SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FPL GROUP, INC.
(Exact name of registrant as specified in its charter)
FLORIDA 59-2449419
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
700 UNIVERSE BOULEVARD
JUNO BEACH,FLORIDA 33408
(407) 694-4644
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive office)
FPL GROUP, INC.
LONG TERM INCENTIVE PLAN 1994
(Full Title of Plan)
DENNIS P. COYLE
GENERAL COUNSEL AND SECRETARY
FPL GROUP, INC.
700 UNIVERSE BOULEVARD
JUNO BEACH, FLORIDA 33408
(407) 694-4644
JEFFREY I. MULLENS, P.A.
STEEL HECTOR & DAVIS
1900 PHILLIPS POINT WEST
777 SOUTH FLAGLER DRIVE
WEST PALM BEACH, FLORIDA 33401-6198
(407) 650-7257
ROBERT J. REGER, JR., ESQ.
REID & PRIEST LLP
40 WEST 57TH STREET
NEW YORK, NEW YORK 10019-4097
(212) 603-2000
(Names, addresses including zip codes, and telephone
numbers, including area codes, of agents for service)
Copies to:
SHEILA A. HALPERN, P.A.
STEEL HECTOR & DAVIS
200 SOUTH BISCAYNE BOULEVARD, SUITE 4000
MIAMI, FLORIDA, 33131-2398
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER UNIT <F1> OFFERING PRICE <F1>FEE
<C> <C> <C> <C> <C>
<C>
Common Stock, $.01 par value 9,000,000 Shares<F2> $36.50 $328,500,000 $113,276
Preferred Share Purchase Rights 9,000,000 Rights<F3> ---- ---- --- <F4>
<FN>
<F1>
Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h)(1) under the Securities Act of 1933, as amended,
based upon the average of the high and low sale prices of such Common
Stock on February 8, 1995 on the New York Stock Exchange Composite Tape.
<F2>
This Registration Statement also relates to such indeterminate number
of additional Common Shares of the Registrant as may be issuable as a
result of stock splits, stock dividends, recapitalizations, mergers,
reorganizations, combinations or exchange of shares or other similar
events.
<F3>
The Preferred Share Purchase Rights (the "Rights") are attached to and
will trade with the Common Stock. The value attributable to the Rights,
if any, is reflected in the market price of the Common Stock.
<F4>
Since no separate consideration is paid for the Rights, the registration
fee for such securities is included in the registration fee for the
Common Stock.
</FN>
</TABLE>
This Registration Statement shall become effective upon filing with the SEC in
accordance with Section 8(a) of the Securities Act of 1933, as amended, and
Rule 462 promulgated thereunder.<PAGE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Not required to be filed with the Securities and Exchange Commission
(the "SEC").
Item 2. Registrant Information and Employee Plan Annual Information.
Not required to be filed with the SEC.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed or to be filed by FPL Group, Inc. (the
"Registrant") with the SEC are incorporated herein by reference:
1. The Registrant's Annual Report on Form 10-K (Commission File No. 1-8841)
for the fiscal year ended December 31, 1993.
2. The Registrant's Quarterly Reports on Form 10-Q (Commission File No.
1-8841) for the quarterly periods ended March 31, 1994, June 30, 1994
and September 30, 1994.
3. All other reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since the end of the fiscal year covered by the report referred
to in (1) above.
4. The description of the Registrant's Common Stock to be offered pursuant
to the Plan which is contained in its Registration Statement on Form 8-B
filed with the SEC on December 31, 1984, including all amendments and
reports filed for the purpose of updating such description.
5. The description of the preferred share purchase rights contained in
Item 1 of the Registration Statement of Form 8-A filed with the SEC on
June 26, 1986, including all amendments or reports filed for the purpose
of updating such description.
All documents filed by the Registrant pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this registration statement and
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which 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.
Any statement contained in this Registration Statement, or in a document
incorporated or deemed to be incorporated by reference herein, shall be
deemed to be<PAGE>
<PAGE>
modified or superseded for purposes of this Registration Statement,
to the extent that a statement contained herein or in any other
subsequently filed document which is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Section 607.0850 of the Florida Statutes generally permits FPL Group to
indemnify its directors, officers, employees or other agents who are subject
to any third-party actions because of their service to FPL Group if such
persons acted in good faith and in a manner they reasonably believed to be in,
or not opposed to, the best interests of FPL Group. If the proceeding is a
criminal one, such person must also have had no reasonable cause to believe
his conduct was unlawful. In addition, FPL Group may indemnify its directors,
officers, employees or other agents who are subject to derivative actions
against expenses and amounts paid in settlement which do not exceed, in the
judgment of the board of directors, the estimated expense of litigating the
proceeding to conclusion, actually and reasonably incurred in connection with
the defense or settlement of such proceeding, if such person acted in good
faith and in a manner such person reasonably believed to be in, or not opposed
to, the best interests of FPL Group. To the extent that a director, officer,
employee or other agent is successful on the merits or otherwise in defense
of a third-party or derivative action, such person will be indemnified
against expenses actually and reasonably incurred in connection therewith.
This Section also permits a corporation further to indemnify such persons by
other means unless a judgment or other final adjudication establishes that
such person's actions or omissions which were material to the cause of
action constitute (1) a crime (unless such person had reasonable cause to
believe his conduct was lawful or had no reasonable cause to believe it
unlawful), (2) a transaction from which he derived an improper personal
benefit, (3) a transaction in violation of Florida Statutes Section
607.0834 (unlawful distributions to shareholders), or (4) willful
misconduct or a conscious disregard for the best interests 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.
Furthermore, Florida Statutes Section 607.0831 provides, in general, that
no director shall be personally liable for monetary damages to FPL Group
or any other person for any statement, vote, decision, or failure to act,
regarding corporate management or policy, unless:
(a) the director breached or failed to perform his duties as a director;
and
(b) the director's breach of, or failure to perform, those duties constitutes
(i) a violation of criminal law, unless the director had reasonable cause to
believe his conduct was lawful or had no reasonable cause to believe his
conduct was unlawful, (ii) a transaction from which the director derived an
improper personal benefit, either directly or<PAGE>
<PAGE>
indirectly, (iii) a circumstance under which the liability provisions
of Florida Statutes Section 607.0834 are applicable, (iv) in a
proceeding by or in the right of FPL Group to procure a judgment in
its favor or by or in the right of a shareholder, conscious disregard
for the best interest of FPL Group, or willful misconduct, or (v) in
a proceeding by or in the right of someone other than FPL Group or a
shareholder, recklessness or an act or omission which was committed
in bad faith or with malicious purpose or in a manner exhibiting
wanton and willful disregard of human rights, safety, or property.
The term "recklessness," as used above, means the action, or omission
to act, in conscious disregard of a risk: (a) known, or so obvious
that it should have been known, to the directors; and (b) known to
the director, or so obvious that it should have been known, to be so
great as to make it highly probable that harm would follow from such
action or omission.
