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
(Address of Principal Executive Offices) (Zip Code)
FPL Group, Inc. Deferred Compensation Plan
(Full Title of the Plan)
Dennis P. Coyle
General Counsel and Secretary
FPL Group, Inc.
700 Universe Boulevard
Juno Beach, Florida 33408
(561) 694-4644
Jeffrey I. Mullens, P.A.
Steel Hector & Davis LLP
1900 Phillips Point West
777 South Flagler Drive
West Palm Beach, Florida 33401-6198
(561) 650-7257
Robert J. Reger, Jr., Esq.
Thelen Reid & Priest LLP
40 West 57th Street
New York, New York 10019-4097
(212) 603-2000
(Names and addresses of agents for service)
(Telephone numbers, including area code, of agents for service)
Copies to:
Denise A. Gordon, Esq.
Steel Hector & Davis LLP
1900 Phillips Point West
777 S. Flagler Drive
West Palm Beach, Florida, 33401-6198
CALCULATION OF REGISTRATION FEE
<TABLE><CAPTION>
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Securities to be OfferingPrice Aggregate Registration
to be Registered Registered Per Unit Offering Price (1) Fee
<S> <C> <C> <C> <C>
Deferred Compensation
Obligations (2) $22,000,000 100% $22,000,000 $6,116.00
</TABLE>
(1) Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457(h) under the Securities
Act of 1933, as amended (the "Securities Act").
(2) The Deferred Compensation Obligations (the "Deferred
Obligations") are unsecured obligations of FPL Group, Inc. to
pay deferred compensation in the future in accordance with the
terms of the FPL Group, Inc. Deferred Compensation Plan (the
"Plan").
This Registration Statement shall become effective upon filing
with the Securities and Exchange Commission (the "Commission") in
accordance with Section 8(a) of the Securities Act, and Rules 456
and 462 promulgated thereunder.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Not required to be filed with the Commission.
Item 2. Registrant Information and Employee Plan Annual Information.
Not required to be filed with the Commission.
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 Commission are incorporated herein by reference:
1. Annual Report on Form 10-K
(Commission File No. 1-8841) for the fiscal year
ended December 31, 1998.
2. Quarterly Reports on Form
10-Q (Commission File No. 1-8841) for the quarterly
periods ended March 31, 1999 and June 30, 1999.
3. Current Reports on Form 8-K
filed with the Commission on March 17, 1999, April
16, 1999 and July 20, 1999 (Commission File No. 1-
8841).
4. 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.
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 to this Registration
Statement 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 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.
The following description of the Deferred Obligations is
qualified in its entirety by reference to the Plan, a copy of which is
attached as Exhibit 99 to this Registration Statement. See Item 8,
"Exhibits." Capitalized terms not defined in this description are defined in
the Plan. The filing of this Registration Statement is not, and should not
be construed as, an admission that the Deferred Obligations constitute
securities as defined by any applicable federal, state or local law, or that
registration of Deferred Obligations is required under any such law.
Under the terms of the Plan, non-employee directors, certain
officers and employees of the Registrant and its affiliates (the "Employer")
may defer all or a portion of their salary, bonuses and director retainer and
meeting fees (whichever may apply) in accordance with the terms of the Plan.
The Registrant's obligations to pay in the future, in accordance with the
terms of the Plan, the value of deferred compensation as adjusted to reflect
the performance, whether positive or negative, of the selected options during
the deferral period are unsecured general obligations of the Registrant and
will rank pari passu with other unsecured and unsubordinated indebtedness of
the Registrant from time to time outstanding. There is no dollar limit on the
total amount of compensation which may be deferred by Participants over the
term of the Plan.
Even though amounts deferred under the Plan are credited to
the Participants' Accounts, the Employer shall not be required to earmark,
deposit, contribute to a trust, or otherwise set aside funds for such
Accounts. The Registrant may establish a "rabbi trust" to serve as a source
of funds from which it may satisfy the Deferred Obligations. Participants
will have no rights to any assets held by the rabbi trust, except as general
creditors of the Registrant. Assets of the rabbi trust will at all times be
subject to the claims of general creditors of the Registrant. No trustee has
been appointed to take action with respect to the Deferred Obligations and
each Participant will be responsible for acting independently with respect to
enforcing his or her rights with respect to the Deferred Obligations.
The amount of compensation to be deferred by each
Participant will be determined in accordance with the Plan based on elections
made by the Participant. Each distribution under the Plan will occur on a
date selected by the Participant in accordance with the terms of the Plan, or
if no such date is selected, in accordance with the provisions of the Plan.
The Deferred Obligations are not convertible into any other security of the
Registrant.
The Deferred Obligations are not subject to redemption, in
whole or in part, prior to the individual payment dates specified by the
Participants, at the option of the Employer or through operation of a
mandatory or optional sinking fund or analogous provision. The Deferred
Obligations may be distributed to the Participant in the form of dollars
and/or shares of Common Stock in accordance with the terms of the
Participant's Award Agreement. Except as provided in the Plan, any attempt
by a participant to alienate, sell, transfer, assign, pledge, garnish, attach
or otherwise subject to legal or equitable process or encumber or dispose of
any interest in the Plan will be void.
