INDEPENDENT CONTRACTOR AGREEMENT
Exhibit
99.1
THIS
INDEPENDENT CONTRACTOR AGREEMENT (hereinafter "Agreement") is effective as
of
the 1st day of July 2006, by and between South Carolina Electric & Gas
Company (hereinafter "SCE&G") and Xxxxxxx X. Xxxxxx (hereinafter
"Contractor"), pursuant to which Contractor will provide services, as set
forth
below, to assist SCE&G under the terms and conditions and for the
consideration set forth below.
RECITALS
WHEREAS,
SCE&G desires to enter into the relationship described above with Contractor
as an independent contractor and not as an employee of SCE&G for the purpose
of:
1.
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evaluating
and advising SCE&G on scrubber technology, to include components,
contractors, and construction preparations;
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2.
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evaluating
and advising SCE&G on the application process for a combined
construction/operating license for the new nuclear reactor(s) at
VC
Summer;
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3.
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advising
on preparations for and responses to any natural disasters affecting
SCE&G's systems; and
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4.
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consulting
and advising SCE&G on its interests in regulatory and/or political
processes.
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WHEREAS,
SCE&G does not seek and does not assert any control over the day-to-day
activities of Contractor in performing the services necessary to accomplish
the
objectives set forth herein. Furthermore, Contractor will be solely responsible
for scheduling his work hours to timely accomplish the objectives described
herein.
WHEREAS,
Contractor possesses the requisite skills, training, and expertise to perform
the services called for under this Agreement and wishes to perform services
based on the terms and conditions herein.
WHEREAS,
Contractor understands that he will be performing services under this Agreement
as an independent contractor and not as an employee of SCE&G and, therefore,
will be solely responsible for all federal and state tax obligations imposed
with respect to payments received from SCE&G. Further, SCE&G will not
pay any Federal Insurance Contributions Act ("FICA") taxes or Federal
Unemployment Tax Act ("FUTA") taxes, will not withhold or pay any income
tax
withholding or FICA taxes on Contractor's behalf, and will not cover Contractor
for workers' compensation purposes.
WHEREAS,
Contractor agrees to release and indemnify SCE&G of any and all liability
that could be associated with performing services pursuant to this Agreement;
including but not limited to, any claim for workers' compensation benefits
or
other damages resulting from any injury by any employee of Contractor while
working pursuant to this Agreement; any tax liabilities or consequences which
could arise out of Contractor's failure to withhold taxes from his or any
employee's pay in accordance with state or federal law.
THEREFORE,
in consideration of the mutual promises set forth herein, SCE&G and
Contractor agree as follows:
ARTICLE
I
STATUS
AS INDEPENDENT CONTRACTOR
1.1
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Consideration
SCE&G
hereby engages Contractor to perform the following services, for
and to
the benefit of SCE&G:
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1.
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evaluating
and advising SCE&G on scrubber technology, to include components,
contractors, and construction preparations;
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|
2.
|
evaluating
and advising SCE&G on the application process for a combined
construction/operating license for the new nuclear reactor(s) at
VC
Summer;
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3.
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advising
on preparations for and responses to any natural disasters affecting
SCE&G's systems; and
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4.
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consulting
and advising SCE&G on its interests in regulatory and/or political
processes.
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In
consideration for said services, SCE&G shall compensate Contractor
only while this Agreement is in effect, as described in section
2.1. For
the convenience of both parties, SCE&G will compensate Contractor in
12 equal monthly payments of $34,666.67. SCE&G and Contractor estimate
the objectives described herein to require an average of 20 hours
per
week, however, if Contractor works in excess of these estimated
average
hours, SCE&G's Chief Executive Officer may consider additional
compensation as is deemed
appropriate.
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1.2
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Status
of Contractor as Independent Contractor
Contractor
understands that for all purposes under this Agreement, Contractor
will
operate as an independent contractor. As such, the following provisions
shall apply:
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1.2.1
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Contractor
shall choose the time, location, and manner in which all services
are
performed, according to his own judgment, as long as the objectives
set
forth herein are met in a satisfactory manner by the deadlines
set in
section 2.1 of this Agreement.
