As filed with the Securities and Exchange Commission on January 30, 1996
Registration No. 33-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM S-3
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
Telephone Number (813) 824-6400
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
James V. Smallwood
Treasurer
Florida Progress Corporation
3201 34th Street South
St. Petersburg, FL 33711
(813) 866-5647
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of the Registration Statement.
-------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, check the following
box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
registration statement for the same offering. [ ] ____________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] ________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box [ ]
--------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Each Proposed Maximum Proposed Maximum
Class of Securities Amount to be Offering Price Per Aggregate Offering Amount of
to be Registered Registered Unit (1) Price (1) Registration Fee
<S> <C> <C> <C> <C>
Common Stock, without
par value (2) . . . . 350,000 Shs.(3) $35.50 $12,425,000 $4,285
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) and based on the average of the high and low
sales prices of the Common Stock in New York Stock Exchange Composite
Transactions on January 25, 1996.
(2) Includes rights to purchase units of Series A Junior Participating
Preferred Stock.
(3) Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus
contained herein relates to an aggregate of 593,342 shares, consisting of
the 350,000 shares being registered hereby and the 243,342 shares that are
as yet unsold that were registered for resale under the Company's
Registration Statement on Form S-3 (No. 33-56873) that was filed with the
Commission on December 15, 1994.
----------------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
Legend for left hand margin of cover of prospectus:
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
<PAGE>
PROSPECTUS
593,342 SHARES
FLORIDA PROGRESS CORPORATION
COMMON STOCK
-------------------
This Prospectus relates to up to 593,342 shares (the "Shares") of Common
Stock, without par value ("Common Stock"), of Florida Progress Corporation, a
Florida corporation (the "Company"), which may be offered and sold by the
selling stockholders named herein (the "Selling Stockholders") pursuant to this
Prospectus from time to time. The Shares were acquired from the Company under a
certain agreement more particularly described herein under the heading "FMI
Acquisition." The Company will receive no part of the proceeds from the sale of
the Shares.
The distribution of the Shares by the Selling Stockholders may be effected
by ordinary brokers' transactions, block trades, purchases by a broker or dealer
as principal, fixed price offerings, exchange distributions or special offerings
in accordance with the rules of the New York Stock Exchange, Pacific Stock
Exchange or any other exchange on which the Common Stock is traded, and
transactions in which the broker solicits purchasers. See "Plan of
Distribution." The Company will pay the expenses of registration of the Shares.
The Selling Stockholders will pay all fees and expenses of their own legal
counsel and accountants and all commissions or transfer taxes, if any. The
Company and the Selling Stockholders have agreed to indemnify each other against
certain liabilities, including liabilities under the Securities Act of 1933, as
amended (the "Securities Act"). See "Selling Stockholders."
The Shares are traded on the New York Stock Exchange and The Pacific Stock
Exchange under the symbol FPC.
------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION NOR HAS THE
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
-----------------------------
The date of this Prospectus is February __, 1996.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 (the "Exchange Act") and in accordance therewith files
reports, proxy statements and other information with the Securities and Exchange
Commission (the "SEC"). Reports, proxy statements and other information filed by
the Company can be inspected and copied at the SEC's Public Reference Room, 450
Fifth Street, N.W., Washington, DC 20549, and at the following Regional Offices
of the SEC: Seven World Trade Center, 13th Floor, New York, New York 10048; and
500 West Madison Street, Suite 1400, Chicago, Illinois 60661, and copies of such
material can be obtained from the Public Reference Section of the SEC, 450 Fifth
Street, N.W., Washington, DC 20549, at prescribed rates. In addition, reports,
proxy material and other information concerning the Company may be inspected at
the New York Stock Exchange, 20 Broad Street, New York, New York 10005, and at
The Pacific Stock Exchange, 301 Pine Street, San Francisco, California 94104.
