As filed with the Securities and Exchange Commission on April 18, 1996
Registration No. 333- _________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement
Under
The Securities Act of 1933
FLORIDA PROGRESS CORPORATION
(Exact name of registrant as specified in its charter)
Florida 59-2147112
(State of Incorporation) (I.R.S. Employer Identification No.)
One Progress Plaza, St. Petersburg, Florida 33701
(Address of Principal Executive Offices) (Zip Code)
STOCK PLAN FOR NON-EMPLOYEE DIRECTORS OF
FLORIDA PROGRESS CORPORATION AND SUBSIDIARIES
(Full title of the plan)
James V. Smallwood
Vice President and Treasurer
Florida Progress Corporation
3201 34th Street South, St. Petersburg, FL 33711
(813) 866-5647
(Name, address and telephone number, including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Title of Each Amount Offering Aggregate Amount of
Class of Securities to be Price Offering Registration
to be Registered Registered(1) Per Unit(2) Price (2) Fee
<S> <C> <C> <C> <C>
Common Stock,
without par value(2)(3) 20,000 Shs. $32.875 $657,500 $227
</TABLE>
(1) Pursuant to Rule 428(b)(1), the documents constituting the Prospectus
from Part I of Form S-8 will be sent or given to participants in the
Plan, but are not filed herewith.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) under the Securities Act of 1933, as amended
(the "Act"), and based on the average of the high and low sales prices of
the Common Stock in New York Stock Exchange Composite Transactions on
April 15, 1996.
(3) Includes rights to purchase units of Series A Junior Participating
Preferred Stock.
<PAGE>
PART II.
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference.
The following documents heretofore filed by Florida Progress Corporation
(the "Company") with the Securities and Exchange Commission ("SEC") (File No.
1-8349), as amended, are incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the year ended December
31, 1995, as filed with the SEC on March 20, 1996.
2. The Company's Current Reports on Form 8-K dated January 22, 1996 and
February 8, 1996, as filed with the SEC on January 24, 1996 and February 9,
1996, respectively.
3. The description of the Common Stock of the Company contained in Item
4 of the Company's Registration Statement on Form 8-B (No. 1-8349) that was
filed with the SEC on May 21, 1982, as updated by the following reports of the
Company, each of which is also incorporated herein by reference: Part II, Item 2
of Quarterly Report on Form 10-Q for the quarter ended March 31, 1985 that was
filed with the SEC on May 14, 1985; Part II, Item 4 of Quarterly Report on Form
10-Q for the quarter ended March 31, 1990 that was filed with the SEC on May 14,
1990; and the Current Report on Form 8-K dated November 21, 1991 that was filed
with the SEC on November 27, 1991.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934 subsequent to the date of the
filing of this registration statement and prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this registration statement and to be a part
hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable. See also Item 3 "Incorporation of Documents by Reference."
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<PAGE>
Item 5. Interests of Named Experts and Counsel.
The legality of the securities being offered under the Plan has been
passed upon by Kenneth E. Armstrong, Vice President, General Counsel and
Secretary of Florida Progress Corporation, who is named in certain documents
incorporated by reference in this registration statement as an expert with
respect to statements relating to matters of law or expressing legal
conclusions.
Item 6. Indemnification of Directors and Officers.
