Exhibit 1.1
5,250,000 Shares
SCANA CORPORATION
Common Stock
UNDERWRITING AGREEMENT
October 9, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Securities LLC
UBS Warburg LLC
as Representatives for the Several
Underwriters Named in Schedule I
c/o Banc of America Securities LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - Equity Capital Markets
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
c/o UBS Warburg LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
SCANA Corporation, a South Carolina corporation (the "Company"),
proposes to sell an aggregate of 5,250,000 shares (the "Firm Shares") of the
Company's Common Stock, no par value per share (the "Common Stock"), to you and
to the other underwriters named in Schedule I hereto (collectively, the
"Underwriters"), for which you are acting as representatives (collectively, the
"Representatives"). The Company has also agreed to grant to you and the other
Underwriters an option (the "Option") to purchase up to an additional 750,000
shares of Common Stock (the "Option Shares") on the terms and for the purposes
set forth in Section 1(b). The Firm Shares and the Option Shares are hereinafter
collectively referred to as the "Shares." The term "Representatives" as used
herein shall be deemed to mean the firms and/or corporations addressed hereby.
If there is only one firm or corporation to which this Agreement (the
"Agreement") is addressed, such term shall be deemed to mean such firm or
corporation. If there are any Underwriters in addition to yourselves, you
represent that you have been authorized by each of the Underwriters to enter
into this Agreement on their behalf and to act for them in the manner herein
provided in all matters relating to carrying out the provisions of this
Agreement. If there are no Underwriters other than yourselves, the term
"Underwriters" shall be deemed to mean the Representatives. All obligations of
the Underwriters hereunder are several and not joint.
The initial public offering price per share for the Shares and the
purchase price per share for the Shares to be paid by the several Underwriters
shall be agreed upon by the Company and the Representatives, acting on behalf of
the several Underwriters, and such agreement shall be set forth in a separate
written instrument substantially in the form of Exhibit A hereto (the "Price
Determination Agreement"). The Price Determination Agreement may take the form
of an exchange of any standard form of written telecommunication among the
Company and the Representatives and shall specify such applicable information as
is indicated in Exhibit A hereto. The offering of the Shares will be governed by
this Agreement, as supplemented by the Price Determination Agreement. From and
after the date of the execution and delivery of the Price Determination
Agreement, this Agreement shall be deemed to incorporate, and, unless the
context otherwise indicates, all references contained herein to "this Agreement"
and to the phrase "herein" shall be deemed to include, the Price Determination
Agreement.
The Company confirms as follows its agreements with the Representatives
and the several other Underwriters.
1. Agreement to Sell and Purchase.
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(a) On the basis of the representations, warranties and agreements of the
Company herein contained and subject to all the terms and conditions of this
Agreement, the Company agrees to sell to each Underwriter named below, and each
Underwriter, severally and not jointly, agrees to purchase from the Company at
the purchase price per share for the Firm Shares to be agreed upon by the
Representatives and the Company in accordance with Section 1(c) or 1(d) and set
forth in the Price Determination Agreement, the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I, plus such additional number
of Firm Shares which such Underwriter may become obligated to purchase pursuant
to Section 8 hereof. If the Company elects to rely on Rule 430A of the Rules and
Regulations (as defined herein), Schedule I may be attached to the Price
Determination Agreement.
(b) Subject to all the terms and conditions of this Agreement, the Company
grants the Option to the several Underwriters to purchase, severally and not
jointly, up to 750,000 Option Shares from the Company at the same price per
share as the Underwriters shall pay for the Firm Shares. The Option may be
exercised only to cover over-allotments in the sale of the Firm Shares by the
Underwriters and may be exercised in whole or in part at any time (but not more
than once) on or before the 45th day after the date of this Agreement (or, if
the Company has elected to rely on Rule 430A of the Rules and Regulations, on or
before the 45th day after the date of the Price Determination Agreement), upon
written or telegraphic notice (the "Option Shares Notice") by the
Representatives to the Company no later than 12:00 noon, New York City time, at
least two and no more than five business days before the date specified for
closing in the Option Shares Notice (the "Option Closing Date") setting forth
the aggregate number of Option Shares to be purchased and the time and date for
such purchase. On the Option Closing Date, the Company will issue and sell to
the Underwriters the number of Option Shares set forth in the Option Shares
Notice, and each Underwriter will purchase such percentage of the Option Shares
as is equal to the percentage of Firm Shares that such Underwriter is
purchasing, as adjusted by the Representatives in such manner as it deems
advisable to avoid fractional shares.
(c) If the Company has elected not to rely on Rule 430A of the Rules and
Regulations, the initial public offering price per share for the Firm Shares and
the purchase price per share for the Firm Shares to be paid by the several
Underwriters shall be agreed upon and set forth in the Price Determination
Agreement, which shall be dated the date hereof, and an amendment to the
Registration Statement (as hereinafter defined) containing such per share price
information shall be filed before the Registration Statement becomes effective.
(d) If the Company has elected to rely on Rule 430A of the Rules and
Regulations, the initial public offering price per share for the Firm Shares and
the purchase price per share for the Firm Shares to be paid by the several
Underwriters shall be agreed upon and set forth in the Price Determination
Agreement.
2. Delivery and Payment. Delivery of the Firm Shares shall be made to the
Representatives for the accounts of the Underwriters against payment of the
purchase price by wire transfer in federal or other immediately available funds
to an account designated in writing by the Company to the Representatives. Such
payments shall be made at 10:00 a.m., New York City time, on or before the fifth
business day following the date of this Agreement or, if the Company has elected
to rely on Rule 430A of the Rules and Regulations, on or before the fifth
business day after the date on which the first bona fide offering of the Shares
to the public is made by the Underwriters or at such time on such other date, as
may be agreed upon by the Company and the Representatives (such date is
hereinafter referred to as the "Closing Date").
To the extent the Option is exercised, delivery of the Option
Shares against payment by the Underwriters (in the manner specified above) will
take place at the offices specified above for the Closing Date on the Option
Closing Date.
Certificates evidencing the Shares shall be in definitive form
and shall be registered in such names and in such denominations as the
Representatives shall request at least two business days prior to the Closing
Date or the Option Closing Date, as the case may be, by written notice to the
Company. For the purpose of expediting the checking and packaging of
certificates for the Shares, the Company agrees to make such certificates
available for inspection at least 24 hours prior to the Closing Date or the
Option Closing Date, as the case may be.
The cost of original issue tax stamps, if any, in connection
with the issuance and delivery of the Firm Shares and Option Shares by the
Company to the respective Underwriters shall be borne by the Company. The
Company will pay and save each Underwriter and any subsequent holder of the
Shares harmless from any and all liabilities with respect to or resulting from
any failure or delay in paying Federal and state stamp and other transfer taxes,
if any, which may be payable or determined to be payable in connection with the
original issuance or sale to such Underwriter of the Firm Shares and Option
Shares.
3. Representations and Warranties of the Company.
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The Company represents, warrants and covenants to each
Underwriter that:
(a) The Company meets the requirements for use of Form S-3 and a
registration statement (Registration No. 333-97563) on Form S-3 relating to the
Shares, including a preliminary prospectus and such amendments to such
registration statement as may have been required to the date of this Agreement,
has been prepared by the Company under the provisions of the Securities Act of
1933, as amended (the "Act"), and the rules and regulations (collectively
referred to as the "Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") thereunder, and has been filed with the
Commission. The term "preliminary prospectus" as used herein means a preliminary
prospectus as contemplated by Rules 430 or 430A of the Rules and Regulations
included at any time as part of the registration statement. Copies of such
registration statement and amendments and of each related preliminary prospectus
have been delivered to the Representatives. If such registration statement has
not become effective, a further amendment to such registration statement,
including a form of final prospectus, necessary to permit such registration
statement to become effective will be filed promptly by the Company with the
Commission. If such registration statement has become effective, a final
prospectus containing information permitted to be omitted at the time of
effectiveness by Rule 430A of the Rules and Regulations will be filed by the
Company with the Commission in accordance with Rule 424(b) of the Rules and
Regulations promptly after execution and delivery of the Price Determination
Agreement. The term "Registration Statement" means the registration statement as
amended at the time it becomes or became effective (the "Effective Date") and as
it may be amended as of the date of this Agreement, including financial
statements and all exhibits and any information deemed to be included by Rule
430A of the Rules and Regulations. The term "Prospectus" means the prospectus as
first filed with the Commission pursuant to Rule 424(b) of the Rules and
Regulations promptly after execution and delivery of the Price Determination
Agreement. Any reference herein to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), on or before the Effective Date or the date of such preliminary
prospectus or the Prospectus, as the case may be. Any reference herein to the
terms "amend," "amendment" or "supplement" with respect to the Registration
Statement, any preliminary prospectus or the Prospectus shall be deemed to refer
to and include the filing of any document under the Exchange Act after the
Effective Date, or the date of any preliminary prospectus or the Prospectus, as
the case may be, and deemed to be incorporated therein by reference.
(b) The Company has not received, and has no notice of, any order of the
Commission preventing or suspending the use of any preliminary prospectus, or
instituting proceedings for that purpose. On the Effective Date, the date the
Prospectus is first filed with the Commission pursuant to Rule 424(b) of the
Rules and Regulations (if required), at all times subsequent to and including
the Closing Date and, if later, the Option Closing Date and when any
post-effective amendment to the Registration Statement becomes effective or any
amendment or supplement to the Prospectus is filed with the Commission, the
Registration Statement and the Prospectus (as amended or as supplemented if the
Company shall have filed with the Commission any amendment or supplement
thereto), including the financial statements included or incorporated by
reference in the Prospectus, did or will comply with all applicable provisions
of the Act, the Exchange Act, the rules and regulations thereunder (the
"Exchange Act Rules and Regulations") and the Rules and Regulations and will
contain all statements required to be stated therein in accordance with the Act,
the Exchange Act, the Exchange Act Rules and Regulations and the Rules and
Regulations. On the Effective Date and when any post-effective amendment to the
Registration Statement becomes effective, no part of the Registration Statement
or any such amendment did or will contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein not misleading. At the Effective Date,
the date the Prospectus or any amendment or supplement to the Prospectus is
filed with the Commission and at the Closing Date and, if later, the Option
Closing Date, the Prospectus did not or will not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The foregoing representations and warranties in this
Section 3(b) do not apply to any statements or omissions made in reliance on and
in conformity with information relating to any Underwriter furnished in writing
to the Company by the Representatives specifically for inclusion in the
Registration Statement or the Prospectus or any amendment or supplement thereto.