FPL Group's Bylaws provide generally that FPL Group shall, to the fullest
extent permitted by law, indemnify all directors and officers of FPL Group,
directors, officers, or other employees serving as a fiduciary of an employee
benefit plan of FPL Group, as well as any employees or agents of FPL Group or
other persons serving at the request of FPL Group in any capacity with any
entity or enterprise other than FPL Group to whom FPL Group has agreed to
grant indemnification (each, an "Indemnified Person") to the extent that
any such person is made a party or threatened to be made a party or called
as a witness or is otherwise involved in any action, suit, or proceeding in
connection with his status as an Indemnified Person. Such indemnification
covers all expenses incurred by any Indemnified Person (including attorney's
fees) and all liabilities and losses (including judgments, fines, and amounts
to be paid in settlement) incurred thereby in connection with any such action,
suit or proceeding.
In addition, FPL Group carries insurance permitted by the laws of Florida
on behalf of directors, officers, employees or agents which may cover, among
other things, liabilities under the Securities Act.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
(a) *4(a) Restated Articles of Incorporation of FPL Group dated
December 31, 1986, as amended through December 17, 1990 (filed as
Exhibit 4(a) to Post-Effective Amendment No. 5 to Form S-8 ,
File No. 33-18669).
*4(b) Bylaws of FPL Group, as amended November 15, 1993 (filed as
Exhibit 3(ii) to Form 10-K for the year ended December 31, 1993,
File No. 1-8841).
*4(c) Rights Agreement, dated as of June 16, 1986, between FPL Group
and The First National Bank of Boston (filed as Exhibit 4(e) to
Post-Effective Amendment No. 5 to Form S-8, File No. 33-18669).
4(d) Long Term Incentive Plan 1994.<PAGE>
<PAGE>
4(e) First Amendment to Long Term Incentive Plan 1994
5 Opinion of Steel Hector & Davis
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Steel Hector & Davis is included in Exhibit 5
24 Power of Attorney (included on signature pages of this
registration statement).
* Incorporated by reference as indicated.
Item 9. Undertakings.
(a) 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, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the 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;
(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 the Registrant need not file a post-effective amendment
to include the information required to be included by subsection (i) or (ii) if
such information is contained in periodic reports filed with or furnished to
the Commission by the registrant pursuant to Section 13 or 15(d) of the
Exchange Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each
filing of the Registrant's annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act 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 <PAGE>
<PAGE>
be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act 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
Securities Act 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 and will be governed by the final
adjudication of such issue.<PAGE>
<PAGE>
POWER OF ATTORNEY
Each director and/or officer of the registrant whose signature appears below
hereby appoints the agents for service named in this Registration Statement,
and each of them severally, as his attorney-in-fact to sign in his name and
behalf, in any and all capacities stated below and to file with the Securities
and Exchange Commission, any and all amendments, including post-effective
amendments, to this registration statement, and the Registrant hereby also
appoints each such agent for service as its attorney-in-fact with like
authority to sign and file any such amendments in its name and behalf.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe that it
meets all of 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 Juno Beach, State of Florida, on this
13th day of February, 1995.
FPL GROUP, INC.
By: /s/ JAMES L. BROADHEAD
James L. Broadhead
Chairman of the Board, President
and Chief Executive Officer
(Principal Executive Officer and
Director)
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:
Signature Title Date
/s/ K. MICHAEL DAVIS Controller and Chief Accounting
K. Michael Davis Officer (Principal
Accounting Officer)
/s/ MICHAEL W. YACKIRA Vice President, Finance
Michael W. Yackira Chief Financial Officer
(Principal Financial Officer)
/s/ H. JESSE ARNELLE
H. Jesse Arnelle
Directors February 13, 1995
/s/ ROBERT M. BEALL, II
Robert M. Beall, II
<PAGE>
<PAGE>
/s/ DAVID BLUMBERG
David Blumberg
/s/ J. HYATT BROWN
J. Hyatt Brown
/s/ ARMANDO M. CODINA Directors February 13, 1995
Armando M. Codina
/s/ MARSHALL M. CRISER
Marshall M. Criser
/s/ B. F. DOLAN
B. F. Dolan
/s/ WILLARD D. DOVER
Willard D. Dover
/s/ PAUL J. EVANSON
Paul J. Evanson
/s/ DREW LEWIS
Drew Lewis
/s/ FREDERIC V. MALEK
Frederic V. Malek
/s/ PAUL R. TREGURTHA
Paul R. Tregurtha<PAGE>
<PAGE>
EXHIBIT INDEX
Exhibit
No.
4(d) Long Term Incentive Plan 1994
4(e) First Amendment to Long Term Incentive Plan 1994
5 Opinion of Steel Hector & Davis
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Steel Hector & Davis is included
in Exhibit 5
24 Power of Attorney (included on signature
pages of this registration statement)
FPL GROUP, INC.
LONG TERM INCENTIVE PLAN
1994
SECTION 1. Purpose. The purpose of this Long Term Incentive
Plan (the "Plan") of FPL Group, Inc. (together with any successor
thereto, the "Corporation") is (a) to promote the identity of
interests between shareholders and employees of the Corporation by
encouraging and creating significant ownership of common stock of the
Corporation by officers and other salaried employees of the
Corporation and its subsidiaries; (b) to enable the Corporation to
attract and retain qualified officers and employees who contribute to
the Corporation's success by their ability, ingenuity and industry;
and (c) to provide meaningful long-term incentive opportunities for
officers and other employees who are responsible for the success of
the Corporation and who are in a position to make significant
contributions toward its objectives.
SECTION 2. Definitions. In addition to the terms defined
elsewhere in the Plan, the following shall be defined terms under the
Plan:
2.01. "Award" means any Performance Award, Option, Stock
Appreciation Right, Restricted Stock, Deferred Stock, Dividend
Equivalent, or Other Stock-Based Award, or any other right or
interest relating to Shares or cash, granted to a Participant under
the Plan.
2.02. "Award Agreement" means any written agreement,
contract, or other instrument or document evidencing an Award.
2.03. "Board" means the Board of Directors of the
Corporation.
2.04. "Change of Control" and related terms are defined in
Section 9.
2.05. "Code" means the Internal Revenue Code of 1986, as
amended from time to time. References to any provision of the Code
shall be deemed to include successor provisions thereto and
regulations thereunder.
2.06. "Committee" means the Compensation Committee of the
Board, or such other Board committee as may be designated by the
Board to administer the Plan, or any subcommittee of either;
provided, however, that the Committee, and any subcommittee thereof,
shall consist of three or more directors, each of whom is a
"disinterested person" within the meaning of Rule 16b-3 under the
Exchange Act.
2.07. "Corporation" is defined in Section 1.
2.08. "Covered Employee" has the same meaning as set forth
in section 162(m) of the Code, and successor provisions.
2.09. "Deferred Stock" means a right, granted to a
Participant under Section 6.05, to receive Shares at the end of a
specified deferral period.<PAGE>
<PAGE>
2.10. "Dividend Equivalent" means a right, granted to a
Participant under Section 6.03, to receive cash, Shares, other
Awards, or other property equal in value to dividends paid with
respect to a specified number of Shares.
2.11. "Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time. References to any provision of
the Exchange Act shall be deemed to include successor provisions
thereto and regulations thereunder.