The Florida Business Corporation Act, as amended (the "Florida Act"),
provides that, in general, a business corporation may indemnify any person who
is or was a party to any proceeding (other than an action by, or in the right
of, the corporation) by reason of the fact that he or she is or was a director
or officer of the corporation, against liability incurred in connection with
such proceeding, provided certain standards are met, including that such officer
or director acted in good faith and in a manner reasonably believed to be in, or
not opposed to, the best interests of the corporation, and provided further
that, with respect to any criminal action or proceeding, the officer or director
had no reasonable cause to believe his or her conduct was unlawful. In the case
of proceedings by or in the right of the corporation, the Florida Act provides
that, in general, a corporation may indemnify any person who was or is a party
to such proceeding by reason of the fact that he or she is or was a director or
officer of the corporation against expenses and amounts paid in settlement
actually and reasonably incurred in connection with the defense or settlement of
such proceeding, including the appeal thereof, provided that such person acted
in good faith and in a manner he or she reasonably believed to be in, or not
opposed to, the best interest of the corporation, and provided further that no
indemnification shall be made in respect of any claim as to which such person is
adjudged liable unless a court of competent jurisdiction determines upon
application that such person is fairly and reasonably entitled to indemnity. To
the extent that any officers or directors are successful on the merits or
otherwise in the defense of any of the proceedings described above, the Florida
Act provides that the corporation is required to indemnify such officers or
directors against expenses actually and reasonably incurred in connection
therewith. However, the Florida Act further provides that, in general,
indemnification or advancement of expenses shall not be made to or on behalf of
any officer or director if a judgment or other final adjudication establishes
that his or her actions, or omissions to act, were material to the cause of
action so adjudicated and constitute: (i) a violation of the criminal law,
unless the director or officer had reasonable cause to believe his or her
conduct was lawful or had no reasonable cause to believe it was unlawful; (ii) a
transaction from which the director or officer derived an improper personal
benefit; (iii) in the case of a director, a circumstance under which the
director has voted for or assented to a distribution made in violation of the
Florida Act or the corporation's articles of incorporation; or (iv) willful
misconduct or a conscious disregard for the best interest of the corporation in
a proceeding by or in the right of the corporation to procure a judgment in its
favor or in a proceeding by or in the right of a shareholder. Article XI of the
Company's By-laws provides that the Company shall indemnify any director,
officer or employee or any former director, officer or employee to the full
extent permitted by law.
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<PAGE>
The Company has purchased insurance with respect to, among other things,
the liabilities that may arise under the statutory provisions referred to above.
The directors and officers of the Company also are insured against certain
liabilities, including certain liabilities arising under the Securities Act of
1933, which might be incurred by them in such capacities and against which they
are not indemnified by the Company.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.(a)* - Restated Articles of Incorporation, as amended, of Florida
Progress Corporation. (Filed as Exhibit 3(a) to the Company's
Annual Report on Form 10-K for the year ended December 31,
1991 as filed with the SEC (File No. 1-8349) on March 30,
1992.)
4.(b)* - Shareholder Rights Agreement, dated as of November 21, 1991,
between the Company and Manufacturers Hanover Trust Company,
with form of Rights Certificate attached thereto as Exhibit A.
(Filed as Exhibit 4(a) to the Company's Form 8-K dated
November 21, 1991, as filed with the SEC (File No. 1-8349) on
November 27, 1991.)
4.(c)* - Amended Articles of Incorporation, as amended, of Florida
Power Corporation ("Florida Power"). (Filed as Exhibit 3(a) to
the Florida Power Annual Report on Form 10-K for the year
ended December 31, 1991 as filed with the SEC (File No.
1-3274) on March 30, 1992.)
4.(d)* - Indenture, dated as of January 1, 1944 (the "Indenture"),
between Florida Power and Guaranty Trust Company of New York
and The Florida National Bank of Jacksonville, as Trustees.
(Filed as Exhibit B-18 to Florida Power's Registration
Statement on Form A-2 (No. 2-5293) filed with the SEC on
January 24, 1944.)
4.(e)* - Seventh Supplemental Indenture, dated as of July 1, 1956,
between Florida Power and Guaranty Trust Company of New York
and The Florida National Bank of Jacksonville, as Trustees,
with reference to the modification and amendment of the
Indenture. (Filed as Exhibit 4(b) to Florida Power's
Registration Statement on Form S-3 (No. 33-16788) filed with
the SEC on September 27, 1991.)
4
<PAGE>
4.(f)* - Eighth Supplemental Indenture, dated as of July 1, 1958,
between Florida Power and Guaranty Trust Company of New York
and The Florida National Bank of Jacksonville, as Trustees,
with reference to the modification and amendment of the
Indenture. (Filed as Exhibit 4(c) to Florida Power's
Registration Statement on Form S-3 (No. 33-16788) filed with
the SEC on September 27, 1991.)
