Exhibit 4.02
TRUST AGREEMENT
SCANA CORPORATION
STOCK PURCHASE-SAVINGS PLAN
THIS RESTATED AGREEMENT, by and between SCANA CORPORATION (the
"Company"), a corporation organized under the laws of the State of South
Carolina and having its principal office at Columbia, South Carolina, under the
SCANA Corporation Stock Purchase-Savings Plan (the "Plan") effective January 1,
1999, and First Union National Bank of South Carolina ("First Union", or the
"Trustee"), a banking corporation having its principal office in Greenville,
South Carolina, is effective as of the 1st day of January, 1999.
WITNESSETH:
WHEREAS, the Company and The South Carolina National Bank ("SCNB") had
executed an amended and restated Trust Agreement on December 7, 1989 pursuant to
which SCNB served as trustee of the Plan; and
WHEREAS, the Company did on November 19, 1991 deliver to SCNB in
accordance with Section 2.5 of the above Trust Agreement written notice of
prospective removal of trustee, the trust services of SCNB to be concluded as of
the close of business on December 31, 1991; and
WHEREAS, the Company thereafter appointed First Union to serve as
Trustee of the Trust for the Plan effective January 1, 1992, which Plan and
related Trust are intended to be and to be operated as a qualified Plan and
Trust within the meaning of Section 401(a) of the Internal Revenue Code of 1986
as may be from time to time amended; and
WHEREAS, effective as of August 3, 1992, the Company amended Section
2.4 and Article VIII of the Trust Agreement to address Trustee responsibilities
regarding the sale of Participant shares in the open market relative to changes
made to the Plan effective as of August 3. 1992; and
WHEREAS, effective as of January 1, 1997, the Company amended Sections
2.4, 3.5, 3.6, 3.9, 3.10 and Article VIII of the Trust Agreement to address
fiduciary obligations of the Trustee;
WHEREAS, effective as of January 1, 1999, the Company amended Sections
2.4, 3.2, 3.10 and Article VIII of the Trust Agreement to address the addition
of investment options other than Company common stock to the Plan;
NOW, THEREFORE, the Company, on behalf of itself and participating
SCANA Corporation subsidiaries, and First Union as Trustee under this Trust
Agreement hereby consent to the following Trust terms:
ARTICLE I
ESTABLISHMENT OF TRUST
1.1 The Company will, on behalf of itself and as agent for any
participating subsidiary company, deliver or cause to be delivered from time to
time to the Trustee contributions of employees of the Company and of any
participating subsidiary, and contributions by the Company and by any
participating subsidiary, pursuant to the Plan, all of which, together with the
earnings, profits and increments thereon, without distinction between principal
and income, shall constitute the trust fund hereby created and established. In
accordance with directions from the Company to SCNB as the retiring trustee
pursuant to notice issued in accordance with Section 2.5 of the Trust Agreement
with SCNB dated December 7, 1989, First Union shall initially receive delivery
of the trust fund and related records from SCNB to serve as successor Trustee as
specified in the preamble provisions above.
1.2 This trust shall be a part of the Plan and shall be administered
for the exclusive purpose of providing benefits to Participants as defined in
the Plan and their successors in interest in accordance with the provisions of
the Plan the Internal Revenue Code of 1986 and of the Employee Retirement Income
Security Act of 1974 (ERISA) and rules and regulations thereunder, as all may
from time to time be amended.
1.3 The Trustee, by executing this Trust Agreement, accepts the trust,
and undertakes to hold, invest, distribute and administer the Fund in accordance
with the provisions of this Agreement and agrees to be bound by the terms of the
Plan applicable to it as well as of this Agreement.
1.4 Notwithstanding references herein to the Plan, the duties and
responsibilities of the Trustee shall be limited to carrying out the terms of
this Agreement and the directions of the Company issued pursuant to this
Agreement, and the Trustee shall be under no duty to seek contributions from the
Company, or payments from any employee, or to compel acceptance by the Company
of any subscription or offer to purchase or sell common stock of the Company.
ARTICLE II
CONCERNING THE TRUSTEE
2.1 The Trustee shall have all powers necessary for performance of its
duties under this Trust Agreement. 2.2 The Trustee shall be paid by the
Company such compensation as shall from time to time be agreed upon by
the Company
and the Trustee.