2.12. "Fair Market Value" means, with respect to Shares,
Awards, or other property, the fair market value of such Shares,
Awards, or other property determined by such methods or procedures as
shall be established from time to time by the Committee. Unless
otherwise determined by the Committee, the Fair Market Value of
Shares as of any date shall be the closing sales price on that date
of a Share as reported in the New York Stock Exchange Composite
Transaction Report; provided, that if there were no sales on the
valuation date but there were sales on dates within a reasonable
period both before and after the valuation date, the Fair Market
Value is the weighted average of the closing prices on the nearest
date before and the nearest date after the valuation date. The
average is to be weighed inversely by the respective numbers of
trading days between the selling dates and the valuation date.
2.13. "Incentive Stock Option" means an Option that is
intended to meet the requirements of Section 422 of the Code.
2.14. "Non-Qualified Stock Option" means an Option that is
not intended to be an Incentive Stock Option.
2.15. "Option" means a right, granted to a Participant
under Section 6.06, to purchase Shares, other Awards, or other
property at a specified price during specified time periods. An
Option may be either an Incentive Stock Option or a Non-Qualified
Stock Option.
2.16. "Other Stock-Based Award" means a right, granted to a
Participant under Section 6.08, that relates to or is valued by
reference to Shares.
2.17. "Participant" means a person who, as an officer or
salaried employee of the Corporation or any Subsidiary, has been
granted an Award under the Plan.
2.18. "Performance Award" means a right, granted to a
Participant under Section 6.02, to receive cash, Shares, other
Awards, or other property the payment of which is contingent upon
achievement of performance goals specified by the Committee.
2.19. "Performance-Based Restricted Stock" means Restricted
Stock that is subject to a risk of forfeiture if specified
performance criteria are not met within the restriction period.
2.20. "Plan" is defined in Section 1.
2.21. "Restricted Stock" means Shares, granted to a
Participant under Section 6.04, that are subject to certain
restrictions and to a risk of forfeiture.<PAGE>
<PAGE>
2.22. "Rule 16b-3" means Rule 16b-3, as from time to time
amended and applicable to Participants, promulgated by the Securities
and Exchange Commission under Section 16 of the Exchange Act.
2.23. "Shares" means the Common Stock, $.01 par value, of
the Corporation and such other securities of the Corporation as may
be substituted for Shares or such other securities pursuant to
Section 10.
2.24. "Stock Appreciation Right" means a right, granted to
a Participant under Section 6.07, to be paid an amount measured by
the appreciation in the Fair Market Value of Shares from the date of
grant to the date of exercise of the right, with payment to be made
in cash, Shares, other Awards, or other property as specified in the
Award or determined by the Committee.
2.25. "Subsidiary" means any corporation (other than the
Corporation) with respect to which the Corporation owns, directly or
indirectly, 50% or more of the total combined voting power of all
classes of stock. In addition, any other related entity may be
designated by the Board as a Subsidiary, provided such entity could
be considered as a subsidiary according to generally accepted
accounting principles.
2.26. "Year" means a calendar year.
SECTION 3. Administration.
3.01. Authority of the Committee. The Plan shall be
administered by the Committee. The Committee shall have full and
final authority to take the following actions, in each case subject
to and consistent with the provisions of the Plan:
(i) to select and designate Participants;
(ii) to designate Subsidiaries;
(iii) to determine the type or types of Awards to be
granted to each Participant;
(iv) to determine the number of Awards to be granted, the
number of Shares to which an Award will relate, the terms
and conditions of any Award granted under the Plan
(including, but not limited to, any exercise price, grant
price, or purchase price, any restriction or condition, any
schedule for lapse of restrictions or conditions relating to
transferability or forfeiture, exercisability, or settlement
of an Award, and waivers or accelerations thereof, and
waiver of performance conditions relating to an Award, based
in each case on such considerations as the Committee shall
determine), and all other matters to be determined in
connection with an Award;
(v) to determine whether, to what extent, and under what
circumstances an Award may be settled, or the exercise price
of an Award may be paid, in cash, Shares, other Awards, or
other property, or an Award may be cancelled, forfeited, or
surrendered;<PAGE>
<PAGE>
(vi) to determine whether, to what extent, and under what
circumstances cash, Shares, other Awards, or other property
payable with respect to an Award will be deferred either
automatically, at the election of the Committee, or at the
election of the Participant;
(vii) to prescribe the form of each Award Agreement, which
need not be identical for each Participant;
(viii) to adopt, amend, suspend, waive, and rescind such
rules and regulations and appoint such agents as the
Committee may deem necessary or advisable to administer the
Plan;
(ix) to correct any defect or supply any omission or
reconcile any inconsistency in the Plan and to construe and
interpret the Plan and any Award, rules and regulations,
Award Agreement, or other instrument hereunder; and
(x) to make all other decisions and determinations as may be
required under the terms of the Plan or as the Committee may
deem necessary or advisable for the administration of the
Plan.
3.02. Manner of Exercise of Committee Authority. Unless
authority is specifically reserved to the Board under the terms of
the Plan, or applicable law, the Committee shall have sole discretion
in exercising such authority under the Plan. Any action of the
Committee with respect to the Plan shall be final, conclusive, and
binding on all persons, including the Corporation, Subsidiaries,
Participants, any person claiming any rights under the Plan from or
through any Participant, and shareholders. The express grant of any
specific power to the Committee, and the taking of any action by the
Committee, shall not be construed as limiting any power or authority
of the Committee. A memorandum signed by all members of the
Committee shall constitute the act of the Committee without the
necessity, in such event, to hold a meeting. The Committee may
delegate to officers or managers of the Corporation or any Subsidiary
the authority, subject to such terms as the Committee shall
determine, to perform administrative functions under the Plan.
3.03. Limitation of Liability. Each member of the
Committee shall be entitled to, in good faith, rely or act upon any
report or other information furnished to him by any officer or other
employee of the Corporation or any Subsidiary, the Corporation's
independent certified public accountants, or any executive
compensation consultant or other professional retained by the
Corporation to assist in the administration of the Plan. No member
of the Committee, nor any officer or employee of the Corporation
acting on behalf of the Committee, shall be personally liable for any
action, determination, or interpretation taken or made in good faith
with respect to the Plan, and all members of the Committee and any
officer or employee of the Corporation acting on their behalf shall,
to the extent permitted by law, be fully indemnified and protected by
the Corporation with respect to any such action, determination, or
interpretation.
SECTION 4. Shares Subject to the Plan. Subject to
adjustment as provided in Section 10, the total number of Shares
reserved and available for Awards under the Plan shall be 9,000,000.
For purposes of this Section 4, the number of and time at which
Shares shall<PAGE>
<PAGE>
be deemed to be subject to Awards and therefore counted against the
number of Shares reserved and available under the Plan shall be
earliest date at which the Committee can reasonably estimate the
number of Shares to be distributed in settlement of an Award or with
respect to which payments will be made; provided, however, that,
subject to the requirements of Rule 16b-3, the Committee may adopt
procedures for the counting of Shares relating to any Award for which
the number of Shares to be distributed or with respect to which
payment will be made cannot be fixed at the date of grant to ensure
appropriate counting, avoid double counting (in the case of tandem or
substitute awards), and provide for adjustments in any case in which
the number of Shares actually distributed or with respect to which
payments are actually made differs from the number of Shares
previously counted in connection with such Award.