4.(g)* - Sixteenth Supplemental Indenture, dated as of February 1,
1970, between Florida Power and Morgan Guaranty Trust Company
of New York and The Florida National Bank of Jacksonville, as
Trustees, with reference to the modification and amendment of
the Indenture. (Filed as Exhibit 4(d) to Florida Power's
Registration Statement on Form S-3 (No. 33-16788) filed with
the SEC on September 27, 1991.)
4.(h)* - Twenty-Ninth Supplemental Indenture dated as of September 1,
1982, between Florida Power and Morgan Guaranty Trust Company
of New York and Florida National Bank, as Trustees, with
reference to the modification and amendment of the Indenture.
(Filed as Exhibit 4(c) to Florida Power's Registration
Statement on Form S-3 (No. 2-79832) filed with the SEC on
September 17, 1982.)
4.(i)* - Thirty-Eighth Supplemental Indenture dated as of July 25,
1994, between Florida Power and First Chicago Trust Company
of New York, as successor Trustee, Morgan Guaranty Trust
Company of New York, as resigning Trustee, and First Union
National Bank of Florida, as resigning Co-Trustee, with
reference to confirmation of First Chicago Trust Company
of New York as successor Trustee under the Indenture.
(Filed as Exhibit 4.(f) to Florida Power's Registration
Statement on Form S-3 (No. 33-55273) filed with the SEC on
August 29, 1994.)
4.(j)* - Specimen Common Stock certificate of the Company. (Filed
as Exhibit 4.(j) to the Company's Registration Statement on
Form S-3 (No. 33-56873) filed with the SEC on December 15,
1994.)
4.(k) - Stock Plan for Non-Employee Directors of Florida Progress
Corporation and Subsidiaries.
5 - Opinion of Kenneth E. Armstrong, Esq. regarding the legality
of the Common Stock to be issued.
23.(a) - Consent of KPMG Peat Marwick, independent certified public
accountants.
23.(b) - Consent of Kenneth E. Armstrong, Esq. is contained in his
opinion filed as Exhibit 5.
24 - Powers of Attorney are included on the signature page of
this Registration Statement.
________
*Incorporated herein by reference.
5
<PAGE>
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
20 percent change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (i) and (ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in
this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
6
<PAGE>
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of St. Petersburg, State of Florida, on the 18th day of
April, 1996.
FLORIDA PROGRESS CORPORATION
By: /s/ Jack B. Critchfield
Jack B. Critchfield, Chairman and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS that each of the undersigned officers and
directors of Florida Progress Corporation (the "Company"), a Florida
corporation, for himself or herself and not for one another, does hereby
constitute and appoint KENNETH E. ARMSTRONG, JEFFREY R. HEINICKA, JAMES V.
SMALLWOOD and DOUGLAS E. WENTZ, and each of them, a true and lawful attorney in
his or her name, place and stead, in any and all capacities, to sign his or her
name to any and all amendments, including post-effective amendments, to this
registration statement with respect to the proposed issuance, sale and delivery
by the Company of shares of its Common Stock pursuant to the Stock Plan for
Non-Employee Directors of Florida Progress Corporation and Subsidiaries, and to
cause the same to be filed with the Securities and Exchange Commission, granting
unto said attorneys and each of them full power and authority to do and perform
any act and thing necessary and proper to be done in the premises, as fully to
all intents and purposes as the undersigned could do if personally present, and
each of the undersigned for himself or herself hereby ratifies and confirms all
that said attorneys or any one of them shall lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C> <C>
(i) /s/ Jack B. Critchfield Chairman, Chief Executive April 18, 1996
------------------------------ Officer and Director
Jack B. Critchfield
Principal Executive Officer
(ii) /s/ Jeffrey R. Heinicka Senior Vice President and April 18, 1996
-------------------------------- Chief Financial Officer
Jeffrey R. Heinicka
Principal Financial Officer
(iii) /s/ John Scardino, Jr. Vice President and Controller April 18, 1996
--------------------------------
John Scardino, Jr.
Principal Accounting Officer
</TABLE>
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<TABLE>
<CAPTION>
(iv) A majority of the Directors, including (i) above:
Signature Title Date
<S> <C> <C>
/s/ Willard D. Frederick, Jr. Director April 18, 1996
-------------------------------
Willard D. Frederick, Jr.