Under the terms of the Plan, except to the extent otherwise
reserved to the Administrator, the President, any Vice President or the
General Counsel of the Registrant shall have the right to amend the Plan at
any time and from time to time, including a retroactive amendment. In
addition, the Compensation Committee of the Registrant's Board of Directors
expressly reserves the right to terminate the Plan and to amend certain
provisions of the Plan enumerated in the Plan at any time or from time to
time, including a retroactive amendment. No amendment or termination of the
Plan is permitted to modify or in any way affect any existing right or
obligation under the Plan without the consent of any person affected by the
amendment or termination.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Florida Business Corporation Act. Section 607.0850 of the
Florida Business Corporation Act (the "FBCA") generally permits the Registrant
to indemnify its directors, officers, employees or other agents who are
subject to any third-party actions because of their service to the Registrant
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 the Registrant. If the
proceeding is a criminal one, such person must also have had no reasonable
cause to believe his conduct was unlawful. In addition, the Registrant 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 the Registrant.
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
Section 607.0834 of the FBCA (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, Section 607.0831 of the FBCA provides, in
general, that no director shall be personally liable for monetary damages to
the Registrant 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 indirectly, (iii) a circumstance under
which the liability provisions of Section 607.0834 of the FBCA are applicable,
(iv) in a proceeding by or in the right of the Registrant to procure a
judgment in its favor or by or in the right of a shareholder, conscious
disregard for the best interest of the Registrant, or willful misconduct, or
(v) in a proceeding by or in the right of someone other than the Registrant
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.
Bylaws. The Registrant's Bylaws provide generally that the
Registrant shall, to the fullest extent permitted by law, indemnify all
directors and officers of the Registrant, directors, officers, or other
employees serving as a fiduciary of an employee benefit plan of the
Registrant, as well as any employees or agents of the Registrant or other
persons serving at the request of the Registrant in any capacity with any
entity or enterprise other than the Registrant to whom the Registrant 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 attorneys' 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.
Insurance. In addition to the foregoing, the Registrant
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.
Indemnification under the Plan. The Plan provides that the
Employer will indemnify the members of the Committee against any and all
claims, losses, damages, expenses, including any counsel fees and costs,
incurred by them, and any liability, including any amounts paid in settlement
with their approval, arising from their action or failure to act, except when
such action or failure to act is judicially determined to be attributable to
their gross negligence or willful misconduct.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
5 Opinion of Steel Hector & Davis LLP.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Steel Hector & Davis LLP (included in
Exhibit 5 to this Registration Statement).
24 Power of Attorney (included on signature pages of
this Registration Statement).
99 FPL Group, Inc. Deferred Compensation Plan, amended
and restated effective January 1, 1995.
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;
(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; and
(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 the Registration Statement is on Form S-8 or Form S-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
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 Section
15(d) of the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 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
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
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.
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 on his behalf, in any and all capacities stated below
and to file with the 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 on its
behalf.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act,
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 September, 1999.
FPL GROUP, INC.
By:/s/ James L. Broadhead
James L. Broadhead
Chairman of the Board
and Chief Executive Officer
[continued on next page]
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on
the dates indicated:
<TABLE><CAPTION>
Signature Title Date
<S> <C> <C>
/s/ James L. Broadhead Chairman of the Board, Chief September 13, 1999
James L. Broadhead Executive Office and Director
(Principal Executive Officer)
/s/ Lewis Hay, III Vice President, Finance and September 13, 1999
Lewis Hay, III Chief Financial Officer
(Principal Financial Officer)
/s/ K. Michael Davis Controller and Chief Accounting September 13, 1999
K. Michael Davis Officer
(Principal Accounting Officer)
/s/ H. Jesse Arnelle Director September 13, 1999
H. Jesse Arnelle
Director September 13, 1999
Sherry S. Barrat
/s/ Robert M. Beall, II Director September 13, 1999
Robert M. Beall, II
/s/ J. Hyatt Brown Director September 13, 1999
J. Hyatt Brown
Director September 13, 1999
Armando M. Codina
Director September 13, 1999
Marshall M. Criser
/s/ B. F. Dolan Director September 13, 1999
B. F. Dolan
/s/ Willard D. Dover Director September 13, 1999
Willard D. Dover
/s/ Alexander W. Dreyfoos Jr. Director September 13, 1999
Alexander W. Dreyfoos Jr.
/s/ Paul J. Evanson Director September 13, 1999
Paul J. Evanson
/s/ Drew Lewis Director September 13, 1999
Drew Lewis
Director September 13, 1999
Frederic V. Malek
/s/ Paul R. Tregurtha Director September 13, 1999
Paul R. Tregurtha
/s/ Roger Young Director September 13, 1999
Roger Young
</TABLE>
EXHIBIT INDEX
Exhibit No.
5 Opinion of Steel Hector & Davis LLP.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Steel Hector & Davis LLP (included in Exhibit 5
to this Registration Statement).
24 Power of Attorney (included on signature pages of this
Registration Statement).
99 FPL Group, Inc. Deferred Compensation Plan, amended and
restated effective January 1, 1995.
Exhibit 5
September 28, 1999
FPL Group, Inc.
700 Universe Boulevard
Juno Beach, Florida 33408
Ladies and 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 (the "Registration Statement") to be filed by FPL Group with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Securities Act"), on or about the date hereof in
connection with the FPL Group, Inc. Deferred Compensation Plan (the "Plan").