This Prospectus constitutes a part of a registration statement on Form S-3
(together with all amendments and exhibits, the "Registration Statement") filed
by the Company with the SEC under the Securities Act. This Prospectus does not
contain all of the information included in the Registration Statement, certain
parts of which are omitted in accordance with the rules and regulations of the
SEC. Reference is made to the Registration Statement for further information
with respect to the Company and the Shares offered hereby.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company with the SEC (File
No. 1-8349), as amended, are incorporated herein by reference:
1. Annual Report on Form 10-K for the year ended December 31, 1994,
as filed with the SEC on March 30, 1995;
2. Quarterly Reports on Form 10-Q for the quarters ended March 31,
1995, June 30, 1995 and September 30, 1995, as filed with the SEC on May
11, 1995, August 11, 1995 and November 13, 1995, respectively.
3. Current Reports on Form 8-K dated January 23, 1995, February 9,
1995, April 20, 1995, July 20, 1995, October 19, 1995 and January 22,
1996, as filed with the SEC on January 25, 1995, February 10, 1995, April
21, 1995, July 24, 1995, October 24, 1995 and January 24, 1996,
respectively.
4. The description of the Common Stock 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 Exchange Act after the date of this Prospectus and prior to the
termination of the offering of the Shares offered hereby shall be deemed to be
incorporated by reference in this Prospectus and to be a part of this Prospectus
from the date of filing of such documents. Any statement contained herein or in
a document incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein (or in the accompanying Prospectus
Supplement, if any) or in any other subsequently filed document which also is or
is deemed to be incorporated by reference herein modifies or replaces such
statement. Any such statement so modified or superseded shall not be deemed,
except as modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, on the written or oral request of such person, a
copy of any or all of the information that has been incorporated in this
Prospectus by reference, other than exhibits to such documents, unless such
exhibits are specifically incorporated by reference therein. Requests for such
copies should be directed to: Florida Progress Corporation, Investor Services,
P.O. Box 33042, St. Petersburg, Florida 33733, or telephone toll free
1-800-352-1121.
THE COMPANY
Florida Progress Corporation is a diversified electric utility holding
company headquartered in St. Petersburg, Florida and was incorporated in Florida
on January 21, 1982. The Company's primary subsidiary is Florida Power
Corporation ("Florida Power"). Florida Power was incorporated in Florida in 1899
and is an operating utility engaged in the generation, purchase, transmission,
distribution and sale of electricity primarily within the State of Florida.
Florida Power's service area covers about 20,000 square miles in central and
northern Florida and along the west coast of the state and includes St.
Petersburg and Clearwater as well as the areas surrounding Walt Disney World,
Orlando, Ocala and Tallahassee.
The Company's diversified operations are owned directly or indirectly
through Progress Capital Holdings, Inc. ("PCH"), a Florida corporation and
wholly owned subsidiary of the Company that was incorporated in 1988. PCH holds
the capital stock of, and provides funding for, the Company's diversified
subsidiaries, which include the following:
Electric Fuels Corporation -- Formed in 1976, Electric Fuels is an energy
and transportation company serving utility and industrial companies,
including Florida Power. Its major businesses include coal mining,
procurement and transportation; bulk commodities transportation; railcar
repair and railcar parts manufacturing and reconditioning; and rail and
trackworks components.
<PAGE>
Mid-Continent Life Insurance Company -- Acquired in 1986, Mid-Continent is
a life insurance company headquartered in Oklahoma City which has been in
business since 1909. Its principal product is a low-premium death benefit
policy which is sold through independent agents.
Progress Credit Corporation -- Formed in 1983, Progress Credit is a
financial services and real estate company with lending and leasing
activities (primarily involving commercial aircraft, real estate,
locomotives and medical equipment) and real estate projects. In 1991, the
Company began an orderly withdrawal from these lending and leasing and
real estate businesses.
The Company has its principal offices at One Progress Plaza, St.
Petersburg, Florida 33701, and its telephone number is (813) 824-6400.
FMI ACQUISITION
The Shares were issued by the Company to the Selling Stockholders in
connection with the acquisition of FM Industries, Inc., a Texas corporation
("FMI"), headquartered in Fort Worth, Texas, pursuant to an Agreement and Plan
of Merger dated as of December 1, 1994, by and among the Company, EFC Merger
Corp., FMI and the Selling Stockholders (the "Merger Agreement"). As a result of
the acquisition, FMI became an indirect wholly owned subsidiary of the Company.