/s/ Michael P. Graney Director April 18, 1996
-------------------------------
Michael P. Graney
/s/ Richard Korpan Director April 18, 1996
-------------------------------
Richard Korpan
/s/ Clarence V. McKee Director April 18, 1996
-------------------------------
Clarence V. McKee
/s/ Vincent J. Naimoli Director April 18, 1996
-------------------------------
Vincent J. Naimoli
/s/ Richard A. Nunis Director April 18, 1996
-------------------------------
Richard A. Nunis
/s/ Charles B. Reed Director April 18, 1996
-------------------------------
Charles B. Reed
/s/ Joan D. Ruffier Director April 18, 1996
-------------------------------
Joan D. Ruffier
/s/ Robert T. Stuart, Jr. Director April 18, 1996
-------------------------------
Robert T. Stuart, Jr.
/s/ Jean Giles Wittner Director April 18, 1996
-------------------------------
Jean Giles Wittner
</TABLE>
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EXHIBIT INDEX
4.(a)* - Restated Articles of Incorporation, as amended, of the Company.
(Filed as Exhibit 3(a) to the Company's Annual Report on Form 10-K
for the year ended December 31, 1991 as filed with the SEC (File No.
1-8349) on March 30, 1992.)
4.(b)* - Shareholder Rights Agreement, dated as of November 21, 1991,
between the Company and Manufacturers Hanover Trust Company, with
form of Rights Certificate attached thereto as Exhibit A. (Filed as
Exhibit 4(a) to the Company's Form 8-K, dated (date of event
reported) November 21, 1991, as filed with the SEC (File No. 1-8349)
on November 27, 1991.)
4.(c)* - Amended Articles of Incorporation, as amended, of Florida Power
Corporation ("Florida Power"). (Filed as Exhibit 3(a) to the Florida
Power Annual Report on Form 10-K for the year ended December 31,
1991 as filed with the SEC (File No. 1-3274) on March 30, 1992.)
4.(d)* - Indenture, dated as of January 1, 1944 (the "Indenture"), between
Florida Power and Guaranty Trust Company of New York and The Florida
National Bank of Jacksonville, as Trustees. (Filed as Exhibit B-18
to Florida Power's Registration Statement on Form A-2 (No. 2-5293)
filed with the SEC on January 24, 1944.)
4.(e)* - Seventh Supplemental Indenture, dated as of July 1, 1956, between
Florida Power and Guaranty Trust Company of New York and The Florida
National Bank of Jacksonville, as Trustees, with reference to the
modification and amendment of the Indenture. (Filed as Exhibit 4(b)
to Florida Power's Registration Statement on Form S-3 (No. 33-16788)
filed with the SEC on September 27, 1991.)
4.(f)* - Eighth Supplemental Indenture, dated as of July 1, 1958, between
Florida Power and Guaranty Trust Company of New York and The Florida
National Bank of Jacksonville, as Trustees, with reference to the
modification and amendment of the Indenture. (Filed as Exhibit 4(c)
to Florida Power's Registration Statement on Form S-3 (No. 33-16788)
filed with the SEC on September 27, 1991.)
10
<PAGE>
4.(g)* - Sixteenth Supplemental Indenture, dated as of February 1, 1970,
between Florida Power and Morgan Guaranty Trust Company of New York
and The Florida National Bank of Jacksonville, as Trustees, with
reference to the modification and amendment of the Indenture. (Filed
as Exhibit 4(d) to Florida Power's Registration Statement on Form
S-3 (No. 33-16788) filed with the SEC on September 27, 1991.)
4.(h)* - Twenty-Ninth Supplemental Indenture dated as of September 1, 1982,
between Florida Power and Morgan Guaranty Trust Company of New York
and Florida National Bank, as Trustees, with reference to the
modification and amendment of the Indenture. (Filed as Exhibit 4(c)
to Florida Power's Registration Statement on Form S-3 (No. 2-79832)
filed with the SEC on September 17, 1982.)