The Registration Statement registers $22,000,000 of deferred compensation
obligations (the "Obligations"), which will represent unsecured obligations
of FPL Group issued under the Plan.
In connection with the delivery of this opinion, we have examined FPL
Group's Restated Articles of Incorporation and FPL Group's Bylaws, each as
amended to the date hereof; 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 and such other legal authority in Florida as
we have deemed relevant.
Based upon and subject to the foregoing, we advise you that the
Obligations, when contributions are credited to the accounts of participants
in accordance with the terms and conditions of the Plan, are valid and binding
obligations of FPL Group, enforceable against FPL Group in accordance with
their terms, except as limited or affected by bankruptcy, insolvency,
reorganization, receivership, moratorium or other laws affecting creditors'
rights generally and general principles of equity.
The foregoing opinions are rendered subject to the qualification that
we are members of the Florida Bar. 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,
/s/ STEEL HECTOR & DAVIS LLP
STEEL HECTOR & DAVIS LLP
JIM
Exhibit 23.1
INDEPENDENT AUDITORS' 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 12, 1999 appearing
in FPL Group, Inc.'s Annual Report on Form 10-K for the year ended December
31, 1998.
/S/ Deloitte & Touche LLP
Deloitte & Touche LLP
Miami, Florida
September 27, 1999
Exhibit 99
FPL GROUP, INC.
DEFERRED COMPENSATION PLAN
Amended and Restated
Effective January 1, 1995
FPL GROUP, INC.
DEFERRED COMPENSATION PLAN
TABLE OF CONTENTS
Page
ARTICLE
Definitions
1.01 Account or Accounts 2
1.02 Administrator 2
1.03 Annual Deferral Election Form 2
1.04 Award Agreement 2
1.05 Base Salary 2
1.06 Beneficiary Designation Form 2
1.07 Board 2
1.08 Bonus 2
1.09 Change of Control 2
1.10 Committee 5
1.11 Common Stock 5
1.12 Company 5
1.13 Director's Fees 5
1.14 Disability 5
1.15 Distribution Election Form 5
1.16 Distribution Starting Date 5
1.17 Election Period 6
1.18 Employee 6
1.19 Employer 6
1.20 ERISA 6
1.21 Exchange Act 6
1.22 Investment Account 6
1.23 Investment Allocation Form 6
1.24 Investment Fund Election Form 6
1.25 IRC 6
1.26 LTIP 7
1.27 LTIP Award 7
1.28 Market Value Per Share 7
1.29 Non-Employee Director 7
1.30 Officer 7
1.31 Participant 7
1.32 Phantom Stock Account 7
1.33 Phantom Shares 7
1.34 Plan 7
1.35 Plan Year 7
1.36 Section 16 Committee 7
1.37 Section 16 Reporting Person 7
ARTICLE 2
Eligibility
2.01 Eligibility to Participate in the Plan 8
ARTICLE 3
Deferred Compensation Benefits
3.01 Deferral Election 8
3.02 Investment Allocation 9
3.03 Deferral in Phantom Shares 10
3.04 Deferral in Dollars 10
ARTICLE 4
Distributions
4.01 Manner of Distribution 11
4.02 Form of Distribution 12
4.03 Hardship Distributions 12
4.04 Distribution Upon a Change of Control 12
4.05 Beneficiary Designation 13
4.06 Taxes 13
4.07 Offset for Obligations to Employer 13
4.08 Distributions under Domestic Relations Orders 13
ARTICLE 5
Administration
5.01 Administration 14
5.02 Liability of Committee and Administrator;
Indemnification 14
5.03 Determination of Benefits 14
5.04 Expenses 15
5.05 Compliance with Securities Laws 16
ARTICLE 6
Miscellaneous
6.01 No Trust Created 16
6.02 No Requirement to Fund 16
6.03 Benefits Payable from General Assets 16
6.04 Successors 17
6.05 No Contract of Employment 17
6.06 Amendment or Termination of Plan 17
6.07 Top Hat Plan 17
6.08 Governing Law 17
6.09 Severability 17
6.10 Construction 17
6.11 Merger or Consolidation or Sale of Assets of
Employer 18
6.12 Transfer to an Affiliate of the Company 18
6.13 Assignment 18
6.14 Incapacity 18
6.15 Effect on Benefits Under Other Plans 18
6.16 Indemnity Upon Change of Control 19
6.17 No Rights as Stockholders 19
Execution Page 20
FPL GROUP, INC. DEFERRED COMPENSATION PLAN
THIS FPL GROUP, INC. DEFERRED COMPENSATION PLAN (the "Plan")
effective as of January 1, 1995 (the "Effective Date"), amends and
restates the FPL Group, Inc. Deferred Compensation Plan, which was
originally adopted by the Board of Directors of FPL Group, Inc. (the
"Company") effective as of January 1, 1995.