FMI carries on the business of manufacturing, reconditioning and distributing
railcar cushioning units and hydraulic hammers and compactors used in the
construction industry.
SELLING STOCKHOLDERS
The Shares are being registered pursuant to the terms of the Merger
Agreement, pursuant to which the Company acquired FMI from the Selling
Stockholders. See "FMI Acquisition." The following table sets forth at January
1, 1996, and as adjusted to reflect the sale by the Selling Stockholders of the
Shares offered hereby, certain information with respect to the beneficial
ownership of the Common Stock by the Selling Stockholders:
<PAGE>
<TABLE>
<CAPTION>
Beneficial Ownership Shares
Prior to Being Beneficial Ownership
Offering (1) Offerd (1) After Offering
-------------------- ----------- --------------------
<S> <C> <C> <C> <C> <C>
Name Shares Percent Shares Percent
- ---------------------------------- ------ ------- ------ -------
Sam Braunagel . . . . . . . . . . . 175,000 * 175,000 0 0
Leo Kane. . . . . . . . . . . . . . 35,000 * 35,000 0 0
Allan J. Kvasnicka. . . . . . . . . 122,500 * 122,500 0 0
John L. Marion. . . . . . . . . . . 19,250 * 19,250 0 0
John Mason. . . . . . . . . . . . . 19,250 * 19,250 0 0
O. Elwyn Seay (2) . . . . . . . . . 75,342 * 75,342 0 0
Anne Burnett Windfohr . . . . . . . 77,000 * 77,000 0 0
Craig W. Wycoff . . . . . . . . . . 70,000 * 70,000 0 0
- --------------------
* Less than one percent.
</TABLE>
(1) Under the rules of the Securities and Exchange Commission, a person is
deemed to be the beneficial owner of a security if such person has or
shares the power to vote or direct the voting of such security or the
power to dispose or direct the disposition of such security. A person is
also deemed to be a beneficial owner of any security if that person has
the right to acquire beneficial ownership within 60 days. Accordingly,
more than one person may be deemed to be a beneficial owner of the same
securities. Unless otherwise indicated by footnote, the named individuals
have sole voting and investment power with respect to the shares of Common
Stock beneficially owned.
(2) Mr. Seay is President of FMI.
PLAN OF DISTRIBUTION
The Shares may be sold from time to time by the Selling Stockholders, or by
pledgees, donees, transferees or other successors in interest. Such sales may be
made on the New York Stock Exchange, The Pacific Stock Exchange or any one or
more exchanges on which the Common Stock is traded or in the over-the-counter
market, or otherwise at prices and at terms then prevailing or at prices related
to the then current market price, or in negotiated transactions. The Shares may
be sold in one or more of the following ways: (a) ordinary brokers'
transactions; (b) a block trade in which the broker or dealer so engaged will
attempt to sell the Shares as agent but may position and resell a portion of the
block as principal to facilitate the transaction; (c) purchases by a broker or
dealer as principal and resale by such broker or dealer for its account pursuant
to this Prospectus; (d) "fixed price offerings" off the floor of the exchanges
or "exchange distributions" and "special offerings" of shares in accordance with
the rules of such exchange; and (e) transactions in which the broker solicits
purchasers. In effecting sales, brokers or dealers engaged by the Selling
Stockholders may arrange for other brokers or dealers to participate. Brokers or
dealers will receive commissions or discounts from the Selling Stockholders in
amounts to be negotiated immediately prior to the sale. Such brokers or dealers
and any other participating brokers or dealers may be deemed to be
"underwriters" within the meaning of the Securities Act in connection with such
sales. In addition, any securities covered by this Prospectus which qualify for
sale pursuant to Rule 144 may be sold under Rule 144 rather than pursuant to
this Prospectus.