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1.2.2
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It
is within Contractor's discretion whether to work at home or on
SCE&G's premises. To the extent Contractor chooses to work on
SCE&G's premises for his own convenience in accomplishing the
objectives herein, SCE&G agrees to provide an office and basic
furnishings. Any furnishings beyond those basic items provided
by
SCE&G will be at Contractor's own
expense.
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1.2.3
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Contractor
expressly agrees that neither he, nor any individual he may employ,
if
any, shall be considered an employee of SCE&G for any purpose
associated with the performance under this Agreement. Both SCE&G and
Contractor acknowledge that without this Agreement, no relationship
or
other requirements exist between them; and that pursuant to this
Agreement, Contractor is an independent contractor. None of the
benefits
that SCE&G provides to its employees shall be available to Contractor
(or his employees) and to the extent that Contractor (or his employees)
may now, or hereafter, and for any reason, become eligible for
any benefit
programs maintained by SCE&G, Contractor (for himself and on behalf of
his employees) hereby waives the right to
participate
in such programs. This provision in no way voids or adversely affects
Contractors rights to SCE&G benefits he earned and to which he was
fully vested prior to the date of this Agreement and while he was
an
employee of SCE&G.
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1.2.4
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For
all tax purposes, including but not limited to, FICA; the Social
Security
Act; the Immigration Reform and Control Act; FUTA; income tax
withholdings; and any and all other federal, state, or local laws,
rules,
and regulations, Contractor and each of his employees shall be
treated as
an independent contractor and not an employee of
SCE&G.
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1.2.5
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Contractor
acknowledges and agrees that he shall be responsible (as a self-employed
individual) for filing all tax returns, tax declarations, tax schedules,
and for the payment of all taxes required when due with respect
to any and
all compensation derived from the services performed under this
Agreement.
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1.2.6
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Contractor
agrees to be fully and totally responsible for all expenses incurred
while
performing the objectives of this Agreement and shall not be entitled
to
reimbursement by SCE&G for any expense
incurred.
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1.2.7
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Contractor
agrees to indemnify and hold SCE&G (including its officers, managers,
employees, and agents) harmless against any and all claims, losses,
liabilities, damages, and expenses arising out of, or as a result
of, any
work performed by Contractor while acting pursuant to this
Agreement.
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1.3
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Training
by SCE&G
SCE&G
acknowledges Contractor's existing training, skills, and experience
as
related to the objectives herein to be completed. Contractor represents
that he is fully trained to perform the services contracted for
and that
he is not in need of any training by SCE&G. Therefore, SCE&G will
not provide Contractor with any training related to the objectives
herein.
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1.4
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Contractor's
Assistants
Contractor
shall have the right to engage assistance in completing the duties
set
forth herein as he deems appropriate. Contractor shall be responsible
for
paying any and all compensation and any applicable employment taxes
that
might be owed to any such assistants, and Contractor shall indemnify
and
hold SCE&G harmless against any such liabilities. Contractor agrees to
provide his assistants with workers' compensation
coverage.
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1.5
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Contractor's
Access to SCE&G Employees
SCE&G
acknowledges it may be beneficial for Contractor to interact with
certain
SCE&G employees during the performance of this Agreement. Therefore,
SCE&G agrees to make certain employees available to Contractor for
advisory purposes only. Any individual employed by SCE&G will not be
considered an "assistant" of Contractor as described in section
1.4 of
this Agreement, nor will Contractor have any input into any personnel
action of a SCE&G employee advising him in relation to this
Agreement.
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1.6
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Tools
and Materials and Equipment
Contractor
must furnish all tools, all materials, and all other equipment
necessary
to perform the services contracted for under this
Agreement.
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1.7
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Additional
Matters
Contractor
may attend SCE&G's future Leadership Meetings as a guest.
Additionally, Contractor acknowledges that as an independent contractor,
the following may be provided to him at his own expense and/or
taxing:
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1.7.1
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Contractor
will have access to Xxxxxx Xxxxx for a period not to exceed 18
months and
he must reimburse SCE&G for any direct expenses
incurred.