W I T N E S S E T H T H A T:
WHEREAS, the officers and a select group of management or
highly compensated employees of the Company and its affiliates
(hereinafter collectively referred to as the "Employer") are entitled
to compensation which results from or is attributable to their
performance of services as officers and employees of the Employer and
may be awarded bonuses and performance related compensation pursuant
to the Annual Incentive Plan, the FPL Group Long Term Incentive Plan
1985, the FPL Group, Inc. Long Term Incentive Plan 1994 and other
incentive compensation plans; and
WHEREAS, directors of the Employer are entitled to fees which
result from or are attributable to their performance of services as
directors of the Employer; and
WHEREAS, the Employer desires to establish a deferred
compensation plan for the exclusive benefit of directors, officers and
a select group of management or highly compensated employees of the
Employer pursuant to which such individuals may elect to defer receipt
of all or a portion of their base salary, bonuses, incentive plan
awards and/or fees in accordance with the provisions of the Plan; and
WHEREAS, the Employer intends that the Plan be considered an
unfunded arrangement that is maintained primarily to provide deferred
compensation to members of a select group of management or highly
compensated employees of the Employer, for purposes of the Employee
Retirement Income Security Act of 1974, as amended;
NOW, THEREFORE, the deferred compensation plan set forth
herein is hereby amended and restated effective as of the Effective
Date.
ARTICLE 1
Definitions
The following terms when used herein shall have the designated
meaning unless a different meaning is plainly required by the context
in which the term is used:
1.01 "Account" or "Accounts" shall mean the account or accounts
established and maintained for a Participant pursuant to Article 3 of the
Plan. A Participant's Account shall consist of the Participant's Phantom
Stock Account and/or the Participant's Investment Account.
1.02 "Administrator" shall mean an officer or officers of the
Employer designated by the Employer to administer the Plan or, until the
Employer designates such an officer or officers, the Vice President of
Human Resources of the Company.
1.03 "Annual Deferral Election Form" shall mean the form
or forms that may be approved by the Administrator from time to time for
use by a Participant to elect to defer Base Salary, Bonuses, LTIP Awards
and/or Director's Fees under the Plan during the Election Period, subject
to the applicable limitations contained in the Plan.
1.04 "Award Agreement" shall mean an agreement executed
between the Company and an Officer pursuant to the LTIP setting forth the
manner and form of distribution of such Officer's LTIP Award.
1.05 "Base Salary" shall mean the base salary of a Participant paid
by the Employer, exclusive of Bonuses, LTIP Awards and Director's Fees.
1.06 "Beneficiary Designation Form" shall mean the form or forms
that may be approved by the Administrator from time to time
for use by a Participant to designate a beneficiary or
beneficiaries, if applicable, pursuant to Section 4.05.
1.07 "Board" shall mean the Board of Directors of the Company.
1.08 "Bonus" shall mean any bonus that the Participant is awarded
pursuant to the Annual Incentive Plan and such other payments awarded
under such other incentive compensation plans that are designated by the
Administrator as eligible for deferral under this Plan.
1.09 "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 Company (the "Outstanding Company Common Stock") or (ii) the combined
voting power of the then outstanding voting securities of the Company entitled
to vote generally in the election of directors (the "Outstanding Company
Voting Securities"); provided, however, that the following acquisitions shall
not constitute a Change of Control: (i) any acquisition by the Company or any
of its subsidiaries, (ii) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Company 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 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
Company Common Stock and Outstanding Company Voting Securities, as the case
may be; or
(b) Individuals who, as of the date hereof, 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 Company'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 Company 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 Company Common Stock and Outstanding
Company 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 Company Common Stock and Outstanding Company
Voting Securities, as the case may be; or
(d) Approval by the shareholders of the Company of (i) a complete
liquidation or dissolution of the Company or (ii) the sale or other
disposition of all or substantially all of the assets of the Company, 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 Company Common
Stock and Outstanding Company 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
Company Common Stock and Outstanding Company Voting Securities, as the case
may be.
The term "the sale or disposition by the Company of all or substantially all
of the assets of the Company" shall mean a sale or other disposition
transaction or series of related transactions involving assets of the Company
or of any direct or indirect subsidiary of the Company (including the stock
of any direct or indirect subsidiary of the Company) 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 Company (as hereinafter defined). The "fair market value of the Company"
shall be the aggregate market value of the then Outstanding Company Common
Stock (on a fully diluted basis) plus the aggregate market value of the
Company's other outstanding equity securities. The aggregate market value of
the shares of Outstanding Company Common Stock shall be determined by
multiplying the number of shares of Outstanding Company 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 Company Common Stock for the ten trading days
immediately preceding the Transaction Date. The aggregate market value of any
other equity securities of the Company 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 Company Common Stock or
by such other method as the Board shall determine is appropriate.
1.10 "Committee" shall mean the Compensation Committee of the
Board or any such other committee designated by the Board, which shall consist
of at least three members of the Board each of whom are not employees of the
Company or any of its subsidiaries.
1.11 "Common Stock" shall mean the common stock, $.01 par value
per share, of the Company.
1.12 "Company" shall mean FPL Group, Inc.
1.13 "Director's Fees" shall mean the fees of a Participant which
result from or are attributable to the performance of services by such
Participant as a director of the Employer.
1.14 "Disability" shall have the meaning set forth in the Long
Term Disability Plan For Employees of FPL Group and Affiliates.
1.15 "Distribution Election Form" shall mean the form or forms
that may be approved by the Administrator from time to time for use by a
Participant to elect a Distribution Starting Date and payment schedule during
the Election Period pursuant to Sections 1.16 and 4.01.