If any Shares to which an Award relates are forfeited or the
award is settled or terminates without a distribution of Shares
(whether or not cash, other Awards, or other property is distributed
with respect to such Award), any Shares counted against the number of
Shares reserved and available under the Plan with respect to such
Award shall, to the extent of any such forfeiture, settlement or
termination, again be available for Awards under the Plan; provided,
however, that such Shares shall be available for issuance only to the
extent permitted under Rule 16b-3.
SECTION 5. Eligibility. Awards may be granted only to
individuals who are officers or other salaried employees (including
employees who also are directors) of the Corporation or a Subsidiary;
provided, however, that no Award shall be granted to any member of
the Committee.
SECTION 6. Specific Terms of Awards.
6.01. General. Awards may be granted on the terms and
conditions set forth in this Section 6. In addition, the Committee
may impose on any Award or the exercise thereof, at the date of grant
or thereafter (subject to Section 11.02), such additional terms and
conditions, not inconsistent with the provisions of the Plan, as the
Committee shall determine, including without limitation the
acceleration of vesting of any Awards or terms requiring forfeiture
of Awards in the event of termination of employment by the
Participant. Except as provided in Sections 7.03 or 7.04, only
services may be required as consideration for the grant of any Award.
6.02. Performance Awards. Subject to the provisions of
Sections 7.01 and 7.02, the Committee is authorized to grant
Performance Awards to Participants on the following terms and
conditions:
(i) Award and Conditions. A Performance Award shall confer
upon the Participant rights, valued as determined by the
Committee, and payable to, or exercisable by, the
Participant to whom the Performance Award is granted, in
whole or in part, as determined by the Committee,
conditioned upon the achievement of performance criteria
determined by the Committee.
(ii) Other Terms. A Performance Award shall be denominated
in Shares and may be payable in cash, Shares, other Awards,
or other property, and have such other terms<PAGE>
<PAGE>
as shall be determined by the Committee.
6.03. Dividend Equivalents. The Committee is authorized to
grant Dividend Equivalents to Participants. The Committee may
provide that Dividend Equivalents shall be paid or distributed when
accrued or shall be deemed to have been reinvested in additional
Shares or Awards, or otherwise reinvested.
6.04. Restricted Stock. The Committee is authorized to
grant Restricted Stock to Participants on the following terms and
conditions:
(i) Issuance and Restrictions. Restricted Stock shall be
subject to such restrictions on transferability and other
restrictions as the Committee may impose (including, without
limitation, limitations on the right to vote Restricted
Stock or the right to receive dividends thereon), which
restrictions may lapse separately or in combination at such
times, under such circumstances, in such installments, or
otherwise as the Committee shall determine.
(ii) Forfeiture. Performance-Based Restricted Stock shall
be forfeited unless preestablished performance criteria
specified by the Committee are met during the applicable
restriction period. Except as otherwise determined by the
Committee, upon termination of employment (as determined
under criteria established by the Committee) during the
applicable restriction period, Restricted Stock that is at
that time subject to restrictions shall be forfeited and
reacquired by the Corporation; provided, however, that the
Committee may provide, by rule or regulation or in any Award
Agreement, or may determine in any individual case, that
restrictions or forfeiture conditions relating to Restricted
Stock will be waived in whole or in part in the event of
terminations resulting from specified causes.
(iii) Certificates of Shares. Restricted Stock granted
under the Plan may be evidenced in such manner as the
Committee shall determine. If certificates representing
Restricted Stock are registered in the name of the
Participant, such certificates shall bear an appropriate
legend referring to the terms, conditions, and restrictions
applicable to such Restricted Stock, the Corporation shall
retain physical possession of the certificates, and the
Participant shall deliver a stock power to the Corporation,
endorsed in blank, relating to the Restricted Stock.
(iv) Dividends. Unless otherwise determined by the
Committee, cash dividends paid on Performance-Based
Restricted Stock shall be automatically reinvested in
additional shares of Performance-Based Restricted Stock and
cash dividends paid on other Restricted Stock shall be paid
to the Participant. Dividends reinvested in Performance-
Based Restricted Stock and Shares distributed in connection
with a stock split or stock dividend, and other property
distributed as a dividend, shall be subject to restrictions
and a risk of forfeiture to the same extent as the
Restricted Stock with respect to which such stock or other
property has been distributed.
6.05. Deferred Stock. The Committee is authorized to grant
Deferred Stock to Participants, on the following terms and
conditions:
(i) Award and Restrictions. Delivery of Shares will occur
upon expiration of the<PAGE>
<PAGE>
deferral period specified for Deferred Stock by the Committee (or, if
permitted by the Committee, as elected by the Participant). In
addition, Deferred Stock shall be subject to such restrictions as the
Committee may impose, which restrictions may lapse at the expiration
of the deferral period or at earlier specified times, separately or
in combination, in installments, or otherwise, as the Committee shall
determine.
(ii) Forfeiture. Except as otherwise determined by the
Committee, upon termination of employment (as determined
under criteria established by the Committee) during the
applicable deferral period or portion thereof (as provided
in the Award Agreement evidencing the Deferred Stock), all
Deferred Stock that is at that time subject to deferral
(other than a deferral at the election of the Participant)
shall be forfeited; provided, however, that the Committee
may provide, by rule or regulation or in any Award
Agreement, or may determine in any individual case, that
restrictions or forfeiture conditions relating to Deferred
Stock will be waived in whole or in part in the event of
terminations resulting from specified causes, and the
Committee may in other cases waive in whole or in part the
forfeiture of Deferred Stock.
6.06. Options. The Committee is authorized to grant
Options to Participants on the following terms and conditions:
(i) Exercise Price. The exercise price per Share
purchasable under an Option shall be determined by the
Committee; provided, however, that, except as provided in
Section 7.03, such exercise price shall be not less than the
Fair Market Value of a Share on the date of grant of such
Option.
(ii) Time and Method of Exercise. The Committee shall
determine the time or times at which an Option may be
exercised in whole or in part, the methods by which such
exercise price may be paid or deemed to be paid, the form of
such payment, including, without limitation, cash, Shares,
other Awards or awards issued under other Corporation plans,
or other property (including notes or other contractual
obligations of Participants to make payment on a deferred
basis, such as through "cashless exercise" arrangements),
and the methods by which Shares will be delivered or deemed
to be delivered to Participants. Options shall expire not
later than ten years after the date of grant.
(iii) Incentive Stock Options. The terms of any Incentive
Stock Option granted under the Plan shall comply in all
respects with the provisions of Section 422 of the Code,
including but not limited to the requirement that no
Incentive Stock Option shall be granted more than ten years
after the effective date of the Plan. Anything in the Plan
to the contrary notwithstanding, no term of the Plan
relating to Incentive Stock Options shall be interpreted,
amended, or altered, nor shall any discretion or authority
granted under the Plan be exercised, so as to disqualify
either the Plan or any Incentive Stock Option under Section
422 of the Code. In the event a Participant voluntarily
disqualifies an Option as an Incentive Stock Option, the
Committee may, but shall not be obligated to, make such
additional Awards or pay bonuses as the Committee shall deem
appropriate to reflect the tax savings to the Corporation
which result from such disqualification.
