EXHIBIT 10.(c)
FLORIDA PROGRESS CORPORATION
EXECUTIVE OPTIONAL DEFERRED COMPENSATION PLAN
Effective September 1, 1994
As Amended, effective January 1, 1995
As Amended and Restated, effective January 1, 1997
FLORIDA PROGRESS CORPORATION
EXECUTIVE OPTIONAL DEFERRED COMPENSATION PLAN
I. Purpose
1. The Plan is intended to be an unfunded plan under the Employee
Retirement Income Security Act of 1974, as amended, that is
maintained for the purpose of providing deferred compensation for a
select group of management or highly compensated employees under
Sections 201(2), 301(a)(2), 401(a)(1), and 402(b)(6) of the Employee
Retirement Income Security Act of 1974, as amended.
The purpose of this plan is to provide a select management group with
the ability to save a percentage of their total base salary rate on a
pre-tax basis, with associated company match, in a way which mirrors
the Savings Plan for Employees of Florida Progress Corporation to
effectively eliminate all Internal Revenue Service Code Section and
regulatory limitations imposed on qualified defined contribution
plans.
2. The effective date of the Plan is September 1, 1994. The Plan has
been amended and restated as of January 1, 1997, except that certain
provisions are effective as of an earlier or later date as indicated
in the Plan. The Plan shall remain in effect until such time as the
Compensation Committee of the Company's Board of Directors elects to
terminate the Plan.
II. Definitions
The following definitions shall be established within the Plan text, and
unless the Plan text indicates otherwise, shall have the meanings set
forth below:
1. "Base Salary Rate" shall mean the Participant's annual base salary on
the first day of the month prior to the beginning of each Plan Year
(i.e. August 1, 1994 for initial Plan Year 1994; December 1, 1994 for
Plan Year 1995; etc.). Increases or decreases in Base Salary Rate
which occur during the Plan Year will not change the Pre-tax Deferral
Election amount determined prior to the beginning of each Plan Year.
2. "Beneficiary" shall mean any person or persons designated by the
Participant to receive amounts payable in accordance with this Plan
in the event of the Participant's death. If no such designation is
in effect at the time of death of the Participant, or if no person
so designated shall survive the Participant, the beneficiary shall
be the estate of the Participant.
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3. "Company" shall mean Florida Progress Corporation and its
subsidiaries, who participate in the Savings Plan.
4. "Company Matching Deferred Contributions" shall mean the amount of
Company Matching Deferred Contributions, as defined herein in
Paragraph 2 of the Contributions section, due a Participant based
upon the Participant's elected Employee Deferred Contributions.
5. "Company Matching Deferred Contributions Account" shall mean the
accounts that will be established by the Company as a book reserve to
which shall be credited the sum of the Participant's Company Matching
Deferred Contributions for that Plan Year plus any earnings credited
thereafter in accordance with Section X of this Plan. This account
will also be credited with Regular Company Contributions and/or
Special Company Contributions that cannot be allocated to the Savings
Plan because they exceed the limitations prescribed by Section 415(c)
of the Internal Revenue Code of 1986.
6. "Compensation Committee" shall mean the Compensation Committee of the
Florida Progress Corporation Board of Directors which is responsible
for the administration of this Plan in accordance with the provisions
of the Plan as set forth in this document.
7. "Death" shall mean death from any cause.
8. "Disability" shall mean the total and permanent disability of a
Participant by reason of sickness or injury to perform all of the
duties assigned to the Participant by his or her Company, with the
existence of a Disability to be determined by the Committee in its
sole discretion.
9. "Eligible Participant" shall mean an Employee selected by Senior
Management who is eligible to receive a Performance Award pursuant to
the Management Incentive Compensation Plan, and whose annual base
salary exceeds the compensation limits outlined in Code Section
401(a)(17) of the Internal Revenue Code of 1986.
10. "Employee" shall mean a person who is a full-time, active employee of
the Company.
11. "Employee Deferred Contributions" shall mean the amount of the
Pre-tax Deferral Election from 1% to 16% of a Participant's Base
Salary Rate, as defined herein in Section V.
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12. "Employee Deferred Contributions Account" shall mean the accounts
that will be established by the Company as a book reserve to which
shall be credited the sum of the Participant's Employee Deferred
Contributions for that Plan Year plus any earnings credited
thereafter in accordance with Section X of this Plan.
13. "Management Incentive Compensation Plan" shall mean the Company's
annual management incentive bonus program.
14. "Participant" shall mean an Eligible Participant who has an account
balance in the Plan.
15. "Plan" shall mean the Executive Optional Deferred Compensation Plan
of Florida Progress Corporation effective September 1, 1994, as
amended and restated effective January 1, 1997, and as may be
amended hereafter.
16. "Plan Administrator" shall mean the Plan Administrator for the
Savings Plan.