For all purposes of this Agreement, the amounts of the selling concession and
reallowance set forth under the caption "Underwriting" set forth in the
Prospectus and any information required under the Rules and Regulations or the
Exchange Act Rules and Regulations with respect to the date of commencement of
stabilizing activities or any passive market making constitute the only
information relating to any Underwriter furnished in writing to the Company by
the Representatives specifically for inclusion in the Registration Statement,
the preliminary prospectus or the Prospectus. The Company has not distributed
any offering material in connection with the offering or sale of the Shares
other than the Registration Statement, the preliminary prospectus, the
Prospectus or any other materials, if any, permitted by the Act.
(c) The documents which are incorporated by reference in the preliminary
prospectus and the Prospectus or from which information is so incorporated by
reference, when they became effective or were filed with the Commission, as the
case may be, complied in all material respects with the requirements of the Act
or the Exchange Act, as applicable, the Exchange Act Rules and Regulations and
the Rules and Regulations; and any documents so filed and incorporated by
reference subsequent to the Effective Date shall, when they are filed with the
Commission, conform in all material respects with the requirements of the Act
and the Exchange Act, as applicable, the Exchange Act Rules and Regulations and
the Rules and Regulations.
(d) The Company and each of its subsidiaries is, and at the Closing Date,
and if later, the Option Closing Date, will be, a corporation or a limited
liability company, as applicable, duly organized, validly existing and has filed
all reports, paid all fees, taxes and penalties with or due to the Secretary of
the State of South Carolina or, if not organized under South Carolina law, in
the comparable office of its jurisdiction of incorporation and is not subject to
being dissolved by administrative action pursuant to the laws or regulations of
its jurisdiction of incorporation and has not filed any articles of dissolution
to effect the same. The Company and each of its subsidiaries has, and at the
Closing Date, and if later, the Option Closing Date, will have, full power and
authority to conduct all the activities conducted by it, to own or lease all the
assets owned or leased by it and to conduct its business as described in the
Registration Statement and the Prospectus. The Company and each of its
subsidiaries is, and at the Closing Date, and if later, the Option Closing Date,
will be, duly licensed or qualified to do business and in good standing as a
foreign corporation or a limited liability company, as applicable, in each
jurisdiction which requires licensing or qualification. The Company, either
directly or indirectly, is the sole record and beneficial owner of all of the
equity interests of each of its subsidiaries, (i) except as disclosed in the
Registration Statement or the Prospectus, and (ii) except that (a) the
outstanding preferred stock of South Carolina Electric & Gas Company is owned by
third parties and (b) 30% of the membership interests of SCANA Energy Trading,
LLC are owned by third parties. For purposes of this Agreement, a "subsidiary"
is any corporation or other entity of which at the time of determination the
Company and/or one or more subsidiaries owns or controls directly 50% or more of
the shares of stock or other voting interests of the class or classes having
general voting power under ordinary circumstances to elect at least a majority
of the board of directors, managers, for trustees or other governing body of
such corporation.
(e) As of the date of this Agreement, the Company has an authorized and
outstanding capitalization as set forth under the heading entitled "Actual" in
the section of the Registration Statement and the Prospectus entitled
"Capitalization" and, as of the Closing Date and the Option Closing Date, as the
case may be, the Company shall have an authorized and outstanding capitalization
as set forth under the heading entitled "As Adjusted" in the section of the
Registration Statement and the Prospectus entitled "Capitalization". The
outstanding shares of Common Stock have been, and the Shares to be issued and
sold by the Company upon such issuance will be, duly authorized, validly issued,
fully paid and nonassessable and will not be subject to any preemptive or
similar right. The capital stock of the Company, including the Shares, conforms
in all material respects to the description thereof contained in the
Registration Statement and Prospectus and the certificates for the Shares are in
due and proper form and the holders of the Shares will not be subject to
personal liability by reason of being such holders. Except for shares issuable
under the Company's Investor Plus Plan and Stock Purchase-Savings Plan or in
connection with any other employee or director compensation arrangement
established as of the date hereof, at the Closing Date, and if later, the Option
Closing Date, (i) no person has the right, contractual or otherwise, to cause
the Company to issue or sell to it any shares of Common Stock or shares of any
other capital stock or other equity interests of the Company, (ii) no person has
any preemptive rights, resale rights, rights of first refusal or other rights to
purchase any shares of Common Stock or shares of any other capital stock or
other equity interests of the Company pursuant to any contract or arrangement to
which the Company is a party, and (iii) no person has the right to act as an
underwriter, or as a financial advisor to the Company, in connection with the
offer and sale of the Shares, in the case of each of the foregoing clauses (i),
(ii) and (iii), whether as a result of the filing or effectiveness of the
Registration Statement or the sale of the Shares as contemplated thereby or
otherwise; no person has the right, contractual or otherwise, to cause the
Company to register under the Act any shares of Common Stock or shares of any
other capital stock or other equity interests of the Company, or to include any
such shares or interests in the Registration Statement or the offering
contemplated thereby whether as a result of the filing or effectiveness of the
Registration Statement or the sale of the Shares as contemplated thereby or
otherwise, except for such rights as have been complied with or waived.
(f) The financial statements and the related schedules and notes thereto
included or incorporated by reference in the Registration Statement or the
Prospectus present fairly the financial condition of the Company as of the
respective dates thereof and the results of operations, changes in financial
position and cash flows of the Company for the respective periods covered
thereby, all having been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the entire period
involved, except as otherwise disclosed in the Registration Statement or the
Prospectus. Any pro forma financial statements or data included or incorporated
by reference in the Registration Statement or the Prospectus complies as to form
in all material respects with the applicable accounting requirements of
Regulation S-X of the Act, and the pro forma adjustments have been properly
applied to the historical amounts in the compilation of those statements. The
other financial and statistical data set forth in the Registration Statement and
the Prospectus are accurately presented and prepared on a basis consistent with
the financial statements and books and records of the Company; and there are no
financial statements (historical or pro forma) that are required to be included
in the Registration Statement and the Prospectus that are not included as
required. No other financial statements or schedules of the Company are required
by the Act, the Exchange Act or the Rules and Regulations to be included in the
Registration Statement or the Prospectus. Deloitte & Touche LLP (the
"Accountants"), who have audited such year-end financial statements and
schedules and have issued their report thereon, are independent accountants with
respect to the Company as required by the Act and the Rules and Regulations. The
statements included in the Registration Statement with respect to the
Accountants pursuant to Rule 509 of Regulation S-K of the Rules and Regulations
are true and correct in all material respects.
(g) The Company maintains an adequate internal control structure,
procedures for financial reporting and a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded assets are compared with existing assets and fair values at reasonable
intervals and appropriate action is taken with respect to any differences.
(h) Subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus and through the Closing Date, and
if later, the Option Closing Date, except as set forth in or contemplated by the
Registration Statement and the Prospectus, (i) there has not been and will not
have been any change in the number of shares of capital stock of the Company
issued and outstanding, except for shares of Common Stock issued pursuant to the
Company's Investor Plus Plan and the Company's Stock Purchase-Savings Plan or in
connection with any other employee or director compensation arrangement
established as of the date hereof and consistent with the Company's past
practices, (ii) there has been no and there will have been no change which is
reasonably expected to have a materially adverse effect on the business,
properties, financial condition, results of operation or prospects of the
Company and its subsidiaries, taken as a whole (a "Material Adverse Effect"),
(iii) neither the Company nor any of its subsidiaries has incurred nor will it
incur any liabilities or obligations, direct or contingent, nor has it entered
into nor will it enter into any transactions other than pursuant to this
Agreement and the transactions referred to herein, other than liabilities,
obligations, and transactions in the ordinary course of business which will not
have a Material Adverse Effect, and (iv) the Company has not and will not have
paid or declared any dividends or other distributions of any kind on any class
of its capital stock, except for regular quarterly dividends on the Common Stock
of the Company in an amount not exceeding $.325 per share per quarter.
(i) The Company is a "public utility holding company" within the meaning of
the Public Utility Holding Company Act of 1935, as amended, and is registered as
such under such Act; and the Company is not, and after giving effect to the
offer and sale of the Shares and the application of the proceeds thereof as
described in the Prospectus, will not be subject to registration under the
Investment Company Act of 1940, as amended.
(j) Except as set forth in the Registration Statement and the Prospectus,
there are no actions, suits or proceedings pending or threatened against or
affecting the Company or any of its subsidiaries or any of their respective
officers in their capacity as such, before or by any Federal or state court,
commission, regulatory body, administrative agency or other governmental body,
domestic or foreign, wherein an unfavorable ruling, decision or finding would be
reasonably expected to have a Material Adverse Effect. All tax returns required
to be filed by the Company and each of its subsidiaries have been filed, and all
taxes and other assessments of a similar nature (whether imposed directly or
through withholding) including any interest, additions to tax or penalties
applicable thereto due or claimed to be due from such entities have been paid,
other than those being contested in good faith and for which adequate reserves
have been provided.
(k) The Company and each of its subsidiaries have, and at the Closing Date,
and if later, the Option Closing Date, will have, (i) all material governmental
licenses, permits, consents, orders, approvals and other authorizations
necessary to carry on its business as contemplated in the Prospectus, (ii)
complied in all material respects with all laws, regulations and orders
applicable to it or its business, including the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, and
(iii) performed in all material respects the obligations required to be
performed by it, and is not, and at the Closing Date, and if later, the Option
Closing Date, will not be, in default, under any indenture, mortgage, deed of
trust, voting trust agreement, loan agreement, bond, debenture, note agreement,
lease, contract or other agreement or instrument (collectively, a "contract or
other agreement") to which it is a party or by which its property is bound or
affected, except for such defaults as are not reasonably expected to have a
Material Adverse Effect. To the best knowledge of the Company and each of its
subsidiaries, no other party under any material contract or other agreement to
which it is a party is in default in any respect thereunder except for defaults
by Knology Broadband, Inc. ("KBI") or its affiliates resulting from the
bankruptcy filing by KBI. Neither the Company nor any of its subsidiaries is,
nor at the Closing Date, and if later, the Option Closing Date, will any of them
be, in violation of any provision of its articles of incorporation or bylaws.
The Company has not sent or received any communication regarding termination of,
or intent not to renew, any of the contracts or agreements referred to or
described in, or filed as an exhibit to, the Registration Statement or any
document incorporated by reference therein, and no such termination or
non-renewal has been threatened by the Company or, to the knowledge of the
Company after due inquiry, any other party to any such contract or agreement.
(l) No consent, approval, authorization or order of, or any filing or
declaration with, any court or governmental agency or body is required for the
consummation by the Company of the transactions on its part herein contemplated
in connection with the issuance of the Shares, except such as have been obtained
under the Act or the Rules and Regulations and such as may be required under
state securities or Blue Sky laws or the bylaws and rules of the National
Association of Securities Dealers, Inc. (the "NASD") in connection with the
purchase and distribution by the Underwriters of the Shares.