6.07. Stock Appreciation Rights. The Committee is
authorized to grant Stock<PAGE>
<PAGE>
Appreciation Rights to Participants on the following terms and
conditions:
(i) Right to Payment. A Stock Appreciation Right shall
confer on the Participant to whom it is granted a right to
receive, upon exercise thereof, the excess of (A) the Fair
Market Value of one Share on the date of exercise (or, if
the Committee shall so determine in the case of any such
right, other than one related to an Incentive Stock Option,
the Fair Market Value of one Share at any time during a
specified period before or after the date of exercise or the
Change of Control Price as defined in Section 9.03) over (B)
the grant price of the Stock Appreciation Right as
determined by the Committee as of the date of grant of the
Stock Appreciation Right, which, except as provided in
Section 7.03, shall be not less than the Fair Market Value
of one Share on the date of grant.
(ii) Other Terms. The Committee shall determine the time
or times at which a Stock Appreciation Right may be
exercised in whole or in part, the method of exercise,
method of settlement, form of consideration payable in
settlement, method by which Shares will be delivered or
deemed to be delivered to Participants, and any other terms
and conditions of any Stock Appreciation Right. Limited
Stock Appreciation Rights that may be exercised only upon
the occurrence of a Change of Control (as such term is
defined in Section 9.02 or as otherwise defined by the
Committee) may be granted under this Section 6.07. Stock
Appreciation Rights shall expire not later than ten years
after the date of grant.
6.08. Other Stock-Based Awards. The Committee is
authorized to grant to Participants such other Awards that are
denominated or payable in, valued in whole or in part by reference
to, or otherwise based on or related to, Shares, as deemed by the
Committee to be consistent with the purposes of the Plan, including
without limitation, Shares awarded purely as a "bonus" and not
subject to any restrictions or conditions, convertible or
exchangeable debt securities, other rights convertible or
exchangeable into Shares, purchase rights, and Awards valued by
reference to book value of Shares or the value of securities of or
the performance of specified Subsidiaries. The Committee shall
determine the terms and conditions of such Awards, which may include
performance criteria. Shares delivered pursuant to an Award in the
nature of a purchase right granted under this Section 6.08 shall be
purchased for such consideration, paid for at such times, by such
methods, and in such forms, including, without limitation, cash,
Shares, other Awards, or other property, as the Committee shall
determine.
SECTION 7. Certain Provisions Applicable to Awards.
7.01. Performance-Based Awards. Performance Awards,
Performance-Based Restricted Stock, and Other Stock-Based Awards
subject to performance criteria are intended to be "qualified
performance-based compensation" within the meaning of section 162(m)
of the Code and shall be paid solely on account of the attainment of
one or more preestablished, objective performance goals within the
meaning of section 162(m) and the regulations thereunder. Until
otherwise determined by the Committee, the performance goal shall be
the attainment of preestablished amounts of annual net income of the
Corporation.
The payout of any such Award to a Covered Employee may be
reduced, but not increased, based on the degree of attainment of
other performance criteria or otherwise at the<PAGE>
<PAGE>
discretion of the Committee.
7.02. Maximum Yearly Awards. A maximum of 250,000 Shares
(or the equivalent Fair Market Value thereof with respect to Awards
valued in whole or in part by reference to, or otherwise based on or
related to, Shares) may be made subject to Performance Awards,
Performance-Based Restricted Stock, and Other Stock-Based Awards
subject to performance criteria in any Year. The maximum payout of
such Awards in any Year may not exceed 160% of the amount thereof, or
400,000 Shares in the aggregate and 100,000 Shares in the case of any
Participant. A maximum of 1,500,000 Shares may be made subject to
Options and Stock Appreciation Rights in any Year. No Participant
may receive Awards covering or representing more than 25% of the
maximum number of Shares which may be made subject to such types of
Awards in any Year. The Share amounts in this Section 7.02 are
subject to adjustment under Section 10 and are subject to the Plan
maximum under Section 4.
7.03. Stand-Alone, Additional, Tandem, and Substitute
Awards. Awards granted under the Plan may, in the discretion of the
Committee, be granted either alone or in addition to, in tandem with,
or in substitution for any other Award granted under the Plan or any
award granted under any other plan of the Corporation, any
Subsidiary, or any business entity to be acquired by the Corporation
or a Subsidiary, or any other right of a Participant to receive
payment from the Corporation or any Subsidiary. If an Award is
granted in substitution for another Award or award, the Committee
shall require the surrender of such other Award or award in
consideration for the grant of the new Award. Awards granted in
addition to or in tandem with other Awards or awards may be granted
either as of the same time as or a different time from the grant of
such other Awards or awards. The per Share exercise price of any
Option, grant price of any Stock Appreciation Right, or purchase
price of any other Award conferring a right to purchase Shares:
(i) Granted in substitution for an outstanding Award or
award shall be not less than the lesser of the Fair Market
Value of a Share at the date such substitute award is
granted or such Fair Market Value at that date reduced to
reflect the Fair Market Value at that date of the Award or
award required to be surrendered by the Participant as a
condition to receipt of the substitute Award; or
(ii) Retroactively granted in tandem with an outstanding
Award or award shall be not less than the lesser of the Fair
Market Value of a Share at the date of grant of the later
Award or at the date of grant of the earlier Award or award.
7.04. Exchange Provisions. The Committee may at any time
offer to exchange or buy out any previously granted Award for a
payment in cash, Shares, other Awards (subject to Section 7.03), or
other property based on such terms and conditions as the Committee
shall determine and communicate to the Participant at the time that
such offer is made.
7.05. Term of Awards. The term of each Award shall be for
such period as may be determined by the Committee; provided, however,
that in no event shall the term of any Option or a Stock Appreciation
Right granted in tandem therewith exceed a period of ten years from
the date of its grant (or such shorter period as may be applicable
under Section 422 of the Code).
7.06. Form of Payment Under Awards. Subject to the terms
of the Plan and any<PAGE>
<PAGE>
applicable Award Agreement, payments to be made by the Corporation or
a Subsidiary upon the grant or exercise of an Award may be made in
such forms as the Committee shall determine, including without
limitation, cash, Shares, other Awards, or other property, and may be
made in a single payment or transfer, in installments, or on a
deferred basis. Such payments may include, without limitation,
provisions for the payment or crediting of reasonable interest on
installment or deferred payments or the grant or crediting of
Dividend Equivalents in respect of installment or deferred payments
denominated in Shares.
7.07. Loan Provisions. With the consent of the Committee,
and subject to compliance with applicable laws and regulations, the
Corporation may make, guarantee, or arrange for, a loan or loans to a
Participant with respect to the exercise of any Option or other
payment in connection with any Award, including the payment by a
Participant of any or all federal, state, or local income or other
taxes due in connection with any Award. Subject to such limitations,
the Committee shall have full authority to decide whether to make a
loan or loans hereunder and to determine the amount, terms, and
provisions of any such loan or loans, including the interest rate to
be charged in respect of any such loan or loans, whether the loan or
loans are to be with or without recourse against the borrower, the
terms on which the loan is to be repaid and conditions, if any, under
which the loan or loans may be forgiven. Nothing in this Section
shall be construed as implying that the Committee shall or will offer
such loans.
