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Exhibit 4.3
This document was filed for qualification with the Internal Revenue Service
on March 30, 1995.
SAVINGS PLAN FOR EMPLOYEES
OF FLORIDA PROGRESS CORPORATION
Effective July 1, 1973
As Amended and Restated as of
January 1, 1994
And Reflecting Amendments
Through January 1, 1995
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SAVINGS PLAN FOR EMPLOYEES
OF FLORIDA PROGRESS CORPORATION
ARTICLE I - INTRODUCTION
------------------------
1.01 Name - This Plan shall be known as the Savings Plan for Employees of
Florida Progress Corporation.
1.02 Purpose- The Plan is established by the Company for the purpose of
providing supplemental retirement, death, and disability benefits, and a
flexible and competitive compensation program for long service employees.
1.03 Effective Date - The effective date of the Plan is July 1, 1973. The Plan
has been amended and restated as of January 1, 1994, except that certain
provisions are effective as of an earlier or later date as indicated in
the Plan.
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ARTICLE II - DEFINITIONS
------------------------
Unless otherwise required by the context, the terms used herein shall have the
following meanings:
2.01 "Accounts" shall mean the Member Account, the Deferred Account, the
Company Member Account, the Company Deferred Account. the Member ESOP
Account, the Company ESOP Account, the Rollover Account and the Prior
Pension Account.
2.02 "Actual Deferral Percentage" shall mean, with respect to a specified group
of Employees, the average of the ratios, calculated separately for each
Employee in that group, of (a) the amount of Deferred Cash Contributions
made pursuant to paragraph 4.01 for a Plan Year (including Deferred Cash
Contributions returned to a Highly-Compensated Employee under paragraph
4.01(c) and Deferred Cash Contributions returned to any Employee pursuant
to paragraph 4.01(d)), to (b) the Employees' Statutory Compensation for
that entire Plan Year, provided that, upon direction of the Plan
Administrator, Statutory Compensation for a Plan Year shall only be
counted if received during the period an Employee is, or is eligible to
become, a Member. The Actual Deferral Percentage for each group and the
ratio determined for each Employee in the group shall be calculated to the
nearest one one-hundredth of one percent. For purposes of determining the
Actual Deferral Percentage for a Plan Year, Deferred Cash Contributions
may be taken into account for a Plan Year only if they:
(a) relate to compensation that either would have been received by the
Employee in the Plan Year but for the deferral election, or are
attributable to services performed by the Employee in the Plan Year
and would have been received by the Employee within 2 1/2 months
after the close of the Plan Year but for the deferral election,
(b) are allocated to the Employee as of a date within that Plan Year and
the allocation is not contingent on the participation or performance
of service after such date, and
(c) are actually paid to the Trustee no later than 12 months after the
end of the Plan Year to which the contributions relate. Effective
1/1/92.
2.03 "Adjustment Factor" shall mean the cost of living adjustment factor
prescribed by the Secretary of the Treasury under Section 415(d) of the
Code for calendar years beginning on or after January 1, 1988, and applied
to such items and in such manner as the Secretary shall provide.
2.04 "Annual Dollar Limit" shall mean for Plan Years beginning on or after
January 1, 1989 and before January 1, 1994, $200,000 multiplied by the
Adjustment Factor. Commencing with the 1994 Plan Year, the Annual Dollar
Limit means $150,000, except that if for any calendar year after 1994 the
Cost-of-Living Adjustment as hereinafter defined is equal to or greater
than $10,000, then the Annual Dollar Limit (as previously
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adjusted under this Section) for any Plan Year beginning in any subsequent
calendar year shall be increased by the amount of such Cost-of-Living
Adjustment, rounded to the next lowest multiple of $10,000. The Cost-of-
Living Adjustment shall equal the excess of (i) $150,000 increased by the
adjustment made under Section 415(d) of the Code for the calendar year
except that the base period for purposes of Section 415(d)(1)(A) of the
Code shall be the calendar quarter beginning October 1, 1993 over (ii) the
Annual Dollar Limit in effect for the Plan Year beginning in the calendar
year.
2.05 "Annuity Starting Date" shall mean the first day of the first period for
which an amount is paid following a Member's retirement or other
termination of employment. Effective 1/1/89.
2.06 "Beneficiary" shall mean any person designated by a Member on a form
supplied by the Company to receive benefits payable in the event of the
death of the Member. The sole Beneficiary of a married Member who dies on
or after August 23, 1984 shall be the Member's spouse unless the Member
has designated someone other than his spouse ms his Beneficiary and such
designation is signed by the Member's spouse and witnessed by a Plan
representative or notary public, unless such requirements are waived by
the Plan Administrator in accordance with applicable law. A Member's
designation of his Beneficiary shall not be changed unless further spousal
consent is obtained. Beneficiary designations of married Members in effect
immediately prior to August 23, 1984 are automatically void. When a Member
becomes married, any previous Beneficiary designation shall be
automatically void. If no such designation is in effect at the time of
death of the Member, or if no person so designated shall survive the
Member, the Beneficiary shall be the estate of the Member.
2.07 "Board of Directors" shall mean the Board of Directors of Florida Progress
Corporation or its delegate.
2.08 "Code" shall mean the Internal Revenue Code of 1986, as from time to time
amended.
2.09 "Company" shall mean Florida Progress Corporation or any associated or
affiliated company hereafter authorized by the Board of Directors of
Florida Progress Corporation to participate in the Plan with respect to
its employees.
2.10 "Company Deferred Account" shall mean the account into which shall be
credited the Regular Company Contributions and Special Company
Contributions made on a Member's behalf with respect to his Deferred Cash
Contributions, and earnings on those Regular Company and Special Company
Contributions.
2.11 "Company ESOP Account" shall mean the account into which shall be credited
an amount of shares of Company Stock equal to the balances in the Member's
"regular contributions account" and "matching contributions account" on
December 31, 1987
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under the Employee Stock Ownership Plan of Florida Progress Corporation,
and earnings on those shares. Effective 1/1/88.
2.12 "Company Member Account" shall mean the account into which shall be
credited the Regular Company Contributions and Special Company
Contributions made on a Member's behalf with respect to his Member
Contributions, and earnings on those Regular Company and Special Company
Contributions.
2.13 "Company Stock" shall mean shares of the common stock of Florida Progress
Corporation.
2.14 "Continuous Service" shall mean, except as hereinafter provided, all
service with the Company or a Non-participating Company rendered by an
Employee whether or not as herein defined. With respect to any calendar
year in which an Employee works at least 1,000 Hours, a full year of
Continuous Service will be included but no Continuous Service will be
included if he works less than 1,000 Hours in such year. Effective
1/1/79.
There shall be a break in service with respect to any calendar year
commencing on or after January 1, 1976, after the year in which a person
first becomes employed, during which he has 500 Hours or less. Any service
rendered prior to a break in service shall be excluded from an Employee's
Continuous Service, unless he shall complete at least one year of
Continuous Service following the break in service. If an Employee who has
not completed two years of Continuous Service incurs a break in service
which equals or exceeds five years, excluding any period of his Continuous
Service disregarded under this sentence by reason of any earlier break in
service, the service rendered prior to the break in service shall
thereafter be excluded from his Continuous Service.
With respect to any person who was employed by the Company on December 31,
1975, Continuous Service for service rendered prior to that date shall be
equal to the Continuous Service recognized through December 31, 1975,
under the Plan as in effect on that date.
If an Employee shall have been absent from the service of the Company
because of service in the Armed Forces of the United States and if he
shall have returned to the service of the Company or a Non-participating
Company within ninety days after his discharge or within the period
prescribed by applicable law, whichever period is longer, such absence
shall not count as a break in service. Maternity leave shall not be
considered as a break in service and the period of any such leave shall be
considered as Continuous Service provided the Employee returns to service
with the Company or a Non-participating Company on or prior to the
expiration date of the maternity leave. Effective 1/1/79.
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A period during which an Employee is on a leave of absence approved by the
Company or a Non-participating Company shall not be considered as a break
in service. The period of any such leave shall be considered as Continuous
Service provided the Employee returns to service with the Company or a
Non-participating Company on or prior to the expiration date of the leave
of absence. Effective 1/1/94.
In the case of employment with a Non-participating Company, an Employee
shall receive Continuous Service only to the extent that such employment
occurred on or after the date the Company became a Non-participating
Company. Effective 1/1/79.
2.15 "Contribution Percentage" shall mean with respect to a specified group of
Employees, the average of the ratios, calculated separately for each
Employee in that group, of (a) the sum of the amount of Regular Company
Contributions, Special Company Contributions and Member Contributions made
by or on behalf of such Employee for a Plan Year (excluding any Regular
Contributions or Special Company Contributions forfeited under the
provisions of paragraphs 4.01 and 4.09), to (b) the Employee's Statutory
Earnings for that Plan Year; provided that, upon direction of the Plan
Administrator, Statutory Earnings for a Plan Year shall only be counted if
received during the period an Employee is, or is eligible to become, a
Member. The Contribution Percentage for each group and the ratio
determined for each Employee in the group shall be calculated to the
nearest one one-hundredth of one percent. Effective 1/1/92.
2.16 "Deferred Account" shall mean the account in which shall be credited the
Deferred Cash Contributions made on a Member's behalf, and earnings on
those contributions.
2.17 "Deferred Cash Contributions" shall mean that portion of the Company's
contributions to the Plan on behalf of a Member which are made pursuant to
paragraph 4.01.
2.18 "Earnings" shall mean the regular basic compensation paid to a Member,
prior to any reduction for Deferred Cash Contributions made on behalf of
the Member and any reduction in compensation elected by the Member under
the Flex. Power Plan of Florida Power Corporation, and including any lump
sum base pay increases paid on and after October 1, 1991, if so elected by
the employee receiving the lump sum base pay increases in accordance with
such election procedures as shall be established by the Plan
Administrator, and including commissions paid on and after June 1, 1993.
However, for Plan Years beginning after 1988, Earnings shall not exceed
the Annual Dollar Limit. The Annual Dollar Limit applies to the aggregate
Earnings paid to a Highly Compensated Employee referred to in paragraph
2.22, his spouse and his lineal descendants who have not attained age 19
before the end of the Plan Year. If, as a result of the application of the
family aggregation rule, the Annual Dollar Limit is exceeded, then the
Limit shall be pro-rated among the affected individuals in proportion to
each such individual's earnings as determined under this paragraph 2.18
prior to the application of the Limit.
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2.19 "Employee" shall mean any person regularly engaged in rendering personal
services to the Company, who receives compensation from the Company other
than pension, severance pay, retainer or fee under contract. The term
"Employee" shall also include persons who are on authorized leave of
absence, maternity leave, Parental Leave or military leave without
compensation, provided there is not a break in service. However, the term
"Employee" shall exclude any Leased Employee. Effective 1/1/89.
2.20 "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
2.21 "Gain or Loss" shall mean the amount of gain or loss to be returned with
any excess deferrals, excess contributions or excess aggregate
contributions under paragraphs 4.01, 4.09, 4.10 or 4.11 for a Plan Year
determined as of the last day of such Plan Year under the Plan's method of
allocating income to Members' Accounts pursuant to Article VII. Effective
1/1/92.
2.22 "Highly Compensated Employee" shall mean:
(a) With respect to any Plan Year for which an election is not made under
paragraph (b) below, any employee of the Company or a Non-
participating Company (whether or not eligible for membership in the
Plan) who testifies the criteria of subparagraph (i), (ii) or (ii):
(i) During the look-back year the employee:
(A) received Statutory Earnings in excess of $75,000
multiplied by the Adjustment Factor;
(B) received Statutory Earnings in excess of $50,000
multiplied by the Adjustment Factor and was among the
highest 20 percent of employees for that year when ranked
by Statutory Earnings paid for that year excluding, for
purposes of determining the number of such employees,
such employees as the Plan Administrator may determine on
a consistent basis pursuant to Section 414(q)(8) of the
Code;
(C) was at any time an officer of the Company or a Non-
participating Company and received Statutory Compensation
greater than 50 percent of the dollar limitation on
maximum benefits under Section 415(b)(1)(A) of the Code
for such Plan Year. The number of officers is limited to
50 (or, if lesser, the greater of 3 employees or 10
percent of employees excluding those employees who may be
excluded in determining the top-paid group). If no
officer has Statutory Earnings in excess of 50 percent of
the dollar limitation on maximum benefits under Section
415(b)(1)(A) of the Code, the highest paid officer is
treated as a Highly Compensated Employee.
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(ii) During the determination year, the employee satisfies the criteria
under (A), (B) or (C) of (i) above and is one of the 100 highest
paid employees of the Company or a Non-participating Company.
(iii) During the determination year or the look-back year the employee was
at any time a five percent owner of the Company or a Non-
participating Company.
(iv) For purposes of paragraph 4.12(a), a Highly Compensated Employee
shall include a former employee who separated from service prior to
the determination year and who was a 5 percent owner for either (A)
the year he separated from service or (B) any determination year
ending on or after the employee's 55th birthday.
(v) The provisions of this subparagraph shall be further subject to.
such additional requirements as shall be described in Section 414(q)
of the Code and its applicable regulations, which shall override any
aspect of this subparagraph inconsistent therewith.
