who is not
currently employed by the Company or any subsidiary of the Company
(without regard to whether such individual was previously employed
by the Company).
|
(r) “
Participant ” means a Nonemployee Director satisfying
the eligibility requirements of Section 3.
(s) “
Plan ” means the SCANA Corporation Director
Compensation and Deferral Plan.
(t) “
Retainer Fees ” means the amount of compensation
payable to each Participant with respect to services rendered to
the Company as a Director for the Service Period. Such
term does not include fees for attending meetings of the Board of
Directors or committees of the Board of Directors and also does not
include conference fees.
(u) “
Rule 16b-3 ” means Rule 16b-3 of the Act, as amended,
or any replacement rule in effect from time to time.
(v) “
Service Period ” means a calendar year.
|
|
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
|
|
Eligibility . All Nonemployee Directors shall automatically
be eligible to participate in this Plan.
|
|
|
Election of
Compensation Payment .
|
|
|
Unless
otherwise deferred in accordance with Section 4, each
Participant’s Retainer Fee amounts shall be paid to the
Participant as soon as practicable after the beginning of each
Service Period and such payment shall be made in shares of Company
Stock or cash, all as determined by the Company or its
delegate.
|
|
|
Unless
otherwise deferred in accordance with Section 4, each
Participant’s meeting attendance and conference fees shall be
paid to the Participant at such times and in the form of cash or
shares of Company Stock as determined by the Company or its
delegate.
|
|
|
With respect to
all payments in Company Stock under this Section 3.2, and subject
to Section 3.3, each Participant shall be entitled to a number of
shares of Company Stock equal to the smallest number of whole
shares of Company Stock which, when multiplied by Fair Market Value
would equal no less than the equivalent amount of Compensation
otherwise payable to the Participant. Any remaining
amounts owed shall be paid in cash.
|
|
|
Payment of
Company Stock . In connection with amounts to be
paid during a Service Period under Section 3.2 which are paid in
the form of Company Stock, each Participant may elect to have the
shares of Company Stock to be issued to him pursuant to the Plan
during the Service Period registered in his name. In
such case, all shares of Company Stock to be paid shall be issued
as promptly as practicable after the amounts are otherwise
payable. If a Participant does not make such an
election, all shares issued pursuant to the Plan during the Service
Period will be deposited into an account in his name in the
Investor Plan. All cash dividends paid on shares
deposited in the Investor Plan will be reinvested in additional
shares of Company Stock unless the Participant notifies the
Investor Plan in accordance with the terms thereof that he does not
want to reinvest such dividends. During the last quarter
of each calendar year in which there is a change in the prospectus
for the Investor Plan, all Participants who have not been provided
previously with a copy of such changed prospectus shall be provided
with a copy of the then-current prospectus. In addition,
each Participant who is not yet a participant in the Investor Plan
shall be given an Investor Plan prospectus shortly before he
becomes an Investor Plan participant.
|
|
|
Stock . Company Stock issued pursuant
to the Plan may be either original issue or stock purchased on the
open market. The Company has reserved an aggregate of
250,000 shares of original issue Company Stock for issuance
pursuant to the Plan and has registered 250,000 shares with the
Securities and Exchange Commission on
|
a Form
S-8. The maximum number of shares that may be issued
pursuant to this Plan is 250,000 shares subject to adjustment as
provided in Section 3.6. In the event of a change in the
capital structure of the Company (as provided in Section 3.6), the
shares resulting from such change shall be deemed to be Company
Stock within the meaning of the Plan. The aggregate
number of shares of Company Stock reserved shall be reduced by the
issuance of shares under the Plan.
|
|
Issuance of
Company Stock . Notwithstanding anything in this
Plan to the contrary:
|
|
|
The Company
shall not be required to issue or deliver any certificate for
shares of Company Stock to a Participant before (i) such shares
have been admitted to listing on the New York Stock Exchange, (ii)
the Company has received any required registration or other
qualification of such shares under any state or federal law or
regulation that the Company’s counsel shall determine is
necessary or advisable and (iii) the Company is satisfied that all
applicable legal requirements have been complied
with. The Company may place on a certificate
representing Company Stock any legend deemed necessary by the
Company’s counsel to comply with federal or state securities
laws. Until the Participant has been issued a
certificate for the shares of Company Stock acquired, the
Participant shall possess no shareholder rights with respect to the
shares.
|
|
|
If at any time
there may not be sufficient shares available under the Plan to
permit the awards of Company Stock, the awards shall be reduced pro
rata (to zero, if necessary) so as not to exceed the number of
shares then available for issuance under the Plan.
|
|
|
Effect of
Stock Dividends and Other Changes in Capital Structure
. Appropriate adjustments
shall be made automatically to the number and kind of shares to be
issued under the Plan, as well as to any deferred amounts credited
to a Participant’s Company Stock Ledger and any other
relevant provisions of the Plan, if there are any changes in the
Company Stock by reason of a stock dividend, stock split,
combination of shares, spin-off, reclassification,
recapitalization, merger, consolidation or other change in the
Company’s capital stock (including, but not limited to, the
creation or issuance to shareholders generally of rights, options,
or warrants for the purchase of common stock or preferred stock of
the Company). If the adjustment would produce fractional
shares, the fractional shares shall be eliminated by rounding to
the nearest whole share. Any adjustments shall be made
in a manner consistent with Rule 16b-3. Any such
adjustments shall neither enhance nor diminish the rights of a
Participant and the Company shall pay all costs of administering
the Plan, including all commissions with respect to open market
purchases.
|
|
|
SECTION 4.
