Progress Energy 2008 Annual Report Download - page 230

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authorize the creation of trusts and deposit therein cash or other property, or make other arrangements to meet
the Company’s obligations under the Plan. Such trusts or other arrangements shall be consistent with
the “unfunded” status of the Plan unless the Committee otherwise determines with the consent of each
affected Participant.
(f) Nonexclusivity of the Plan. Neither the adoption of the Plan by the Board nor its
submission of any terms of the Plan to the shareholders of the Company for approval shall be construed as
creating any limitations on the power of the Board or a committee thereof to adopt such other incentive
arrangements, apart from the Plan, as it may deem desirable, including incentive arrangements and
awards which do not qualify under Section 162(m) of the Code, and such other arrangements may be either
applicable generally or only in specific cases.
(g) Compliance with Section 162(m) of the Code. It is the intent of the Company that
compensation under the Plan to Participants shall constitute qualified “performance-based compensation”
within the meaning of Section 162(m) of the Code, unless otherwise determined by the Committee.
Accordingly, the terms of Sections 4 and 5 and other provisions of the Plan, including the definitions and
other terms used therein, shall be interpreted in a manner consistent with Section 162(m) of the Code.
If any provision of the Plan or any document relating to an EIP Award that is designated as intended to comply
with Section 162(m) of the Code does not comply or is inconsistent with the requirements of Section
162(m) of the Code, such provision shall be construed or deemed amended to the extent necessary to
conform to such requirements, and no provision shall be deemed to confer upon the Committee or any other
person discretion to increase the amount of compensation otherwise payable in connection with any such EIP
Award upon attainment of the applicable performance objectives.
(h) Severability; Entire Agreement. If any of the provisions of this Plan or any
EIP Award document is finally held to be invalid, illegal or unenforceable (whether in whole or in part), such
provision shall be deemed modified to the extent, but only to the extent, of such invalidity, illegality or
unenforceability, and the remaining provisions shall not be affected thereby; provided, that, if any of such
provisions is finally held to be invalid, illegal, or unenforceable because it exceeds the maximum scope
determined to be acceptable to permit such provision to be enforceable, such provision shall be deemed
to be modified to the minimum extent necessary to modify such scope in order to make such provision
enforceable hereunder. The Plan and any EIP Award documents contain the entire agreement of the parties
with respect to the subject matter thereof and, unless specified otherwise, supersede all prior agreements,
promises, covenants, arrangements, communications, representations and warranties between them,
whether written or oral with respect to the subject matter thereof.
(i) Governing Law. The validity, construction and effect of the Plan, and any rules and
regulations under the Plan, shall be determined in accordance with the laws of the State of North Carolina
applicable to contracts made and to be performed in the State of North Carolina to the extent not preempted
by federal law.
(j) Plan Effective Date and Termination. The Plan shall become effective as of the date of
its adoption by the Board, subject to shareholder approval, and shall continue in effect until terminated by
the Board pursuant to Section 7(c).
IN WITNESS WHEREOF, this instrument has been executed this _____ day of __________,
2009.
PROGRESS ENERGY, INC.
By: _________________________
William D. Johnson
Chief Executive Officer