(b) In lieu of determining Highly Compensated Employees in accordance with the
provisions of subparagraph (a) above, the Plan Administrator may, for any
Plan Year, elect to determine Highly Compensated Employees based on the
simplified method provided in IRS Revenue Procedure 93-42. With respect to
any Plan Year for which such an election is made, the term "Highly
Compensated Employee" shall mean:
(i) any employee within the snapshot population who, for the Plan Year:
(A) receives Statutory Earnings in excess of $75,000 multiplied by
the Adjustment Factor,
(B) receives Statutory Earnings in excess of $50,000 multiplied by
the Adjustment Factor and was among the highest 20 percent of
employees on the snapshot day when ranked by Statutory
Earnings paid for that Plan Year excluding, for purposes of
determining the number of such employees, such employees as
the Plan Administrator may determine on a consistent basis
pursuant to Section 414(q)(8) of the Code; or
(C) is an officer of the Company or a Non-participating Company on
the snapshot day and receives Statutory Earnings greater than
50 percent of the dollar limitation on maximum benefits under
Section 415(b)(1)(A) of the Code for such Plan Year. The
number of officers is limited to 50 (or, if lesser, the
greater of 3 employees or 10 percent of employees excluding
those employees who may be excluded in determining the top-
paid group). If no officer has Statutory Earnings in excess of
50 percent of the dollar limitation on maximum benefits under
Section 415(b)(1)(A) of the Code, the highest paid officer is
treated as a Highly Compensated Employee; or
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(D) the employee is a five percent owner of the Company or a Non-
participating Company on the snapshot day; and
(ii) any employee of the Company or a Non-participating Company during
the Plan Year who:
(A) terminated prior to the snapshot day and was a Highly
Compensated Employee in the prior year.
(B) terminated prior to the snapshot day and (1) was a 5 percent
owner, (2) has Statutory Compensation for the Plan Year
greater than or equal to the projected Statutory Earnings of
any employee who is treated as a Highly Compensated Employee
on the snapshot day (except for employees who are Highly
Compensated Employees solely because they are 5 percent owners
or officers) or (3) was an officer and has Statutory Earnings
greater than or equal to the projected Statutory Earnings of
any other officer who is a Highly Compensated Employee on the
snapshot day solely because that person is an officer; or
(C) becomes employed subsequent to the snapshot day and (1) is a 5
percent owner, (2) has Statutory Earnings for the Plan Year
greater than or equal to the projected Statutory Earnings of
any employee who is treated as a Highly Compensated Employee
on the snapshot day (except for employees who are Highly
Compensated Employees solely because they are 5 percent owners
or officers), or (3) is an officer and has Statutory Earnings
greater than or equal to the projected Statutory Earnings of
any other officer who is a Highly Compensated Employee on the
snapshot day solely because that person is an officer.
The provisions of this subparagraph (b) shall be further subject to such
additional requirements as shall be described in Section 414(q) of the
Code, and its applicable regulations, which are not inconsistent with the
foregoing provisions of this subparagraph (b).
(c) For purposes of this paragraph 2.22, the following terms shall have the
following meanings:
(i) the "determination year" shall mean the Plan Year and the "look-back
year" means the 12-month period immediately preceding the
determination year. However, to the extent permitted under
regulations, the Plan Administrator may elect to determine the
status of Highly Compensated Employees on a calendar year basis;
(ii) "snapshot day" shall mean the single day during the Plan Year as of
which the Company is determining its Highly Compensated Employees.
Such day must be reasonably representative of the workforce of the
Company and Non-participating Companies and the Plan's coverage for
the Plan Year;
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(iii) "snapshot population" means all employees of the Company and
Nonparticipating Companies on the snapshot day; and
(iv) "Statutory Earnings" has the same meaning as set forth in
paragraph 2.43 except that solely for purposes of determining
Highly Compensated Employees under subparagraph (b) above, the
Company may reasonably approximate an employee's Statutory
Earnings for the Plan Year (projected to the end of the Plan
Year if the snapshot day is not the last day of the Plan Year).
(d) Notwithstanding the foregoing, employees who are nonresident aliens
and who receive no earned income from the Company or a Non-
participating Company which constitutes income from sources within the
United States shall be disregarded for all purposes of this paragraph
2.22. Effective 1/1/93.
2.23 "Hour(s)" of service shall mean, with respect to any applicable computation
period,
(a) each Hour for which the Employee whether or not as defined herein is
paid or entitled to payment for the performance of duties for the
Company or a Non-participating Company,
(b) each Hour for which an Employee is paid or entitled to payment by the
Company or a Non-participating Company on account of a period during
which no duties are performed whether or not the employment
relationship has terminated but not in excess of 501 Hours for any
such single continuous period,
(c) each Hour for which back pay, irrespective of mitigation of damages,
is either awarded or agreed to by the Company or a Non-participating
Company excluding any Hour credited under subparagraph (a) or (b), and
(d) solely for purposes of determining whether an Employee has incurred a
break in service under the Plan, each hour for which an Employee would
normally be credited under subparagraph (a) or (b) during a period of
Parental Leave but not more than 501 hours for any single period.
However, the number of hours credited to an Employee under this
subparagraph (d) during the computation period in which the Parental
Leave began, when added to the hours credited to an Employee under
subparagraph (a) through (c) during that computation period, shall not
exceed 501 hours. If the number of hours credited under this
subparagraph (d) for the computation period in which the Patent Leave
began is zero, the provisions of this Subparagraph (d) shall apply as
though the Parental Leave began in the immediately following
computation period; and
(e) solely for purposes of determining whether an Employee has incurred a
break in service under the Plan, each hour for which an Employee would
normally be credited under subparagraph (a) or (b) above during a
period of leave for the birth, adoption or placement of a child, to
care for a spouse or an immediate family member with a serious illness
or for the employee's own illness pursuant to the Family and Medical
Leave Act of 1993 and its regulations or during a
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period of leave granted for any other reason under the Company's
family and medical leave policy. Effective 8/5/93.
No Hours shall be credited on account of any period during which the
Employee performs no duties and receives payment solely for the purpose of
complying with workers' compensation, unemployment compensation or
disability insurance laws. The Hours of service to be so credited and
shall be determined pursuant to 29 Code of Federal Regulations, Section
2530.200b-2(b) and (c) as promulgated by the United States Department of
Labor. Effective 1/1/79.
2.24 "Investment Committee" shall mean the committee appointed by the Board
with the authority to manage and control the assets, operation and
administration of the Plan. Effective 8/15/85.
2.25 "Investment Fund(s) or Fund(s)" shall mean the fund(s) described in
Article VIII, which are held in trust for the investment of Member and
Company contributions to the Plan.
2.26 "Leased Employee" shall mean any person performing services for the
Company or a Non-participating Company as a leased employee as defined in
Section 414(n) of the Code. Effective 1/1/89.
2.27 "Member" shall mean an Employee who is participating in and making
contributions and/or authorizing Deferred Cash Contributions to the Plan
or who, by virtue of his prior participation in the Plan or the Employee
Stock Ownership Plan of Florida Progress Corporation, has Accounts in one
or more of the Investments Funds.
2.28 "Member Account" shall mean the account into which shall be credited the
Member Contributions made by a Member, and earnings on those
contributions.
2.29 "Member Contributions" shall mean the contributions made by a Member on an
after-tax basis pursuant to paragraph 4.02.
2.30 "Member ESOP Account" shall mean the account into which shall be credited
an amount of shares of Company Stock equal to the balance in the Member's
"voluntary contributions account" on December 31, 1987 under the Employee
Stock Ownership Plan of Florida Progress Corporation, and earnings on the
shares. Effective 1/1/88.
2.31 "Non-participating Company" shall mean any company which has not adopted
the Plan and which is a member of a controlled group of corporations (as
defined in Section 414(b) of the Code) which also includes as a member the
Company; any trade or business under common control (as delivered in
Section 414(c) of the Code) with the Company; any organization (whether or
not incorporated) which is a member of an
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affiliated service group (as defined in Section 414(m) of the Code) which
includes the Company; and any other entity required to be aggregated with
the Company pursuant to regulations under Section 414(o) of the Code.
Notwithstanding the foregoing, for purposes of paragraphs 4.13 and 4.17,
the definitions in Sections 414(b) and (c) of the Code shall be modified
by substituting the phrase "more than 50 percent" for the phrase "at least
80 percent" each place it appears in Section 1563(a)(1) of the Code.
2.32 "Notice" shall mean the indication by an Employee of his or her wishes
through the means, written, electronic or telephonic, provided for the
particular purpose by the Company.
2.33 "Parental Leave" shall mean a period during which the Employee is absent
from work, (a) because of the pregnancy of the Employee, (b) because of
the birth of the child of the Employee, (c) because of the placement of a
child of the Employee in connection with the adoption of such child by
such Employee, (d) for purposes of caring for such child for a period
beginning immediately following such birth or placement, or (e) to care
for a spouse or an immediate family member with a serious illness or for
the employee's own illness as provided under the Company's family and
medical leave policy.
2.34 "Plan" shall mean the Savings Plan for Employees of Florida Progress
Corporation. This Plan is designed to qualify as a "Profit-Sharing Plan"
for all purposes of the Code.
2.35 "Plan Administrator" shall mean the person or persons appointed by the
Board of Directors to act as administrative representative on behalf of
the Investment Committee.
2.36 "Plan Year" shall mean a calendar year.
2.37 "Prior Pension Account" shall mean the account into which shall be
credited the transfers made on a Member's behalf pursuant to paragraph
4.06, and earnings on those transfers.
2.38 "Regular Company Contributions" shall mean Company contributions made on a
Member's behalf pursuant to paragraph 4.07.
2.39 "Retirement" shall mean the date an Employee terminates employment with
entitlement to a benefit under the Employees' Retirement Plan of Florida
Progress Corporation.
2.40 "Rollover Account" shall mean the account into which shall be credited the
contributions made by a Member pursuant to paragraph 4.03.
2.41 "Savings Plan Goal" shall mean one of the two objective performance
standards established, prior to the beginning of each Plan Year for the
purpose of determining the amount of Special Company Contributions, if
any, to be made for that Plan Year on
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behalf of the employees of a company which has adopted the Plan. Savings
Plan Goals shall be established by the board of directors of each such
company with respect to its eligible employees and shall be subject to
approval by the Board of Directors of Florida Progress Corporation.
Effective 1/1/86.
2.42 "Special Company Contributions" shall mean Company contributions made on a
Member's behalf pursuant to paragraph 4.08.
2.43 "Statutory Earning" shall mean the wages, salaries, and other amounts paid
in respect of an Employee for services actually rendered to the Company or
a Non-participating Company, including by way of example, overtime,
bonuses and commissions, but excluding deferred compensation (except in
the Plan Year in which such compensation is includible in the Employee's
gross income), income from stock options and other distributions which
receive special tax benefits under the Code. For purposes of determining
Highly Compensated Employees under paragraph 2.22, and key employees under
paragraph 4.16, Statutory Earnings shall include Deferred Cash
Contributions and amounts contributed on a Member's behalf on a salary
reduction basis to a cafeteria plan under Section 125 of the Code. For all
other purposes, each Plan Year the Plan Administrator may direct that
Statutory Earnings shall include Deferred Cash Contributions and amounts
contributed on a Member's behalf on a salary reduction basis to a
cafeteria plan under Section 125 of the Code. For Plan Years beginning
after 1988, Statutory Earnings shall not exceed the Annual Dollar Limit,
provided that such limit shall not be applied in determining Highly
Compensated Employees under paragraph 2.22. The Annual Dollar Limit
applies to the aggregate Statutory Earnings paid to a Highly Compensated
Employee referred to in paragraph 2.22, his spouse and his lineal
descendants who have not attained age 19 before the close of the Plan
Year. If, as a result of the application of the family aggregation rule,
the Annual Dollar Limit is exceeded, then the Limit shall be pro-rated
among the affected individuals in proportion to each such individual's
Statutory Earnings as determined under this paragraph 2.43 prior to the
application of the Limit. Effective 1/1/89.
2.44 "Trust" shall mean the cash and other properties arising from the
contributions made by Members and the Company as provided in the Plan and
held and administered by the Trustees pursuant to the Trust Agreements
for the Investment Funds.
2.45 "Trust Agreement(s)" shall mean the agreement entered into between the
Company and a Trustee and specifying the duties by which the Trustee
agrees to hold an Investment Fund in trust.
2.46 "Trustee(s)" shall mean the person, corporation, association or
combination thereof, which has agreed to accept the appointment of the
Investment Committee by entering into a Trust Agreement to hold an
Investment Fund in trust.
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2.47 "Valuation Date" shall mean the last day of each calendar month. Effective
3/31/92.
2.48 "Masculine" pronouns used herein shall refer to men or women or both and
nouns when stated in the singular shall include the plural and when stated
in the plural shall include the singular whenever appropriate.
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ARTICLE III - ELIGIBILITY AND PARTICIPATION
-------------------------------------------
3.01 Eligibility
(a) An Employee shall be eligible to become a Member following his completion
of six months of uninterrupted employment with the Company, or the
completion of one year of Continuous Service, if earlier. For this
purpose, a year of Continuous Service shall be a twelve month period
during which an Employee completes at least 1,000 Hours of service,
commencing on either his initial date of employment or on any January 1,
thereafter.
(b) An Employee shall be eligible to become a Member immediately upon his
employment by the Company only for the purpose of making a rollover
contribution to his Rollover Account pursuant to paragraph 4.03.
(c) Any person reemployed by the Company as an Employee shall have his
Continuous Service, if any, restored to him for purposes of this paragraph
3.01. If he was previously eligible to become a Member, he shall be
immediately eligible to become a Member upon Notice in accordance with
paragraph 3.02.
3.02 Participation
(a) Each person who, on December 31, 1993, is a Member of the Plan shall
continue as a Member of this Plan on January 1, 1994. Each such person who
is employed as an Employee on January 1, 1994 may continue to make and to
have made on his behalf contributions under the Plan or may make an
election regarding such contributions under subparagraph (b) below.
(b) An eligible Employee may become a participating Member by submitting
Notice through which he designates the amount of his Earnings he wishes to
contribute to this Plan by means of deductions from his Earnings, and/or
the amount of reduction of his Earnings in favor of Deferred Cash
Contributions to be made on his behalf by the Company, by selecting one or
more Investment Fund(s) and by naming a Beneficiary. An eligible Employee
shall become a Member on the first date for which Member Contributions
and/or Deferred Cash Contributions are deducted from his Earnings.