2.3 The Trustee may accept as the direction, act, statement,
determination or interpretation of the Company any writing purporting to be such
and signed by or on behalf of the Plan Administrator or by a person designated
in writing by the Plan Administrator. In that the Plan Administrator is the
SCANA Corporation Stock Purchase-Savings Plan Committee ("Committee") per
Section 15.1 of the Plan, and in that "The Committee delegates and assigns to
the Plan Manager primary responsibility for management of the regular operations
of the Plan" per Section 15.2 of the Plan, it is intended that the Plan Manager
shall act on behalf of the Plan Administrator in virtually all matters
concerning the Trustee.
2.4 The Trustee shall have power and authority to sell or exchange such
securities and to execute such proxies, powers of attorney, agreements and other
documents as directed by the Plan Manager as a named fiduciary or as otherwise
expressly required of the Trustee by the terms of the Plan. In addition to other
circumstances, this power of authority shall specifically pertain to the sale of
Participant shares of Company common stock in the open market on the New York
Stock Exchange, directly or via an agent, in accordance with Plan sections 8.3,
8.9 and 8.10, effective August 3, 1992, pertaining to cash-option Withdrawals,
Distributions, and fractional-share cash outs associated with either cash-option
or share Withdrawals or Distributions, and in accordance with Plan section
9.2(l), also effective August 3, 1992, to provide funds to borrowing
Participants as loan disbursements.
2.5 The Trustee may resign at any time by delivering sixty days'
written notice of its resignation to the Company, but the Company may agree to
accept such resignation upon shorter notice. The Company may at any time remove
the Trustee by delivering thirty days' written notice of such removal to the
Trustee, but the Trustee may agree to removal upon shorter notice. The retiring
Trustee shall deliver the Fund and related records to such successor trustee as
designated and appointed by the Company.
ARTICLE III
TRUST RECEIPTS AND INVESTMENTS
3.1 All Deferrals and Contributions under the Plan shall be paid to the
Trustee, who shall invest such amounts and earnings thereon as provided in
Article VI of the Plan, and account for all such amounts and earnings thereon.
The Trustee shall not be responsible in any way for the collection of
contributions provided for under the Plan.
3.2 Effective for periods prior to January 1, 1999, all Employee
Deferrals and Contributions made during any Plan year were invested entirely in
SCANA Corporation common stock. Effective for periods on or after January 1,
1999, Employee Deferrals and Contributions made during any Plan year shall be
invested according to the designation of each Participant in Investment Funds as
established by the Plan Administrator. All Employer Contributions have been and
shall be invested entirely in SCANA Corporation common stock. Except as
otherwise provided in Section 3.10 of this Article, the Trustee shall not be
deemed to have any discretionary investment powers in this regard, and as a
result the Company shall, to the extent permitted by the Employee Retirement
Income Security Act of 1974, indemnify the Trustee for any and all claims,
losses, costs, expenses or other liabilities which the Trustee may incur or for
which the Trustee may be held legally liable regarding the exclusive investment
of Employer contributions in SCANA Corporation common stock or for following
Participant direction in the investment of Employee Deferrals and Contributions
in Investment Funds; the Company shall not, however, indemnify the Trustee for
any claim, loss, cost, expense or other liability incurred with respect to
investment in SCANA Corporation common stock or in other Investment Funds which
is the result of the Trustee's gross negligence or recklessness.
3.3 Company common stock shall be purchased by the Trustee as provided
in Article VI of the Plan.
3.4 Company common stock purchased by the Trustee shall be carried in
the accounts of the Trustee at the cost thereof to the Trustee.
3.5 The provisions of this Section 3.5 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 the Plan and this Trust Agreement. Each Participant (or
Beneficiary) is, for purposed of this Section 3.5, 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.
3.6 Each Participant (or Beneficiary of a deceased Participant) is, for
purposes of this Section 3.6, 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.
3.7 The Trustee shall register Company common stock held by it
hereunder in its own name or in the name of its nominee, with or without the
addition of words indicating that such securities are held in a fiduciary
capacity, and may hold any other securities in bearer form, but the books and
records of the Trustee shall at all times show that all such investments are
part of the Trust.
3.8 The Company will maintain records accurately reflecting the
interest of each Participant in the Plan. 3.9 The Trustee shall
purchase and sell shares of common stock, as directed by the Plan
Manager as a named fiduciary, in the open market at the current market
price or in privately negotiated transactions at a price and upon such terms
as directed by the Plan Manager as a named fiduciary of the Plan.