1.16 "Distribution Starting Date" shall mean:
(a) the first day of the first month following the earlier of the
Participant's retirement, death, Disability, or other termination of service;
(b) the first day of the first Plan Year following the earlier of the
Participant's retirement, death, Disability, or other termination of service;
or
(c) subject to the Administrator authorizing a Participant to select a
specific date on which his or her benefits under the Plan shall commence, a
specific date specified by the Participant,
or as soon thereafter as is administratively feasible, as elected by the
Participant. For any such election to be valid, it must be made during an
Election Period. For purposes of this Plan, if the Participant transfers from
one Employer to another Employer, such transfer shall not be considered a
termination of service, and a termination of service shall occur only when the
Participant separates from the employ of all Employers.
In the event the Participant fails to elect one of the dates described above,
his or her Distribution Starting Date shall be the first day of the first
month following the earliest of Participant's retirement, death, Disability,
or other termination of service, or as soon thereafter as is administratively
feasible.
1.17 "Election Period" shall mean the period that occurs
annually, as established by the Administrator, during which a Participant may
deliver an Annual Deferral Election Form and a Distribution Election Form to
the Administrator and which shall end before the time in which a Participant's
benefits under the Plan would otherwise be treated as constructively received
or the economic benefit of which would be enjoyed (within the meaning of the
Federal tax laws).
1.18 "Employee" shall mean an employee of the Employer in grade
12 or above who is designated by the Administrator as eligible to participate
in the Plan, provided that such individual is among a select group of
management or highly compensated employees within the meaning of ERISA
201(2).
1.19 "Employer" shall mean the Company and its affiliates.
1.20 "ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended.
1.21 "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
1.22 "Investment Account" shall mean an account established and
maintained for a Participant pursuant to Section 3.02.
1.23 "Investment Allocation Form" shall mean the form or forms
that may be approved by the Administrator from time to time for use by a
Participant to allocate deferred Base Salary, Bonuses, LTIP Awards and/or
Director's Fees between a Phantom Stock Account and/or an Investment Account
pursuant to Section 3.02.
1.24 "Investment Fund Election Form" shall mean the form or forms
that may be approved by the Administrator from time to time for use by a
Participant to allocate deferred Base Salary, Bonuses, LTIP Awards and/or
Director's Fees in the Participant's Investment Account into one or more
investment funds selected by the Employer pursuant to Section 3.04(b).
1.25 "IRC" shall mean the Internal Revenue Code of 1986, as
amended.
1.26 "LTIP" shall mean the FPL Group, Inc. Long Term Incentive
Plan 1994 or the FPL Group, Inc. Long Term Incentive Plan 1985, as applicable.
1.27 "LTIP Award" shall mean an award granted pursuant to the
terms of the LTIP.
1.28 "Market Value Per Share" shall mean the average of the high
and low selling prices on the relevant date for shares of Common Stock as
reported on the Composite Transactions Tape of the New York Stock Exchange,
Inc. on such date (or, if such date shall not be a trading day, the next
preceding day which shall be a trading day). If no sale occurs on such date,
the Market Value Per Share shall be determined in the manner described above,
as of the last preceding trading date prior to the relevant date on which a
sale occurs or shall be determined in good faith by the Administrator.
1.29 "Non-Employee Director" shall mean a member of the Board who
is not an employee of the Company or any of its subsidiaries.
1.30 "Officer" shall mean an officer of the Employer who is
designated by the Administrator as eligible to participate in the Plan,
provided that such individual is among a select group of management or highly
compensated employees within the meaning of ERISA 201(2).
1.31 "Participant" shall mean a Non-Employee Director, Officer
or Employee who is eligible to participate in the Plan and has elected to
defer Base Salary, Bonuses, LTIP Awards and/or Director's Fees, as provided
in Section 3.01.
1.32 "Phantom Stock Account" shall mean an account established
and maintained for a Participant pursuant to Section 3.02.
1.33 "Phantom Shares" shall mean hypothetical shares of Common
Stock.
1.34 "Plan" shall mean the FPL Group, Inc. Deferred Compensation
Plan, as contained herein, and as may be amended from time to time.
1.35 "Plan Year" shall mean the calendar year.
1.36 "Section 16 Committee" shall mean the committee of the Board
established for the purposes of approving certain matters relating to Section
16 Reporting Persons.
1.37 "Section 16 Reporting Person" shall mean any (a) director
of the Company or (b) officer of the Employer designated by the Board to be
an "executive officer" for purposes of Section 16(a) of the Exchange Act.
ARTICLE 2
Eligibility
2.01 Eligibility to Participate in the Plan. A Non-Employee Director,
Officer or Employee shall be eligible to participate in the Plan to the extent
provided herein.
ARTICLE 3
Deferred Compensation Benefits
3.01 Deferral Election. A Non-Employee Director, Officer or Employee may
elect to defer all or a portion of his or her Base Salary, Bonuses, LTIP
Awards and/or Director's Fees to the extent provided in this Section 3.01 into
a Phantom Stock Account and/or an Investment Account with respect to any Plan
Year commencing on or after January 1, 1995 by completing, signing and
delivering an Annual Deferral Election Form to the Administrator during an
Election Period:
(a) A Non-Employee Director may defer all or a part of his or her
Director's Fees;
(b) An Officer may defer all or a portion of his or her Base Salary,
Bonuses or LTIP Awards; and
(c) An Employee may defer all or a portion of his or her Bonuses, and,
to the extent that the President or any Vice President of the Company may in
his or her sole discretion permit, any Employee may defer all or a portion of
his or her Base Salary or LTIP Awards.