Participation in the Plan by an Employee is voluntary.
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ARTICLE IV - CONTRIBUTIONS
--------------------------
4.01 Deferred Cash Contributions
(a) Subject to the limitations set forth below and in paragraphs 4.09, 4.12
and 4.13, each Member may elect to have his subsequent Earnings reduced by
a percentage which, when added to the amount of the Member's contributions
made pursuant to paragraph 4.02, is not less than 1% and not more than 16%
of his Earnings, and have that amount contributed to the Plan by the
Company as Deferred Cash Contributions in a manner to be determined by the
Plan Administrator. The Deferred Cash Contributions shall be paid to the
Trustee as soon as practicable.
(b) In no event shall the Member's Deferred Cash Contributions and similar
contributions made on his behalf by the Company or a Non-participating
Company to all plans, contracts or arrangements subject to the provisions
of Section 401(a)(30) of the Code in any calendar year exceed $7,000
multiplied by the Adjustment Factor. If a Member's Deferred Cash
Contributions in a calendar year reach that dollar limitation, his
election of Deferred Cash Contributions for the remainder of the calendar
year will cease to be effective for that purpose and shall instead become
effective as an election to make Member Contributions at the same rate as
was previously in effect for his Deferred Cash Contributions. As of the
first pay period of the calendar year following such cancellation, the
Member's election of Deferred Cash Contributions shall again become
effective in accordance with his previous election, if no subsequent
elections changing the amount had been made by the Member.
(c) In the event that the sum of the Deferred Cash Contributions and similar
contributions to any other qualified defined contribution plan maintained
by the Company or a Nonparticipating Company exceeds the dollar limitation
in subparagraph (b) above for any calendar year, the Member shall be
deemed to have elected a return of Deferred Cash Contributions in excess
of such limit ("excess deferrals") from this Plan. The excess deferrals,
together with Gains or Losses, shall be returned to the Member no later
than the April 15 following the end of the calendar year in which the
excess deferrals were made. The amount of excess deferrals to be returned
for any calendar year shall be reduced by any Deferred Cash Contributions
previously returned to the Member under paragraph 4.09 for that calendar
year. In the event any Deferred Cash Contributions returned under this
subparagraph (c) were matched by Special or Regular Company Contributions
under paragraph 4.07 or 4.08, those Special and Regular Company
Contributions, together with Gains or Losses, shall be forfeited and used
to reduce Company contributions.
(d) If a Member makes tax-deferred contributions under another qualified
defined contribution plan maintained by an employer other than the Company
or a Nonparticipating Company for any calendar year and those
contributions when added to his
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Deferred Cash Contributions exceed the dollar limitation under
subparagraph (b) above for that calendar year, the Member may allocate all
or a portion of such excess deferrals to this Plan. In that event, such
excess deferrals, together with Gains or Losses, shall be returned to the
Member no later than the April 15 following the end of the calendar year
in which such excess deferrals were made. However, the Plan shall not be
required to return excess deferrals unless the Member provides the Plan
Administrator with Notice by March 1 of that following calendar year of
the amount of the excess deferrals allocated to this Plan. The amount of
any such excess deferrals to be returned for any calendar year shall be
reduced by any Deferred Cash Contributions previously resumed to the
Member under paragraph 4.09 for that calendar year. In the event any
Deferred Cash Contributions returned under this subparagraph (d) were
matched by Special or Regular Company Contributions under paragraph 4.07
or 4.08, those Special and Regular Company Contributions, together with
Earnings, shall be forfeited and used to reduce Company contributions.
Effective 1/1/92.
4.02 Member Contributions
Each Member may contribute a percentage which, when added to the amount of
Deferred Cash Contributions made on the Member's behalf pursuant to
paragraph 4.01, is not less than 1% and not more than 16% of his Earnings;
provided, however, that the 16% limit shall be reduced in accordance with
the following schedule:
Election Under Maximum Election
Paragraph 4.01 Under Paragraph 4.02
-------------- --------------------
0% 16%
1 15
2 14
3 13
4 12
5 11
6 10
7 9
8 8
9 7
10 6
11 5
12 4
13 3
14 2
15 1
16 0
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"accumulated contributions," as defined in said Retirement Plan. No
further such transfers are permitted under the Plan. On and after October
1, 1988, such amounts shall be maintained in the Member's Prior Pension
Account.
4.07 Regular Company Contributions
The Company shall make Regular Company Contributions on behalf of each
Member in an amount equal to sixty-five percent (65%) of that portion of
the sum of the Deferred Cash Contributions plus Member Contributions made
by or on behalf of the Member, not in excess of six percent (6%) of the
Member's Earnings during each month. Company contributions under this
paragraph will be paid to the Trustee as soon as practicable after the end
of each month. No Regular Company Contributions will be made by the
Company with respect to the excess of the sum of the Deferred Cash
Contributions and the Member Contributions made by or on behalf of the
Member over six percent (6%) of the Member's Earnings. The Regular Company
Contributions are made expressly conditional on the Plan satisfying the
provisions of Sections 4.01, 4.09, 4.10 or 4.11. If any portion of the
Deferred Cash Contribution or Member Contribution to which the Regular
Company Contribution relates is returned to the Member under Section 4.01,
4.09, 4.10 or 4.11, the corresponding Regular Company Contribution shall
be forfeited. Effective 1/1/92.
4.08 Special Company Contributions
(a) With respect to each associated or affiliated company which has adopted
the Plan, the Company may make Special Company Contributions to the Plan
on account of any Plan Year in an amount, if any, approved by the Board Of
Directors. Such Contributions shall be made on behalf of each present or
former Member of such associated or affiliated company who made Member
Contributions or authorized Deferred Cash Contributions to the Plan during
the Plan Year based upon the number of Savings Plan Goals achieved by the
associated or affiliated company for the Plan Year. If an Employee is
employed by more than one such company during a Plan Year, Special Company
Contributions on his behalf, if any, shall be based on the Savings Plan
Goal achieved by the last such company employing him on or before the last
day of the final pay period of the year. Notwithstanding the foregoing,
if a Member is a participant in the Florida Progress Corporation
Management Incentive Compensation Plan (the "MICP"), the Special Company
Contribution on his behalf, if any, shall be based on the Savings Plan
Goals achieved by the associated or affiliated company which is
responsible for the payment of his performance award, if any, under the
MICP for the Plan Year. However, no Special Company Contributions shall be
made on behalf of a Member for a Plan Year unless such Member is an
Employee on the last day of the final pay period of the Plan Year or the
Member's Retirement or death occurred during the Plan Year. In no event
shall the Company's contributions for any year exceed the maximum
deductible from the
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Company's income for such year under Section 404(a)(3)(A) of the Code or
any statute of similar import. For each Plan Year, Special Company
Contributions
(i) shall be made from the current or accumulated earnings and profits
of the Company, and
(ii) shall be treated in all respects under this Plan as Company
contributions, and
(iii) shall equal, for each Savings Plan Goal met by such associated or
affiliated company, five percent (5%) of that portion of the sum of
the Deferred Cash Contributions plus Member Contributions made by or
on behalf of each such Member for the Plan Year not in excess of six
percent (6%) of the Member's Earnings for the Plan Year. In no event
shall the Special Company Contributions made on behalf of each such
Member for a Plan Year exceeded ten percent (10%) of that portion of
the sum of the Deferred Cash Contributions plus Member Contributions
made by or on behalf of each such Member for the Plan Year not in
excess of six percent (6%) of the Member's Earnings for such Plan
Year. Effective 1/1/92.
(b) The Special Company Contributions, if any, for a Plan Year shall be
allocated among the eligible Members of the associated or affiliated
company in the proportion that the sum of the Deferred Cash Contributions
plus Member Contributions made by or on behalf of each such Member not in
excess of six percent (6%) of the Member's Earnings during such Plan Year
bears to the aggregate of such sums for all such Members of the associated
or affiliated company for such Plan Year. No Special Company Contributions
will be made by the Company with respect to the excess of the sum of the
Deferred Cash Contributions plus Member Contributions made by or on behalf
of the Member over six percent (6%) of the Member's Earnings. The Special
Company Contributions, if any, for each such Plan Year shall be paid to
the Trustee as soon as practicable after the end of such Plan Year.
(c) The Special Company Contributions are made expressly conditional on the
Plan satisfying the provisions of Sections 4.01, 4.09, 4.10 or 4.11. If
any portion of the Deferred Cash Contribution or Member Contribution to
which the Special Company Contribution relates is returned to the Member
under Sections 4.01, 4.09, 4.10 or 4.11, the corresponding Special Company
Contribution shall be forfeited. Effective 1/1/92.
4.09 Actual Deferral Percentage Test
With respect to each Plan Year, the Actual Deferral Percentage for Highly
Compensated Employees who are Members or eligible to become Members shall
not exceed the Actual Deferral Percentage for all other Employees who are
Members or eligible to become Members multiplied by 1.25. If the Actual
Deferral Percentage for Highly Compensated Employees does not meet the
foregoing test, the Actual Deferral Percentage for Highly Compensated
Employees may not exceed the Actual Deferral Percentage for all other
Employees who are Members or eligible to become Members by more than two
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percentage points, and the Actual Deferral Percentage for Highly Compensated
Employees may not be more than 2.0 times the Actual Deferral Percentage for all
other Employees (or such lesser amount as the Plan Administrator shall determine
to satisfy the provisions of paragraph 4.11). The Plan Administrator may
implement rules limiting the Deferred Cash Contributions which may be made on
behalf of some or all Highly Compensated Employees so that this limitation is
satisfied. If the Plan Administrator determines that the limitation under this
paragraph 4.09 has been exceeded in any Plan Year, the following provisions
shall apply:
(a) The amount of Deferred Cash Contributions made on behalf of some or all
Highly Compensated Employees shall be reduced until the provisions of this
paragraph are satisfied as follows. The actual deferral ratio of the
Highly-Compensated Employee with the highest actual deferral ratio shall
be reduced to the extent necessary to meet the test or to cause such ratio
to equal the actual deferral ratio of the Highly-Compensated Employee with
the next highest ratio. This process will be repeated until the actual
deferral percentage test is passed. Each ratio shall be rounded to the
nearest one one-hundredth of one percent of the Member's Statutory
Earnings.
(b) Deferred Cash Contributions subject to reduction under this paragraph,
together with Gains or Losses thereon ("excess contributions"), shall be
paid to the Member before the close of the Plan Year following the Plan
Year in which the excess contributions were made and, to the extent
practicable, within 2 1/2 months of the close of the Plan Year in which
the excess contributions were made. However, any excess contributions for
any Plan Year shall be reduced by any Deferred Cash Contributions
previously returned to the Member under paragraph 4.01 for that Plan Year.
In the event any Deferred Cash Contributions returned under this paragraph
4.09 were matched by Special or Regular Company Contributions, such
corresponding Special and Regular Company Contributions, with Gains or
Losses thereon, shall be forfeited and used to reduce Company
contributions.
If the Plan Administrator adopts appropriate rules in accordance with
regulations issued by the Secretary of the Treasury, the Member may elect,
in lieu of a return of the excess contributions, to recharacterize the
excess contributions to the Plan, together with the Gain or Loss thereon,
as Member Contributions for the Plan Year in which the excess
contributions were made, subject to the limitations of paragraph 4.02.
Recharacterized excess contributions shall be considered Member
Contributions made in the Plan Year to which the excess contributions
relate for purposes of paragraph 4.10 and shall be subject to the
withdrawal provisions applicable to Member Contributions under Article VI.
The Member's election shall be made within 2-1/2 months of the close of
the Plan Year in which the excess contributions were made or within such
shorter period as the Plan Administrator may prescribe. In the absence of
a timely election by the Member,
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the Plan Administrator shall return the Member's excess contributions
as provided in this subparagraph (b). Effective 1/1/92.
4.10 Contribution Percentage Test
With respect to each Plan Year, the Contribution Percentage for Highly
Compensated Employees who are Members or eligible to become Members shall
not exceed the Contribution Percentage for all other Employees who are
Members or eligible to become Members multiplied by 1.25. If the
Contribution Percentage for the Highly Compensated Employees does not meet
the foregoing test, the Contribution Percentage for Highly Compensated
Employees may not exceed the Contribution Percentage of all other Employees
who are Members or eligible to become Members by more than two percentage
points, and the Contribution Percentage for Highly Compensated Employees
may not be more than 2.0 times the Contribution Percentage for all other
Employees (or such lesser amount as the Plan Administrator shall determine
to satisfy the provisions of paragraph 4.11). The Plan Administrator may
implement rules limiting the Member Contributions which may be made by some
or all Highly Compensated Employees so that this limitation is satisfied.
If the Plan Administrator determines that the limitation under this
paragraph 4.10 has been exceeded in any Plan Year, the following provisions
shall apply:
(a) The amount of Member Contributions, Regular Company Contributions and
Special Company Contributions made by or on behalf of some or all
Highly Compensated Employees in the Plan Year shall be reduced until
the provisions of this paragraph satisfied as follows. The actual
contribution ratio of the Highly-Compensated Employee with the highest
actual contribution ratio shall be reduced to the extent necessary to
meet the test or to cause such ratio to equal the actual contribution
ratio of the Highly-Compensated Employee with the next highest actual
contribution ratio. This process will be repeated until the actual
contribution percentage test is passed. Each ratio shall be rounded to
the nearest one one-hundredth of one percent of a Member's Statutory
Earnings.