SECTION 8. General Restrictions Applicable to Awards.
8.01. Restrictions Under Rule 16b-3.
8.01.1. Six-Month Holding Period. Unless a
Participant could otherwise transfer an equity security,
derivative security, or Shares issued upon exercise of a
derivative security granted under the Plan without incurring
liability under Section 16(b) of the Exchange Act, (i) an
equity security issued under the Plan, other than an equity
security issued upon exercise or conversion of a derivative
security granted under the Plan, shall be held for at least
six months from the date of acquisition; (ii) with respect
to a derivative security issued under the Plan, at least six
months shall elapse from the date of acquisition of the
derivative security to the date of disposition of the
derivative security (other than upon exercise or conversion)
or its underlying equity security; and (iii) any Award in
the nature of a Stock Appreciation Right must be held for
six months from the date of grant to the date of cash
settlement.
8.01.2. Nontransferability. Awards which
constitute derivative securities (including any option,
stock appreciation right, or similar right) shall not be
transferable by a Participant except by will or the laws of
descent and distribution (except pursuant to a beneficiary
designation authorized under Section 8.02) or, if then
permitted under Rule 16b-3, pursuant to a qualified domestic
relations order as defined under the Code or Title I of the
Employee Retirement Income Security Act of 1974, as amended,
or the rules thereunder, and, in the case of an Incentive
Stock Option or, if then required by Rule 16b-3, any other
derivative security granted under the Plan, shall be
exercisable during the lifetime of a Participant only by
such Participant or his guardian or legal representative.
8.01.3. Compliance with Rule 16b-3. It is the
intent of the Corporation that this<PAGE>
<PAGE>
Plan comply in all respects with Rule 16b-3 in connection with any
Award granted to a person who is subject to Section 16 of the
Exchange Act. Accordingly, if any provision of this Plan or any
Award Agreement does not comply with the requirements of Rule 16b-3
as then applicable to any such person, such provision shall be
construed or deemed amended to the extent necessary to conform to
such requirements with respect to such person.
8.02. Limits on Transfer of Awards; Beneficiaries. No
right or interest of a Participant in any Award shall be pledged,
encumbered, or hypothecated to or in favor of any party (other than
the Corporation or a Subsidiary), or shall be subject to any lien,
obligation, or liability of such Participant to any party (other than
the Corporation or a Subsidiary). Unless otherwise determined by the
Committee (subject to the requirements of Section 8.01.2), no Award
subject to any restriction shall be assignable or transferable by a
Participant otherwise than by will or the laws of descent and
distribution (except to the Corporation under the terms of the Plan);
provided, however, that a Participant may, in the manner established
by the Committee, designate a beneficiary or beneficiaries to
exercise the rights of the Participant, and to receive any
distribution, with respect to any Award, upon the death of the
Participant. A beneficiary, guardian, legal representative, or other
person claiming any rights under the Plan from or through any
Participant shall be subject to all terms and conditions of the Plan
and any Award Agreement applicable to such Participant or agreement
applicable to such, except to the extent the Plan and such Award
Agreement or agreement otherwise provide with respect to such
persons, and to any additional restrictions deemed necessary or
appropriate by the Committee.
8.03. Registration and Listing Compliance. The Corporation
shall not be obligated to deliver any Award or distribute any Shares
with respect to any Award in a transaction subject to regulatory
approval, registration, or any other applicable requirement of
federal or state law, or subject to a listing requirement under any
listing or similar agreement between the Corporation and any national
securities exchange, until such laws, regulations, and contractual
obligations of the Corporation have been complied with in full,
although the Corporation shall be obligated to use its best efforts
to obtain any such approval and comply with such requirements as
promptly as practicable.
8.04. Share Certificates. All certificates for Shares
delivered under the Plan pursuant to any Award or the exercise
thereof shall be subject to such stop-transfer order and other
restrictions as the Committee may deem advisable under applicable
federal or state laws, rules and regulations thereunder, and the
rules of any national securities exchange on which Shares are listed.
The Committee may cause a legend or legends to be placed on any such
certificates to make appropriate reference to such restrictions or
any other restrictions that may be applicable to Shares, including
under the terms of the Plan or any Award Agreement. In addition,
during any period in which Awards or Shares are subject to
restrictions under the terms of the Plan or any Award Agreement, or
during any period during which delivery or receipt of an Award or
Shares has been deferred by the Committee or a Participant, the
Committee may require the Participant to enter into an agreement
providing that certificates representing Shares issuable or issued
pursuant to an Award shall remain in the physical custody of the
Corporation or such other person as the Committee may designate.
SECTION 9. Change of Control Provisions. Notwithstanding
any other provision of<PAGE>
<PAGE>
the Plan, the following acceleration and valuation provisions shall
apply in the event of a "Change of Control" as defined in this
Section 9:
9.01. Acceleration and Cash-Out Rights. In the event of a
"Change of Control," as defined in Section 9.02, automatically in the
case of Participants subject to Section 16 of the Exchange Act, and
unless otherwise determined by the Board in writing at or after grant
but prior to the occurrence of the Change of Control in the case of
Participants not subject to Section 16 of the Exchange Act:
(i) The performance criteria of all Performance
Awards, Performance-Based Restricted Stock, and Other Stock-
Based Awards shall be deemed fully achieved and all such
Awards shall be fully earned and vested, subject only to the
restrictions on dispositions of equity securities set forth
in Section 8.01.1 and legal restrictions on the issuance of
Shares set forth in Section 8.04;
(ii) Any Option, Stock Appreciation Right, and
other Award in the nature of a right that may be exercised
which was not previously exercisable and vested shall become
fully exercisable and vested, subject only to the
restrictions on dispositions of equity securities set forth
in Section 8.01.1 and legal restrictions on the issuance of
Shares set forth in Section 8.04;
(iii) The restrictions, deferral limitations, and
forfeiture conditions applicable to any other Award granted
under the Plan shall lapse and such Awards shall be deemed
fully vested, subject only to the restrictions on
dispositions of equity securities set forth in Section
8.01.1 and legal restrictions on the issuance of Shares set
forth in Section 8.04; and
(iv) All outstanding Awards shall be cancelled and
a Participant holding any such Award shall be paid in cash
therefor on the basis of the "Change of Control Price" (as
defined in Section 9.03) as of the date that the Change of
Control occurs, or such other date as the Committee may
determine prior to the Change of Control; provided, however,
that this Section 9.01 (iv) shall not apply in the case of
any Award if the cancellation of and payment for such Award
would cause the Participant to incur actual short-swing
profits liability under Section 16(b) of the Exchange Act.