If a Participant incurs a financial hardship (as determined by the
Administrator) and the Participant requests in writing a reduction or
elimination of deferrals for the remainder of a Plan Year, the Administrator,
in its sole and absolute discretion, may reduce or eliminate such future
deferrals for the remainder of the Plan Year.
Notwithstanding anything to the contrary in this Plan, the amount to be
deferred under this Plan may not reduce the amount of Base Salary, Bonuses,
LTIP Awards and/or Director's Fees which would be paid to the Participant
(determined after taking the election into account) below that required to pay
the Participant's portion of any taxes due under Chapter 21 (Federal Insurance
Contributions Act) of the IRC, any other employment taxes and the amount, if
any, required to be withheld for income tax purposes.
3.02 Investment Allocation.
(a) A Phantom Stock Account and/or an Investment Account shall be
established and maintained for each Participant. The Phantom Stock Accounts
shall be measured in Phantom Shares and the Investment Account shall be
measured in dollars. The Accounts shall be hypothetical in nature and shall
be maintained for bookkeeping purposes only. Neither the Plan nor any of the
Accounts shall hold or be required to hold any actual funds or assets.
(i) Phantom Stock Account.
(1) So long as a Participant is a Section 16 Reporting Person, the
Participant's Phantom Stock Account shall, pursuant to an Award Agreement, be
credited as described in Section 3.03 for any deferred amounts attributable
to LTIP Awards and may, upon a Participant's election, be credited with
Director's Fees.
(2) A Participant who formerly was a Section 16 Reporting Person and is
no longer a Section 16 Reporting Person may elect to credit his or her
Investment Account as described in Section 3.04 for any deferred amounts
attributable to LTIP Awards.
(ii) Investment Account. A Participant's Investment Account shall, upon
a Participant's election, be credited as described in Section 3.04 for any
deferred amounts attributable to Base Salary, Bonuses, Director's Fees and/or,
subject to Section 3.02(a)(i), LTIP Awards.
(b) A Participant shall submit to the Administrator during an Election
Period an Investment Allocation Form allocating his deferred Base Salary,
Bonuses, LTIP Awards and/or Director's Fees between the Participant's Phantom
Stock Account and/or Investment Account subject to Section 3.02(a)(i). A
Participant may not change the allocation of deferred amounts between the
Phantom Stock Account and the Investment Account on his or her Investment
Allocation Form with respect to any Plan Year
(c) The Administrator shall provide to each Participant, within 120 days
after the end of each Plan Year, a statement setting forth the balance of
Phantom Shares in the Participant's Phantom Stock Account and dollars in the
Participant's Investment Account as of the end of the Plan Year.
3.03 Deferral in Phantom Shares.
(a) Stock Award Deferral. When a Participant's Phantom Stock Account is
to be credited for deferred amounts attributable to LTIP Awards which would
have otherwise been distributed to the Participant in the form of shares of
Common Stock, then the number of shares of Common Stock which would have
otherwise been distributed to the Participant shall be credited to the
Participant's Phantom Stock Account as of the date that such distribution to
the Participant would have otherwise occurred.
(b) Cash Deferral. When a Participant's Phantom Stock Account is to be
credited for deferred amounts or dividends which would have otherwise been
distributed to the Participant in the form of cash, then the Participant's
Phantom Stock Account shall be credited with the number of Phantom Shares
equal to the number of shares of Common Stock that could have been purchased
with such cash amounts at the Market Value Per Share on the date that such
cash amounts would have otherwise been distributed to the Participant. The
number of such Phantom Shares shall be computed to three decimal places.
(c) Stock Dividends. A Participant's Phantom Stock Account shall be
credited on each record date for a stock dividend paid to holders of Common
Stock with that number of full and fractional shares of Common Stock which the
Participant would have received if on that record date such Participant had
been the holder of record of a number of shares of Common Stock equal to the
number of Phantom Shares (including fractions) then credited to his or her
Phantom Stock Account.
(d) Adjustments. The number of Phantom Shares shall be adjusted as
determined in the discretion of the Administrator to reflect (i) any change
in the outstanding Common Stock by reason of any stock dividend or split,
recapitalization, reorganization, merger, consolidation, split-up, spin-off
or any similar corporate change affecting the Common Stock; (ii) unusual or
nonrecurring events affecting the Company or any subsidiary or the financial
statements of the Company or any subsidiary; or (iii) changes in applicable
laws, regulations, or accounting principles.
3.04 Deferral in Dollars.
(a) Deferred Amounts. When a Participant's Investment Account is to be
credited with a deferred amount measured in dollars, that amount shall be
credited to the Investment Account as of the close of business on the date
that such amount would have otherwise been paid to the Participant.
(b) Investment Funds. The Administrator may permit a Participant to
allocate the Participant's Investment Account among one or more investment
funds selected by the Employer on an Investment Fund Election Form, except
that a Section 16 Reporting Person may not allocate any portion of the
deferred amounts in his or her Investment Account to a fund investing all or
a portion of its funds in Common Stock. A Participant may re-allocate the
deferred amounts among such investment funds at any time or from time to time
by submitting a new Investment Fund Election Form to the Administrator, except
that a Section 16 Reporting Person may not re-allocate any portion of the
deferred amounts in his or her Investment Account to a fund investing all or
a portion of its funds in Common Stock. Deferred amounts allocated to an
investment fund shall be deemed to be invested in such investment fund and
shall be adjusted each business day to reflect the hypothetical income, gain
and loss, including any unrealized appreciation or depreciation of such
investment fund.