(b) Any Member Contributions, Regular Company Contributions and Special
Company Contributions subject to reduction under this paragraph,
increased by any Gain or decreased by the Loss attributable to those
Contributions ("excess aggregate contributions"), shall be reduced and
allocated in the following order:
(i) unmatched Member Contributions, to the extent of the excess
aggregate contributions, together with the Gain/Loss
attributable to those Contributions, shall be paid to the
Member; and then, if necessary,
(ii) so much of the matched Member Contributions and corresponding
Special Company and Regular Company Contributions, as shall be
necessary to meet the test shall be reduced, with the Member
Contributions, together with the Gain/Loss attributable to those
Contributions, being paid to the Member and the Company
Contributions together with the Gain/Loss
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attributable to those Contributions, being forfeited and used to
pay Plan expenses or applied to reduce Company contributions;
then, if necessary
(iii) so much of the Special Company Contributions and Regular Company
Contributions, together with the Gain/Loss attributable to those
Contributions, as shall be necessary to equal the balance of the
excess aggregate contributions shall be reduced, with the vested
Company contributions being paid to the Member and the Company
contributions which are forfeitable under the Plan being
forfeited and used to pay Plan expenses or applied to reduce
Company contributions.
(c) Any repayment or forfeiture of excess aggregate contributions shall be
made before the close of the Plan Year following the Plan Year for
which the excess aggregate contributions were made and, to the extent
practicable, any repayment or forfeiture shall be made within 2 1/2
months of the close of the Plan Year in which the excess aggregate
contributions were made. Effective 1/1/92.
4.11 Aggregate Contribution Limitation
Notwithstanding the provisions of paragraphs 4.09 and 4.10, in no event
shall the sum of the Actual Deferral Percentage of the group of eligible
Highly Compensated Employees and the Contribution Percentage of such group,
after applying the provisions of paragraphs 4.09 and 4.10, exceed the
"aggregate limit" as provided in Section 401(m)(9) of the Code and the
regulations issued thereunder. In the event the aggregate limit is exceeded
for any Plan Year, the Contribution Percentages of the Highly Compensated
Employees shall be reduced to the extent necessary to satisfy the aggregate
limit in accordance with the procedure set forth in paragraph 4.10.
4.12 Additional Discrimination Testing Provisions
(a) If any Highly Compensated Employee is either (i) a five percent owner or
(ii) one of the 10 highest paid Highly Compensated Employees, then any
Statutory Earnings paid to or any contribution made by or on behalf of any
member of his "family" shall be deemed paid to or made by or on behalf of
such Highly Compensated Employee for purposes of paragraphs 4.09, 4.10 and
4.11, to the extent required under regulations prescribed by the Secretary
of the Treasury or his delegate under Sections 401(k) and 401(m) of the
Code. The contributions required to be aggregated under the preceding
sentence shall be disregarded in determining the Actual Deferral Percentage
and the Contribution Percentage for the group of non-highly compensated
employees for purposes of paragraphs 4.09, 4.10 and 4.11. Any return of
excess contributions or excess aggregate contributions realized under
paragraphs 4.09, 4.10 and 4.11 with respect to the family group shall be
made by allocating the excess contributions or excess aggregate
contributions among the family members in proportion to the contributions
made by or on behalf of each family member that is combined. For purposes
of this paragraph, the
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term "family" means, with respect to any employee, such employee's spouse,
any lineal ascendants or descendants and spouses of such lineal ascendants
or descendants.
(b) If any Highly Compensated Employee is a member of another qualified plan of
the Company or a Non-participating Company, other than an employee stock
ownership plan described in Section 4975(e)(7) of the Code or any other
qualified plan which must be mandatorily disaggregated under Section 410(b)
of the Code, under which deferred cash contributions or matching
contributions are made on behalf of the Highly Compensated Employee or
under which the Highly Compensated Employee makes member contributions, the
Plan Administrator shall implement rules, which shall be uniformly
applicable to all employees similarly situated, to take into account all
such contributions for the Highly Compensated Employee under all such plans
in applying the limitations of paragraphs 4.09, 4.10 and 4.11. If any other
such qualified plan has a plan year other than the Plan Year defined in
paragraph 2.36, the contributions to be taken into account in applying the
limitations of paragraphs 4.09, 4.10 and 4.11 will be those made in the
Plan Years ending with or within the same calendar year.
(c) In the event that this Plan is aggregated with one or more other plans to
satisfy the requirements of Sections 401(a)(4) and 410(b) of the Code
(other than for purposes of the average benefit percentage test) or if one
or more other plans is aggregated with this Plan to satisfy the
requirements of such sections of the Code, then the provisions of
paragraphs 4.09, 4.10 and 4.11 shall be applied by determining the Actual
Deferral Percentage and Contribution Percentage of employees as if all such
plans were a single plan. If this Plan is permissively aggregated with any
other plan or plans for purposes of satisfying the provisions of Section
401(k)(3) of the Code, the aggregated plans must also satisfy the
provisions of Sections 401(a)(4) and 410(b) of the Code as though they were
a single plan. For Plan Years beginning after December 31, 1989, plans may
be aggregated under this paragraph (c) only if they have the same plan
year. Effective 1/1/89.
(d) The Plan Administrator may elect to use Deferred Cash Contributions to
satisfy the tests described in paragraphs 4.10 and 4.11, provided that the
test described in paragraph 4.09 is met prior to such election, and
continues to be met following the Plan Administrator's election to shift
the application of those Deferred Cash Contributions from paragraph 4.09 to
paragraph 4.10.
(e) Notwithstanding any provision of the Plan to the contrary, employees
included in a unit of employees covered by a collective bargaining
agreement shall be disregarded in applying the provisions of paragraphs
4.09, 4.10 and 4.11 except that the provisions of paragraph 4.09 above
shall be applicable to that group of employees on and after January 1, 1993
on the basis that those employees are included in a separate cash-or-
deferred arrangement. Effective 1/1/89.
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4.13 Maximum Contributions
(a) In no event shall the annual addition to a Member's Accounts for any Plan
Year which shall be considered the "limitation year", when added to the
Member's annual addition for that Plan Year under any other qualified
defined contribution plan of the Company or a Non-participating Company
exceed the lesser of (i) twenty-five percent (25 %) of his compensation for
such Plan Year or (ii) the greater of $30,000 or one-quarter of the dollar
limitation in effect under Section 415(b)(1)(A) of the Code.
(b) For purposes of this paragraph, the "annual addition" to a Member's
Accounts under this Plan or any other qualified defined contribution plan
maintained by the Company or a Non-participating Company shall be the sum
of:
(i) The Member Contributions allocated to the Member's Accounts under all
qualified plans of the Company and the Non-Participating Companies;
and
(ii) The total of Company contributions, including Deferred Cash
Contributions, and forfeitures allocated to the Member's Accounts
under the Plan and such other plans,
that have been allocated to the Member's Accounts under this Plan or his
accounts under any other such qualified defined contribution plan. For
purposes of this subparagraph (b), any Deferred Cash Contributions
distributed under paragraph 4.09 and any Regular Company Contributions,
Special Company Contributions or Member Contributions distributed or
forfeited under the provisions of paragraph 4.01, 4.09, 4.10 or 4.11 shall
be included in the annual addition for the year allocated. Effective
1/1/87.
(c) For purposes of this paragraph 4.13, the term "compensation" with respect
to any Member shall mean the wages, salaries and other amounts paid in
respect of that Member by the Company and the Non-participating Companies
for personal services actually rendered, determined after any reduction of
Earnings pursuant to paragraph 4.01 or pursuant to a cafeteria plan as
described in Section 125 of the Code, including, but not limited to,
bonuses, overtime payments and commissions, but excluding deferred
compensation (except in the Plan Year in which such compensation is
includible in the Member's gross income), stock options and other
distributions which receive special tax benefits under the Code.
(d) If the annual addition to a Member's Accounts for any Plan Year, prior to
the application of the limitation set forth in paragraph (a) above, exceeds
that limitation, due to a reasonable error in estimating a Member's annual
earnings or in determining the amount of Deferred Cash Contributions that
may be made with respect to a Member under Section 415 of the Code, or as
the result of the allocation of forfeitures, the amount of contributions
credited to the Member's Accounts in that Plan Year shall be adjusted to
the extent necessary to satisfy that limitation in accordance with the
following order of priority:
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(i) The Member's unmatched Member Contributions under paragraph 4.02
shall be reduced to the extent necessary. The amount of the reduction
shall be returned to the Member, together with any earnings on the
contributions to be returned.
(ii) The Member's unmatched Deferred Cash Contributions under paragraph
4.01 shall be reduced to the extent necessary. The amount of the
reduction shall be returned to the Member, together with any earnings
on the contributions to be returned. Effective 1/1/92.
(ii) The Member's matched Member Contributions and corresponding Regular
Company Contributions and Special Company Contributions shall be
reduced to the extent necessary. The amount of the reduction
attributable to the Member's matched Member Contributions shall be
returned to the Member, together with any earnings on those
contributions to be returned, and the amount attributable to the
Company contributions shall be forfeited and reallocated:
(A) in the case of the Special Company Contributions, to the other
eligible Members in accordance with the method provided in
paragraph 4.08, and
(B) in the case of the Regular Company Contributions, to the other
eligible Members based on the ratio of each other eligible
Member's Earnings during the Plan Year to the total Earnings
during that Plan Year for all other eligible Members.
(iv) The Member's matched Deferred Cash Contributions and corresponding
Regular Company Contributions and Special Company Contributions shall
be reduced to the extent necessary. The amount of the reduction
attributable to the Member's matched Deferred Cash Contributions
shall be returned to the Member, together with any earnings on those
contributions to be returned, and the amount attributable to the
Company contributions shall be forfeited and reallocated:
(A) in the case of the Special Company Contributions, to the other
eligible Members in accordance with the method provided in
paragraph 4.08, and
(B) in the case of the Regular Company Contributions, to the other
eligible Members based on the ratio of each other eligible
Member's Earnings during the Plan Year to the total Earnings
during that Plan Year for all other eligible Members. Effective
1/1/92.
Any Deferred Cash Contributions returned to a Member under this
subparagraph (d) shall be disregarded in applying the dollar limitation on
Deferred Cash Contributions under paragraph 4.01, and in performing the
Actual Deferral Percentage Test under paragraph 4.09. Any Member
Contributions returned under this subparagraph (d) shall be disregarded in
performing the Contribution Percentage Test under paragraph 4.10. Effective
1/1/87.
(e) If a Member is a participant under a qualified defined benefit plan
required to be taken into account for the purposes of the limitations
contained in Section 415 of the Code, then, if for any year the sum of the
defined benefit plan fraction and the defined contribution plan fraction
(as such terms are defined in Section 415(e) of said Code)
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would exceed 1.0, the projected annual benefit of the Member under the
defined benefit plan shall be reduced to the extent required by Section
415(e) of the Code.
4.14 Investment of Contributions
Contributions made by and/or on behalf of a Member pursuant to paragraphs
4.01, 4.02, 4.04, 4.07 and 4.08 shall be remitted to the Trustee for
investment in one or more of the Investment Funds in accordance with
Article VIII and the terms of the Trust Agreement(s).
4.15 Return of Contributions
(a) If the Commissioner of Internal Revenue, on timely application made after
the establishment of the Plan, determines that the Plan fails to meet the
requirements for initial qualification under Section 401(a), 401(k) or 409
of the Code, or refuses, in writing, to issue a determination as to whether
the Plan is so qualified, all contributions made on or after the date on
which that determination or refusal is applicable shall be returned to the
Company. The return shall be made within one year after the denial of
qualification.
(b) If all or part of a Company's deductions under Section 404 of the Code for
contributions to the Plan are disallowed by the Internal Revenue Service,
the portion of the contributions to which that disallowance applies shall
be returned to the Company without interest but reduced by any investment
loss attributable to those contributions. The return shall be made within
one year after the disallowance of the deduction. For this purpose, all
contributions made by the Company are expressly declared to be conditioned
upon their deductibility under Section 404 of the Code.
(c) The Company may recover without interest the mount of its contributions to
the Plan made on account of a mistake in fact, reduced by any investment
loss attributable to those contributions, if recovery is made within one
year after the date of those contributions.
(d) In the event that Deferred Cash Contributions made under paragraph 4.01 are
returned to the Company in accordance with the provisions of this paragraph
4.15, the elections to reduce Earnings which were made by Members on whose
behalf those contributions were made shall be void retroactively to the
beginning of the period for which those contributions were made. The
Deferred Cash Contributions so returned, reduced by any attributable
investment loss, shall be distributed in cash to those Members for whom
those contributions were made, provided, however, that if the contributions
are returned under the provisions of subparagraph (a) above, the amount of
Deferred Cash Contributions to be distributed to Members shall be adjusted
to reflect any investment gains or losses attributable to those
contributions.
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4.16 Top-Heavy Provisions
(a) For purposes of this paragraph, the Plan shall be "top-heavy" with respect
to any Plan Year if, as of the applicable determination date, the top-heavy
ratio exceeds 60 percent. The top-heavy ratio shall be determined as of
the applicable Valuation Date in accordance with Section 416(g) of the Code
and Article VII of this Plan. For purposes of determining whether the Plan
is top-heavy, the account balances under the Plan will be combined with the
account balances or the present value of accrued benefits under each other
plan in the required aggregation group, and, in the Company's discretion,
may be combined with the account balances or the present value of accrued
benefits under any other qualified plan in the permissive aggregation
group. Distributions made with respect to a Member under the Plan during
the five-year period ending on the applicable determination date shall be
taken into account for purposes of determining the top-heavy ratio;
distributions under plans that terminated within such five-year period
shall also be taken into account, if any such plan contained key employees
and therefore would have been part of the required aggregation group.