9.02. Change of Control. For purposes of Section 9.01, a
"Change of Control" shall mean:
(a) The acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange
Act) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 20% or more of either (i) the
then outstanding shares of common stock of the Corporation (the
"Outstanding Corporation Common Stock") or (ii) the combined voting
power of the then outstanding voting securities of the Corporation
entitled to vote generally in the election of directors (the
"Outstanding Corporation Voting Securities"); provided, however, that
the following acquisitions shall not constitute a Change of Control:
(i) any acquisition by the Corporation or any of its subsidiaries,
(ii) any acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Corporation or any of its subsidiaries
or (iii) any acquisition by any corporation with respect to which,
following such acquisition, more than 75% of, respectively, the then
outstanding shares of<PAGE>
<PAGE>
common stock of such corporation and the combined voting power of the
then outstanding voting securities of such corporation entitled to
vote generally in the election of directors is then beneficially
owned, directly or indirectly, by all or substantially all of the
individuals and entities who were the beneficial owners,
respectively, of the Outstanding Corporation Common Stock and
Outstanding Corporation Voting Securities immediately prior to such
acquisition in substantially the same proportions as their ownership,
immediately prior to such acquisition, of the Outstanding Corporation
Common Stock and Outstanding Corporation Voting Securities, as the
case may be; or
(b) Individuals who, as of the effective date of the Plan,
constitute the Board (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board; provided, however, that
any individual becoming a director subsequent to the date hereof
whose election, or nomination for election by the Corporation's
shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered as
though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of either an actual or
threatened solicitation to which Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act applies or other actual or
threatened solicitation of proxies or consents; or
(c) Approval by the shareholders of the Corporation of a
reorganization, merger or consolidation, in each case, with respect
to which all or substantially all of the individuals and entities who
were the beneficial owners, respectively, of the Outstanding
Corporation Common Stock and Outstanding Corporation Voting
Securities immediately prior to such reorganization, merger or
consolidation do not, following such reorganization, merger or
consolidation, beneficially own, directly or indirectly, more than
75% of, respectively, the then outstanding shares of common stock and
the combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors, as the case
may be, of the corporation resulting from such reorganization, merger
or consolidation in substantially the same proportions as their
ownership, immediately prior to such reorganization, merger or
consolidation of the Outstanding Corporation Common Stock and
Outstanding Corporation Voting Securities, as the case may be; or
(d) Approval by the shareholders of the Corporation of (i)
a complete liquidation or dissolution of the Corporation or (ii) the
sale or other disposition of all or substantially all of the assets
of the Corporation, other than to a corporation, with respect to
which following such sale or other disposition, more than 75% of,
respectively, the then outstanding shares of common stock of such
corporation and the combined voting power of the then outstanding
voting securities of such corporation entitled to vote generally in
the election of directors is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the
Outstanding Corporation Common Stock and Outstanding Corporation
Voting Securities immediately prior to such sale or other disposition
in substantially the same proportion as their ownership, immediately
prior to such sale or other disposition, of the Outstanding
Corporation Common Stock and Outstanding Corporation Voting
Securities, as the case may be. The term "the sale or other
disposition of all or substantially all of the assets of the
Corporation" shall mean a sale or other disposition transaction or
series of related transactions involving assets of the Corporation or
of any direct or indirect subsidiary of the Corporation (including
the stock of any direct or indirect subsidiary<PAGE>
<PAGE>
of the Corporation) in which the value of the assets or stock being
sold or otherwise disposed of (as measured by the purchase price
being paid therefor or by such other method as the Board determines
is appropriate in a case where there is no readily ascertainable
purchase price) constitutes more than two-thirds of the fair market
value of the Corporation (as hereinafter defined). The "fair market
value of the Corporation" shall be the aggregate market value of the
then Outstanding Corporation Common Stock (on a fully diluted basis)
plus the aggregate market value of the Corporation's other
outstanding equity securities. The aggregate market value of the
shares of Outstanding Corporation Common Stock shall be determined by
multiplying the number of shares of Outstanding Corporation Common
Stock (on a fully diluted basis) outstanding on the date of the
execution and delivery of a definitive agreement with respect to the
transaction or series of related transactions (the "Transaction
Date") by the average closing price of the shares of Outstanding
Corporation Common Stock for the ten trading days immediately
preceding the Transaction Date. The aggregate market value of any
other equity securities of the Corporation shall be determined in a
manner similar to that prescribed in the immediately preceding
sentence for determining the aggregate market value of the shares of
Outstanding Corporation Common Stock or by such other method as the
Board shall determine is appropriate.
9.03. Change of Control Price. For purposes of this
Section 9, "Change of Control Price" means the highest price per
share paid in any transaction reported on the securities exchange or
trading system on which the Shares are then primarily listed or
traded, or paid or offered in any transaction related to a Change of
Control of the Corporation at any time during the preceding 60-day
period as determined by the Committee, except that in the case of
Incentive Stock Options and Stock Appreciation Rights relating
thereto, such price shall be based only on transactions reported for
the date on which the Committee decides to cash out such Awards.
SECTION 10. Adjustment Provisions. In the event that the
Committee shall determine that any dividend or other distribution
(whether in the form of cash, Shares, or other property),
recapitalization, stock split, reverse stock split, reorganization,
merger, consolidation, spin-off, combination, repurchase, or share
exchange, or other similar corporate transaction or event, affects
the Shares such that an adjustment is determined by the Committee to
be appropriate in order to prevent dilution or enlargement of the
rights of Participants under the Plan, then the Committee shall, in
such manner as it may deem equitable, adjust any or all of (i) the
number and kind of Shares which may thereafter be issued in
connection with Awards (ii) the number and kind of Shares issued or
issuable in respect of outstanding Awards, and (iii) the exercise
price, grant price, or purchase price relating to any Award or, if
deemed appropriate, make provision for a cash payment with respect to
any outstanding Award; provided, however, in each case, that, with
respect to Incentive Stock Options, no such adjustment shall be
authorized to the extent that such authority would cause the Plan to
violate Section 422(b)(1) of the Code. In addition, the Committee is
authorized to make adjustments in the terms and conditions of, and
the criteria included in, Awards in recognition of unusual or
nonrecurring events (including, without limitation, events described
in the preceding sentence) affecting the Corporation or any
Subsidiary or the financial statements of the Corporation or any
Subsidiary, or in response to changes in applicable laws,
regulations, or accounting principles.<PAGE>
<PAGE>
SECTION 11. Changes to the Plan and Awards.
11.01. Changes to the Plan. The Board may amend, alter,
suspend, discontinue or terminate the Plan without the consent of
shareholders or Participants, except that any such amendment,
alteration, suspension, discontinuation, or termination shall be
subject to the approval of the Corporation's shareholders within one
year after such Board action if such shareholder approval is required
by any federal or state law or regulation or the rules of any stock
exchange on which the Shares may be listed, or if the Board in its
discretion determines that obtaining such shareholder approval is for
any reason advisable; provided, however, that, without the consent of
an affected Participant, no amendment, alteration, suspension,
discontinuation, or termination of the Plan may impair the rights of
such Participant under any Award theretofore granted to him.
11.02. Changes to Awards. The Committee may waive any
conditions or rights under, or amend, alter, suspend, discontinue, or
terminate, any Award theretofore granted and any Award Agreement
relating thereto; provided, however, that, without the consent of an
affected Participant, no such amendment, alteration, suspension,
discontinuation, or termination of any Award may impair the rights of
such Participant under such Award.
SECTION 12. General Provisions.
12.01. No Rights to Awards. No Participant or employee
shall have any claim to be granted any Award under the Plan, and
there is no obligation for uniformity of treatment of Participants
and employees.