(c) Unallocated Funds. In the event a Participant fails to elect one or
more investment funds on an Investment Fund Election Form, the Participant's
Investment Account shall be invested in an investment fund designated by the
Administrator until such time as the Participant shall submit an Investment
Fund Election Form to the Administrator.
ARTICLE 4
Distributions
4.01 Manner of Distribution. The Employer shall pay to the
Participant (or his or her beneficiary or beneficiaries if the Participant is
deceased) his or her entire Account:
(a) on the Distribution Starting Date;
(b) in substantially equal monthly installments commencing on the
Distribution Starting Date and continuing for a period of up to 10 years; or
(c) such other distribution schedule as may be approved by the
Administrator;
as elected by the Participant in his or her Distribution Election Form. The
Participant may make a separate distribution election with respect to each of
his or her Phantom Stock Account and Investment Account. For a distribution
election to be valid, it must be made during an Election Period. In the event
the Participant fails to make such a distribution election, the Employer shall
pay to the Participant (or his or her beneficiary or beneficiaries if the
Participant is deceased) his or her entire Account in a single sum on the
Distribution Starting Date. It is the intent of the Employer that such
Election Period with respect to a Participant end before the date on which a
Participant's benefits under this Plan would otherwise be treated as
constructively received or the economic benefit of which would be enjoyed
(within the meaning of the Federal tax laws). After distribution of a
Participant's Account has commenced, a Participant's right to amend his or her
distribution election or elections ceases. Distribution Election Forms
submitted after distribution of a Participant's Account has commenced shall
be null and void.
The distribution election made in a Participant's most recent Distribution
Election Form shall govern over the distribution elections made in all prior
Distribution Election Forms for such deferred amounts; provided, however, that
the distribution of such deferred amounts commences no sooner than six months
after the date of the most recent Distribution Election Form. If the
distribution of such deferred amounts commences within six months after the
date of the most recent Distribution Election Form, the first Distribution
Election Form that was delivered to the Administrator more than six months
prior to the distribution of such deferred amounts shall govern over the
distribution election in the Participant's most recent Distribution Election
Form.
4.02 Form of Distribution. Benefits attributable to the value of
the Investment Account shall be distributed to the Participant in cash.
Benefits attributable to the Phantom Stock Account shall be distributed to the
Participant in the form of cash and/or shares of Common Stock in accordance
with the terms of the Participant's Award Agreement. To the extent that the
distribution is in the form of shares of Common Stock, such distribution shall
be subject to all applicable securities laws and regulations, and the Company
shall have taken all steps, if any, including registration and listing, as may
be necessary to make the shares immediately transferrable (by sale or
otherwise) by the Participant without further regulatory action or compliance
on the part of the Participant. The Participant shall reasonably cooperate
with the Company, at the Company's expense, to facilitate such compliance and
related actions by the Company.
4.03 Hardship Distributions. The Participant shall be entitled
to a distribution of all or a portion of his or her Account upon written
application to the Administrator and the determination of the Administrator,
in its sole and absolute discretion, that without such distribution, the
Participant would suffer or continue to suffer a financial hardship.
4.04 Distribution Upon a Change of Control. Anything in this Plan
to the contrary notwithstanding, if a Change of Control occurs and as a result
of such Change of Control the Participant's employment with the Company or its
affiliated companies is terminated, then the Employer shall pay to the
Participant (or his or her beneficiary or beneficiaries if the Participant is
deceased) his or her entire Account in a single sum on the first day of the
month following the termination of employment.
4.05 Beneficiary Designation. For purposes of this Plan, a
Participant's beneficiary or beneficiaries under this Plan shall be the
beneficiary or beneficiaries designated by such Participant for the death
benefits provided pursuant to the split dollar arrangement entered into with
the Employer. If a Participant has not entered into a split dollar
arrangement with the Employer, such Participant's beneficiary or beneficiaries
under this Plan shall be the beneficiary or beneficiaries of his or her death
benefits under the Medical, Dental and Life Insurance Plan for Employees of
FPL Group, Inc. (or any successor plan thereof). If a Participant is not a
participant in either of the above described plans and desires to designate
a beneficiary or beneficiaries, the Participant may include a beneficiary
designation on his or her Beneficiary Designation Form, which shall become
effective when received by the Administrator and shall revoke all prior
Beneficiary Designation Forms submitted by the Participant. If no Beneficiary
Designation Form has been received by the Administrator prior to the
Participant's death, the Participant's beneficiary shall be his or her estate.
4.06 Taxes. All amounts payable to any Participant hereunder may
be reduced by any and all federal, state and local taxes imposed upon the
Participant or his or her beneficiary or beneficiaries which are required to
be withheld by the Employer.
4.07 Offset for Obligations to Employer. If, at such time as a
Participant becomes entitled to benefit payments hereunder, the Participant
has any debt, obligation, or other liability representing an amount owing to
the Employer, the Employer may offset the amount owing it against the amount
of benefits otherwise distributable hereunder.