(b) For any Plan Year with respect to which the Plan is top-heavy, an
additional Company contribution shall be allocated on behalf of each Member
(and each Employee eligible to become a Member) who is a non-key employee,
and who has not separated from service as of the last day of the final pay
period of the Plan Year, to the extent that the contributions made on his
behalf under paragraphs 4.07 and 4.08 for the Plan Year (and not needed to
meet the contribution percentage test set forth in paragraph 4.10) would
otherwise be less than 3% of his compensation. However, if the greatest
percentage of compensation contributed on behalf of a key employee under
paragraphs 4.01, 4.07 and 4.08 for the Plan Year would be less than 3%,
that lesser percentage shall be substituted for "3%" in the preceding
sentence. Notwithstanding the foregoing provisions of this subparagraph
(b), no minimum contribution shall be made under this Plan with respect to
a Member (or an Employee eligible to become a Member) if the required
minimum benefit under Section 416(c)(1) of the Code is provided to him by
any other qualified defined benefit plan of the Company or a Non-
participating Company. For the purposes of this subparagraph (b),
"compensation" has the same meaning as set forth in paragraph 4.13(c), as
limited by the Annual Dollar Limit.
(c) The following definitions apply to the terms used in this paragraph:
(i) "applicable determination date" means the last day of the later of
the first Plan Year or the preceding Plan Year;
(ii) "top-heavy ratio" means the ratio of (A) the value of the aggregate
of the Accounts under the Plan for key employees to (B) the value of
the aggregate of the Accounts under the Plan for all key employees
and non-key employees;
(iii) "key employee" means an employee who is in a category of employees
determined in accordance with the provisions of Section 416(i)(1) and
(5) of the Code and any regulations thereunder, and where applicable,
on the basis of the
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(iv) Employee's Statutory Earnings from the Company or a Non-participating
Company;
(iv) "non-key employee" means any Employee who is not a key employee;
(v) "applicable Valuation Date" means the Valuation Date coincident with
or immediately preceding the last day of the preceding Plan Year;
(vi) "required aggregation group" means any other qualified plan(s) of the
Company or a Non-participating Company in which there are members who
are key employees or which enable(s) the Plan to meet the
requirements of Sections 401(a)(4) or 410 of the Code; and
(vii) "permissive aggregation group" means each plan in the required
aggregation group and any other qualified plan(s) of the Company or a
Non-participating Company in which all members are non-key employees,
if the resulting aggregation group continues to meet the requirements
of Sections 401(a)(4) and 410 of the Code.
4.17 Leased Employees
In the case of any person who is a Leased Employee immediately before or
after a period of service as an Employee, the entire period during which he
has performed services for the Company or a Non-participating Company as a
leased employee shall be counted as service as an Employee for all purposes
of the Plan, except that he shall not, by reason of that status, become a
Member of the Plan. Effective 1/1/84.
4.18 Special Transfer Provision for Employees of Premier Investment Management,
Inc.
With respect to any Member who became an employee of Premier Investment
Management, Inc. effective as of July 1, 1989, the Trustee shall transfer
the assets and liabilities attributable to the Member's Accounts under this
Plan directly to the Premier Investment Management, Inc. Profit-Sharing
Plan and Trust ("Premier Plan") and its related trust. The transfer shall
take place by July 1, 1990 or as soon as is reasonably practicable
thereafter. Following such transfer, the Member's Accounts shall cease to
be a liability of this Plan and shall become a liability of the Premier
Plan and shall be administered in accordance with the provisions of the
Premier Plan and applicable law. All such transfers of assets and
liabilities shall be made in accordance with the provisions of the Code and
ERISA. Effective 5/1/90.
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ARTICLE V - TAX CREDIT EMPLOYEE STOCK OWNERSHIP PLAN
----------------------------------------------------
5.01 In General
The portions of the Company ESOP Account and the Member ESOP Account which
are invested in the Florida Progress Corporation Employee Stock Ownership
Fund shall be considered a tax credit employee stock ownership plan within
the meaning of Section 409 of the Code (hereinafter the "ESOP"). As such,
the ESOP is intended to constitute a continuation of the program of
employee stock ownership contained in the Employee Stock Ownership Plan of
Florida Progress Corporation (hereinafter the "Former ESOP"), which was
merged into the Plan effective as of January 1, 1988. In accordance with
the terms of the Plan, the ESOP shall be primarily invested in Company
Stock. Effective 1/1/88.
5.02 No Contributions
No contributions are permitted under the ESOP or have been permitted under
the Former ESOP with respect to compensation paid to or accrued by a Member
on or after January 1, 1987. Account balances maintained under the Former
ESOP as of December 31, 1987 have been transferred to the ESOP.
5.03 No Recapture
If the amount of the ESOP tax credit determined under Section 48(n)(1) of
the Code (as in effect prior to the enactment of the Tax Reform Act of
1984) or under Section 41 of the Code is disallowed or is recaptured, the
amounts transferred to the Trustee shall remain in the Trust and shall
continue to be allocated in accordance with this Plan.
5.04 Limitation on Certain Transfers and Withdrawals
Amounts transferred from the Former ESOP shall be initially invested in
Company Stock in the Florida Progress Corporation Employee Stock Ownership
Fund. No transfers, withdrawals or loans of such amounts shall be permitted
under Article VI or VIII with respect to amounts contributed to the Former
ESOP or the ESOP in order to secure the tax credit under Section 48(n)(1)
of the Code (as in effect prior to the enactment of the Tax Reform Act of
1984) or under Section 41 of the Code unless either:
(i) such amounts were allocated to the Member's Company ESOP Account or
Member ESOP Account at least 84 months prior to the month in which
such withdrawal or transfer is made, or
(ii) such amounts are withdrawn to meet the diversification requirements of
Section 401(a)(28) of the Code and no amounts described in clause (i)
are available to meet such requirements.
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5.05 Dividends
As of any quarterly Valuation Date a Member shall be permitted to elect by
giving Notice to the Plan Administrator to receive a cash distribution
equal to the dividends paid on Company Stock, if any, allocated to the ESOP
in the calendar quarter immediately following that Valuation Date. The
distribution shall be paid to the Member as soon as practical after the
dividend is paid but not later than 90 days after the end of the Plan Year
in which the dividend is paid to the Trustee. A Member's election shall not
be effective in subsequent calendar quarters unless he again elects the
cash distribution of dividends in accordance with this paragraph 5.06.
5.06 Plan Expenses
The Company shall pay for all the expenses of the ESOP except that to the
extent permitted by Section 409(i) of the Code, the expenses of
establishing and maintaining the ESOP and its implementing trust may be
paid or recovered by the Company from unallocated trust assets or income of
the trust assets.
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ARTICLE VI- PAYMENTS, WITHDRAWALS AND LOANS
-------------------------------------------
6.01 Vested Portion of Accounts
(a) As of any Valuation Date a Member shall be vested in the following portions
of his Accounts:
(i) 100% of his Member Account, plus
(ii) 100% of his Deferred Account, plus
(iii) 100% of his Company ESOP Account, plus
(iv) 100% of his Member ESOP Account, plus
(v) 100% of his Rollover Account, plus
(vi) 100% of his Prior Pension Account, plus
(vii) A percentage of his Company Deferred Account and Company Member
Account determined in accordance with the following schedule:
Completed Years of Continuous
Service On Valuation Date Vested Percentage
------------------------- -----------------
Under 2 0 %
2 25
3 50
4 75
5 or more 100
(b) A Member who is not 100% vested in all of his Accounts pursuant to
subparagraph (a) above shall nevertheless be 100% vested in all of his
Accounts upon the later of his attainment of age 65 or completion of 5
years of Continuous Service while in the employ of the Company or a Non-
participating Company or upon his death while in the employ of the Company
or a Non-participating Company or upon his Retirement.
6.02 Form of Payments
(a) Distribution of the vested portion of a Member's Accounts, other than
amounts invested in the Florida Progress Corporation Employee Stock
Ownership Fund, shall be made in a cash lump sum to the Member or to his
Beneficiary if the Member is not living. However, if distribution is made
on account of the Retirement or death of a Member, the Member or his
Beneficiary may elect to receive payment of his Accounts, other than
amounts invested in the Florida Progress Corporation Employee Stock
Ownership Fund, in monthly cash installments of approximately equal amounts
for a period of 60 or 120 months. If a Member dies while installment
payments are being paid, such installments shall continue to his
Beneficiary. If no Beneficiary survives to receive such installments or if
no Beneficiary has been designated, a lump sum payment of the remaining
balance
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in the Member's Accounts shall be made to the estate of the last to survive
of the Member or his Beneficiary.
In lieu of a lump sum payment in cash as provided above, a Member or
Beneficiary may elect to receive a distribution in full or in part of his
interest in the Florida Progress Corporation Stock Fund in whole shares.
Fractional Shares shall be paid in cash.
(b) The period over which installments are to be paid under subparagraph (a)
shall not exceed the life expectancy of the last survivor of the Member and
his Beneficiary, or if the Member is deceased, the life expectancy of the
Beneficiary. The amount of installment payments in any year shall at least
be equal to the amount required to be distributed under Section 401(a)(9)
of the Code, including amounts required to be distributed pursuant to the
limits on incidental death benefits under such Section 401(a)(9).
(c) Amounts invested in the Florida Progress Corporation Employee Stock
Ownership Fund, shall be distributed by a lump sum payment in Company Stock
to the Member or to his Beneficiary if the Member is not living. However,
if the distribution is made on account of the Retirement or death of a
Member, the Member or his Beneficiary may elect to receive payment in
Company Stock of his Accounts invested in the Florida Progress Corporation
Employee Stock Ownership Fund, in annual installments of approximately
equal amounts for a period of 5 or 10 years. If a Member dies while
installment payments are being paid, such installments shall continue to
his Beneficiary. If no Beneficiary survives to receive such installments or
if no Beneficiary has been designated, a lump sum payment of the remaining
balance in the Member's Accounts shall be made to the estate of the last to
survive of the Member or his Beneficiary. Notwithstanding the preceding,
fractional shares of Company Stock shall be distributable in cash.
6.03 Commencement of Payments
(a) Except as otherwise provided in this Article, distribution of the vested
portion of a Member's Accounts shall commence as soon as administratively
practicable following the later of (i) the Member's termination of
employment, or (ii) the 65th anniversary of the Member's date of birth (but
not more than 60 days after the close of the Plan Year in which the later
of (i) or (ii) occurs).
(b) In lieu of a distribution as described in subparagraph (a) above, a Member
may, in accordance with such procedures as the Plan Administrator
prescribes, elect to have the distribution of the vested portion of his
Accounts commence as of any Valuation Date coincident with or following his
termination of employment with the Company and the Non-participating
Companies, but no later than the Valuation Date following his attainment of
age 70. Effective 1/1/95.
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(c) In the case of the death of a Member before his benefits commence, the
Vested Portion of his Accounts shall commence to his Beneficiary as soon as
administratively practicable following the Member's date of death (and in
no event later than 5 years after the Member's date of death, except that
installment payments shall commence within one year of the Member's date of
death). Notwithstanding the preceding, if the Beneficiary is the Member's
surviving spouse, such spouse may defer commencement until the Valuation
Date next following the date the Member would have attained age 65.
6.04 Age 70 1/2 Required Distribution
(a) In no event shall the provisions of this Article operate so as to allow the
distribution of a Member's Accounts to begin later than the April 1
following the calendar year in which the Member attains age 70-1/2,
provided that such commencement in active service shall not be required
with respect to a Member (i) who does not own more than five per cent of
the outstanding stock of the Company (or stock possessing more than five
per cent of the total combined voting power of all stock of the Company)
and (ii) who attained age 70-1/2 prior to January 1, 1988.
(b) In the event a Member in active service is required to begin receiving
payments while in service under the provisions of subparagraph (a) above,
the Plan Administrator shall distribute to the Member in each distribution
calendar year the minimum amount required to satisfy the provisions of
Section 401(a)(9) of the Code, provided, however, that the payment for the
first distribution calendar year shall be made on or before April 1 of the
following calendar year. Such minimum amount will be determined on the
basis of the Member's life expectancy except that if the Member is married
the joint life expectancy of the Member and his spouse shall be used. Such
life expectancies will not be recalculated. The amount of the withdrawal
shall be deducted from the Member's Accounts and the Investment Funds in
which such Accounts are invested in accordance with the procedures
applicable to other in-service withdrawals pursuant to the provisions of
paragraph 6.07. The commencement of payments under this paragraph 6.04
shall not constitute an Annuity Starting Date for purposes of Sections 72,
401(a)(11) and 417 of the Code. Upon the Member's subsequent termination
of employment, payment of the Member's Accounts shall be made in accordance
with the provisions of paragraphs 6.02 and 6.03. Effective 1/1/89.
6.05 Small Benefits
Notwithstanding any provision of the Plan to the contrary, a lump sum
payment shall be made in lieu of all vested benefits if the value of the
Vested Portion of the Member's Accounts amounts to $3,500 or less. The lump
sum payment shall be made as soon as administratively practicable following
the Member's termination of employment.
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6.06 Withdrawals During Employment
(a) In advance of the Valuation Date on which such election shall become
effective, a Member may, by giving Notice to the Plan Administrator, elect
to make withdrawals from his Accounts in the following order:
(i) all or part of his Member Account, then
(ii) all or part of the vested portion of his Company Member Account,
excluding contributions to such Account contributed within the 24-
month period preceding the Valuation Date on which the withdrawal is
made, then
(iii) all or part of the vested portion of his Company Deferred Account,
excluding contributions to such Account contributed within the 24-
month period preceding the Valuation Date,
(iv) all or part of his Member ESOP Account, which as of such Valuation
Date, is invested in any Fund other than the Florida Progress
Corporation Employee Stock Ownership Fund, then
(v) all or part of his Company ESOP Account which as of such Valuation
Date is invested in any Fund other than the Florida Progress
Corporation Employee Stock Ownership Fund, then
(vi) all or part of his Rollover Account, exclusive of amounts
attributable to rollovers from an individual retirement account,
then
(vii) all or part of his Deferred Account, provided the Member has
attained age 59-1/2 as of the Valuation Date. Effective 1/1/93.