(m) The Company has full corporate power and authority to enter into this
Agreement. This Agreement has been duly authorized, executed and delivered by
the Company and, assuming due authorization, execution and delivery hereof by
the Underwriters, constitutes a valid and binding agreement of the Company
enforceable against the Company in accordance with the terms hereof. The
execution, delivery and performance of this Agreement, the issuance and sale of
the Shares and the consummation of the transactions contemplated hereby will not
conflict with, or result in any breach of or constitute a default under (nor
constitute any event which with notice, lapse of time, or both would result in
any breach of, or constitute a default under), any provisions of the charter or
by-laws of the Company or any of its subsidiaries, or under any provision of any
license, indenture, mortgage, deed of trust, bank loan or credit agreement or
other evidence of indebtedness, or any lease, contract or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which any of them or their respective properties may be bound or affected, or
under any federal, state, local or foreign law, regulation or rule or any
decree, judgment or order applicable to the Company or any of its subsidiaries.
(n) The Company and each of its subsidiaries has good and marketable title
to all properties and assets described in the Prospectus as owned by it, free
and clear of all liens, charges, encumbrances or restrictions, except such as
are described in the Prospectus or are not material to the business, properties,
business prospects, condition (financial or otherwise) or results of operations
of the Company or its subsidiaries considered as one enterprise. The Company and
each of its subsidiaries has valid, subsisting and enforceable leases for the
properties described in the Prospectus as leased by it, with such exceptions as
are not material and do not materially interfere with the use made and proposed
to be made of such properties by the Company and its subsidiaries.
(o) All legal or governmental proceedings, affiliate transactions,
contracts, licenses, agreements, leases or documents of a character required to
be described in the Registration Statement or the Prospectus or to be filed as
an exhibit to the Registration Statement have been so described or filed as
required. All such contracts to which the Company or any of its subsidiaries is
a party have been duly authorized, executed and delivered by the Company or such
of its subsidiaries, constitute valid and binding agreements of the Company or
such of its subsidiaries and are enforceable against the Company or such of its
subsidiaries in accordance with the terms thereof.
(p) No statement, representation, warranty or covenant made by the Company
in this Agreement or made in any certificate or document required by this
Agreement to be delivered to the Representatives was or will be, when made,
inaccurate, untrue or incorrect. Any certificate signed by any officer of the
Company and delivered to the Underwriters or counsel for the Underwriters in
connection with the offering of the Shares shall be deemed a representation and
warranty by the Company to the Underwriters as to the matters covered thereby.
(q) Neither the Company nor any of its directors, officers or controlling
persons has taken, directly or indirectly, any action intended, or which might
reasonably be expected, to cause or result, under the Act or otherwise, in, or
which has constituted, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares.
(r) No holder of securities of the Company has rights to the registration
of any securities of the Company because of the filing of the Registration
Statement.
(s) Prior to the Closing Date, the Shares will be duly authorized for
listing by the New York Stock Exchange upon official notice of issuance.
(t) Except for matters which would not have a Material Adverse Effect
individually or in the aggregate to the Company and its subsidiaries taken as a
whole, (i) neither the Company nor any of its subsidiaries is engaged in any
unfair labor practice, (ii) there is (A) no unfair labor practice complaint
pending or, to the knowledge of the Company, threatened against the Company or
any of its subsidiaries before the National Labor Relations Board, and no
grievance or arbitration proceeding arising out of or under collective
bargaining agreements is pending or threatened, (B) no strike, labor dispute,
slowdown or stoppage pending or, to the knowledge of the Company, threatened
against the Company or any of its subsidiaries and (C) no union representation
dispute currently existing concerning the employees of the Company or any of its
subsidiaries, and (iii) to the knowledge of the respective managements of the
Company or any of its subsidiaries, (A) no union organizing activities are
currently taking place concerning the employees of the Company of any of its
subsidiaries and (B) there has been no violation of any federal, state or local
law relating to discrimination in the hiring, promotion or pay of employees, of
any applicable wage or hour laws, nor any provisions of the Employee Retirement
Income Security Act of 1974 ("ERISA") or the rules and regulations promulgated
thereunder concerning the employees of the Company or any of its subsidiaries.
(u) The Company and its subsidiaries own, or are licensed or otherwise have
the full exclusive right to use, all material trademarks and trade names which
are used in or necessary for the conduct of their respective businesses as
described in the Prospectus. No claims have been asserted by any person to the
use of any such trademarks or trade names or challenging or questioning the
validity or effectiveness of any such trademark or trade name. The use, in
connection with the business and operations of the Company and its subsidiaries,
of such trademarks and trade names does not, to the Company's knowledge,
infringe on the rights of any person.
(v) Neither the Company nor any of its subsidiaries nor any of their
respective directors, officers, affiliates or controlling persons has taken,
directly or indirectly, any action designed, or which has constituted or might
reasonably be expected to cause or result, under the Exchange Act or otherwise,
in the stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares. Neither the Company, nor any of
its subsidiaries, nor to the Company's knowledge after due inquiry, any employee
or agent of the Company or its subsidiaries, has made any payment of funds of
the Company or the subsidiaries or received or retained any funds in violation
of any law, rule or regulation, which payment, receipt or retention of funds is
of a character required to be disclosed in the Registration Statement or
Prospectus.
(w) The Company has duly registered with the Commission as a transfer
agent, within the meaning of the Exchange Act, with respect to the Common Stock,
and is in compliance with the Exchange Act Rules and Regulations with respect to
its activities as transfer agent.
(x) (i) Except as would not result or reasonably be expected to result in a
Material Adverse Effect or as disclosed in the Registration Statement or
Prospectus, each of the Company and its subsidiaries is in compliance with and
has no liability under any and all applicable laws, statutes, ordinances,
regulations, rules, decrees, orders, judgments, consent orders, consent decrees
or other binding requirements and the common law relating to the protection of
public health or the environment, the release or threatened release of hazardous
material (including, without limitation, any material, substance, waste,
constituent, compound, pollutant or contaminant, including, without limitation,
petroleum (including, without limitation, crude oil or any fraction thereof or
any petroleum product), subject to regulation or which can give rise to
liability under the Environmental Laws (as hereinafter defined), natural
resources damages, or occupational safety and health (collectively,
"Environmental Laws"); (ii) each of the Company and its subsidiaries is in
compliance with all terms and conditions of any required permits, licenses and
authorizations, and is also in compliance with all other applicable limitations,
restrictions, conditions, standards, prohibitions, requirements and obligations,
contained in the Environmental Laws; and (iii) there are no past or present
events, conditions, activities, practices, actions, or plans relating to the
business operations or properties of the Company or any of its subsidiaries that
could be reasonably expected to interfere with or prevent compliance or
continued compliance with the Environmental Laws, or which could be reasonably
expected to give rise to any liability based on or related to the Environmental
Laws. In the ordinary course of its respective businesses, the Company and each
of its subsidiaries conducts a periodic review of the effect of the
Environmental Laws on its respective businesses, operations and properties, in
the course of which it identifies and evaluates associated costs and liabilities
(including, without limitation, any capital or operating expenditures required
for cleanup, closure of properties or compliance with the Environmental Laws or
any permit, license or approval, any related constraints on operating activities
and any potential liabilities to third parties.
(y) The Company has obtained for the benefit of the Underwriters the
agreement (a "Lock-Up Agreement"), of each of the Company's CEO, its CFO, its
General Counsel, its Senior Vice President of Human Resources, its Senior Vice
President of Nuclear Operations, the President of South Carolina Electric & Gas
Company and the President of South Carolina Pipeline Company. The Company will
not release or purport to release any person from any Lock-Up Agreement without
the prior written consent of the Representatives.
(z) The Company and each of its subsidiaries maintains insurance covering
its properties, operations, personnel and businesses as the Company deems
adequate. Such insurance insures against such losses and risks to an extent
which is adequate in accordance with customary industry practice to protect the
Company and its subsidiaries and their businesses. All such insurance is
outstanding and fully in force on the date hereof and will be outstanding and
duly in force at the time of purchase and additional time of purchase, as the
case may be. Neither the Company nor any of its subsidiaries has sustained since
the date of the last financial statements included in the Prospectus any
material loss or interference with their respective business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree.
(aa) Any statistical and market-related data included in the Prospectus are
based or derived from sources that the Company believes to be reliable and
accurate, and the Company has obtained the written consent to the use of such
data from such sources to the extent required.
(bb) The Company has not offered, or caused the Underwriters to offer,
Shares to any person with the specific intent to influence unlawfully, (i) a
customer or supplier of the Company or any of its subsidiaries to alter the
customer's or supplier's level or type of business with the Company or any of
its subsidiaries, or (ii) a trade journalist or publication to write or publish
favorable information about the Company or any of the subsidiaries or any of
their respective products or services.
4. Agreements of the Company.
-------------------------
The Company covenants and agrees with each Underwriter as
follows:
(a) The Company will not, either prior to the Effective Date or thereafter
during such period as a prospectus is required by law to be delivered in
connection with sales of the Shares by an Underwriter or dealer, file any
amendment or supplement to the Registration Statement or the Prospectus, unless
a copy thereof shall first have been submitted to the Representatives within a
reasonable period of time prior to the filing thereof and the Representatives
shall not have objected thereto in good faith. Within the time during which a
prospectus relating to the Shares is required to be delivered under the Act, the
Company will use its commercially reasonable best efforts to comply with all
requirements imposed upon it by the Act, as now and hereafter amended, and by
the rules and regulations of the Commission thereunder, as from time to time in
force, so far as necessary to permit the continuance of sales of or dealings in
the Shares as contemplated by the provisions hereof and the Prospectus.
(b) The Company will use its commercially reasonable best efforts to cause
the Registration Statement to become effective, and will notify the
Representatives promptly, and will confirm such advice in writing, (1) when the
Registration Statement has become effective and when any post-effective
amendment thereto becomes effective, (2) of any request by the Commission for
amendments or supplements to the Registration Statement or the Prospectus or for
additional information, (3) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose or the threat thereof, (4) of the happening of
any event during the period mentioned in the second sentence of Section 4(e)
that makes any statement made in the Registration Statement or the Prospectus
untrue in any material respect or that requires the making of any changes in the
Registration Statement or the Prospectus in order to make the statements
therein, in light of the circumstances in which they are made, not misleading
and (5) of receipt by the Company or any representative or attorney of the
Company of any other communication from the Commission relating to the Company,
the Registration Statement, any preliminary prospectus or the Prospectus. If at
any time the Commission shall issue any order suspending the effectiveness of
the Registration Statement or shall have instituted a proceeding for that
purpose, the Company will use its commercially reasonable best efforts to
prevent the issuance of any stop order or obtain the withdrawal of such order at
the earliest possible moment. If the Company has omitted any information from
the Registration Statement pursuant to Rule 430A of the Rules and Regulations,
the Company will use its commercially reasonable best efforts to comply with the
provisions of and make all requisite filings with the Commission pursuant to
said Rule 430A and to notify the Representatives promptly of all such filings.