Upon the Company being notified by a Selling Stockholder that any material
arrangement has been entered into with a broker-dealer for the sale of Shares
through a block trade, fixed price offering, special offering, exchange
distribution or secondary distribution, or a purchase by a broker or dealer or
transaction in which the broker solicits purchasers, a supplemental prospectus
will be filed, if required, pursuant to Rule 424 under the Act, disclosing (i)
the name of each such Selling Stockholder and of the participating
broker-dealer(s), (ii) the number of Shares involved, (iii) the price at which
such Shares were sold, (iv) the commissions paid or discounts or concessions
allowed to such broker-dealer(s), where applicable, and (v) other facts material
to the transaction.
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of 250,000,000 shares of
Common Stock without par value and 10,000,000 shares of preferred stock without
par value. No shares of preferred stock are outstanding. The Common Stock is
traded on the New York and Pacific Stock Exchanges under the ticker symbol FPC.
The following descriptions summarize certain relevant attributes of the Common
Stock, but they do not purport to be complete and are qualified in their
entirety by reference to the complete descriptions appearing in the following
documents: (i) the Company's Restated Articles of Incorporation, as amended (the
"Company's Articles"), (ii) the Company's By-laws, as amended, (iii) Florida
Power's Amended Articles of Incorporation, as amended ("Florida Power's
Articles"), (iv) Florida Power's By-laws, as amended and (v) the Shareholder
Rights Agreement dated November 21, 1991, between the Company and Chemical Bank
(as successor to Manufacturers Hanover Trust Company), as Rights Agent (the
"Shareholder Rights Agreement").
Dividend Rights. Subject to the preferential rights of preferred shareholders
and the restrictions referred to below, dividends may be declared on the Common
Stock out of funds legally available for the payment thereof. All shares of
Common Stock participate equally with respect to dividends.
Dividend Restrictions. The Company's Articles do not limit the dividends that
may be paid on the Company's Common Stock. However, the primary source for
payment of the Company's dividends consists of dividends paid to it by Florida
Power. Florida Power's Articles and its Indenture dated as of January 1, 1944,
as supplemented, under which it issues first mortgage bonds (the "Mortgage Bond
Indenture"), both contain provisions restricting dividends in certain
circumstances. At January 1, 1996, Florida Power's ability to pay dividends was
not, nor was it expected to be, limited by these restrictions.
Florida Power's Articles provide that no dividends (other than dividends
payable in common stock) shall be paid, nor shall any common stock be acquired
for value, if the aggregate amount thereof since April 30, 1944, including the
amount then proposed to be expended, plus all other charges to retained earnings
since April 30, 1944, exceeds (a) all credits to retained earnings since April
30, 1944, plus (b) all amounts credited to capital surplus after April 30, 1944,
arising from the donation to Florida Power of cash or securities (other than
securities junior to the preferred stock and preference stock as to assets and
dividends) or transfers of amounts from retained earnings to capital surplus.
Florida Power's Articles also provide that cash dividends on common stock shall
be limited to 75% of net income available for common stock if common stock
equity falls below 25% of total capitalization, and to 50% if common stock
equity falls below 20%. On December 31, 1995, Florida Power's common stock
equity was approximately 54.8% of total capitalization.
The Mortgage Bond Indenture provides that dividends will not be paid (except a
dividend in Florida Power's own common stock) upon Florida Power's common stock
except out of net income of Florida Power subsequent to December 31, 1943.
The Company and PCH have entered into an Amended and Restated Support
Agreement dated as of February 1, 1991, pursuant to which the Company has agreed
to cause PCH to have at the last day of each month a net worth (defined
generally as the sum of capital stock and retained earnings minus the sum of
treasury stock and intangible assets) equal to $150,000,000, plus 50% of PCH's
consolidated net income since January 1, 1990 (and not minus any consolidated
net loss), plus the net proceeds to PCH of any capital stock or equity
contribution issued to or made by the Company or any subsidiary of the Company
since January 1, 1990, other than an equity contribution consisting of capital
stock or assets of a subsidiary of the Company. As of December 31, 1995, PCH's
net worth was approximately $106.6 million higher than the amount required under
this agreement.
The Company's other subsidiaries do not have any material restrictions on the
dividends that may be paid to the Company.