(b) A Member may elect, by giving Notice in advance of the Valuation Date on
which such election shall become effective, to withdraw all or part of his
Member ESOP Account invested in the Florida Progress Corporation Employee
Stock Ownership Fund and then all or part of his Company ESOP Account
invested in the Florida Progress Corporation Employee Stock Ownership Fund.
Effective 1/1/93.
(c) A Member shall not withdraw any portion of his Prior Pension Account; in no
event shall a Member withdraw any portion of his Deferred Account prior to
his attainment of age 59-1/2 except as provided in subparagraph (d) below.
(d) A Member who has withdrawn the total amount available for withdrawal under
the preceding subparagraphs may, no more than once in any Plan Year, elect
to withdraw all or part of his Deferred Account, exclusive of earnings
thereon credited after December 31, 1988, upon furnishing proof of
financial hardship satisfactory to the Plan Administrator. The amount to be
withdrawn from the Deferred Account shall not exceed the amount required to
meet the immediate financial need created by the hardship and not
reasonably available from other resources of the Member, as determined by
the Plan Administrator pursuant to subparagraph (g) below. For purposes of
this subparagraph, "hardship" shall mean an immediate and heavy need to
draw on financial resources as determined in subparagraph (f) below.
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(e) A Member may specify the amounts to be withdrawn under this paragraph 6.06
from any of the Funds in which such amounts are invested. In the absence of
such direction, the amounts withdrawn shall be allocated, to the extent
possible, among such Funds in proportion to the balance of the aggregate
Contributions theretofore made to each Fund and not previously withdrawn by
the Member.
(f) As a condition for hardship there must exist with respect to the Member an
immediate and heavy financial need to draw upon his Deferred Account.
(i) The Plan Administrator shall presume the existence of an immediate and
heavy need for purposes of a hardship withdrawal if the requested
withdrawal is on account of any of the following:
(A) expenses for medical care described in Section 213(d) of the Code
previously incurred by the Member, his spouse or any of his
dependents (as defined in Section 152 of the Code) or necessary
for those persons to obtain such medical care;
(B) costs directly related to the purchase (including construction)
of a principal residence of the Member (excluding mortgage
payments);
(C) payment of tuition and related educational fees for the next 12
months of post-secondary education of the Member, his spouse or
dependents; or
(D) payment of amounts necessary to prevent eviction of the Member
from his principal residence or to avoid foreclosure on the
mortgage of his principal residence;
(ii) The Plan Administrator may determine the existence of immediate and
heavy financial need in situations other than those described in (i)
above where the Member demonstrates the withdrawal is necessary for
one of the following reasons:
(A) significant legal expenses associated with major litigation in
which the employee is involved where no other resources are
reasonably available;
(B) costs, penalties, or assessments associated with Internal Revenue
Service tax audits, tax liens, or adverse rulings against the
employee, spouse, or eligible dependents where no other resources
are reasonably available;
(C) significant expenses relating to adoption or the placement of a
relative in an extended care facility where no other resources
are reasonably available;
(D) significant funeral expenses associated with the death of a
relative of the employee where no other resources are reasonably
available; or
(E) the amount necessary to avoid the impending bankruptcy of the
Member where no other resources are reasonably available.
In evaluating the relevant facts and circumstances, the Plan Administrator shall
act in a nondiscriminatory fashion and shall treat uniformly those Members who
are similarly situated. A financial need shall not fail to qualify as immediate
and heavy merely because the need was reasonably foreseeable. The Member shall
furnish to the Plan
<PAGE>
Page 36
Administrator such supporting documents as the Plan Administrator may
request in accordance with uniform and nondiscriminatory rules prescribed
by the Plan Administrator. Effective 10/19/92.
(g) As a condition for a hardship withdrawal, the Member must demonstrate that
the requested withdrawal is necessary to satisfy the financial need
described in subparagraph (f) above. A Member who requests a hardship
withdrawal to satisfy a financial need described in subparagraph (f)(i)
above must comply with (i) as follows and a Member who requests a hardship
withdrawal to satisfy a financial need described in subparagraph (f)(ii)
above must comply with (ii) as follows:
(i) The Member must request, by giving such Notice as the Plan
Administrator shall prescribe, that the Plan Administrator make its
determination of the necessity for the withdrawal solely on the basis
of his application. In that event, the Plan Administrator shall make
such determination, provided all of the following requirements are
met: (A) the Member has obtained all distributions, other than
distributions available only on account of hardship, and all
nontaxable loans currently available under all plans of the Company
and Non-participating Companies, (B) the Member is prohibited from
making Deferred Cash Contributions and Member Contributions to the
Plan and all other plans of the Company and Non-participating
Companies under the terms of such plans or by means of an otherwise
legally enforceable agreement for at least 12 months after receipt of
the distribution, and (C) the limitation described in paragraph
4.01(b) under all plans of the Company and Non-participating Companies
for the calendar year following the year in which the withdrawal is
made must be reduced by the Member's elective deferrals made in the
calendar year of the distribution for hardship. For purposes of clause
(B), "all other plans of the Company and Nonparticipating Companies"
shall include stock option plans, stock purchase plans, qualified and
non-qualified deferred compensation plans and such other plans as may
be designated under regulations issued under Section 401(k) of the
Code, but shall not include health and welfare benefit plans and the
mandatory employee contribution portion of a defined benefit plan.
(ii) The Member must certify to the Plan Administrator, on such form as the
Plan Administrator may prescribe, that the financial need cannot be
fully relieved (A) through reimbursement or compensation by insurance
or otherwise, (B) by reasonable liquidation of the Member's assets,
(C) by cessation of Deferred Cash Contributions and Member
Contributions, or (D) by other distributions or nontaxable (at the
time of the loan) loans from the Plan or other plans of the Company or
Non-participating Companies or by borrowing from commercial sources at
a reasonable rate in an amount sufficient to satisfy the need. The
actions listed are required to be taken to the extent necessary to
relieve the hardship but any action which would have the effect of
increasing the hardship need not be taken. For purposes of this
subparagraph (ii), there shall be attributed to the Member those
assets of the Member's spouse and minor children
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Page 37
which are reasonably available to the Member. The Member shall furnish
to the Plan Administrator such supporting documents as the Plan
Administrator may request in accordance with uniform and
nondiscriminatory rules prescribed by the Plan Administrator. If, on
the basis of the Member's certification and the supporting documents,
the Plan Administrator finds he can reasonably rely on the Member's
certification, then the Plan Administrator shall find that the
requested withdrawal is necessary to meet the Member's financial need.
6.07 Minimum Withdrawal
(a) A Member shall not make a withdrawal under paragraph 6.06 of an amount
which is less than $200 unless the withdrawal represents the total value
then available for withdrawal.
(b) A Member shall not make a withdrawal under paragraph 6.06 of Company Stock
of less than 20 shares unless the shares represents the total number of
shares of Company Stock then available for withdrawal.
6.08 Distribution Limitation
Notwithstanding any other provision of this Article VI, all distributions
from this plan shall conform to the regulations issued under Section
401(a)(9) of the Code, including the incidental death benefit provisions of
Section 401(a)(9)(G) of the Code. Further, such regulations shall override
any Plan provision that is inconsistent with Section 401(a)(9) of the Code.
Effective 1/1/87.
6.09 Direct Rollover of Certain Distributions
This paragraph applies to distributions, made on or after January 1, 1993.
Notwithstanding any provision of the Plan to the contrary that would
otherwise limit a distributee's election under this paragraph, a
distributee may elect, by giving Notice to the Plan Administrator, to have
any portion of an eligible rollover distribution paid directly to an
eligible retirement plan specified by the distributee in a direct rollover.
The following definitions apply to the terms used in this paragraph:
(a) "Eligible rollover distribution" means any distribution of all or any
portion of the balance to the credit of the distributee, except that
an eligible rollover distribution does not include any distribution
that is one of a series of substantially equal periodic payments (not
less frequently than annually) made for the life (or life expectancy)
of the distributee or the joint lives (or joint life expectancies) of
the distributee and the distributee's designated beneficiary, or for a
specified period of ten years or more, any distribution to the extent
such distribution is required under Section 401(a)(9) of the Code, and
the portion of any distribution that is not includible in gross income
(determined without regard to the exclusion for net unrealized
appreciation with respect to employer securities);
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(b) "Eligible retirement plan" means an individual retirement account
described in Section 408(a) of the Code, an individual retirement
annuity described in Section 408(b) of the Code, an annuity plan
described in Section 403(a) of the Code, or a qualified trust
described in Section 401(a) of the Code, that accepts the
distributee's eligible rollover distribution. However, in the case of
an eligible rollover distribution to the surviving spouse, an eligible
retirement plan is an individual retirement account or individual
retirement annuity;
(c) "Distributee" means an employee or former employee. In addition, the
employee's or former employee's surviving spouse and the employee's or
former employee's spouse or former spouse who is the alternate payee
under a qualified domestic relations order as defined in Section
414(p) of the Code, are distributees with regard to the interest of
the spouse or former spouse; and
(d) "Direct rollover" means a payment by the Plan to the eligible
retirement plan specified by the distributee.
6.10 Waiver of Notice Period
Except as provided in the following sentence, if the value of the vested
portion of a Member's Accounts exceeds $3,500, an election by the Member to
receive a distribution prior to attaining age 65 shall not be valid unless
Notice of such election is given to the Plan Administrator after the
Member has received the notice required under Section 1.411(a)-11(c) of
the Income Tax Regulations and (b) within a reasonable time before the
effective date of the commencement of the distribution as prescribed by
said regulations. If a distribution is one to which Sections 401(a)(11) and
417 of the Code do not apply, such distribution may commence less than 30
days after the notice required under Section 1.411(a)-11(c) of the Income
Tax Regulations is given, provided that:
(i) the Plan Administrator clearly informs the Member that he has a right
to a period of at least 30 days after receiving the notice to consider
the decision of whether or not to elect a distribution (and, if
applicable, a particular distribution option), and
(ii) the Member, after receiving the notice, affirmatively elects a
distribution. Effective l/1/94.
6.11 Forfeitures
Upon termination of employment of a Member who was not fully vested in his
Company Member Account and Company Deferred Account, the non-vested portion
of such Accounts shall remain in such Accounts until the Member has five
consecutive one year breaks in service or he receives a distribution of the
vested portion of his Accounts, if earlier. If the former Member is not
reemployed by the Company or a Non-participating Company before he has five
consecutive one year breaks in service or receives such a distribution, the
non-vested portion of his Company Member Account and Company Deferred
Account shall be forfeited. Any amounts forfeited pursuant to this
paragraph
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6.11 shall be applied to reduce Company contributions. If the amount of the
vested portion of a Member's Company Member Account and Company Deferred
Account at the time of his termination of employment is zero, the Member
shall be deemed to have received a distribution of such zero vested
benefit.
6.12 Restoration of Former Member to Service
(a) If any former Member is restored to service as an Employee, he shall be
immediately eligible to become a Member. He shall become a contributing
Member again upon giving Notice to the Plan Administrator in accordance
with paragraph 3.02.
(b) Upon restoration to service, any Member or former Member who was vested in
all or a portion of his Company Member Account or Company Deferred Account
at his previous termination of service, and any other such Member whose
period of break in service did not equal or exceed five years, shall have
the Continuous Service rendered on or after January 1, 1976, to which he
was previously entitled, restored to him. If any former Member who is
restored to service as an Employee and has Continuous Service restored to
him pursuant to this paragraph shall have forfeited all or a portion of the
value of his Company Member Account or Company Deferred Account upon his
previous termination of service, the amount so forfeited shall be restored
to his Company Member Account and Company Deferred Account. However, upon
subsequent termination of service or upon withdrawal of any amount pursuant
to paragraph 6.07, any amounts withdrawn at the time of his previous
termination of service, or prior thereto, shall be taken into account in
determining the vested portion of his Company Member Account and Company
Deferred Account attributable to the amount restored to him pursuant to
this paragraph.
6.13 Member Loans
(a) The Plan Administrator may make loans to Members who axe employed by the
Company or a Non-participating Company under such uniform rules as it may
adopt. Such loans shall be made, as the Member may elect, in either or both
of the following manners:
(i) from the Member's Member Account; then the vested portion of his
Company Member Account and then the Company Deferred Account,
excluding in both cases contributions to such Company Accounts
contributed within the 24-month period preceding the Valuation Date on
which the loan is processed; then his Rollover Account; and lastly the
Member's Prior Pension Account; or
(ii) from the Member's Deferred Account.
Pursuant to such rules as the Plan Administrator may prescribe, the Plan
Administrator may, in its discretion, authorize loans from a Member's
Company ESOP Account or his Member ESOP Account.
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If a Member directs that a loan under (i) or (ii) above shall be applied
against a specified Investment Fund (or Funds), then such loan shall be
applied against the specified Fund (or Funds) as directed in accordance
with the hierarchy established in (i) or (ii) as the case may be. If a
Member directs that a loan under (i) or (ii) above shall be proportionately
against the Investment Fund (or Funds) in which the Accounts described in
(i) or (ii) are invested, then such loan shall be so applied against such
accounts without regard to the hierarchy established in (i) or (ii) as the
case may be.
The amount of any loan shall not be less than $200 nor more than the amount
which when added to the outstanding balance of any other loans to the
Member from the Plan and any other plan of the Company or a Non-
participating Company, equals the lesser of (a) or (b) where (a) is $50,000
reduced by the excess, if any, of (i) the highest outstanding balance of
loans to the Member from such plans during the one year period ending on
the day before the day the loan is made, over (ii) the outstanding balance
of loans to the Member from such plans on the date on which the loan is
made, and (b) is one-half of the value of the sum of the vested portion of
the Member's Accounts available for a loan plus his Company ESOP and Member
ESOP Accounts.