(c) The Company will furnish to the Representatives, without charge, signed
copies of the Registration Statement and of any post-effective amendment
thereto, including financial statements and schedules, and all exhibits thereto
(including any document filed under the Exchange Act and deemed to be
incorporated by reference into the Prospectus), and will furnish to the
Representatives, without charge, for transmittal to each of the other
Underwriters, copies of the Registration Statement and any post-effective
amendment thereto, including financial statements and schedules but without
exhibits, in each case in such quantities as the Underwriters may reasonably
request.
(d) The Company will comply with all the provisions of any undertakings
contained in the Registration Statement.
(e) On the Effective Date, and thereafter from time to time, the Company
will deliver to each of the Underwriters, without charge, as many copies of the
Prospectus or any amendment or supplement thereto as the Representatives may
reasonably request. The Company consents to the use of the Prospectus or any
amendment or supplement thereto by the several Underwriters and by all dealers
to which the Shares may be sold, both in connection with the offering or sale of
the Shares and for any period of time thereafter during which the Prospectus is
required by law to be delivered in connection therewith. If at any time when a
prospectus relating to the Shares is required to be delivered under the Act in
connection with sales by any Underwriter or dealer, any event shall occur which
in the judgment of the Company or counsel to the Underwriters should be set
forth in the Prospectus in order to make any statement therein, in the light of
the circumstances under which it was made, not misleading, or if it is necessary
to supplement or amend the Prospectus to comply with law, the Company will
forthwith prepare and duly file with the Commission, at the Company's own
expense, an appropriate supplement or amendment thereto, and will deliver to
each of the Underwriters, without charge, such number of copies thereof as the
Representatives may reasonably request. Neither the Representatives' consent to,
nor the Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 5 hereof. The
Company shall not file any document under the Exchange Act before the
termination of the offering of the Shares by the Underwriters if such document
would be deemed to be incorporated by reference into the Prospectus which is not
approved by the Representatives after reasonable notice thereof. In case any
Underwriter is required to deliver a prospectus within the nine-month period
referred to in Section 10(a) (3) of the Act in connection with the sale of the
Shares, the Company will prepare promptly upon request such amendment or
amendments to the Registration Statement and such prospectuses as may be
necessary to permit compliance with the requirements of Section 10(a) (3) of the
Act.
(f) Prior to any public offering of the Shares by the Underwriters, the
Company will cooperate with the Representatives and counsel to the Underwriters
in connection with the registration or qualification of the Shares for offer and
sale under the securities or Blue Sky laws of such jurisdictions as the
Representatives may request; provided, that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is not now so
qualified or to take any action which would subject it to general service of
process in any jurisdiction where it is not now so subject.
(g) During the period of five years commencing on the Effective Date, the
Company will furnish to the Representatives and each other Underwriter who may
so request copies of such financial statements and other periodic and special
reports as the Company may from time to time distribute generally to the holders
of any class of its capital stock, and will furnish to the Representatives and
each other Underwriter who may so request a copy of each annual or other report
it shall be required to file with the Commission.
(h) The Company will make generally available to holders of its securities
as soon as may be practicable but in no event later than the last day of the
fifteenth full calendar month following the calendar quarter in which the
Effective Date falls, an earning statement (which need not be audited but shall
be in reasonable detail) for a period of 12 months ended commencing after the
Effective Date, and satisfying the provisions of Section 11(a) of the Act
(including Rule 158 of the Rules and Regulations).
(i) Whether or not the transactions contemplated by this Agreement are
consummated or this Agreement is terminated, the Company will pay, or reimburse
if paid by the Representatives, all costs and expenses incident to the
performance of the obligations of the Company under this Agreement, including
but not limited to costs and expenses of or relating to (1) the preparation,
printing and filing of the Registration Statement and exhibits to it, each
preliminary prospectus, the Prospectus and any amendment or supplement to the
Registration Statement or the Prospectus, (2) the preparation and delivery of
certificates representing the Shares, (3) furnishing (including costs of
shipping and mailing) such copies of the Registration Statement, the Prospectus
and any preliminary prospectus, and all amendments and supplements thereto, as
may be requested for use in connection with the offering and sale of the Shares
by the Underwriters or by dealers to whom Shares may be sold, (4) the listing of
the Shares on the New York Stock Exchange, (5) any filings required to be made
by the Underwriters with the NASD, and the fees, disbursements and other charges
of counsel for the Underwriters in connection therewith, (6) the registration or
qualification of the Shares for offer and sale under the securities or Blue Sky
laws of such jurisdictions designated pursuant to Section 4(f), including the
fees, disbursements and other charges of counsel to the Underwriters in
connection therewith, and the preparation and printing of preliminary,
supplemental and final Blue Sky memoranda, (7) the costs and expenses of the
Company relating to presentations or meetings undertaken in connection with the
marketing of the offer and sale of the Shares to prospective investors and the
Representatives' sales forces, including, without limitation, expenses
associated with the production of road show slides and graphics, fees and
expenses of any consultants engaged by or approved by the Company in connection
with the road show representations, travel, lodging and other expenses incurred
by the officers of the Company or any such consultants, and the cost of any
aircraft chartered or approved by the Company in connection with the road show,
(8) counsel to the Company and (9) the transfer agent for the Shares.
(j) If this Agreement shall be terminated by the Company pursuant to any of
the provisions hereof (otherwise than pursuant to Section 8) or if for any
reason the Company shall be unable to perform its obligations hereunder, the
Company will reimburse the several Underwriters for all out-of-pocket expenses
(including the fees, disbursements and other charges of counsel to the
Underwriters) reasonably incurred by them in connection herewith.
(k) The Company will not at any time, directly or indirectly, take any
action intended, or which might reasonably be expected, to cause or result in,
or which will constitute, stabilization of the price of the shares of Common
Stock to facilitate the sale or resale of any of the Shares.
(l) The Company will apply the net proceeds from the offering and sale of
the Shares to be sold by the Company in the manner set forth in the Prospectus
under "Use of Proceeds."
(m) The Company will not for a period of 90 days after the commencement of
the public offering of the Shares, offer, sell, contract to sell, pledge or
otherwise dispose of any shares of Common Stock or rights to acquire such shares
(other than pursuant to the Company's Investor Plus Plan, the Company's Stock
Purchase-Savings Plan or in connection with other employee or director incentive
compensation arrangements) or file with the Commission a registration statement
under the Act relating to, any additional shares of its common stock or
securities convertible into or exchangeable or exercisable for any shares of its
common stock, or publicly disclose the intention to make any such offer, sale,
pledge, disposition or filing (other than pursuant to the Company's Investor
Plus Plan, the Company's Stock Purchase Savings Plan or in connection with other
employee or director incentive compensation arrangements in place as of the date
hereof) without the prior written consent of the Representatives.
5. Conditions of the Obligations of the Underwriters.
-------------------------------------------------
In addition to the execution and delivery of the Price Determination
Agreement, the obligations of each Underwriter hereunder are subject to the
following conditions:
(a) Notification that the Registration Statement has become effective shall
be received by the Representatives not later than 5:00 p.m., New York City time,
on the date of this Agreement or at such later date and time as shall be
consented to in writing by the Representatives and all filings required by Rules
424 and 430A of the Rules and Regulations shall have been made.
(b) (i) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall be
pending or threatened by the Commission, (ii) no order suspending the
effectiveness of the Registration Statement or the qualification or registration
of the Shares under the securities or Blue Sky laws of any jurisdiction shall be
in effect and no proceeding for such purpose shall be pending before or
threatened or contemplated by the Commission or the authorities of any such
jurisdiction, (iii) any request for additional information on the part of the
staff of the Commission or any such authorities shall have been complied with to
the satisfaction of the staff of the Commission or such authorities, (iv) after
the date hereof no amendment or supplement to the Registration Statement or the
Prospectus shall have been filed unless a copy thereof was first submitted to
the Representatives and the Representatives did not object thereto in good
faith, and (v) the Representatives shall have received certificates, dated the
Closing Date, and the Option Closing Date, and signed by the Chief Executive
Officer or the Chairman of the Board of Directors of the Company and the Chief
Financial Officer of the Company (who may, as to proceedings threatened, rely
upon the best of their information and belief), to the effect of clauses(i),
(ii) and (iii).
(c) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there shall have been no litigation
or other proceeding instituted against the Company or any of its subsidiaries or
any of their respective officers or directors in their capacities as such,
before or by any Federal, state or local court, commission, regulatory body,
administrative agency or other governmental body, domestic or foreign, in which
litigation or proceeding an unfavorable ruling, decision or finding would be
reasonably expected to have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained
herein shall be true and correct at the Closing Date and, with respect to the
Option Shares, at the Option Closing Date, as if made at the Closing Date and,
with respect to the Option Shares, at the Option Closing Date, and all covenants
and agreements herein contained to be performed on the part of the Company and
all conditions herein contained to be fulfilled or complied with by the Company
at or prior to the Closing Date and, with respect to the Option Shares, at or
prior to the Option Closing Date, shall have been duly performed, fulfilled or
complied with.
(e) The Representatives shall have received opinions, dated the Closing
Date and, with respect to the Option Shares, the Option Closing Date, and
satisfactory in form and substance to counsel for the Underwriters, from the
General Counsel or Deputy General Counsel of the Company, and ▇▇▇▇▇▇ Law Firm,
P.A., counsel to the Company, in substantially the respective forms set forth in
Exhibit B and Exhibit C.
(f) The Representatives shall have received opinions, dated the Closing
Date and, with respect to the Option Shares, the Option Closing Date, from
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the Underwriters, with respect to the
Registration Statement, the Prospectus and this Agreement, which opinion shall
be substantially in the form set forth in Exhibit D.
(g) Concurrently with the execution and delivery of this Agreement, or, if
the Company elects to rely on Rule 430A of the Rules and Regulations, on the
date of the Prospectus, the Accountants shall have furnished to the
Representatives a letter, dated the date of its delivery, addressed to the
Representatives and in form and substance satisfactory to the Representatives,
(1) confirming that they are independent accountants with respect to the Company
as required by the Act and the Rules and Regulations and (2) with respect to the
accounting, financial or statistical information (which is limited to
accounting, financial or statistical information derived from the general
accounting records of the Company and its subsidiaries) contained in the
Registration Statement or incorporated by reference therein, and containing
statements and information of the type ordinarily included in accountants' SAS
72 "comfort letters" to underwriters, with respect to the financial statements
and certain financial information contained in or incorporated by reference into
the Prospectus, including the pro forma financial information. At the Closing
Date and, as to the Option Shares, the Option Closing Date, the Accountants
shall have furnished to the Representatives a letter, dated the date of its
delivery, which shall confirm, on the basis of a review in accordance with the
procedures set forth in the letter from the Accountants, that nothing has come
to their attention during the period from the date of the letter referred to in
the prior sentence to a date (specified in the letter) not more than five days
prior to the Closing Date and the Option Closing Date which would require any
change in their letter dated the date hereof, or, if the Company elects to rely
on Rule 430A of the Rules and Regulations, dated the date of the Prospectus, if
it were required to be dated and delivered at the Closing Date and the Option
Closing Date.