17. "Plan Year" shall mean the calendar year beginning January 1 and
ending December 31, except in the initial year when it will mean the
period of time from September 1, 1994 to December 31, 1994.
18. "Pre-tax Deferral Election Form" shall mean the form made available
annually by the Compensation Committee to an Eligible Participant
which, when properly executed by the Participant, effects his
participation in the Plan for the next following Plan Year.
19. "Retirement" shall mean the date upon which the Participant retires
from the Company as defined in the Participant's Company sponsored
tax-qualified retirement plan.
20. "Savings Plan" shall mean the Savings Plan for Employees of Florida
Progress Corporation, as amended.
21. "Short Plan Year" shall mean the period of the calendar year
remaining for which an Eligible Participant, as described in Section
III, may participate in the Plan. Such Eligible Participant must
duly complete, execute, and file with the Compensation Committee a
Pre-Tax Deferral Election Form no later than 30 days following the
date such an individual first became an Eligible Participant. Such
Pre-Tax Deferral Election Form shall be first effective with respect
to base salary earned by the Participant during the first
practicable payroll period following the Compensation Committee's
receipt of the Pre-Tax Deferral Election Form.
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22. "Termination" shall mean the termination of a Participant's
employment as a regular employee of the companies within the Florida
Progress Corporation controlled group for reasons other than Death,
Disability or Retirement.
23. "Valuation Date" shall mean the last day of each calendar month.
III. Eligibility and Participation
1. Participants. Participant as defined by the Plan.
2. New Hires. Effective January 1, 1995, the provisions of the Plan are
amended to allow newly-hired Eligible Participants to make an
irrevocable pre-tax deferral election for the Short Plan Year in
their initial year of hire. Thereafter, the Plan Year for the
newly-hired employee will be the calendar year beginning January 1.
3. Transfers. Effective January 1, 1995, Eligible Participants who are
transferring from non-participating companies within the Florida
Progress Corporation controlled group into a Company which
participates and whose annual base salary at the time of transfer
exceeds the compensation limits outlined in Code Section 401(a) (17),
can make an irrevocable pre-tax deferral election for the Short Plan
Year remaining in the year of transfer. Thereafter, the Plan Year
for the transferred Employee will be the calendar year beginning
January 1.
4. Salary Increases. Effective January 1, 1995, Eligible Participants,
whose Base Salary Rate is increased during a year in excess of the
compensation limits outlined in Code Section 401(a) (17), can make an
irrevocable pre-tax deferral election for the Short Plan Year
remaining in the year of the salary increase. Thereafter, the Plan
Year for the employee with such a salary increase will be the
calendar year beginning January 1.
5. No Right of Employment. Nothing in the Plan shall imply any right of
an Employee to continue in the employ of the Company, or shall
interfere with the right of the Company to terminate such Employee's
employment at any time.
IV. Elections
1. Pre-Tax Deferral Election. Any Eligible Participant or Participant
in the Plan may voluntarily make an irrevocable election to defer an
amount from 1% to 16% of their Base Salary Rate as Employee Deferred
Contributions in a manner that is consistent with and in agreement
with the terms and provisions of the Plan. Such election must be
irrevocable and in writing, on a Pre-tax Deferral Election Form
provided by the Compensation Committee, and completed and delivered
prior to the beginning of each Plan Year or Short Plan Year.
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V. Contributions
1. Employee Deferred Contributions.
(a) Eligible Participants or Participants who choose to
participate in the Plan will make an irrevocable Pre-Tax
Deferral Election to defer an amount from 1% to 16% of their
Base Salary Rate. Employee Deferred Contributions made to the
Plan will be the difference between the total Pre-tax Deferral
Election amount and the lesser of (a) the annual 401(k)
maximum limit or (b) the maximum 401(k) deferral election
amount permitted by 401(k)/401(m) non-discrimination testing
for the previous year as determined by the Plan Administrator
for highly-compensated employees within the Savings Plan.
(b) The Employee Deferred Contributions Account will be
established by the Company as a book reserve to which shall be
credited the sum of the Participant's Employee Deferred
Contributions for that year (on a monthly basis) plus any
earnings credited thereafter in accordance with Section X of
the Plan.
(c) The Employee Deferred Contributions made to this Plan will be
capped to prevent a Participant's Base Salary Rate from
dropping below the compensation limits outlined in Code
Section 401(a)(17).