(b) Member loans will be made for a maximum term of four years at an interest
rate to be determined by the Plan Administrator at least quarterly.
Repayment shall be made in installments of principal and interest by
payroll deductions, or by such other methods as agreed to by the Member and
the Plan Administrator, in substantially level amounts, but no less
frequently than quarterly, in an amount sufficient to amortize the loan
over its term. A loan may be prepaid in part or in full at any time without
penalty.
(c) The amount of a loan under subparagraph (a)(i) shall be allocated to the
Member's Accounts in the order described therein and proportionately within
each Account as to contributions and earnings on such contributions. The
amount of a loan under subparagraph (a)(ii) shall be allocated first to
earnings on the Member's Deferred Cash Contributions and then to the
Deferred Cash Contributions. The amounts so allocated shall be transferred
from the Investment Funds in which such Account is invested to a special
"Loan Fund" in proportion to the value of the Account invested in each such
Fund. The Loan Fund is to consist solely of the amount of the Member's
Accounts transferred to the Loan Fund and is to be invested solely in the
loan made to the Member. The Member's Accounts described in subparagraph
(a) shall be pledged as security for the loan. Payments of principal on the
loan will reduce the amount held in the Member's Loan Fund.
(d) Repayments shall be transmitted to the Trustee(s) and invested in one or
more of the Investment Funds in accordance with the Member's then effective
investment election. No repayments shall be permitted to the Florida
Progress Corporation Employee Stock Ownership Fund.
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(e) The Plan shall not levy any portion of the loan fund attributable to
amounts held in the Member's Deferred Account or Company Member or Deferred
Accounts until such time as a distribution of the Deferred Account or
Company Member and Deferred Accounts could otherwise be made under the
Plan.
(f) The Plan Administrator shall have the authority to adopt additional terms
and conditions, including rules regarding the financial ability of the
Member to repay the amounts he seeks to borrow uniformly, shall permit
loans to be available to all Members on a reasonably equitable basis, and
shall not discriminate in favor of highly compensated Members. Any such
additional rules or restrictions shall be in writing and communicated to
employees. Such further documentation is hereby incorporated into the Plan
by reference.
(g) To the extent required by law and under such rules as the Plan
Administrator shall adopt, loans shall also be made available on a
reasonably equivalent basis to any Beneficiary or former Employee (i) who
maintains an account balance under the Plan and (ii) who is still a party-
in-interest (within the meaning of Section 3(14) of ERISA). Effective
10/18/89.
<PAGE>
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ARTICLE VII - VALUATION OF ACCOUNTS
-----------------------------------
7.01 Maintenance of Accounts
There shall be established within each Investment Fund elected by the
Member pursuant to Article VIII, a Deferred Account, a Member Account, a
Company Deferred Account, a Company Member Account, a Rollover Account, a
Prior Pension Account, a Member ESOP Account and a Company ESOP Account.
7.02 Valuation
The Trustee shall value the Investment Funds as of each Valuation Date on a
cash basis, except that the Florida Progress Corporation Employee Stock
Ownership Fund shall be valued on the basis of shares. On each Valuation
Date there shall be allocated to the Accounts of each Member his
proportionate share of the increase or decrease in the fair market value of
such Accounts in each of the Funds. Whenever an event requires a
determination of the value of the Member's Accounts, the value shall be
computed as of the Valuation Date coincident with or immediately following
such event, subject to the provisions of paragraph 7.03.
7.03 Discretionary Power of the Committee
The Investment Committee reserves the right to change from time to time
the procedures and basis used in valuing the Investment Fund crediting (or
debiting) the Accounts, or to change the Valuation Date used to determine
the value of a Member's Account in order to effect a distribution, if it
feels, after due deliberation and upon the advice of counsel and/or the
current recordkeeper, that such an action is justified in that it results
in a more accurate reflection of the fair market value of assets or it
promotes the efficient or equitable operation of the Plan.
7.04 Statement of Accounts
At least once a year, each Member shall be furnished with a statement
setting forth the value of his Accounts and the Vested Portion of his
Accounts.
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ARTICLE VIII - INVESTMENT FUNDS
-------------------------------
8.01 Assets Held in Trust
All assets of the Plan shall be held in trust by one or more Trustees
appointed by the Investment Committee. Each Investment Fund described in
paragraph 8.03 shall be held by a Trustee acting pursuant to, and in
accordance with, the Trust Agreement entered into for that Investment Fund.
8.02 Exclusive Benefit Rule
The principal or the income of the Trust shall not be used for any purpose
whatsoever other than for the exclusive benefit of Members or their
Beneficiaries or to meet any necessary expenses of the Plan which are not
paid directly by the Company. The Company shall pay the expenses of the
Plan, except for those related to the Florida Progress Corporation Employee
Stock Ownership Fund.
8.03 Description of Investment Funds
The Trust shall consist of separate Investment Funds as may be selected by
the Investment Committee from time to time which provide Plan Members with
the opportunity for diversification by asset class. The current Investment
Funds are as follows:
Aggressive Equity Fund
----------------------
A Fund consisting primarily of such common or capital stocks of issues
other than those of Florida Progress Corporation, such bonds or other
securities convertible into common or capital stocks of issues other than
those of Florida Progress Corporation, such shares of mutual funds and
closed-end investment companies and such other similar types of investments
(which may include investment in any commingled trust fund managed by the
Trustee and selected by the Investment Committee which meets the
requirements of Section 401(a) and is exempt from taxation under Section
501(a) of the Code and which is invested primarily in similar types of
securities) as shall be purchased by the Trustee for the separate Accounts
of Members selecting this Fund with the objective of achieving long-term
capital growth by investing in the common stock of a diversified group of
quality small to medium-capitalization companies with above average
profitability and earnings growth. Effective 4/1/92.
Indexed Equity Fund
-------------------
A Fund consisting of such common or capital stocks of issues other that
Florida Progress Corporation, such bonds or securities convertible into
common or capital stocks of issues other than Florida Progress Corporation,
such shares of mutual funds and closed-end investment companies and such
other similar types of investments (which may include
<PAGE>
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investment in any commingled trust fund managed by the Trustee and selected by
the Investment Committee which meets the requirements of Section 401(a) and is
exempt from taxation under Section 501(a) and which is invested primarily in
similar types of securities) as shall be purchased by the Trustee for the
Accounts of Members selecting this Fund, including, pending the selection and
purchase of suitable investments for this Fund, short-term investments selected
by the Investment Committee, with the objective of achieving long-term capital
growth by investing in the cross-section of stocks which comprise the Standard
and Poor's 500 Index (S&P 500 Index).
Florida Progress Corporation Stock Fund
---------------------------------------
A Fund consisting of Company Stock, together with all income and accretions
thereon, with the objective of achieving both income and capital growth with
return based on dividends and changes in the stock's market value. The
Investment Committee, as Trustee of this Investment Fund, may enter into an
agreement with the Company to purchase or sell the Company Stock or may direct
an agent independent from the Company (hereinafter an "Independent Agent") to
purchase or sell Company Stock. The price for such stock, if purchased from or
sold to the Company, shall be based on the New York Stock Exchange Composite
Transactions on the 15th day of each month. However, the purchase or sales price
on the reinvestment of cash dividends on Company Stock, if purchased from the
Company, shall be based on the New York Stock Exchange Composite Transactions on
the dividend payment date. In the event the 15th day of any month or a dividend
payment date falls on a date other than a business day, the purchase or sales
price shall be similarly determined on the next preceding business day. The
price of such stock, including for the reinvestment of cash dividends, if
purchased by or sold by an Independent Agent, shall be the average price at
which the Independent Agent acquires the stock, plus any related brokerage
commission to the Independent Agent. Members or their Beneficiaries shall have
all voting rights with respect to Florida Progress Corporation common stock.
Florida Progress Corporation
----------------------------
Employee Stock Ownership Fund
-----------------------------
A Fund consisting of Company Stock, together with all income and accretion
thereon, which has been established with respect to amounts transferred from the
Former ESOP, with the objective of achieving both income and capital growth with
return based on dividends and changes in the stock's market value. The
Investment Committee, as Trustee of this Investment Fund, may enter into an
agreement with the Company to purchase or sell Company Stock or may direct an
Independent Agent to purchase or sell Company Stock. The purchase or sales price
on the reinvestment of cash dividends on Company Stock, if purchased from the
Company, shall be based on the New York Stock Exchange Composite Transactions on
the dividend payment date. In the event a dividend payment date falls on a date
other than a business day, the purchase or sales price shall be similarly
determined on the next preceding business day. The price of Company Stock for
such reinvestment of dividends, if purchased by or sold by an Independent
<PAGE>
Page 45
Agent, shall be the average price at which the Independent Agent acquires
the stock, plus any related brokerage commission to the Independent Agent.
Members or their Beneficiaries shall have all voting rights with respect to
Florida Progress Corporation common stock.
Balanced Fund
-------------
A Fund consisting primarily of such common or capital stocks of issues
other than those of Florida Progress Corporation, such bonds or other
securities convertible into common or capital stocks of issues other than
those of Florida Progress Corporation, such investment-grade fixed income
securities, such shares of mutual funds and closed-end investment companies
and such other similar types of equity and fixed income investments (which
may include investment in any commingled trust fund managed by the Trustee
and selected by the Investment Committee which meets the requirements of
Section 401(a) and is exempt from taxation under Section 501(a) of the Code
and which is invested primarily in similar types of securities) as shall be
purchased by the Trustee for the separate Accounts of Members selecting
this Fund with the objective of combining stability of income and principal
with moderate, long-term capital growth by investing in a balance of
dividend-paying common stocks (with S&P 500 characteristics) and investment
-grade fixed income securities. Effective 4/1/92.
Stable Value Fund
-----------------
This Fund shall consist primarily of fixed-income obligations, including
but not limited to government and private bonds, debentures, notes,
certificates of deposit, group contracts issued by legal reserve insurance
companies or other financial institution or banking facility providing a
guaranteed annual rate of interest and other similar fixed-income
investments (which may include investments in any commingled trust fund
managed by the Trustee and selected by the Investment Committee which meets
the requirements of Section 401(a) of the Code and is exempt from taxation
under Section 501(a) of the Code, and which is invested primarily in fixed
income securities or fixed income investments) with the objective of
preserving principal and providing stable income. Pending the selection and
purchase of suitable investments, this Fund may be invested in short-term
obligations of the United States Government and other short-term
investments selected by the Investment Committee. Effective 4/1/92.
8.04 Reinvestment of Earnings
Dividends, interest, and other distributions received on the assets held by
the Trustees in respect of each of the above Funds shall be reinvested in
the respective Fund, except as provided in paragraph 5.05.
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8.05 Member Investment Elections
(a) Upon becoming a participating Member of the Plan and as of any subsequent
Valuation Date, a Member may elect to invest subsequent contributions to
his Member Account, Company Member Account, Company Deferred Account and
Deferred Account in any Investment Fund, other than the Florida Progress
Corporation Employee Stock Ownership Fund, in multiples of 10%. Such
election shall remain in effect until a new election is made. If no
election is made, his contributions shall be invested in the Stable Value
Fund.
(b) A Member shall make a separate election regarding each rollover
contribution to his Rollover Account. A contribution to the Member's
Rollover Account may be invested in any Investment Fund, other than the
Florida Progress Corporation Employee Stock Ownership Fund, in multiples of
10%.
8.06 Member Transfer Elections
(a) Not more than once in any calendar quarter, a Member may, in accordance
with this subparagraph (a), elect to transfer all or a portion (in
multiples of 10%) of the balance of his Accounts invested in any of the
Investment Funds to one or more of the other Investment Funds other than
the Florida Progress Corporation Employee Stock Ownership Fund. Effective
3/31/92.
(b) Not more often than once in any calendar quarter, a Member shall be
entitled to transfer all or a portion (in multiples of 10%) of the balance
of his Company ESOP Account and Member ESOP Account invested in the Florida
Progress Corporation Employee Stock Ownership Fund to one or more of the
other Investment Funds, other than the Florida Progress Corporation Stock
Fund. Such transfer shall be made in accordance with such rules as the Plan
Administrator shall prescribe. Effective 6/30/92.
8.07 Elections
Elections by Members as set forth in this Article shall be made by giving
Notice to the Plan Administrator in advance of the Valuation Date on which
such election shall become effective. All elections are subject to the Plan
Administrator's approval, and must comply with administrative
specifications of the Plan Administrator.
8.08 Voting Rights
As provided in this Article VIII, all shares of Company Stock (including
fractional shares) allocated to Member's Accounts shall be voted by the
Trustee(s) in accordance with instructions from the Member or, if
applicable, his Beneficiary; provided, however, shares of Company Stock in
the Florida Progress Corporation Stock Fund for which no instructions are
received by the Trustee shall be voted by the Trustee. Fractional shares
<PAGE>
Page 47
shall be voted by the Trustee on a combined basis, in order to reflect the
direction of the Members holding such shares, or if no directions of the
Members holding such shares have been received by the Trustee, such
fractional shares shall be voted on a combined basis by the Trustee.
Notwithstanding anything to the contrary in this paragraph 8.08, the
Trustee shall not vote any allocated Company Stock in the Florida Progress
Corporation Employee Stock Ownership Fund for which it has not received
instructions.
For purposes of this paragraph 8.08, a Member shall be a named fiduciary
with respect to voting shares of Company Stock allocated to his Accounts to
the extent he exercises his right to vote. If a Member fails to provide
instructions with respect to the shares of Company Stock in the Florida
Progress Corporation Stock Fund, he shall be deemed to have delegated the
right to vote such shares to the Trustee.
<PAGE>
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ARTICLE IX - ADMINISTRATION
---------------------------
9.01 Administration of the Plan
(a) The authority to control and manage the operation and administration of the
Plan and assets of the Plan is placed in the Investment Committee which
shall consist of not less than five persons appointed by resolution of the
Board of Directors and serving at its pleasure. The Board of Directors
shall designate the Plan Administrator and a Chairman and Secretary of the
Investment Committee. the Board of Directors shall have no responsibility
for the operation or administration of the Plan.