3.10 With respect to amounts to be invested in Company common stock,
the Trustee shall have the power to invest cash for short periods of time, not
to exceed the period from the date the Trustee receives funds from the Company
until the settlement date for purchases of Company common stock made by the
Trustee as directed by the Plan Manager as a named fiduciary of the Plan, in
interest-bearing deposits or money market obligations of the Trustee (where the
Trustee is a federally-regulated bank) or otherwise with due prudence exercised
as to safety, liquidity and rate of return.
3.11 Loans may be made to the participants under Article IX of the Plan
and this section provided such loans (a) are available to all such Participants
on a reasonably equivalent basis, (b) are not made available to highly
compensated Employees or officers in an amount greater than made available to
other Participants, (c) are made in accordance with Article IX of the Plan, (d)
bear a reasonable rate of interest and (e) are adequately secured. The Plan
Manager and not the Trustee shall be responsible for the administration,
processing and collection of loans. The Plan Manager may bring actions for
collection of amounts due in the name of the Trustee.
ARTICLE IV
DISTRIBUTIONS
The Trustee shall make distributions at such times and in such form as
the Plan Manager may direct in writing.
ARTICLE V
REPORTS AND ACCOUNTS
5.1 The Trustee shall maintain true and accurate accounts of all
transactions hereunder, which shall be subject to inspection and audit at any
time by the Company or by auditors designated by the Company.
5.2 Within sixty days after the end of each Plan Year, the Trustee
shall prepare and deliver to the Plan Manager a statement, in such form as the
Company shall prescribe, of its accounts and proceedings for the year. Each
annual statement shall be certified as accurate by appropriate officers of the
Trustee.
ARTICLE VI
TAXES
6.1 The Trustee shall withhold and pay to the proper authorities any
taxes required to be withheld by the Trustee or the Company from any
distribution to or for the account of any Participant or with respect to any
credit to the account of any Participant.
6.2 The Trustee shall pay out of the Fund any taxes lawfully assessed
upon the Fund or the earnings thereof or upon the Company with respect to the
Fund or the earnings thereof.
ARTICLE VII
FIDUCIARY DUTIES
7.1 The Trustee shall not engage in any activity that would constitute
a prohibited transaction as defined in the appropriate sections of the Internal
Revenue Code, ERISA, related Regulations and any applicable South Carolina law.
7.2 No person dealing with the Trustee shall be required to inquire
into the decisions or authorities of the Trustee or to see to the application by
the Trustee of any properties involved in such transactions; provided, that this
provision shall not relieve any Plan fiduciary dealing with the Trustee from
fulfilling his fiduciary duty. For the purposes of this Agreement, the
"fiduciary duty" of the Plan fiduciaries (including the Trustee) shall include
the duties specified by the Plan and in this Trust Agreement and all other
duties imposed on plan fiduciaries under the Internal Revenue Code of 1986,
ERISA, and any applicable South Carolina law, as all may from time to time be
amended. The Trustee shall not be liable for the making, retention, or sale of
any investment nor for any loss to or diminution of the trust fund, nor for any
action it takes or refrains from taking, if at the direction of the Plan
Manager.
7.3 The Trustee shall not be liable for any expenses or liability
hereunder unless due to or arising from its fraud, dishonesty, negligence,
misconduct, or violation of the fiduciary standards of the Internal Revenue Code
of 1986, ERISA, and any applicable South Carolina law, as all may from time to
time be amended.
7.4 The Trustee shall be under no duty to question any direction
received from the Plan Manager or to make any suggestions to the Plan Manager in
connection therewith, and the Trustee shall as promptly as possible comply with
any direction given by the Plan Manager hereunder. The Trustee may consult with
legal counsel of its choice, including counsel for or employed by the Company,
upon any matter or question arising hereunder and shall be fully protected in
acting in good faith upon advice received from such counsel.
ARTICLE VIII
EXPENSES OF AND CHARGES AGAINST THE TRUST
Expenses of and charges against the trust fund relating to the ordinary
and necessary administration of the Plan and Trust shall be payable out of the
Fund, unless paid by the Company. Prior to any payment from the Fund, the
Trustee shall provide the Plan Manager with written notice of the amount of such
expenses. If the Company does not pay such amount within ninety (90) days of
delivery of such written notice, the Trustee shall be deemed authorized to
deduct such amount from the Fund. To the extent the Company pays any
administrative expenses directly, the Company may be reimbursed from the Fund,
provided the Trustee is so directed, in writing, by the Plan Manager. Among the
expenses encompassed by this section is reasonable compensation for the
Trustee's services, which fees shall be agreed upon from time to time between
the Company and the Trustee. If the Trustee and the Plan Manager mutually agree
that the advice of legal counsel is needed on any legal matter involving the
Trust, including the interpretation of this Trust, and mutually agreed upon
legal counsel is retained, the counsel fees shall be paid out of the Fund unless
directly paid by the Company. In all other cases, fees for legal counsel shall
not be paid from the Fund or by the Company unless otherwise required by a court
of competent jurisdiction.