2. Company Matching Deferred Contributions.
(a) The Company shall make Company Matching Deferred Contributions
on behalf of each Participant who chooses to participate in
the Plan in the amounts and at the times Regular Company
Contributions and Special Company Contributions, as defined in
the Savings Plan, are allocated within the Savings Plan. Prior
to the reduction provided for in Paragraph (b) below, the
Company Matching Deferred Contributions will equal sixty-five
percent of Employee Deferred Contributions, up to six percent
of a Participant's Base Salary Rate, allocated monthly, and an
additional annual match of five percent or ten percent based
on the attainment of pre-determined Savings Plan Goals, as
defined within the Savings Plan, allocated in December of each
year goals are attained. However, no Special Company
Contributions shall be made for a Plan Year unless the
Participant is an Employee on the last day of the final pay
period of the Plan Year or the Participant's Retirement or
Death occurred during the Plan Year.
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Effective January 1, 1997, the Company Matching Deferred
Contributions made to the Plan will mirror the changes being
made to the Regular Company Contributions in the Savings Plan
so that the Company Matching Deferred Contributions in the
Plan will be increased to seventy-five percent (75%) of
Employee Deferred Contributions, up to six percent (6%) of a
Participant's Base Salary Rate. The increase from 65% to 75%
for Regular Company Contributions is in lieu of the
opportunity to receive an additional annual match of five
percent (5%) for each predetermined Savings Plan Goal
achieved.
(b) The Company Matching Deferred Contributions will be the
difference between the Company Matching Deferred
Contributions on the total Pre-tax Deferral Election amount,
up to 6% of the Base Salary Rate, and the sum of Regular
Company Contributions and Special Company Contributions in the
Savings Plan on the lesser of (a) the annual 401(k) maximum
limit or (b) the maximum 401(k) deferral election amounts
permitted by 401(k)/401(m) non-discrimination testing for the
previous year as determined by the Plan Administrator for
highly-compensated employees within the Savings Plan plus any
Regular Company Contributions and Special Company
Contributions associated with Regular Contributions made to
the Savings Plan on an after-tax basis.
(c) The Company Matching Deferred Contributions Account will be
established by the Company as a book reserve to which shall be
credited the sum of the Participant's Company Matching
Deferred Contributions for that year (on a monthly basis) plus
any earnings credited thereafter in accordance with Section X
of the Plan. This account will also be credited with Regular
Company Contributions and/or Special Company Contributions
that cannot be allocated to the Savings Plan because they
exceed the limitations prescribed by Section 415(c) of the
Internal Revenue Code of 1986.
VI. Vested Portion of Accounts
1. At any point in time, a Participant shall be vested in the following
portions of his Accounts:
(a) 100% of the Participant's Employee Deferred Contributions
Account, plus
(b) A percentage of his Company Matching Deferred Contributions
Account determined in accordance with the vesting schedule
applicable to the Savings Plan, as shown below:
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Completed Year of Continuous
Service on Valuation Date Vested Percentage
------------------------------ -----------------
Under 2 0%
2 25
3 50
4 75
5 or more 100
(c) A Participant who is not 100% vested in his Company Matching
Deferred Contributions Account pursuant to paragraph (b) above
shall nevertheless be 100% vested in this account upon the
later of his attainment of age 65 or completion of 5 years of
Continuous Service, as defined in the Savings Plan, while in
the employ of the Company or upon his Death while in the
employ of the Company or upon his Retirement.
(d) In the event a Participant incurs a Termination before the
Participant has obtained a vested interest in the total amount
of his or her Company Matching Deferred Contributions Account,
then the portion of the Participant's Company Matching
Deferred Contributions Account in which such Participant does
not have a vested interest at the time of such Termination
shall be permanently forfeited and debited from the
Participant's Company Matching Deferred Contributions Account
by the Company as of the last day of the payroll period during
which such Participant incurred such Termination. If an
individual returns to Company employment, any amounts
previously forfeited and debited from a Participant's Company
Matching Deferred Contributions Account upon a prior
Termination shall, in no event and in no manner, be credited
to the individual under this Plan.
VII. Timing and Payment of Account Balances
1. Form of Payment - Distribution of a Participant's Employee Deferred
Contributions Account and the vested portion of the Company Matching
Deferred Contributions Account shall be made in a cash lump sum to the
Participant or to his Beneficiary if the Participant is not living.
2. Commencement of Payment - A Participant or his Beneficiary, if the
Participant is not living, shall receive a distribution of a
Participant's Employee Deferred Contributions Account and the vested
portion of the Company Matching Deferred Contributions Account as
soon as administratively practicable following the Participant's
Retirement, Termination, Disability or Death.
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VIII. Valuation and Reporting of Accounts
1. Valuation. The Employee Deferred Contributions Account and the
Company Matching Deferred Contributions Account will be valued at the
end of each month on the Valuation Date. Any applicable earnings will
be allocated to these accounts monthly on the Valuation Date.
2. Statement of Account. At least once a year, but no more frequently
than quarterly, each Participant shall be furnished with a statement
setting forth the value and the vested portion of the Participant's
accounts.