(h) Concurrently with the execution and delivery of this Agreement or, if
the Company elects to rely on Rule 430A of the Rules and Regulations, on the
date of the Prospectus, and at the Closing Date and, as to the Option Shares,
the Option Closing Date, there shall be furnished to the Representatives an
accurate certificate, dated the date of its delivery, signed by each of the
Chief Executive Officer and the Chief Financial Officer of the Company, in form
and substance satisfactory to the Representatives, to the effect that:
(1) Each signer of such certificate has carefully examined the Registration
Statement and the Prospectus (including any documents filed under the Exchange
Act and deemed to be incorporated by reference into the Prospectus) and (A) as
of the date of such certificate, such documents are true and correct in all
material respects and do not omit to state a material fact required to be stated
therein or necessary in order to make the statements therein not untrue or
misleading and (B) in the case of the certificate delivered at the Closing Date
and the Option Closing Date, since the Effective Date no event has occurred as a
result of which it is necessary to amend or supplement the Prospectus in order
to make the statements therein not untrue or misleading in any material respect
and there has been no document required to be filed under the Exchange Act and
the Exchange Act Rules and Regulations that upon such filing would be deemed to
be incorporated by reference into the Prospectus that has not been so filed.
(2) Each of the representations and warranties of the Company contained in
this Agreement were, when originally made, and are, at the time such certificate
is delivered, true and correct in all material respects.
(3) Each of the covenants required herein to be performed by the Company on
or prior to the delivery of such certificate has been duly, timely and fully
performed and each condition herein required to be complied with by the Company
on or prior to the date of such certificate has been duly, timely and fully
complied with.
(i) Subject to the limitations on required action of the Company set forth
in Section 4(f), the Shares shall be qualified for sale in such states as the
Representatives may reasonably request, each such qualification shall be in
effect and not subject to any stop order or other proceeding on the Closing Date
and the Option Closing Date.
(j) Prior to the Closing Date, the Shares shall have been duly authorized
for listing by the New York Stock Exchange upon official notice of issuance.
(k) The Company shall have furnished to the Representatives such
certificates, in addition to those specifically mentioned herein, as the
Representatives may have reasonably requested as to the accuracy and
completeness at the Closing Date and the Option Closing Date of any statement in
the Registration Statement or the Prospectus or any documents filed under the
Exchange Act and deemed to be incorporated by reference into the Prospectus, as
to the accuracy at the Closing Date and the Option Closing Date of the
representations and warranties of the Company herein, as to the performance by
the Company of its obligations hereunder, or as to the fulfillment of the
conditions concurrent and precedent to the obligations hereunder of the
Representatives.
6. Indemnification and Contribution.
--------------------------------
(a) The Company will indemnify and hold harmless each Underwriter, the
directors, officers, employees and agents of each Underwriter and each person,
if any, who controls each Underwriter within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act from and against any and all losses,
claims, liabilities, expenses and damages (including any and all investigative,
legal and other expenses reasonably incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any claim asserted), to
which they, or any of them, may become subject under the Act, the Exchange Act
or other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, liabilities, expenses or damages
arise out of or are based on any untrue statement or alleged untrue statement of
a material fact contained in any preliminary prospectus, the Registration
Statement or the Prospectus or any amendment or supplement to the Registration
Statement or the Prospectus or in any documents filed under the Exchange Act and
deemed to be incorporated by reference into the Prospectus, or the omission or
alleged omission to state in such document a material fact required to be stated
in it or necessary to make the statements in it not misleading, provided that
the Company will not be liable to the extent that such loss, claim, liability,
expense or damage arises from the sale of the Shares in the public offering to
any person by an Underwriter and is based on an untrue statement or omission or
alleged untrue statement or omission made in reliance on and in conformity with
information relating to any Underwriter furnished in writing to the Company by
the Representatives on behalf of any Underwriter expressly for inclusion in the
Registration Statement, any preliminary prospectus or the Prospectus or any
amendment or supplement to the Registration Statement or the Prospectus, and
provided further that the Company will not be liable to any Underwriter, the
directors, officers, employees or agents of such Underwriter or any person
controlling such Underwriter with respect to any loss, claim, liability,
expense, charge or damage arising out of or based on any untrue statement or
alleged untrue statement or omission or alleged omission to state a material
fact in any preliminary prospectus which is corrected in the Prospectus if the
person asserting any such loss, claim, liability, charge or damage purchased
Shares from such Underwriter but was not sent or given a copy of the Prospectus
at or prior to the written confirmation of the sale of such Shares to such
Person. This indemnity agreement will be in addition to any liability that the
Company might otherwise have.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, each person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, each
director, officer, employee or agent of the Company to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only insofar as
losses, claims, liabilities, expenses or damages arise out of or are based on
any untrue statement or omission or alleged untrue statement or omission made in
reliance on and in conformity with information relating to any Underwriter
furnished in writing to the Company by the Representatives on behalf of such
Underwriter expressly for use in the Registration Statement, any preliminary
prospectus or the Prospectus or any amendment to the Registration Statement or
the Prospectus (as such information is set forth in Section 3(b)). This
indemnity will be in addition to any liability that each Underwriter might
otherwise have.
(c) Any party that proposes to assert the right to be indemnified under
this Section 6 will, promptly after receipt of notice of any threatened claim or
the commencement of any action against such party in respect of which a claim is
to be made against an indemnifying party or parties under this Section 6, notify
each such indemnifying party of such threatened claim or the commencement of
such action, enclosing a copy of all papers served, but the omission so to
notify such indemnifying party will not relieve it from any liability that it
may have to any indemnified party under the foregoing provisions of this Section
6 unless, and only to the extent that, such omission results in actual prejudice
to the indemnifying party caused by such omission. If any such action is brought
against any indemnified party and it notifies the indemnifying party of its
commencement, the indemnifying party will be entitled to participate in and, to
the extent that it elects by delivering written notice to the indemnified party
promptly after receiving notice of the commencement of the action from the
indemnified party, jointly with any other indemnifying party similarly notified,
to assume the defense of the action, with counsel satisfactory to the
indemnified party, and after notice from the indemnifying party to the
indemnified party of its election to assume the defense, the indemnifying party
will not be liable to the indemnified party for any legal or other expenses
except as provided below and except for the reasonable costs of investigation
subsequently incurred by the indemnified party in connection with the defense.
The indemnified party will have the right to employ its own counsel in any such
action, but the fees, expenses and other charges of such counsel will be at the
expense of such indemnified party unless (1) the employment of counsel by the
indemnified party has been authorized in writing by the indemnifying party, (2)
the indemnified party has reasonably concluded (based on advice of counsel) that
there may be legal defenses available to it or other indemnified parties that
are different from or in addition to those available to the indemnifying party,
(3) a conflict or potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action, in
each of which cases the reasonable fees, disbursements and other charges of
counsel will be at the expense of the indemnifying party or parties. It is
understood that the indemnifying party or parties shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be liable for
the reasonable fees, disbursements and other charges of more than one separate
firm admitted to practice in such jurisdiction at any one time for all such
indemnified party or parties. All such fees, disbursements and other charges
will be reimbursed by the indemnifying party promptly as they are incurred. An
indemnifying party will not be liable for any settlement of any action or claim
effected without its written consent (which consent will not be unreasonably
withheld). No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened action in
respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party unless such
settlement (i) includes an unconditional release of such indemnified party from
all liability on any claims that are the subject matter of such action and (ii)
does not include a statement as to, or an admission of, fault, culpability or a
failure to act by or on behalf of an indemnified party.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 6 is applicable in accordance with its terms but for
any reason is held to be unavailable from the Company or the Underwriters, the
Company and the Underwriters will contribute to the total losses, claims,
liabilities, expenses and damages (including any investigative, legal and other
expenses reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted, but after
deducting any contribution received by the Company from persons other than the
Underwriters, such as persons who control the Company within the meaning of the
Act, officers of the Company who signed the Registration Statement and directors
of the Company, who also may be liable for contribution) to which the Company
and any one or more of the Underwriters may be subject in such proportion as
shall be appropriate to reflect the relative benefits received by the Company on
the one hand and the Underwriters on the other. The relative benefits received
by the Company on the one hand and the Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. If, but only if, the
allocation provided by the foregoing sentence is not permitted by applicable
law, the allocation of contribution shall be made in such proportion as is
appropriate to reflect not only the relative benefits referred to in the
foregoing sentence but also the relative fault of the Company, on the one hand,
and the Underwriters, on the other, with respect to the statements or omissions
which resulted in such loss, claim, liability, expense or damage, or action in
respect thereof, as well as any other relevant equitable considerations with
respect to such offering. Such relative fault shall be determined by reference
to whether the untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to information supplied by
the Company or the Representatives on behalf of the Underwriters, the intent of
the parties and their relative knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section 6(d) were to be determined by pro rata allocation (even
if the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, liability, expense or damage, or action in
respect thereof, referred to above in this Section 6(d) shall be deemed to
include, for purpose of this Section 6(d), any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 6(d), no Underwriter shall be required to contribute any amount in
excess of the underwriting discounts received by it, and no person found guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
will be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute as
provided in this Section 6(d) are several in proportion to their respective
underwriting obligations and not joint. For purposes of this Section 6(d), any
person who controls a party to this Agreement within the meaning of Section 15
of the Act or Section 20 of the Exchange Act will have the same rights to
contribution as that party, and each director, officer, agent or employee of the
Company will have the same rights to contribution as the Company, subject in
each case to the provisions hereof. Any party entitled to contribution, promptly
after receipt of notice of any threatened claim or the commencement of any
action against such party in respect of which a claim for contribution may be
made under this Section 6(d), will notify any such party or parties from whom
contribution may be sought, but the omission so to notify will not relieve the
party or parties from whom contribution may be sought from any other obligation
it or they may have under this Section 6(d). No party will be liable for
contribution with respect to any action or claim settled without its written
consent (which consent will not be unreasonably withheld).
(e) The indemnity and contribution agreements contained in this Section 6
and the representations and warranties of the Company contained in this
Agreement shall remain operative and in full force and effect regardless of (i)
any investigation made by or on behalf of the Underwriters, (ii) acceptance of
any of the Shares and payment therefor or (iii) any termination of this
Agreement.