Voting Rights; Classified Board. Each holder of Common Stock is entitled to
one vote for each share held. The Company's Board of Directors consists of
twelve persons and is classified into three classes serving staggered three-year
terms. Cumulative voting is not permitted. The effect of the classified Board,
together with the Fair Price Provision and the Shareholder Rights Agreement
(each described below), may make it difficult for any person to acquire control
of the Company and remove management by means of a hostile takeover.
<PAGE>
Liquidation Rights. All shares of Common Stock of the Company rank equally,
and are entitled to share ratably, in the distribution of all available assets
upon any dissolution, liquidation or winding up of the Company.
Fair Price Provision. Unless otherwise approved by the Company's Board of
Directors, the Company's Articles provide that certain business combinations
require 75% shareholder approval unless certain fair price and procedural
requirements are met.
Affiliated Transaction and Control-Share Acquisition Statutes. The Common
Stock of the Company is subject to the "affiliated transaction" and
"control-share acquisition" provisions of the Florida Business Corporation Act,
Sections 607.0901 and 607.0902, Florida Statutes, respectively. These provide
that, subject to certain exceptions, an "affiliated transaction" must be
approved by the holders of two-thirds of the voting shares other than those
beneficially owned by an "interested shareholder" and that "control shares"
acquired in specified control-share acquisitions have voting rights only to the
extent conferred by a resolution approved by the shareholders, excluding holders
of shares defined as "interested shares."
Shareholder Rights Agreement. The Company's Shareholder Rights Agreement as
originally adopted provides that attached to each share of Common Stock is one
right (a "Right") which, when exercisable, entitles the holder of the Right to
purchase one one-hundredth of a share of Series A Junior Participating Preferred
Stock at a purchase price (the "Purchase Price") of $130, subject to adjustment.
The number of Rights attached to each share of Common Stock is subject to
adjustment, and as a result of the three-for-two Common Stock split to
shareholders of record on June 30, 1992, each share of Common Stock now has
attached to it approximately two-thirds of one Right. In certain events (such as
a person or group becoming the owner of 15% or more of the Common Stock or a
merger or other transaction with an entity controlled by such acquiring person
or group), exercise of the Rights would entitle the holders thereof (other than
the acquiring person or group) to receive Common Stock of the Company or a
surviving corporation, or cash, property or other securities, with a market
value equal to twice the Purchase Price. Accordingly, exercise of the Rights may
cause substantial dilution to a person who attempts to acquire the Company. The
Rights automatically attach to each outstanding share of Common Stock, including
the Shares offered hereby. There is no monetary value presently assigned to the
Rights, and they will not trade separately from the Common Stock unless and
until they become exercisable. The Rights, which expire on December 5, 2001, may
be redeemed at a price of $.01 per Right so long as they are not exercisable.
The Shareholder Rights Agreement may have certain antitakeover effects, although
it is not intended to preclude any acquisition or business combination that is
at a fair price and otherwise in the best interests of the Company and its
shareholders as determined by the Board. However, a shareholder could
potentially disagree with the Board's determination of what constitutes a fair
price or the best interests of the Company and its shareholders.
Other Provisions. The outstanding shares of Common Stock are, and the Shares
offered hereby upon issuance and payment therefor will be, fully paid and
non-assessable. The Common Stock has no preemptive rights and no conversion
rights.
Transfer Agent and Registrar. Chemical Bank, New York, New York, is the
transfer agent and registrar for the Common Stock.
LEGAL MATTERS
Certain matters relating to the legality of the Shares offered hereby will be
passed upon for the Company by Kenneth E. Armstrong, Esq., Vice President,
General Counsel and Secretary of the Company.
EXPERTS
The financial statements and schedules included in the Company's Annual Report
on Form 10-K for the year ended December 31, 1994, incorporated herein by
reference, have been audited by KPMG Peat Marwick LLP, independent certified
public accountants, to the extent and for the periods indicated in their report
with respect thereto. Said financial statements and schedules have been
incorporated herein by reference in reliance upon their report given on the
authority of said firm as experts in accounting and auditing. KPMG's report
refers to changes in the methods of accounting for income taxes and
post-retirement benefits other than pensions.