Effective as of August 3, 1992 with regard to the open market sales of
Participant shares and fractional shares in accordance with Plan sections 8.3,
8.9, 8.10 and 9.2(l), those costs directly related to sale which by the terms of
the Plan are to be borne by the Participants shall be so treated under Plan and
Trust administration.
ARTICLE IX
NON-ASSIGNABILITY
Except to the extent permitted in the instance of a qualified domestic
relations order as defined in Section 414(p) of the Code, no right or interest
of any Participant or of any beneficiary of any Participant under this Agreement
or in or to any part of the Trust hereby established shall be assignable or
transferable, in whole or in part, either directly or by operation of law or
otherwise, including, but not by way of limitation, execution, levy,
garnishment, attachment, pledge, bankruptcy or in any other manner, but
excluding devolution by death or mental incompetency, and no right or interest
of any such Participant or beneficiary shall be liable for, or subject to, any
obligation or liability of such Participant or beneficiary.
ARTICLE X
AMENDMENT AND TERMINATION
10.1 The Company reserves the right at any time by written notice to
the Trustee to amend the terms of this Agreement in any respect whatsoever, or
to modify, suspend or terminate this Agreement. No such amendment, however, may
permit any part of the trust fund to revert to the Company or to be used for or
diverted to purposes other than the exclusive benefit of Participants or for the
payment of taxes and such expenses as might be incurred which are obligations
properly to be satisfied from the trust fund, except that Company contributions
made to the Plan shall be returned to the Company if made by reason of a good
faith mistake of fact. Applicable to the circumstance of return of Company
contributions are the following rules:
1. The amount returnable is the excess of the amount contributed
by the Company over the amount that would have been
contributed had there not occurred a mistake of fact.
2. Earnings attributable to the excess contribution shall not be
returned to the Company, but losses attributable thereto must
reduce the amount to be returned.
3. The return to the Company must be made within one year of the
mistaken payment of the contribution. No such amendment, modification,
suspension or termination shall have any retroactive effect, except that an
amendment may be made retroactively which is necessary or advisable in the
judgment of the Company to bring this Agreement into conformity with laws or
regulations, or to qualify the Plan and this Agreement for tax exemption and the
Company's contributions thereunder as deductible for tax purposes, or which does
not reduce the accrued benefit for any Participant, or which is not otherwise
contrary to any other applicable law.
10.2 Unless sooner terminated, the Trust shall continue for such period
of time as is required to accomplish the purposes for which it is established.
ARTICLE XI
MISCELLANEOUS
11.1 A copy of the Plan is attached hereto and incorporated herein by
reference. All terms used in this Agreement which are defined in the Plan shall
have the meanings assigned to them in the Plan unless the context in which they
are used clearly requires otherwise. In the event any matter arises in
connection with the administration of the Trust which is not provided for in
this Agreement, or in the event there is a conflict between the provisions of
this Agreement and the provisions of the Plan, the Plan provisions shall be
controlling.
11.2 This Agreement shall be construed, administered and enforced
according to the laws of the State of South Carolina except as superseded by
laws of the United States.
11.3 If any part of this Agreement shall be found to be invalid or
unenforceable, such invalidity or unenforceability shall not affect the
remaining provisions hereof, but such part shall be fully separable, and this
Agreement shall be construed and enforced as if such invalid or unenforceable
matter had never been inserted herein.
11.4 This Agreement shall be binding upon the parties and upon their
successors and assigns.
11.5 This Agreement may be executed in any number of counterparts, each
of which shall be an original, and all of which together shall constitute one
and the same instrument.
IN WITNESS WHEREOF, this instrument has been executed this 15th day of
January, 1999.
SCANA CORPORATION
BY: s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Chairman of the Board and Chief Executive Officer
Attest: s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Corporate Secretary
FIRST UNION NATIONAL BANK
OF SOUTH CAROLINA, TRUSTEE
BY: s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President and Trust Officer
Attest: s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