7. Termination.
-----------
The obligations of the several Underwriters hereunder shall be subject to
termination in the absolute discretion of you or any group of Underwriters
(which may include you) which has agreed to purchase in the aggregate at least
50% of the Firm Shares, if, (x) since the time of execution of this Agreement or
the earlier respective dates as of which information is given in the
Registration Statement and Prospectus, there has been any material adverse
change or any development involving a prospective material adverse change in the
business, properties, management, financial condition, shareholders equity or
results of operation of the Company and its subsidiaries taken as a whole, which
would, in your judgment or in the judgment of such group of Underwriters, make
it impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares on the terms and in the manner contemplated in the
Registration Statement and Prospectus, or (y) there shall have occurred: (i) a
suspension or material limitation in trading in securities generally on the New
York Stock Exchange, (ii) a suspension or material limitation in trading in the
Company's securities on the New York Stock Exchange; (iii) a general moratorium
on commercial banking activities declared by either Federal or New York State
authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States; (iv) the outbreak or
escalation of hostilities or acts of terrorism involving the United States or
the declaration by the United States of a national emergency or war; or (v) the
occurrence of any other calamity or crisis or any change in financial, political
or economic conditions in the United States or elsewhere, if the effect of any
such event specified in clause (iv) or (v) in your judgment or in the judgment
of such group of Underwriters makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Shares on the terms and in the
manner contemplated in the Registration Statement and Prospectus; or (z) there
shall have occurred any downgrading, or any notice shall have been given of (i)
any intended or potential downgrading or (ii) any review or possible change that
does not indicate an improvement, in the rating accorded any securities of or
guaranteed by the Company or any subsidiary by any "nationally recognized
statistical rating organization", as that term is defined in Rule 436(g)(2) of
the Rules and Regulations.
8. Substitution of Underwriters.
----------------------------
If any one or more of the Underwriters shall fail or refuse to purchase any
of the Firm Shares which it or they have agreed to purchase hereunder, and the
aggregate number of Firm Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate number of Firm Shares, the other Underwriters shall be
obligated, severally, to purchase the Firm Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase, in the
proportions which the number of Firm Shares which they have respectively agreed
to purchase pursuant to Section 1 bears to the aggregate number of Firm Shares
which all such non-defaulting Underwriters have so agreed to purchase, or in
such other proportions as the Representatives may specify; provided that in no
event shall the maximum number of Firm Shares which any Underwriter has become
obligated to purchase pursuant to Section 1 be increased pursuant to this
Section 8 by more than one-ninth of the number of Firm Shares agreed to be
purchased by such Underwriter without the prior written consent of such
Underwriter. If any Underwriter or Underwriters shall fail or refuse to purchase
any Firm Shares and the aggregate number of Firm Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase exceeds
one-tenth of the aggregate number of the Firm Shares and arrangements
satisfactory to the Representatives and the Company for the purchase of such
Firm Shares are not made within 48 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter or the
Company for the purchase or sale of any Shares under this Agreement. In any such
case either the Representatives or the Company shall have the right to postpone
the Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus or
in any other documents or arrangements may be effected. Any action taken
pursuant to this Section 8 shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
9. Miscellaneous.
-------------
Notice given pursuant to any of the provisions of this Agreement shall be
in writing and, unless otherwise specified, shall be mailed or delivered (a) if
to the Company, at the office of the Company, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Secretary, or (b) if to the Underwriters,
to the Representatives at their addresses set forth on page 1 of this Agreement.
Any such notice shall be effective only upon receipt. Any notice under Section 7
or 8 may be made by telex or telephone, but if so made shall be subsequently
confirmed in writing.
This Agreement has been and is made solely for the benefit of the several
Underwriters and the Company and of the controlling persons, directors and
officers referred to in Section 6, and their respective successors and assigns,
and no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" as used in this Agreement shall not
include a purchaser, as such purchaser, of Shares from any of the several
Underwriters.
Any action required or permitted to be taken by the Representatives under
this Agreement may be taken by them jointly or by UBS Warburg LLC or Banc of
America Securities LLC.
UBS Warburg LLC is not a bank and is separate from any affiliated bank,
including any U.S. branch or agency of UBS Warburg LLC. Because UBS Warburg LLC
is a separately incorporated entity, it is solely responsible for its own
contractual obligations and commitments, including obligations with respect to
sales and purchases of securities. Securities sold, offered or recommended by
UBS Warburg LLC are not deposits, are not insured by the Federal Deposit
Insurance Corporation, are not guaranteed by a branch or agency, and are not
otherwise an obligation or responsibility of a branch or agency. A lending
affiliate of UBS Warburg LLC may have lending relationships with issuers of
securities underwritten or privately placed by UBS Warburg LLC. To the extent
required under the securities laws, prospectuses and other disclosure documents
for securities underwritten or privately placed by UBS Warburg LLC will disclose
the existence of any such lending relationships and whether the proceeds of the
issue will be used to repay debts owed to affiliates of UBS Warburg LLC.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK. Except as set forth below, no claim may be
commenced, prosecuted or continued in any court other than the courts of the
State of New York located in the City and County of New York or in the United
States District Court for the Southern District of New York, which courts shall
have jurisdiction of such courts and personal service with respect thereto. The
Company hereby consents to personal jurisdiction, service and venue in any court
in which any claim arising out of or in any way relating to this Agreement is
brought by any third party against UBS Warburg LLC or any indemnified party.
Each of UBS Warburg LLC and the Company (on its behalf and, to the extent
permitted by applicable law, on behalf of all indemnified parties and its and
their stockholders and affiliates) waives all right to trial by jury in any
action, proceeding or counterclaim (whether based upon contract, tort or
otherwise) in any way arising out of or relating to this Agreement. The Company
agrees that a final judgment in any such action, proceeding or counterclaim
brought in any such court shall be conclusive and binding upon the Company and
may be enforced in any other courts in the jurisdiction of which the Company is
or may be subject, by suit upon such judgment.
This Agreement may be signed in two or more counterparts with the same
effect as if the signatures thereto and hereto were upon the same instrument.
In case any provision in this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
The Company and the Underwriters each hereby irrevocably waive any right
they may have to a trial by jury in respect of any claim based upon or arising
out of this Agreement or the transactions contemplated hereby.
[THE REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
Please confirm that the foregoing correctly sets forth the
agreement among the Company and the several Underwriters.
Very truly yours,
SCANA CORPORATION
By: s/▇. ▇. ▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Title: Chairman, CEO & President
--------------------------
Confirmed as of the date first above mentioned:
BANC OF AMERICA SECURITIES LLC
Acting on behalf of itself and as the Representative of the other several
Underwriters.
By: s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Title: Managing Director
--------------------------
UBS WARBURG LLC
Acting on behalf of itself and as the Representative of the other several
Underwriters.
By: s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------- ----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------ ----------------------------
Title: Managing Director Executive Director
-------------------------- ----------------------------
SCHEDULE I
Number of Firm Shares
Of Common Stock
Underwriter to be Purchased
Banc of America Securities LLC 1,575,000
UBS Warburg LLC 1,575,000
Credit Suisse First Boston Corporation 787,500
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated 525,000
Wachovia Securities, Inc. 787,500
-------
TOTAL 5,250,000
A-3
EXHIBIT A
SCANA CORPORATION
---------------------
PRICE DETERMINATION AGREEMENT
October 9, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Securities LLC
UBS Warburg LLC
as Representatives for the Several
Underwriters Named in Schedule I to the Underwriting Agreement
c/o Banc of America Securities LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - Equity Capital Markets
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
c/o UBS Warburg LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement, dated October 9, 2002 (the
"Underwriting Agreement"), among SCANA Corporation, a South Carolina corporation
(the "Company"), and the several Underwriters named in Schedule I thereto or
hereto (the "Underwriters"), for whom you are acting as representatives
(collectively, the "Representatives"). The Underwriting Agreement provides for
the purchase by the Underwriters from the Company, subject to the terms and
conditions set forth therein, of an aggregate of 5,250,000 shares (the "Firm
Shares") of the Company's common stock, no par value per share. This Agreement
is the Price Determination Agreement referred to in the Underwriting Agreement.
Pursuant to Section 1 of the Underwriting Agreement, the undersigned agree
with the Representatives as follows:
I. The initial public offering price per share for the Firm Shares shall be
$25.10.
II. The purchase price per share for the Firm Shares to be paid by the
several Underwriters shall be $24.2843 representing an amount equal to the
initial public offering price set forth above, less $0.8157 per share.
The Company represents and warrants to each of the Underwriters that the
representations and warranties of the Company set forth in Section 3 of the
Underwriting Agreement are accurate in all respects as though expressly made at
and as of the date hereof.
As contemplated by the Underwriting Agreement, attached as Schedule I is a
completed list of the several Underwriters, which shall be a part of this
Agreement and the Underwriting Agreement.
This Agreement shall be governed by the law of the State of New York.
[THE REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
If the foregoing is in accordance with your understanding of the agreement among
the Underwriters and the Company, please sign and return to the Company a
counterpart hereof, whereupon this instrument along with all counterparts and
together with the Underwriting Agreement shall be a binding agreement among the
Underwriters and the Company in accordance with its terms and the terms of the
Underwriting Agreement.
Very truly yours,
SCANA CORPORATION
By:
--------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Confirmed as of the date first above mentioned:
BANC OF AMERICA SECURITIES LLC
Acting on behalf of itself and as the Representative of the other several
Underwriters.
By:
---------------------------
Name:
---------------------------
Title:
--------------------------
UBS WARBURG LLC
Acting on behalf of itself and as the Representative of the other several
Underwriters.
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
B-4
EXHIBIT B
PROPOSED FORM OF OPINION
OF
GENERAL COUNSEL
SCANA CORPORATION
Re: SCANA Corporation
5,250,000 Shares of Common Stock
October 16, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Securities LLC
UBS Warburg LLC
as Representatives for the Several
Underwriters Named in Schedule I to the Underwriting Agreement
c/o Banc of America Securities LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - Equity Capital Markets
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
c/o UBS Warburg LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
As General Counsel, I have acted as counsel to SCANA Corporation, a
South Carolina corporation (the "Company"), in connection with the offer and
sale of 5,250,000 shares of its common stock, without par value (the "Shares").
This opinion is being delivered to you pursuant to Section 5(e) of the
Underwriting Agreement dated October 9, 2002 (the "Agreement") among the Company
and each of you as Representatives of the several underwriters. All capitalized
terms appearing herein, unless otherwise defined herein, are used with the
meanings assigned to such terms in the Agreement.
In the preparation of this opinion, I have examined originals or
photostatic or certified copies of such certificates, agreements, documents and
other papers, and have made such inquiries and investigations of law, as I
deemed appropriate and necessary for the opinion hereinafter set forth. In my
examination, I have assumed the authenticity of all documents submitted to me as
originals, the conformity to original documents of all documents submitted to me
as certified or photostatic copies and the authenticity of the originals of such
latter documents. As to certain matters of fact material to the opinion
expressed herein, I have relied upon certificates of various corporate officers
of the Company and public officials. I assume the accuracy of the material and
factual matters contained therein.