The statements made herein and in the documents incorporated herein by
reference that relate to matters of law or express legal conclusions are made on
authority of Kenneth E. Armstrong, Esq., Vice President, General Counsel and
Secretary of the Company, as an expert, and are included herein on the authority
of such counsel.
<PAGE>
PART II.
Information Not Required in Prospectus
Item 14. Other Expenses of Issuance and Distribution.
SEC Registration Fee . . . . . . . . . . . . . . . . . . . . . . . . $ 4,285
New York Stock Exchange Listing Fee. . . . . . . . . . . . . . . . . . 1,225
Pacific Stock Exchange Listing Fee . . . . . . . . . . . . . . . . . . 500
Accounting Fees and Expenses . . . . . . . . . . . . . . . . . . . . . 10,000*
Legal Fees and Blue Sky Expenses . . . . . . . . . . . . . . . . . . . 60,000*
Transfer Agent Fees and Expenses . . . . . . . . . . . . . . . . . . . 1,000*
Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,990*
------
Total. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 80,000*
- ------------------
*Estimated.
Item 15. 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
indemnity 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.
The underwriters, if any, will also agree to indemnify the directors and
officers of the Company against certain liabilities to the extent set forth in
the respective Underwriting Agreement.
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, as amended, which might be incurred by them in such capacities and against
which they are not indemnified by the Company.
Item 16. Exhibits.
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 on March 30, 1992.)
4.(b)* - Rights Agreement, dated November 21, 1991, between the
Company and Chemical Bank (as successor to 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 on November 27, 1991.)
4.(c)* - Amended Articles of Incorporation, as amended, of 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 in 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.)
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.)
<PAGE>
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. 2-79382) filed with the SEC on
September 17, 1982.)
4.(i)* - Thirty-Eighth Supplemental Indenture dated as of July 25,
1994, between the Company 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)* - Agreement and Plan of Merger dated as of December 1, 1994,
by and among the Company, EFC Merger Corp., FMI and the
Selling Stockholders. (Filed as Exhibit 4.(k) to the Company's
Registration Statement on Form S-3 (No. 33-56873) filed with
the SEC on December 15, 1994.)
5 - Opinion of Kenneth E. Armstrong, Esq. regarding the legality
of the Common Stock to be issued.
23.(a) - Consent of KPMG Peat Marwick LLP, 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.
Item 17. 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, represents 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 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 provisions described in Item 15, 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
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.
<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-3 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 30th day of
January, 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 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,
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>
<S> <C> <C>
Signature Title Date
(i) /s/Jack B. Critchfield Chairman, Chief Executive January 30, 1996
---------------------- Officer and Director
Jack B. Critchfield
Principal Executive Officer
(ii) /s/Jeffrey R. Heinicka Senior Vice President and January 30, 1996
---------------------- Chief Financial Officer
Jeffrey R. Heinicka
Principal Financial Officer
(iii)/s/John Scardino, Jr. Vice President and Controller January 30, 1996
---------------------
John Scardino, Jr.
Principal Accounting Officer
(iv) A majority of the Directors, including (i) above:
Signature Title Date
/s/Willard D. Frederick, Jr. Director January 30, 1996
- ----------------------------
Willard D. Frederick, Jr.
/s/Michael P. Graney Director January 30, 1996
- ----------------------------
Michael P. Graney
/s/Allen J. Keesler, Jr. Director January 30, 1996
- ----------------------------
Allen J. Keesler, Jr.
/s/Richard Korpan Director January 30, 1996
- ----------------------------
Richard Korpan
/s/Clarence V. McKee Director January 30, 1996
- ----------------------------
Clarence V. McKee
/s/Vincent J. Naimoli Director January 30, 1996
- ----------------------------
Vincent J. Naimoli
/s/Richard A. Nunis Director January 30, 1996
- ----------------------------
Richard A. Nunis
/s/Charles B. Reed Director January 30, 1996
- ----------------------------
Charles B. Reed
/s/Joan D. Ruffier Director January 30, 1996
- ----------------------------
Joan D. Ruffier
Director
- ----------------------------
Robert T. Stuart, Jr.
/s/Jean Giles Wittner Director January 30, 1996
- ----------------------------
Jean Giles Wittner
</TABLE>
<PAGE>
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 on March 30, 1992.)