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1.7.2
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SCE&G
will provide Contractor with a parking space in the Palmetto Center
basement while this Agreement is in effect, however, Contractor
will be
charged a fee
for this reserved space.
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1.7.3
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SCE&G
will provide Contractor with a home security system for a period
not to
exceed 18 months and he will be charged the appropriate monthly
monitoring
fee.
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ARTICLE
2
TERMS
AND TERMINATION
2.1
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Terms
of Agreement
This
Agreement shall take effect on July 1, 2006, and continue in full
force
and effect for a period of 12 months, or until June 30, 2007. This
Agreement may be extended, if necessary, in single increments of
6 months,
but shall not exceed a total of 12 additional months, or June 30,
2008. An
extension of this Agreement shall be valid and binding only if
approved
and signed by both SCE&G and Contractor and attached to this Agreement
as an Addendum. Any extension agreed to by SCE&G must be approved in
advance by SCE&G's Chief Executive Officer. This Agreement, or any
extension hereto, may be terminated only pursuant to section 2.2
below.
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2.2
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Termination
of Agreement
SCE&G
may terminate this Agreement immediately if it determines that
Contractor
lacks the skills necessary to accomplish the objectives contracted
for by
SCE&G, Contractor's work fails to meet the expectations of SCE&G,
or Contractor breaches any term of this Agreement. Either SCE&G or
Contractor may terminate this Agreement if made in writing and
30 days
notice is provided. Notwithstanding the foregoing, this Agreement
shall
terminate pursuant to the deadlines imposed in section
2.1.
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ARTICLE
3
GENERAL
PROVISIONS
3.1
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Governed
by South Carolina Law
This
Agreement shall be governed by the laws of the state of South
Carolina.
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3.2
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Notices
Any
notice required or permitted under the Agreement shall be in writing
and
sent to the other party by first class mail at the address first
set forth
below or to such other address as a party hereto may specify in
writing:
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SCE&G
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Contractor
(HOME ADDRESS)
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0000
Xxxx Xxxxxx
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XXXXXXXXXXXXXX
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Xxxxxxxx,
XX 00000
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XXXXXXXXXXXXXX
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3.3
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Entire
Agreement
This
Agreement, including any Addendums, constitutes the entire agreement
between the parties and supersedes and replaces any and all previous
agreements, either oral or written. Notwithstanding the foregoing,
Contractor shall be entitled to all compensation or benefits for
which he
is entitled pursuant to the terms of any SCE&G benefit plan(s). No
modifications, amendments, or changes to this Agreement shall be
binding
on the parties unless and until the parties have approved the
modifications in writing.
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3.4
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Severability
If
any provision of this Agreement is found, held, or deemed to be
void,
unlawful, or unenforceable for any reason, then such invalid or
unenforceable section shall be removed and not affect the other
parts of
this Agreement, which parts shall remain in full force and
effect.
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3.5
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Waivers
Not Continuing
No
breach of any provision hereof can be waived unless in writing.
Waiver of
any breach of any provision shall not be deemed to be a waiver
of any
further breach of the same or any other provision of this
Agreement.
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3.6
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Assignability
SCE&G
may transfer or assign this Agreement (in whole or in part) to
any
subsidiary or affiliate of SCE&G or to any entity with which SCE&G
may be merged or consolidated, or which may acquire substantially
all of
the existing business of SCE&G. This Agreement shall inure to the
benefit of and shall be binding upon the successors or permitted
assigns
of SCE&G. If this Agreement is assigned in accordance with the
foregoing provisions, all references herein to SCE&G shall likewise be
deemed to be references to the successor or assignee. Contractor
may not
transfer, assign, or otherwise convey this Agreement for any part
of
Contractor's interest herein.
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IN
WITNESS WHEREOF, the parties execute this Independent Contractor Agreement
this
the 15th
day of
June 2006.
South
Carolina Electric & Gas Company:
By:
/s/Xxxxxxx
X. Xxxxxxxxx
Title:
Chief
Executive Officer
INDEPENDENT
CONTRACTOR:
/s/Xxxxxxx
X. Xxxxxx
Xxxxxxx
X. Xxxxxx