Based upon the foregoing and subject to the further qualifications
stated herein, I advise you that in my opinion:
1. The Company has been duly incorporated and is validly existing as a
corporation under the laws of the State of South Carolina; has filed all
reports, paid all fees, taxes and penalties with or due to the Secretary of the
State of South Carolina; is not subject to being dissolved by administrative
action pursuant to the laws or regulations of the State of South Carolina; has
not filed any articles of dissolution to effect the same; and has full corporate
power and authority to own, lease and operate its properties and conduct its
business as described in the Registration Statement and the Prospectus, to
execute and deliver the Agreement and to issue, sell and deliver the Shares as
contemplated by the Agreement.
2. Each of South Carolina Electric & Gas Company, Public Service
Company of North Carolina, Incorporated, South Carolina Pipeline Corporation,
SCANA Energy Marketing, Inc. and SCANA Communications Holdings, Inc. (the
"Significant Subsidiaries") has been duly incorporated and is validly existing
as a corporation under the laws of its jurisdiction of incorporation; has filed
all reports, paid all fees, taxes and penalties with or due to the Secretary of
the State of South Carolina or, if not organized under South Carolina law, in
the comparable office of its jurisdiction of incorporation; is not subject to
being dissolved by administrative action pursuant to the laws or regulations of
its jurisdiction of incorporation; has not filed any articles of dissolution to
effect the same; and has full corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus.
3. The Company and each of the Significant Subsidiaries are duly
qualified or licensed by each jurisdiction in which they conduct their
respective businesses and/or in which they own or lease real property or
maintain an office and in which the failure, individually or in the aggregate,
to be so licensed or qualified could have a Material Adverse Effect.
4. The Agreement has been duly authorized, executed and delivered by
the Company.
5. The Shares have been duly authorized and, when issued and delivered
to and paid for by the Underwriters, will be validly issued and will be fully
paid and non-assessable.
6. The Company has authorized and outstanding shares of capital stock
as set forth in the Registration Statement and the Prospectus, except to the
extent that additional shares of Common Stock have been issued pursuant to the
Company's Investor Plus Plan and the Company's Stock Purchase Savings Plan or in
connection with any other employee or director incentive compensation
arrangements in effect as of the date of the Agreement; the Shares when issued
will be free of statutory and preemptive rights pursuant to any contract or
arrangement to which the Company is a party; the certificates for the Shares are
in due and proper form; and the holders of the Shares will not be subject to
personal liability by reason of being such holders.
7. All of the outstanding shares of capital stock of each of the
Significant Subsidiaries have been duly authorized and validly issued, are fully
paid and non-assessable and, except as otherwise stated in the Registration
Statement, are owned by the Company, directly or indirectly, in each case
subject to no security interest, other encumbrance or adverse claim; to my
knowledge, no options, warrants or other rights to purchase, agreements or other
obligations to issue or other rights to convert any obligation into shares of
capital stock or ownership interests in the Significant Subsidiaries are
outstanding.
8. The statements relating to the Shares contained in the Prospectus
under the caption DESCRIPTION OF COMMON STOCK are accurate and do not omit any
material fact required to be stated therein or necessary to make such statements
not misleading.
9. The Registration Statement has become effective under the Act and,
to my knowledge, no stop order proceedings with respect thereto are pending or
threatened under the Act and any required filing of the Prospectus and any
supplement thereto pursuant to Rule 424 of the Rules and Regulations has been
made in the manner and within the time period required by such Rule 424.
10. No approval, authorization, consent or order of or filing with any
national, state or local governmental or regulatory commission, board, body,
authority or agency is required in connection with the issuance and sale of the
Shares and consummation by the Company of the transactions as contemplated
hereby other than registration of the Shares under the Act and such as may be
required under state securities or blue sky laws of the various jurisdictions in
which the Shares are being offered by the Underwriters, and except for the
appropriate order of the Commission with respect to the sale of the Shares under
the Public Utility Holding Company Act of 1935, as amended, which has been
issued, and such order remains in effect at this date and constitutes valid and
sufficient authorization for the sale of the Shares as contemplated by the
Agreement.
11. The execution, delivery and performance of the Agreement by the
Company and the consummation by the Company of the transactions contemplated
thereby do not and will not conflict with, or result in any breach of, or
constitute a default under (nor constitute any event which with notice, lapse of
time, or both, would result in any breach of, or constitute a default under),
any provisions of the articles of incorporation or by-laws of the Company or any
of the Significant Subsidiaries or under any provision of any license,
indenture, mortgage, deed of trust, bank loan or credit agreement or other
evidence of indebtedness, or any lease, contract or other agreement or
instrument to which the Company or any of the Significant Subsidiaries is a
party or by which any of them or their respective properties may be bound or
affected, or under any federal, state, local or foreign law, regulation or rule
or any decree, judgment or order applicable to the Company or any of the
Significant Subsidiaries.
12. To my knowledge, neither the Company nor any of the Significant
Subsidiaries is in violation of its articles of incorporation or by-laws or is
in breach of, or in default under (nor has any event occurred which with notice,
lapse of time, or both would result in any breach of, or constitute a default
under), any license, indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any lease, contract or other
agreement or instrument to which the Company or any of the Significant
Subsidiaries is a party or by which any of them or their respective properties
may be bound or affected or under any federal, state, local or foreign law,
regulation or rule or any decree, judgment or order applicable to the Company or
any of the Significant Subsidiaries.
13. To my knowledge, there are no actions, suits, claims,
investigations or proceedings pending, threatened or contemplated to which the
Company or any of the Significant Subsidiaries is subject or of which any of
their respective properties is subject at law or in equity or before or by any
federal, state, local or foreign governmental or regulatory commission, board,
body, authority or agency, wherein an unfavorable ruling, decision or finding
would be reasonably expected to have a Material Adverse Effect, which are
required to be described in the Prospectus but are not so described.
14. No person has the right, pursuant to the terms of any contract,
agreement or other instrument described in or filed as an exhibit to the
Registration Statement or otherwise known to me, to have any securities issued
by the Company and owned by them registered pursuant to the Act, included in the
Registration Statement or sold in the offering contemplated thereby, whether as
a result of the filing or effectiveness of the Registration Statement or the
transactions contemplated by this Agreement or otherwise, except for such rights
as have been complied with or waived.
I have participated in conferences with other officers and other
representatives of the Company and your representatives at which the contents of
the Registration Statement and the Prospectus were discussed, and I have
consulted with other officers and employees of the Company to inform them of the
disclosure requirements of the Securities Act. I have examined various reports,
records, contracts and other documents of the Company and orders and instruments
of public officials, which my investigation led me to deem pertinent. In
addition, I participated in the closing at which the Company satisfied the
conditions contained in Section 5 of the Agreement. I have not, however,
undertaken to make any independent review of other records of the Company which
my investigation did not lead me to deem pertinent. As to the statistical
statements in the Registration Statement (which includes the Incorporated
Documents), I have relied solely on other officers of the Company without
independent investigation. I accordingly assume no responsibility for the
accuracy or completeness of the statements made in the Registration Statement,
except as stated above in paragraph 8 in regard to the statements described
therein. But such conferences, consultation, examination and participation
disclosed to me no information with respect to such other matters that gives me
reason to believe that the Registration Statement contained on the date the
Registration Statement became effective, or the Prospectus contained on the date
it was issued, or that the Registration Statement or the Prospectus (in each
case, except with respect to the financial statements and schedules and other
financial information contained or incorporated by reference in the Registration
Statement or Prospectus) contains on the date hereof, any untrue statement of a
material fact or omitted on such date or omits on the date hereof to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading. The foregoing statement is provided on the basis that
any statement contained in a document incorporated by reference into the
Registration Statement (an "Incorporated Document") will be deemed not to be
contained in the Registration Statement or Prospectus if the statement has been
modified or superseded by any statement in a subsequently filed Incorporated
Document or in the Registration Statement or Prospectus prior to the date of the
Agreement.
I do not purport to be an expert on, or to express any opinion herein
concerning, any law other than the law of the State of South Carolina and the
federal law of the United States. With your permission, in rendering the opinion
herein, I have assumed that the laws of the State of New York are identical to
the laws of the State of South Carolina. No opinion is expressed herein as to
any matters relating to state securities laws or blue sky laws of any
jurisdiction.
This opinion is solely for your benefit. This opinion may not be relied
upon by, nor may copies be delivered to, any person without my prior written
consent.
Very truly yours,
H. ▇▇▇▇▇▇ ▇▇▇▇▇▇
C-10
EXHIBIT C
PROPOSED FORM OF OPINION
OF
▇▇▇▇▇▇ LAW FIRM
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: SCANA Corporation
5,250,000 Shares of Common Stock
October 16, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Securities LLC
UBS Warburg LLC
as Representatives for the Several
Underwriters Named in Schedule I to the Underwriting Agreement
c/o Banc of America Securities LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - Equity Capital Markets
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
c/o UBS Warburg LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
We have acted as counsel to SCANA Corporation, a South Carolina
corporation (the "Company"), in connection with the offer and sale of 5,250,000
shares of its common stock, without par value (the "Shares"). This opinion is
being delivered to you pursuant to Section 5(e) of the Underwriting Agreement
dated October 9, 2002 (the "Agreement") among the Company and each of you as
Representatives of the several underwriters. All capitalized terms appearing
herein, unless otherwise defined herein, are used with the meanings assigned to
such terms in the Agreement.
In the preparation of this opinion, we have examined originals or
photostatic or certified copies of such certificates, agreements, documents and
other papers, and have made such inquiries and investigations of law, as we
deemed appropriate and necessary for the opinion hereinafter set forth. In our
examination, we have assumed the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as certified or photostatic copies and the authenticity of the originals of
such latter documents. As to certain matters of fact material to the opinion
expressed herein, we have relied upon certificates of various corporate officers
of the Company and public officials. We assume the accuracy of the material and
factual matters contained therein.
Based upon the foregoing and subject to the further qualifications
stated herein, we are of the opinion that:
1. The Company has been duly incorporated and is validly existing as a
corporation under the laws of the State of South Carolina; has filed all
reports, paid all fees, taxes and penalties with or due to the Secretary of the
State of South Carolina; is not subject to being dissolved by administrative
action pursuant to the laws or regulations of the State of South Carolina; has
not filed any articles of dissolution to effect the same; and has full corporate
power and authority to own, lease and operate its properties and conduct its
business as described in the Registration Statement and the Prospectus, to
execute and deliver the Agreement and to issue, sell and deliver the Shares as
contemplated by the Agreement.