4.(b)* - Rights Agreement, dated November 21, 1991, between the
Company and Chemical Bank (as successor to 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 on November 27, 1991.)
4.(c)* - Amended Articles of Incorporation, as amended, of
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 in 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.)
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. 2-79382) filed with the SEC on September 17, 1982.)
4.(i)* - Thirty-Eighth Supplemental Indenture dated as of July
25, 1994, between the Company 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. 33-5673) filed with the SEC
on December 15, 1994.)
4.(k)* - Agreement and Plan of Merger dated as of December 1,
1994, by and among the Company, EFC Merger Corp., FMI
and the Selling Stockholders. (Filed as Exhibit 4.(k)
to the Company's Registration Statement on Form S-3 (No.
33-56873) filed with the SEC on December 15, 1994.)
5 - Opinion of Kenneth E. Armstrong, Esq. regarding the
legality of the Common Stock to be issued.
23.(a) - Consent of KPMG Peat Marwick LLP, 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.
i:\efc\regstmt.96
EXHIBIT 5
January 30, 1996
Florida Progress Corporation
One Progress Plaza
St. Petersburg, FL 33701
Re: Issuance and Sale of Shares of Common Stock, Without Par Value
Ladies and Gentlemen:
On December 1, 1994, Florida Progress Corporation (the "Company") issued
700,000 shares of the Company's Common Stock, without par value (the "Shares"),
to the shareholders (the "Selling Stockholders") of FM Industries, Inc. ("FMI")
in connection with the acquisition of FMI pursuant to an Agreement and Plan of
Merger dated as of December 1, 1994 (the "Merger Agreement") by and among the
Company, EFC Merger Corp., FMI and the Selling Stockholders named therein. The
Board of Directors of the Company authorized the issuance of the Shares pursuant
to the Merger Agreement, and further authorized its officers to take the
necessary action to register the Shares for resale from time to time by the
Selling Stockholders and to file a Registration Statement on Form S-3 with the
Securities and Exchange Commission (the "Commission") pursuant to Rule 415 under
the Securities Act of 1933 (the "Act").
As your counsel, I have participated in the preparation of a Registration
Statement on Form S-3 which the Company expects to file with the Commission on
or about January 30, 1996, relating to the registration of 350,000 of the
Shares, together with the associated Rights (as such term is defined in the
Shareholder Rights Agreement dated November 21, 1991 between the Company and
Chemical Bank, successor to Manufacturers Hanover Trust Company, as Rights Agent
(the "Shareholder Rights Agreement")) (such 350,000 Shares, together with the
associated Rights, being hereinafter collectively referred to as the "New
Stock"). I also have examined the Merger Agreement, the Company's Restated
Articles of Incorporation, as amended, its current Bylaws, the Shareholder
Rights Agreement, and the resolutions adopted by the Company's Board of
Directors on November 17, 1994 with respect to the Shares.
<PAGE>
Florida Progress Corporation
January 30, 1996
Page 2
Based upon and subject to the foregoing, I am of the opinion that:
1. The Company is a corporation duly organized and existing under the laws
of the State of Florida;
2. When the Company issued the Shares to the Selling Stockholders, all
requisite corporate action had been taken with respect to the issuance and sale
of the Shares by the Company, and the Shares were duly authorized, validly
issued, fully paid and non-assessable; and
3. After the Registration Statement shall have become effective, all
requisite corporate action will have been taken by the Company with respect to
the registration of the New Stock for resale by the Selling Stockholders, and
the New Stock, when sold by the Selling Stockholders, will continue to 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 on Form S-3, referred to above, and to the use of my name
under the captions "Legal Matters" and "Experts" in the related Prospectus.
Very truly yours,
/s/Kenneth E. Armstrong
Kenneth E. Armstrong
Vice President, General Counsel
and Secretary
I:\EFC\Opinion.asc
EXHIBIT 23.(a)
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 report incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the prospectus. Our report
refers to a change in the method of accounting for income taxes and
postretirement benefits other than pensions.
/s/KPMG Peat Marwick LLP
January 29, 1996