4.(i)* - Thirty-Eighth Supplemental Indenture dated as of July 25,
1994, between Florida Power and First Chicago Trust Company
of New York, as successor Trustee, Morgan Guaranty Trust
Company of New York, as resigning Trustee, and First Union
National Bank of Florida, as resigning Co-Trustee, with
reference to confirmation of First Chicago Trust Company
of New York as successor Trustee under the Indenture.
(Filed as Exhibit 4.(f) to Florida Power's Registration
Statement on Form S-3 (No. 33-55273) filed with the SEC on
August 29, 1994.)
4.(j)* - Specimen Common Stock certificate of the Company. (Filed
as Exhibit 4.(j) to the Company's Registration Statement on
Form S-3 (No. 33-56873) filed with the SEC on December 15,
1994.)
4.(k) - Stock Plan for Non-Employee Directors of Florida Progress
Corporation and Subsidiaries.
5. - Opinion of Kenneth E. Armstrong, Esq. regarding the legality of the
Common Stock to be issued.
23.(a) - Consent of KPMG Peat Marwick, independent certified public
accountants.
23.(b) - Consent of Kenneth E. Armstrong, Esq. is contained in his opinion
filed as Exhibit 5.
24 - Powers of Attorney are included on the signature page of this
Registration Statement.
__________
* Incorporated herein by reference.
11
<PAGE>
EXHIBIT 4.(k)
STOCK PLAN FOR NON-EMPLOYEE DIRECTORS OF
FLORIDA PROGRESS CORPORATION AND SUBSIDIARIES
ARTICLE I - PURPOSE AND ADOPTION OF PLAN
1.1 Adoption. The Board of Directors of Florida Progress Corporation, a
Florida corporation (the "Company") has adopted this Stock Plan for Non-Employee
Directors of Florida Progress Corporation and Subsidiaries (the "Plan"),
effective January 1, 1996, subject to approval of the Plan by the Company's
shareholders at the annual meeting of shareholders to be held in 1996.
1.2 Purpose. The Plan is designed to more closely align the interests
of directors of the Company and its Approved Subsidiaries (as hereafter defined)
with the interests of the Company's shareholders through ownership of the
Company's common stock, no par value (the "Stock").
ARTICLE II - DEFINITIONS
2.1 "Approved Subsidiary" shall mean any affiliate or subsidiary of the
Company (a) which the Company's Board of Directors may from time to time
determine to bring under the Plan, and (b) whose own Board of Directors may also
approve the Plan. The Approved Subsidiaries are listed on Schedule A, attached
hereto, as such Schedule may be amended from time to time.
2.2 "Commission" shall mean the Securities and Exchange Commission.
2.3 "Committee" shall mean the Compensation Committee of the Company's
Board of Directors.
2.4 "Company" shall mean Florida Progress Corporation.
2.5 "Effective Date" shall mean January 1, 1996, subject to shareholder
approval of the Plan as required by Section 1.1 hereof.
2.6 "Exchange Act" shall mean the Securities and Exchange Act of 1934,
as amended.
2.7 "Fair Market Value" shall mean the average of the high and low sale
prices of the Stock, as published in the Wall Street Journal in its report of
New York Stock Exchange composite transactions, on the date such market value is
to be determined (or the average of the high and low sale prices on the trading
day immediately preceding such determination date if the Stock is not traded on
the applicable valuation date).
<PAGE>
2.8 "Non-Employee Director" shall mean any person who (a) serves on the
Board of Directors of the Company or one or more Approved Subsidiaries on or
after January 1, 1996; (b) receives fees for his or her services; and (c) is not
an active employee of the Company or any subsidiary of the Company.
2.9 "Participant" shall mean each Non-Employee Director who meets
the requirements of Article III of the Plan.
2.10 "Plan" shall mean this Stock Plan for Non-Employee Directors of
Florida Progress Corporation and Subsidiaries, as amended from time to time.
2.11 "Plan Year" shall mean the calendar year.
2.12 "Progress Insider" shall mean any officer or director of the
Company or person who is directly or indirectly the beneficial owner of more
than ten percent of the Company's common stock, within the meaning of Section 16
of the Exchange Act.
2.13 "Retainer Fee" shall mean the retainer fee established by the
Board of Directors of the Company or an Approved Subsidiary payable quarterly in
arrears to a Non-Employee Director for service as a director, excluding any
meeting fees or compensation for other services performed at the request of such
Board of Directors and any reimbursement for expenses.