2. Each of South Carolina Electric & Gas Company, Public Service
Company of North Carolina, Incorporated, South Carolina Pipeline Corporation,
SCANA Energy Marketing, Inc. and SCANA Communications Holdings, Inc. (the
"Significant Subsidiaries") has been duly incorporated and is validly existing
as a corporation under the laws of its jurisdiction of incorporation; has filed
all reports, paid all fees, taxes and penalties with or due to the Secretary of
the State of South Carolina or, if not organized under South Carolina law, in
the comparable office of its jurisdiction of incorporation; is not subject to
being dissolved by administrative action pursuant to the laws or regulations of
its jurisdiction of incorporation; has not filed any articles of dissolution to
effect the same; and has full corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus.
3. The Agreement has been duly authorized, executed and delivered by
the Company.
4. The Shares have been duly authorized and, when issued and delivered
to and paid for by the Underwriters, will be validly issued and will be fully
paid and non-assessable.
5. The statements relating to the Shares contained in the Prospectus
under the caption DESCRIPTION OF COMMON STOCK are accurate and do not omit any
material fact required to be stated therein or necessary to make such statements
not misleading.
6. The Registration Statement and the Prospectus (except as to the
financial statements and schedules and other financial and statistical data
contained or incorporated by reference therein, as to which we express no
opinion) comply as to form in all material respects with the requirements of the
Act.
7. The Registration Statement has become effective under the Act and,
to our knowledge, no stop order proceedings with respect thereto are pending or
threatened under the Act and any required filing of the Prospectus and any
supplement thereto pursuant to Rule 424 of the Rules and Regulations has been
made in the manner and within the time period required by such Rule 424.
8. To our knowledge, there are no contracts, licenses, agreements,
leases or documents of a character which are required to be filed as exhibits to
the Registration Statement or to be summarized or described in the Prospectus
which have not been so filed, summarized or described.
9. The documents incorporated by reference in the Registration
Statement and Prospectus, when they were filed (or, if an amendment with respect
to any such document was filed, when such amendment was filed) with the
Commission, complied as to form in all material respects with the Act or
Exchange Act (except as to the financial statements and schedules and other
financial and statistical data contained or incorporated by reference therein as
to which we express no opinion).
10. The Company will not, upon consummation of the transactions
contemplated by this Agreement, be an "investment company," or a "promoter" or
"principal underwriter" for, a "registered investment company," as such terms
are defined in the Investment Company Act of 1940, as amended.
We have participated in conferences with officers and other
representatives of the Company and your representatives at which the contents of
the Registration Statement and the Prospectus were discussed, and we have
consulted with officers and other employees of the Company to inform them of the
disclosure requirements of the Securities Act. We have examined various reports,
records, contracts and other documents of the Company and orders and instruments
of public officials, which our investigation led us to deem pertinent. In
addition, we participated in the closing at which the Company satisfied the
conditions contained in Section 5 of the Agreement. We have not, however,
undertaken to make any independent review of other records of the Company which
our investigation did not lead us to deem pertinent. As to the statistical
statements in the Registration Statement (which includes the Incorporated
Documents), we have relied solely on the officers of the Company without
independent investigation. We accordingly assume no responsibility for the
accuracy or completeness of the statements made in the Registration Statement,
except as stated above in paragraph 5 in regard to the statements described
therein. But such conferences, consultation, examination and participation
disclosed to us no information with respect to such other matters that gives us
reason to believe that the Registration Statement contained on the date the
Registration Statement became effective, or the Prospectus contained on the date
it was issued, or that the Registration Statement or the Prospectus (in each
case, except with respect to the financial statements and schedules and other
financial information contained or incorporated by reference in the Registration
Statement or Prospectus) contains on the date hereof, any untrue statement of a
material fact or omitted on such date or omits on the date hereof to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading. The foregoing statement is provided on the basis that
any statement contained in a document incorporated by reference into the
Registration Statement (an "Incorporated Document") will be deemed not to be
contained in the Registration Statement or Prospectus if the statement has been
modified or superseded by any statement in a subsequently filed Incorporated
Document or in the Registration Statement or Prospectus prior to the date of the
Agreement.
We do not purport to be experts on, or to express any opinion herein
concerning, any law other than the law of the State of South Carolina and the
federal law of the United States. With your permission, in rendering the opinion
herein, we have assumed that the laws of the State of New York are identical to
the laws of the State of South Carolina. No opinion is expressed herein as to
any matters relating to state securities laws or blue sky laws of any
jurisdiction.
Whenever any opinion expressed herein with respect to the existence or
absence of facts is qualified by the phrase "to our knowledge," such phrase
indicates that without any independent investigation no information has come to
the attention of any of the attorneys in this firm who have been substantively
involved in the transactions contemplated by the Agreement that has given us
actual knowledge of the existence of such facts. We have not, however,
undertaken any independent investigation not specifically described herein to
determine the existence or absence of such facts, nor have we undertaken a
general canvass of the attorneys of this firm or a general search of this firm's
files, and we disclaim any undertaking or obligation to do so.
This opinion is solely for your benefit. This opinion may not be relied
upon by, nor may copies be delivered to, any person without our prior written
consent.
Very truly yours,
▇▇▇▇▇▇ LAW FIRM, P.A.
By:
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A member of the Firm
EXHIBIT D
PROPOSED FORM OF OPINION
OF
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
Bank of America Center
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Re: SCANA Corporation
5,250,000 Shares of Common Stock
October 16, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Securities LLC
UBS Warburg LLC
as Representatives for the Several
Underwriters Named in Schedule I to the Underwriting Agreement
c/o Banc of America Securities LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - Equity Capital Markets
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c/o UBS Warburg LLC
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Ladies and Gentlemen:
We have acted as your counsel in connection with arrangements
for the issuance by SCANA Corporation, a South Carolina company (the "Company")
, of 5,250,000 shares of the Company's common stock, no par value (the "Shares")
pursuant to the Underwriting Agreement, dated October 9, 2002, (the
"Agreement"), among the Company and you, as Representatives of the Company. This
letter is being delivered to you pursuant to the provisions of Section 5(f) of
the Agreement. Except as set forth herein, the terms used herein which are
defined in the Agreement have the same meanings as they have in the Agreement.
We have examined originals or copies certified to our
satisfaction, of such corporate records of the Company, indentures, agreements,
and other instruments, certificates of public officials, certificates of
officers and representatives of the Company, and other documents as we have
deemed it necessary to require as a basis for the opinions hereinafter
expressed. As to various questions of fact material to such opinions, we have,
when relevant facts were not independently established, relied upon
certification by officers of the Company and other appropriate persons and
statements contained in the Registration Statement and Prospectus. In our
examination of records and other documents, we have assumed the authenticity of
all such documents submitted to us as originals, the genuineness of all
signatures, the due authority of the persons executing such documents and the
conformity to the originals of all documents submitted to us as copies. In
addition, we have relied upon the representations contained in the Agreement,
upon a certificate of the State of South Carolina officials as to the existence
of the Company and upon certificates of officers of the Company as to matters of
fact relevant to our opinion.
We are members of the Bar of the Commonwealth of Virginia and,
for purposes of this opinion, do not hold ourselves out as experts on the laws
of any other state. As to all matters of South Carolina law, we have relied,
with your consent, upon the opinion of H. ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esquire, General
Counsel of the Company, addressed to you of even date herewith, pursuant to
Section 5(e) of the Agreement. Such opinion and the opinion of the ▇▇▇▇▇▇ Law
Firm P.A. also addressed to you of even date herewith, pursuant to Section 5(e)
of the Agreement, are satisfactory in form and substance to us.
Based upon the foregoing, and having regard to legal
considerations that we deem relevant, we are of the opinion that:
1. The Company is a corporation duly incorporated and existing
as a corporation in good standing under the laws of the State of South Carolina,
and has the corporate power to transact its business as described in the
Prospectus.
2. The Shares have been duly authorized and are validly
issued, fully paid and non-assessable; and the issuance of such Shares is not
subject to any preemptive or similar rights.
3. The Registration Statement with respect to the Shares filed
pursuant to the Act has become effective and remains in effect at this date, and
the Prospectus may lawfully be used for the purposes specified in the Act in
connection with the offer for sale and the sale of the Shares in the manner
therein specified.
4. The Registration Statement and the Prospectus (excepting
the financial statements and schedules and other financial or statistical
information contained or incorporated therein by reference, any pro forma
financial information and notes thereto included or incorporated by reference
into the Registration Statement or the Prospectus, and as to which we express no
belief) appear on their face to be appropriately responsive in all material
respects to the requirements of the Act, and to the applicable rules and
regulations of the Commission thereunder.
5. The statements relating to the Shares contained in the
Prospectus under the caption DESCRIPTION OF COMMON STOCK are accurate and do not
omit any material fact required to be stated therein or necessary to make such
statements not misleading.
* * * *
Except as described in paragraph (5) above, we have not
undertaken to determine independently the accuracy or completeness of the
statements contained or incorporated by reference in the
Registration Statement or in the Prospectus, and as to the statistical
statements in the Registration Statement (which includes statistical statements
in the documents incorporated therein by reference (the "Incorporated
Documents")), we have relied solely on the officers of the Company. We
accordingly assume no responsibility for the accuracy or completeness of the
statements made in the Registration Statement other than with regard to the
statements relating to the Shares as described in paragraph (5). We note that
the Incorporated Documents were prepared and filed by the Company without our
participation. We have, however, participated in conferences with counsel for
and representatives of the Company in connection with the preparation of the
Registration Statement, the Prospectus and we have reviewed the Incorporated
Documents and such of the corporate records of the Company as we deemed
advisable. In addition, we participated in one or more due diligence conferences
with representatives of the Company and attended the closing at which the
Company satisfied the conditions contained in the Agreement. None of the
foregoing disclosed to the lawyers in this firm who have given substantive legal
attention to representation of the Underwriters in connection with the issuance
and sale of the Shares any information that gives us reason to believe that the
Registration Statement contained on the date the Registration Statement became
effective, or the Prospectus contained on the date it was issued, or that the
Registration Statement or the Prospectus contains on the date hereof (in all
cases, excepting the financial statements and schedules and other financial
information contained or incorporated therein by reference, any pro forma
financial information and notes thereto, included or incorporated by reference
into the Registration Statement or the Prospectus, as to which we express no
belief), any untrue statement of a material fact or omitted on said date or now
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading. The foregoing assurance is given on
the basis that any statement contained in an Incorporated Document shall be
deemed not to be contained in the Registration Statement or Prospectus if the
statement has been modified or superseded by any statement in a subsequently
filed Incorporated Document or in the Registration Statement or Prospectus.
In rendering the opinions set forth in paragraphs (1) - (5)
above, we do not purport to express an opinion on any laws other than those of
the Commonwealth of Virginia, the State of New York and the United States of
America. This opinion may not be relied upon by, nor may copies be delivered to,
any person without our prior written consent.
Very truly yours,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