IX. Termination of Participation in the Plan
Any Participant having previously elected to participate in the Plan shall
automatically cease to participate in the Plan if he or she fails (in a
subsequent year) to properly execute a Pre-Tax Deferral Election Form as
provided for within the Plan, in which event the accumulated credits in
his Employee Deferred Contributions Account and Company Matching Deferred
Contributions Account, as applicable, prior to his termination of
participation, will continue to be subject to the applicable provisions of
the Plan.
X. Crediting of Earnings
There shall be credited to the Employee Deferred Contributions Account and
Company Matching Deferred Contributions Account an additional amount of
earnings (i.e. in addition to the principal amounts credited to such
accounts), as established by the Company based on the investment return of
the Stable Value Fund in the Savings Plan.
XI. Administration, Amendment and Termination
1. The Compensation Committee shall have the final authority with
respect to all matters pursuant to the Plan and shall have the
authority to specify rules and administrative practices to be
applied uniformly to all Participants in this Plan. The
Compensation Committee may, at any time, revise, amend, terminate,
or otherwise change in any manner the terms, provisions, features,
or administrative practices as they see fit from time to time.
However, no modification, amendment or termination of the Plan shall
adversely affect the right of any Participant to receive the
benefits granted under the Plan by the Compensation Committee in
respect to such Participant as of the date of modification,
amendment, or termination.
2. Tax Withholding. The Company shall have the right to deduct from all
payments any taxes required by law to be withheld with respect to any
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payments made under this Plan.
XII. Financing
1. Financing. The benefits under this Plan shall be paid out of the
general assets of the Company.
2. No Trust Created. Nothing contained in this Plan, and no action
taken pursuant to the provisions of this Plan, shall create or be
construed to create a trust of any kind or a fiduciary relationship
between the Company and any Participant, his or her spouse or any
other person.
3. Unsecured Interest. No Participant hereunder shall have any interest
whatsoever in any specific asset of the Company. To the extent that
any person acquires a right to receive payments under this Plan, such
right shall be no greater than the right of any unsecured general
creditor of the Company.
4. "Rabbi" Trust. Notwithstanding the foregoing provisions of this
Financing section, the Company reserves the right to create and
contribute funds to a "Rabbi" trust for the purpose of paying some
or all of the benefits provided under this Plan, but the existence
of any such trust shall not in any way alter the relationship among
the Company and a Participant as described in this Financing
section.
The creation of said trust shall not cause the Plan to be other than
"unfunded" for purposes of the Sections of ERISA cited in Section
I.1.
XIII. Miscellaneous.
1. Nontransferability. Except to the extent required by the law, in no
event shall the Company make any payment under this Plan to any
assignee or creditor of a Par-ticipant or of a Beneficiary. Prior to
the time of a payment hereunder, a Participant or a beneficiary shall
have no rights by way of anticipation or otherwise to assign
(including without limitation in connection with a divorce) or
otherwise dispose of any interest under this Plan nor shall rights be
assigned or transferred by operation of law.
2. Laws Applicable and Construction. The Plan is intended to constitute
an unfunded deferred compensation arrangement for a select group of
management or highly compensated employees, and all rights hereunder
shall be governed by and construed in accordance with the laws of the
State of Florida to the extent not governed by the Sections of ERISA
referenced in Section I.1.
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3. Grammar. Masculine pronouns used herein shall refer to men or women
or both, and nouns when stated in the singular shall include the
plural and when stated in the plural shall include the singular
wherever appropriate.
4. Severability. In the event any provision of the Plan shall be held
illegal or invalid for any reason, the illegality or invalidity shall
not affect the remaining parts of the Plan and the remaining parts of
the Plan and the Plan shall be construed and enforced as if the
illegal or invalid provision had not been included.
5. Payment Due an Incompetent. If the Compensation Committee
determines that any person to whom a payment is due hereunder is
unable to care for his affairs because of physical or mental
disability, it shall have the authority to cause the payments
becoming due to such person to be made to the spouse, brother,
sister or other such person deemed by the Compensation Committee to
have incurred expense for such person otherwise entitled to payment
(unless prior claim shall have been made by a duly qualified
guardian or other legal representative) without responsibility of
the Compensation Committee to see to the application of such
payments. Payments made pursuant to such power shall operate
as a complete discharge of the obligations of the Compensation
Committee and the Company.
6. Inalienability of Benefits. No benefits payable under the Plan shall
be subject to alienation, sale, transfer, assignment, pledge,
attachment, garnishment, lien, levy, or like encumbrance. No benefit
under the Plan shall in any manner be liable for or subject to the
debts or liabilities of any person entitled to benefits under the
Plan.
7. Discretionary Decisions. All decisions, determinations, or
interpretations the Compensation Committee, the Company, or any
member, officer or employee thereof are authorized to make under the
Plan (including the delegation of any authority hereunder to another
party) shall be made in that party's sole discretion and shall be
final, binding, and conclusive on all interested persons.
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