12.02. No Shareholder Rights. No Award shall confer on any
Participant any of the rights of a shareholder of the Corporation
unless and until Shares are duly issued or transferred to the
Participant in accordance with the terms of the Award.
12.03. Tax Withholding. The Corporation or any Subsidiary
is authorized to withhold from any Award granted, any payment
relating to an Award under the Plan, including from a distribution of
Shares, or any payroll or other payment to a Participant, amounts of
withholding and other taxes due with respect thereto, its exercise,
or any payment thereunder, and to take such other action as the
Committee may deem necessary or advisable to enable the Corporation
and Participants to satisfy obligations for the payment of
withholding taxes and other tax liabilities relating to any Award.
This authority shall include authority to withhold or receive Shares
or other property and to make cash payments in respect thereof in
satisfaction of Participant's tax obligations.
12.04. No Right to Employment. Nothing contained in the
Plan or any Award Agreement shall confer, and no grant of an Award
shall be construed as conferring, upon any employee any right to
continue in the employ of the Corporation or any Subsidiary or to
interfere in any way with the right of the Corporation or any
Subsidiary to terminate his employment at any time or increase or
decrease his compensation from the rate in existence at the time of
granting of an Award.<PAGE>
<PAGE>
12.05. Unfunded Status of Awards. The Plan is intended to
constitute an "unfunded" plan for incentive and deferred
compensation. With respect to any payments not yet made to a
Participant pursuant to an Award, nothing contained in the Plan or
any Award shall give any such Participant any rights that are greater
than those of a general creditor of the Corporation; provided,
however, that the Committee may authorize the creation of trusts or
make other arrangements to meet the Corporation's obligations under
the Plan to deliver cash, Shares, other Awards, or other property
pursuant to any award, which 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.
12.06. Other Compensatory Arrangements. The Corporation or
any Subsidiary shall be permitted to adopt other or additional
compensation arrangements (which may include arrangements which
relate to Awards), and such arrangements may be either generally
applicable or applicable only in specific cases.
12.07. Fractional Shares. No fractional Shares shall be
issued or delivered pursuant to the Plan or any Award. The Committee
shall determine whether cash, other Awards, or other property shall
be issued or paid in lieu of fractional Shares or whether such
fractional Shares or any rights thereto shall be forfeited or
otherwise eliminated.
12.08. Governing Law. The validity, construction, and
effect of the Plan, any rules and regulations relating to the Plan,
and any Award Agreement shall be determined in accordance with the
laws of the State of Florida, without giving effect to principles of
conflicts of laws, and applicable federal law.
SECTION 13. Effective Date. The Plan shall become effective
on February 14, 1994; provided, however, that within one year after
such date, the Plan shall have been approved by the affirmative vote
of the holders of a majority of the Shares present or represented and
entitled to vote (and the affirmative vote of a majority of the
Shares voting) at a meeting of the Corporation's shareholders, or any
adjournment thereof.
AMENDMENT NO. 1 TO FPL GROUP, INC.
LONG TERM INCENTIVE PLAN 1994
The following amendment to the FPL Group, Inc. Long Term Incentive Plan 1994
was approved by the Board of Directors of FPL Group, Inc. on February 13, 1995
and is effective as of that date.
The first sentence of Section 4 of the 1994 LTIP is amended in its entirety
to read as follows:
"Subject to adjustment as provided in Section 10, the total number of Shares
available for Awards under the Plan shall be 9,000,000. Such Shares may
be authorized and unissued Shares or Shares purchased on the open market.
EXHIBIT 5
(Steel Hector & Davis Opinion)
February 13, 1995
FPL Group, Inc.
700 Universe Boulevard
Juno Beach, Florida 33408
Gentlemen:
As counsel for FPL Group, Inc., a Florida corporation ("FPL
Group"), we have participated in the preparation of a registration
statement on Form S-8 to be filed by FPL Group with the Securities
and Exchange Commission under the Securities Act of 1933, as amended,
on or about the date hereof (the "Registration Statement") in
connection with FPL Group's Long Term Incentive Plan 1994
(the "Plan"). The Registration Statement relates to
9,000,000 shares (the "Shares") of FPL Group Common Stock, $.01 par
value (the "Common Stock"), and the Preferred Share Purchase Rights
attached thereto (the "Rights").
In connection therewith, we have examined FPL Group's Restated
Articles of Incorporation and FPL Group's By-laws, each as amended to
the date hereof; the Rights Agreement dated as of June 16, 1986
between FPL Group and The First National Bank of Boston (the "Rights
Agreement"), providing for the issuance of the Rights; resolutions
adopted by the Board of Directors of FPL Group on June 16, 1986
providing, among other things, for distribution of the Rights and
approving the Rights Agreement; and such other corporate documents
and records, certificates of public officials and questions of law as
we deemed necessary or appropriate for the purposes of this opinion.
We have also reviewed the relevant statutory provisions of the
Florida Business Corporation Act, such other legal authority in
Florida as we have deemed relevant and, as the issuance of the Rights
would, if challenged, present as to a Florida corporation a case of
first impression in the courts of Florida and because the issuance of
interests such as the Rights has to our knowledge yet to be the
subject of any reported appellate opinion of a Florida court, we have
reviewed certain case law with respect to the distribution of such
rights in other jurisdictions.
For purposes of the opinion related to the Rights expressed
herein, we have assumed (1) that FPL Group has sufficient authorized
but unissued shares of preferred stock to provide fully for the
exercise of the Rights without amendment of FPL Group's Restated
Articles of Incorporation to increase the number of authorized but
unissued shares of preferred stock, (2) that no member of the Board
of Directors of FPL Group has any personal interest therein (except
for an interest arising solely from ownership of FPL Group Common
Stock) and (3) that in approving the Rights Agreement and the
transactions provided for therein, each member of the Board of
Directors has discharged his duties in the good faith exercise of his
business judgment, in a manner he reasonably believed to be in the
best interest of FPL Group and its shareholders and with such care as
an ordinarily prudent person in a like position would use under
similar circumstances, and that he did not act solely or primarily to
perpetuate his office. Nothing has come to our attention that would
lead us to believe that we are not justified in relying on such
assumptions.
Based on the foregoing, we advise you that:
I.
The Shares of Common Stock, when sold as contemplated
by the Registration Statement, are validly issued, fully
paid and non-assessable.
II.
The Rights, when issued as contemplated by the
Registration Statement, are validly issued.<PAGE>
<PAGE>
The foregoing opinions are rendered subject to the qualification
that we are members of the Florida Bar and the foregoing opinions are
limited to the laws of the State of Florida and the federal laws of
the United States insofar as they bear on the matters covered hereby.
We hereby consent to the filing of this opinion as Exhibit 5
to the Registration Statement. We also consent to the reference to
us in the Prospectus under the caption "Legal Matters".
Very truly yours,
Steel Hector & Davis
Exhibit 23.1
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this Registration Statement of
FPL Group, Inc. on Form S-8 of our report dated February 11, 1994 appearing in
FPL Group, Inc.'s Annual Report on Form 10-K for the year ended
December 31, 1993 and the reference to us under the heading "Experts" in the
Prospectus which is part of this Registration Statement.
Deloitte & Touche LLP
Miami, Florida
February 10, 1995