(b) The Investment Committee shall have the authority to:
(1) Establish the methodology to determine the interest rate for loans
from the Plan;
(2) Appoint and remove the Trustees;
(3) Enter into a Trust Agreement on behalf of the Company for each
Investment Fund delegating to the Trustee such authority and upon such
terms and conditions as it may deem appropriate in accordance with the
provisions of the Plan and the applicable Investment Fund;
(4) Direct the Trustees on all matters within its discretion as provided
in the Trust Agreements;
(5) Appoint and remove investment managers or counselors who may be
delegated the authority to direct the Trustees in the management of
the Investment Funds upon such terms and conditions as it may deem
appropriate in accordance with the provisions of the Plan and
consistent with the terms of the Trust Agreements;
(6) Modify, alter, amend or terminate the Trust Agreements to the extent
it may deem appropriate (including, but without limiting the
generality of the foregoing, any amendment deemed necessary to ensure
the tax exempt status of the Trust under Section 501(a) of the Code as
amended from time to time) provided, however, that any such amendment
shall be consistent with the rights of the Trustees and with the
provisions of the Plan;
(7) Direct the Trustees to maintain such accounts and furnish such
information as the Committee may deem appropriate in the exercise of
its authority;
(8) Monitor and determine the adequacy of the investment performance of
the Trustees and investment managers or counselors;
(9) Employ and engage such financial, legal, clerical and other services
to assist in the effective management and control of the assets of the
Plan;
(10) Keep such accounts and records as it may deem necessary or proper in
the performance of its responsibilities under the Plan;
(11) Establish such rules as may be necessary or desirable for the
transaction of its business;
(12) Direct the Plan Administrator in the administration of the foregoing
authority;
(13) Take all other actions reasonably necessary or convenient in
furtherance of its authority.
<PAGE>
Page 49
9.02 Plan Administrator
(a) The Plan Administrator shall act as administrative representative on behalf
of the Investment Committee in the exercise of its authority as set forth
in Section 9.01 of this Article.
(b) In the exercise of his administrative responsibilities, the Plan
Administrator shall:
(i) Make uniform, nondiscriminatory rules establishing the procedure
by which application for benefits under the Plan shall be made;
(ii) maintain the accounts and records necessary to prepare the
financial statements for annual or more frequent reports of the
Plan which may be inspected by any Member in the office of the
Plan Administrator;
(iii) cause an annual audit of the financial statements of the Plan by
independent certified public accountants, who may be those who
audit the books of the Company;
(iv) have the authority to interpret the Plan's terms and determine
all questions of eligibility, status and rights of Members and
their Beneficiaries, in its sole discretion, and any such
interpretation or determination shall be conclusive upon all
persons affected thereby;
(v) reader benefit computations for Members in accordance with the
Plan;
(vi) direct the Trustees to disburse any funds held in trust with
respect to payments provided for in Article VI;
(vii) keep such accounts and records as it may deem necessary or proper
in the performance of its responsibilities under the Plan;
(viii) establish such rules as may be necessary or desirable for the
transaction of its business;
(ix) perform such reporting and disclosure activities as may be
required by law or deemed appropriate;
(x) employ and engage such financial, legal, clerical and other
services to assist in the effective administration of the Plan;
and
(xi) perform such additional administrative duties as the Investment
Committee may assign.
9.03 Named Fiduciaries
The Investment Committee and the Plan Administrator are named fiduciaries
within the meaning of the Employee Retirement Income Security Act of 1974.
Any person or group of persons may serve in more than one fiduciary
capacity with respect to the Plan.
9.04 General Provisions
The following provisions shall apply to the Investment Committee:
<PAGE>
Page 50
(a) In the exercise of his administrative responsibilities, the Plan
Administrator shall:
(b) The Investment Committee may delegate to other persons all or such portion
of its responsibilities as the Investment Committee in its discretion may
decide. The Investment Committee shall hold meetings upon such notice, at
such place or places, and at such time or times as it may determine. Action
by a majority of the members shall be requisite and sufficient at all times
to constitute the action of the Investment Committee.
(c) Members of the Investment Committee shall:
(1) Receive no compensation for their services as such;
(2) Be reimbursed by the Company for all expenses reasonably incurred by
them in the proper performance of their responsibilities;
(3) Discharge their duties solely in the interest of the Members and their
Beneficiaries with the care, skill, prudence, and diligence under the
circumstances then prevailing that a prudent man acting in a like
capacity and familiar with such matters would use in the conduct of a
benefit plan of a like character and with like aims.
<PAGE>
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ARTICLE X - AMENDMENT AND TERMINATION
-------------------------------------
10.01 Amendment of Plan
The Board reserves the right to modify, alter or amend this Plan
thereunder from time to time to any extent that it may deem advisable
including, but without limiting the generality of the foregoing, any
amendment deemed necessary to ensure the continued qualified status of the
Plan under Section 401(a) of the Code or the appropriate provisions of any
subsequent revenue law. No amendment shall have the effect of diverting
the whole or any part of the principal or income of the Trust to purposes
other than for the exclusive benefit of Members or their Beneficiaries. A
modification of the Plan may affect present as well as future Members but
may not retroactively reduce the Accounts of any Member or reduce the
nonforfeitable percentage of his Accounts below the nonforfeitable
percentage thereof computed under the Plan as in effect on the later of
the date on which the amendment is adopted or becomes effective.
10.02 Termination
The Board may terminate the Plan or completely discontinue contributions
for any reason at any time. In the event the Plan is terminated or
contributions discontinued, the Plan shall be administered in accordance
with Company policy and Internal Revenue Service regulations. In the event
of termination of the Plan or in the event of discontinuance of
contributions having the effect of such termination, the right of each
Member to the amounts credited to his Account shall be nonforfeitable. In
the event of a partial termination of the Plan, the provisions of this
paragraph 10.02 shall be applicable to Members affected by such partial
termination.
(b) Any associated or affiliated company may terminate its participation in
the Plan by giving the Investment Committee prior written notice
specifying a termination date which shall be the last day of a month and
at least 60 days subsequent to the date such notice is received by the
Investment Committee. The Investment Committee may terminate any company's
participation in the Plan, as of any termination date specified by the
Investment Committee, for the failure of a company to make proper
contributions or to comply with any other provision of the Plan and shall
terminate such company's participation upon complete and further
discontinuance of the contributions. Upon any such partial termination of
the Plan, the Company so terminated shall not make any further
contributions under the Plan and no amount shall thereafter be payable
under the Plan to or in respect of any Members then employed by such
company except as provided in Article VI.
(c) Upon termination of the Plan, Deferred Cash Contributions, with earnings
thereon, shall only be distributed to Members if (i) neither the Company
nor a Non-participating Company establishes or maintains a successor
defined contribution plan, and (ii) payment
<PAGE>
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is made to the Members in the form of a lump sum distribution (as defined
in Section 402(d)(4) of the Code, without regard to clauses (i) through
(iv) of subparagraph (A), subparagraph (B), or subparagraph (F) thereof).
For purposes of this subparagraph, a "successor defined contribution plan"
is a defined contribution plan (other than an employee stock ownership
plan as delivered in Section 4975(e)(7) of the Code ("ESOP") or a
simplified employee pension as defined in Section 408(k) of the Code
("SEP")) which exists at the time the Plan is terminated or within the 12
month period beginning on the date all assets are distributed. However, in
no event shall a delivered contribution plan be deemed a successor plan if
fewer than two percent of the employees who are eligible to participate in
the Plan at the time of its termination are or were eligible to
participate under another defined contribution plan Of the Company or a
Nonparticipating Company (other than an ESOP or a SEP) at any time during
the period beginning 12 months before and ending 12 months after the date
of the Plan's termination. Effective 1/1/92.
10.03 Distribution of Accounts Upon a Sale of Assets or a Sale of a Subsidiary
Upon the disposition by the Company of at least 85 percent of the assets
(within the meaning of Section 409(d)(2) of the Code) used by the Company
in a trade or business or upon the disposition by the Company of its
interest in a subsidiary (within the meaning of Section 409(d)(3) of the
Code), Deferred Cash Contributions, with earnings thereon, may be
distributed to those Members who continue in employment with the employer
acquiring such assets or with the sold subsidiary, provided that (a) the
Company maintains the Plan after the disposition, (b) the buyer does not
adopt the Plan or otherwise become a participating employer in the Plan
and does not accept any transfer of assets or liabilities from the Plan to
a plan it maintains in a transaction subject to Section 414(1)(1) of the
Code, and (c) payment is made to the Member in the form of a lump sum
distribution (as delivered in Section 402(d)(4) of the Code, without
regard to clauses (i) through (iv) of subparagraph (A), subparagraph (B),
or subparagraph (F) thereof). Effective 1/1/92.
<PAGE>
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ARTICLE XI - GENERAL PROVISIONS
-------------------------------
11.01 Uniform Administration
Whenever in the administration of the Plan any action by the Company is
required with respect to eligibility or classification of Employees or
contributions or benefits, such action shall be uniform in nature as
applied to all persons similarly situated and should not discriminate in
favor or Employees who are officers, shareholders, persons whose principal
duties consist in supervising the work of other Employees, or Highly
Compensated Employees.
11.02 Source of Payment
Benefits under this Plan shall be payable only from the Trust and the
Company shall have no legal obligation, responsibility or liability to
make any direct payment of benefits accrued under the Plan. Neither the
Company nor the Trustee guarantees the Trust against any loss or
depreciation or guarantees the payment of any benefit hereunder. No
persons shall have any rights under the Plan with respect to the Trust, or
against the Trustee or Company, except as specifically provided for
herein.
11.03 No Right to Employment
Nothing herein shall be deemed to give any Employee the right to be
retained in the service of the Company or to interfere with the rights of
the Company to discharge him at any time.
11.04 Inalienability of Benefits
The rights or interest of a Member may not be assigned or hypothecated,
and to the extent permitted by law, no payments from the Plan shall be
subject to legal process or attachment for the payment of any claims
against any person entitled to receive the same. Notwithstanding the
foregoing, a portion of the amount of any monthly benefit payment, not in
excess of 10 percent thereof, payable to or on account of a Member under
the Plan may be assigned by such Member, provided such assignment is
voluntary and revocable. The above prohibition on alienation shall apply
to the creation, assignment or recognition of a right to any benefit
payable with respect to a Member pursuant to a domestic relations order,
except that such prohibition on alienation shall not apply if the order is
determined to be a Qualified Domestic Relations Order as defined in
Section 414(p) of the Code. Notwithstanding any other provisions of the
Plan, a Member's benefits shall be payable in accordance with the
applicable requirements of a Qualified Domestic Relations Order and
Section 414(p) of the Code. The Plan Administrator shall adopt rules
uniformly applicable to all Members similarly situated for adjusting any
benefits
<PAGE>
Page 54
payable under the Plan on the Member's behalf to reflect payments made to
a person other than the Member under a Qualified Domestic Relations Order.
Notwithstanding anything herein to the contrary, if the amount payable to
the alternate payee under the qualified domestic relations order is $3,500
or less such amount shall be paid in one lump sum as soon as practicable
following the qualification of the order. If the amount exceeds $3,500, it
may be paid as soon as practicable following the qualification of the
order if the qualified domestic relations order so provides and the
alternate payee consents thereto; otherwise it may not be payable before
the earliest of (i) the Member's termination of employment, (ii) the time
such amount could be withdrawn under Article VI or (iii) the Member's
attainment of age 50. Effective 1/1/94.
11.05 Payment Due an Incompetent
If the Company determines that any person to whom a payment is due
hereunder is unable to care for his affairs because of physical or mental
disability, it shall have the authority to cause the payments becoming due
to such person to be made to the spouse, brother, sister or other such
person deemed by the Company to have incurred expense for such person
otherwise entitled to payment (unless prior claim shall have been made by
a duly qualified guardian or other legal representative) without
responsibility of the Company or the Trustee to see to the application of
such payments. Payments made pursuant to such power shall operate as a
complete discharge of the obligations of the Company, the Trustee and the
Trust.
11.06 Merger or Consolidation
The Plan may not be merged or consolidated with, nor may its assets or
liabilities be transferred to, any other plan unless each Member, spouse,
former Member or Beneficiary under the Plan would, if the resulting plan
were then terminated, receive a benefit immediately after the merger,
consolidation or transfer which is equal to or greater than the benefit he
would have been entitled to receive immediately before the merger,
consolidation, or transfer if the Plan had then terminated.
11.07 Prevention of Escheat
If the Plan Administrator cannot ascertain the whereabouts of any person
to whom a payment is due under the Plan, the Plan Administrator may, no
earlier than four years from the date such payment is due, mail a notice
of such due and owing payment to the last known address of such person, as
shown on the records of the Plan Administrator or the Company. If such
person has not made written claim therefor within three months of the date
of the mailing, the Plan Administrator may, if it so elects and upon
receiving advice from counsel to the Plan, direct that such payment and
all remaining payments
<PAGE>
Page 55
otherwise due such person be canceled on the records of the Plan and the
amount thereof applied to reduce the contributions of the Company. Upon
such cancellation, the Plan and the Trust shall have no further liability
therefor except that, in the event such person or his beneficiary later
notifies the Plan Administrator of his whereabouts and requests the
payment or payments due to him under the Plan, the amount so applied shall
be paid to him in accordance with the provisions of the Plan. Effective
1/1/95.
11.08 Laws Applicable
The provisions of the Plan shall be construed, administered and enforced
in accordance with the laws of the State of Florida and applicable federal
law, except that the Trust Agreements and all acts thereunder shall be
governed with the laws specified therein.