ELECTION TO
DEFER
|
|
|
Deferral
Election . Subject to the conditions set forth
in this Plan, and such procedures established by the Company, a
Participant may elect to defer amounts of Compensation as
follows:
|
|
|
|
At a time
decided by the Company before the beginning of each Service Period,
a Participant irrevocably may elect, by written notice to the
Company’s Secretary (or his designee), to defer a portion of
his Compensation earned for such Service Period. In the case of a
Participant elected to the Board of Directors during the Service
Period, the Participant may elect, within 30 days of his election
to the Board of Directors, to defer a portion of his Compensation
for services to be performed subsequent to his election. Such
election shall specify whether:
|
|
|
|
the Participant
elects to defer all or a portion of his Retainer Fee and
acknowledges that all such deferrals shall be credited to the
Company Stock Ledger on his behalf; and
|
|
|
|
the Participant
elects to defer all or a portion of his meeting attendance and
conference fees and designates what portions of all such deferrals
shall be credited on his behalf to either the Growth Increment
Ledger or the Company Stock Ledger;
|
provided,
however, that once any portion of a Participant’s
Compensation is deferred and credited to the Company Stock Ledger
as provided herein, that portion of Compensation may not
subsequently be credited to the Growth Increment Ledger, and once
any portion of a Participant’s Compensation is deferred and
credited to the Growth Increment Ledger as provided herein, that
portion of Compensation may not subsequently be credited to the
Company Stock Ledger.
|
|
|
The deferral
election specified in (a) above shall be applied to the
Participant’s Compensation for each Service Period (or the
portion of the Service Period, as applicable) to which the deferral
election applies. Any deferral election shall remain in
effect for future Service Periods unless affirmatively changed in
writing by the Participant and received by the Corporate Secretary
by the time established for such purpose prior to the beginning of
the Service Period for which the change is effective.
|
|
|
|
If a
Participant makes a deferral election under Section 4.1(a) whereby
amounts are credited to the Company Stock Ledger on his behalf,
dividends attributable to shares of Company Stock credited to his
Company Stock Ledger shall be automatically deferred and deemed
reinvested pursuant to Section 5.3.
|
|
|
Deferral
Period . With
respect to deferrals made in accordance with Section 4.1, each
Participant must elect a deferral period for each annual
|
deferral. Subject to the additional
deferral provisions of Section 4.3 and the acceleration provisions
of Section 6.4, any post-2004 deferral may be until the earlier of
(i) the Participant’s separation from service from the Board
of Directors for any reason or (ii) a date certain, subject to any
limitations that the Company (or its delegate) in its discretion
may choose to apply at the time of the deferral
election. All post-2004 deferrals to a date certain must
be to the same date certain. In the absence of an
election to the contrary by the Participant for amounts deferred
hereunder for any deferral period, such deferrals shall be paid in
a lump sum payment as soon as practicable after the
Participant’s separation from service from the Board of
Directors for any reason.
|
|
Election to
Defer a Previously Deferred Amount or Change the Manner of
Payment .
|
|
|
|
Subject to the
acceleration provisions of Section 6.4 and the Board approval
requirement of Section 4.3(b) with respect to pre-2005 deferrals, a
Participant may elect an additional deferral period of at least
sixty (60) months with respect to any previously deferred amount
credited to the post-2004 DCD Ledger that is payable at a date
certain, and an additional deferral period of at least twelve (12)
months for each separate deferral credited to the pre-2005 DCD
Ledger. With respect to amounts deferred until separation from
service from the Board of Directors, Participants may also elect a
new manner of payment permitted under Section 6.2 with respect to
any previously deferred amounts, provided that in the case of
amounts credited to post-2004 DCD Ledgers that are payable on
separation from service from the Board of Directors, payments are
delayed for sixty (60) months from the date payments would
otherwise have commenced absent the election. Any such
election must be made by written notice to the Company (or its
delegate) at least twelve (12) months before the expiration of the
deferral period for any previously deferred amount with respect to
which an additional deferral election is made (the
“Modification Period”).
|
|
|
|
A new deferral
period election or a new form of payment election made pursuant to
Subsection 4.3(a) above with respect to pre-2005 DCD Ledgers shall
not be automatically binding upon the Company by the mere fact of
the election request(s) having been made. The Board of
Directors (or its delegate) shall review each such elect
|
|