2.14 "Rule 16b-3" shall mean Rule 16b-3 under the Exchange Act, as such
Rule may be amended from time to time.
2.15 "Stock" shall mean the Company's common stock, no par value.
2.16 "Stock Issue Date" shall mean March 31, June 30, September 30 and
December 31 of each Plan Year.
ARTICLE III - ELIGIBILITY
3.1 Eligibility Requirements. Subject to the provisions of Section
3.2, each Non-Employee Director shall become a Participant in the Plan on the
effective date of his or her election to the Board of Directors of the Company
or any Approved Subsidiary.
3.2 Initial Plan Year. Notwithstanding the foregoing, for purposes of
the initial 1996 Plan Year, each Non-Employee Director elected as such prior to
the date of the annual meeting of shareholders to be held in 1996, who otherwise
satisfies the eligibility requirements of Section 3.1, shall become a
Participant in the Plan effective as of the Effective Date, subject to approval
of the Plan by the Company's shareholders as described in Section 1.1.
2
<PAGE>
ARTICLE IV - TERMS AND CONDITIONS OF STOCK ISSUANCES
4.1 Stock Reserved for Issuance. The aggregate number of shares of
Stock that may be issued to Participants hereunder shall not exceed 150,000
shares, subject to adjustment pursuant to Section 4.7 hereof. The shares of
Stock issued under the Plan will be from the authorized but unissued shares of
common stock of the Company.
4.2 Issuance of Stock. (a) Each Participant shall automatically
receive seventy-five percent (75%) of his or her Retainer Fee in Stock. Such
Stock shall be issued on a quarterly basis on March 31, June 30, September 30
and December 31 of each Plan Year (each, a "Stock Issue Date"). The total
number of shares of Stock to be issued on each Stock Issue Date shall be
determined by the following formula:
Shares of Stock = .75 x Retainer
----------------
FMV
where "Retainer" is the Retainer Fee payable to the Participant for services
rendered during the quarter ended March 31, June 30, September 30 or December
31, as the case may be; and "FMV" is the Fair Market Value of a share of Stock
on such March 31, June 30, September 30 or December 31. Only whole shares of
Stock shall be issued under the Plan; Participants will receive cash in lieu of
any fractional shares.
(b) Initial Plan Year. Notwithstanding the foregoing, for
purposes of the initial 1996 Plan Year, no Stock distributions shall be made
prior to receipt of the requisite shareholder approval under Section 1.1 hereof.
If the Plan is approved by the shareholders, the Stock for the quarter ended
March 31, 1996 will not be issued on March 31, 1996, but instead will be issued
on the date on which the annual meeting of shareholders is held in 1996; for
purposes of calculating the number of shares of Stock to be issued on that date,
the FMV in the formula above shall be the Fair Market Value of a share of Stock
on March 31, 1996. If the Plan is not approved by the shareholders, the Retainer
Fee otherwise payable in Stock will instead be paid in cash.
4.3 Compliance with Laws. Notwithstanding the foregoing, each issuance
of Stock hereunder shall be subject to the requirement that, if at any time
counsel to the Company shall determine that the Stock is required to be listed,
registered or qualified upon any securities exchange or under any state or
Federal law, or the consent or approval of any governmental or regulatory body
is necessary as a condition of, or in connection with, the issuance of Stock
hereunder, such issuance may not be completed in whole or in part unless such
listing, registration, qualification, consent or approval shall have been
completed or obtained on conditions acceptable to the Committee.
4.4 Book-Entry or Certificates. The registrar for the Company shall
make an appropriate book entry on its records evidencing that any Stock issued
hereunder has been duly issued as of the appropriate date; provided, however,
that a Participant may at any time elect
3
<PAGE>
to receive a stock certificate representing all or a portion of the number of
whole shares of Stock issued to such Participant under the Plan.
4.5 Effect of Certain Changes in Capitalization. In the event of any
recapitalization, stock split, reverse stock split, stock dividend,
reorganization, merger, consolidation, spin-off, combination, repurchase, share
exchange, or other corporate transaction or event affecting the Stock, the
Committee shall equitably adjust the maximum number or class of shares of Stock
available under the Plan, and the number or class of shares of Stock to be
delivered to Participants.
4.6 Death, Resignation, Retirement or Removal. In the event of a
Participant's death, or if a Participant shall resign, retire or be removed as a
Non-Employee Director, all accrued Retainer Fees then owed such Participant
(prorated as appropriate) shall be paid to such Participant on the next
succeeding Stock Issue Date, in cash or in Stock in accordance with the terms
hereof.
4.7 Dividend Reinvestment. Participants who receive Stock under the
Plan may elect to have the cash dividends on all or a portion of their shares
automatically reinvested in additional shares of Stock, by enrolling in the
Company's Progress Plus Stock Plan or such other dividend reinvestment plan as
the Company shall make available from time to time.
ARTICLE V - RESTRICTIONS ON TRANSFER
5.1 No Assignment of Rights. Neither the Participant nor his or her
legal representative shall have any right to sell, assign, transfer or otherwise
convey the right to receive any Stock due hereunder or any interest under the
Plan. Any attempt to assign or transfer any right to payment or interest under
the Plan shall be null and void and of no effect.
5.2 Restrictions on Transfer of Stock. The Stock issued to Participants
under the Plan will not be restricted, except that any Progress Insider who
wishes to sell, assign, transfer, pledge, hypothecate or otherwise dispose of
any Stock acquired under the Plan will be subject to the provisions of Section
16 of the Exchange Act and Rule 16b-3 thereunder. The Stock issued to any
Progress Insider shall, if necessary, bear an appropriate restrictive legend, if
issued in certificated form, and be subject to appropriate "stop transfer"
orders. Any additional stock or other securities or property that may be issued
with respect to Stock issued under the Plan as a result of any stock dividend,
stock split, business combination or other event shall be subject to the
restrictions and other terms and conditions of the Plan.
ARTICLE VI - ADMINISTRATION OF PLAN
6.1 Administrator. The Plan shall be administered by the Committee,
which shall adopt such rules as it may deem appropriate in order to carry out
the purpose of the Plan. All
4
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questions of interpretation, administration and application of the Plan shall be
determined by the Committee, except that the Committee may authorize any one or
more of its members, or any officer of the Company, to execute and deliver
documents on behalf of the Committee. The Committee shall take all steps
necessary to ensure that the Plan complies with the law at all times, and the
determination of the Committee shall be final and binding in all matters
relating to the Plan.
6.2 Indemnification. The Company and each Approved Subsidiary shall
indemnify the members of the Committee against any and all claims, losses,
damages, expenses and liability arising from any action or failure to act in
connection with the administration of the Plan, except when the same is due to
gross negligence or willful misconduct. The Company and each Approved Subsidiary
may purchase at its own expense sufficient liability insurance to cover any and
all claims, losses, damages and expenses arising from any action or failure to
act in connection with the execution of the duties of the Committee.
ARTICLE VII - MISCELLANEOUS
7.1 Term and Termination; Amendment. This Plan shall become effective
on the Effective Date, and remain in effect until all shares authorized pursuant
to Section 4.1 hereof have been issued to Plan Participants, unless sooner
terminated as hereafter provided. The Plan may be wholly or partially amended or
otherwise modified, suspended or terminated at any time by the Company's Board
of Directors; provided, however, that without the approval of the shareholders
of the Company entitled to vote thereon, no amendment may be made that would,
absent such shareholder approval, disqualify the Plan for coverage under Rule
16b-3; and provided further that the formula award provisions of the Plan may
not be amended more than once every six months unless such amendment is made in
order to comply with changes to either the Internal Revenue Code of 1986, as
amended, or the Employee Retirement Income Security Act of 1974, as amended, and
the rules thereunder. Notwithstanding the foregoing, no such amendment or
termination shall impair any rights to payments to which a Participant may be
entitled prior to the effective date of such amendment or termination.
7.2 Rights of Directors. Participation hereunder shall not be construed
as creating a right in any Participant to continued service or future service on
the Board of Directors of the Company or any Approved Subsidiary, and shall not
interfere with or limit in any way the right of the shareholders of the Company
or any Approved Subsidiary to remove any Participant from his or her position as
a director. Participation hereunder does not constitute an employment contract
between any Participant and the Company or any Approved Subsidiary.
7.3 Compliance with Rule 16b-3. With respect to Progress Insiders,
transactions under this Plan are intended to comply with all applicable
conditions of Rule 16b-3 or its successors under the Exchange Act. To the extent
that any provision of this Plan or action by the Committee fails to comply, it
shall be deemed null and void, to the extent permitted by law and deemed
advisable by the Committee.
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7.4 Governing Law. This Plan shall be governed by and construed in
accordance with the laws of the State of Florida, without regard to the conflict
of laws provisions thereof, and only to the extent such laws are not otherwise
superseded by the laws of the United States.
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Schedule A
STOCK PLAN FOR NON-EMPLOYEE DIRECTORS OF
FLORIDA PROGRESS CORPORATION AND SUBSIDIARIES
Approved Subsidiaries
1. Florida Power Corporation
P:\benplans\Dirplan.2
<PAGE>
EXHIBIT 5
Florida Progress Corporation
3201 34th Street South
St. Petersburg, FL 33711
813/866-5153
Kenneth E. Armstrong
Vice President, General
Counsel and Secretary
April 18, 1996
Florida Progress Corporation
One Progress Plaza
St. Petersburg, FL 33701
Re: Issuance and sale of shares of Common Stock, without par value,
under Stock Plan for Non-Employee Directors of Florida
Progress Corporation and Subsidiaries
Ladies and Gentlemen:
I am rendering this opinion in connection with the registration of
20,000 shares of common stock, without par value (the "Common Stock") of Florida
Progress Corporation (the "Company") to be issued from time to time under the
Stock Plan for Non-Employee Directors of Florida Progress Corporation and
Subsidiaries (the "Plan").
A Registration Statement on Form S-8 (the "Registration Statement") is
expected to be filed by the Company with the Securities and Exchange Commission
(the "SEC") under the Securities Act of 1933, as amended (the "Act") on April
18, 1996 for the registration of (i) 20,000 shares of the Company's Common Stock
to be issued under the Plan (the "Shares"), and (ii) the Rights associated with
such Shares (as the term Rights is defined in the Shareholder Rights Agreement
dated November 21, 1992 between the Company and Chemical Bank (successor to
Manufacturers Hanover Trust Company), as rights agent (the "Shareholder Rights
Agreement")).
<PAGE>
Florida Progress Corporation
April 18, 1996
Page Two
As your counsel, I and members of the Company's legal department have
participated in the preparation of the Registration Statement. We also have
examined the Plan, the Company's Restated Articles of Incorporation and Bylaws,
as amended to date, the Shareholder Rights Agreement and the resolutions adopted
by the Company's Board of Directors on November 16, 1995 and February 8, 1996,
relating to the Registration Statement.
Based upon and subject to the foregoing, I am of the opinion that:
1. Florida Progress Corporation is a corporation duly organized
and existing under the laws of the State of Florida; and
2. When the Registration Statement shall have become effective and
original issue Shares and the related Rights are issued and sold from time to
time in accordance with the terms of the Plan, such Shares and Rights will be
duly authorized, validly issued, fully paid and non-assessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement, and to the use of my name under the caption "Interests
of Named Experts and Counsel" therein and under the heading "Experts" in the
documents constituting a prospectus relating to the Plan.
Very truly yours,
/s/Kenneth E. Armstrong
Kenneth E. Armstrong
I:\BENPLANS\DIRPLAN.S-8
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[LOGO] KPMG Peat Marwick LLP
P. O. Box 31002
St. Petersburg, FL 33732
The Board of Directors
Florida Progress Corporation:
We consent to the use of our reports incorporated herein by
reference and to the reference to our firm under the heading
"Experts" in the prospectus. Our report, dated January 22, 1996,
refers to a change in the method of accounting for income taxes.
/s/KPMG Peat Marwick LLP
April 18, 1996
[LOGO] Member Firm of
Klynveld Peat Marwick Goerdeler
<PAGE>