4.08 Distributions under Domestic Relations Orders. Nothing
contained in this Plan prevents the Employer, in accordance with the direction
of the Administrator, from complying with the provisions of a judgment,
decree, or order (including approval of a property settlement agreement )
resulting from a divorce, legal separation, annulment or change in legal
custody that assigns to a spouse, former spouse, child or other dependent of
a Participant (an "Alternate Payee") the right to receive all or a portion of
the benefits of a Participant under the Plan in a form of payment permitted
under the terms of the Plan (a "Domestic Relations Order"). The Employer
shall make any payments required under this Section 4.08 by separate checks
to each Alternate Payee, unless otherwise explicitly provided in the Domestic
Relations Order. Distribution to an Alternate Payee under a Domestic
Relations Order is permitted at any time, irrespective of whether the
Participant is currently entitled to a distribution of his or her benefits
under the Plan. A distribution to an Alternate Payee prior to the time the
Participant is entitled to a distribution of his or her benefits under the
Plan is available only if the Domestic Relations Order explicitly requires
distribution at that time. Notwithstanding the foregoing, nothing in this
Section 4.08 provides a Participant the right to receive a distribution of his
or her benefits at a time not otherwise permitted under the terms of the Plan
nor does it permit the Alternate Payee to receive a form of payment not
otherwise permitted under the Plan.
Within a reasonable period of time after receiving the Domestic Relations
Order, the Administrator will determine whether such order complies with the
terms of the Plan and will notify the Participant and each Alternate Payee of
its determination. If any portion of the Participant's benefit is payable
during the period the Administrator is making such determination, the
Administrator shall make a separate accounting of the amounts payable.
ARTICLE 5
Administration
5.01 Administration. The Administrator shall administer and interpret
this Plan in accordance with the provisions of the Plan in its sole and
absolute discretion. Any determination or decision by the Administrator shall
be conclusive and binding on all persons who at any time have, have had, or
may have a claim to any interest whatsoever under this Plan.
5.02 Liability of Committee and Administrator; Indemnification.
To the extent permitted by law, no member of the Committee (or its delegatee)
or the Administrator shall be liable to any person for any action taken or
omitted in connection with the interpretation and administration of this Plan
unless attributable to his or her own gross negligence or willful misconduct.
The Employer shall indemnify the members of the Committee (or its delegatee)
and the Administrator against any and all claims, losses, damages, expenses,
including any counsel fees and costs, incurred by them, and any liability,
including any amounts paid in settlement with their approval, arising from
their action or failure to act, except when the same is judicially determined
to be attributable to their gross negligence or willful misconduct.
5.03 Determination of Benefits.
(a) Claim. A person who believes that he or she is being denied a
benefit to which he or she is entitled under the Plan (hereinafter referred
to as a "Claimant") may file a written request for such benefit with the
Administrator, setting forth his or her claim. The request must be addressed
to the Administrator at its then principal place of business.
(b) Claim Decision. Upon receipt of a claim, the
Administrator shall advise the Claimant that a reply will be
forthcoming within 90 days and shall, in fact, deliver such
reply within such period. The Administrator may, however,
extend the reply period for an additional 90 days for
reasonable cause.
If the claim is denied in whole or in part, the
Administrator shall deliver to the claimant a written
opinion, using language calculated to be understood by the
Claimant, setting forth (i) the specific reason or reasons
for such denial, (ii) the specific reference to pertinent
provisions of this Plan on which such denial is based, (iii)
a description of any additional material or information
necessary for the Claimant to perfect his or her claim and
an explanation why such material or such information is
necessary, (iv) appropriate information as to the steps to
be taken if the Claimant wishes to submit the claim for
review, and (v) the time limits for requesting a review
under Subsection (c) and for review under Subsection (d)
hereof.
(c) Request for Review. Within 60 days after the
receipt by the Claimant of the written opinion described
above, the Claimant may request in writing that the
Committee (or its delegatee) review the determination of the
Administrator. Such request must be addressed to the
Committee (or its delegatee), at its then principal place of
business. The Claimant or his or her duly authorized
representative may, but need not, review the pertinent
documents and submit issues and comments in writing for
consideration by the Committee (or its delegatee). If the
Claimant does not request a review of the Administrator's
determination by the Committee (or its delegatee) within
such 60-day period, he or she shall be barred and estopped
from challenging the Administrator's determination.
(d) Review of Decision. Within 60 days after the
Committee's (or its delegatee's) receipt of a request for
review, the Committee (or its delegatee) will review the
initial determination. After considering all materials
presented by the Claimant, the Committee (or its delegatee)
will render a written opinion, written in a manner
calculated to be understood by the Claimant, setting forth
the specific reasons for the decision and containing
specific references to the pertinent provisions of this Plan
on which the decision is based. If special circumstances
require that the 60-day time period be extended, the
Committee (or its delegatee) will so notify the Claimant and
the Committee (or its delegatee) will render the decision as
soon as possible, but no later than 120 days after receipt
of the request for review.
5.04 Expenses. The cost of this Plan and the expenses of
administering the Plan shall be borne by the Employer.
5.05 Compliance with Securities Laws. Notwithstanding anything
else to the contrary contained herein,
(a) the Section 16 Committee shall have sole and absolute discretion with
respect to the application, administration and interpretation of the Plan to,
and the deferral of compensation by, any Participant who is a Section 16
Reporting Person; and
(b) a Section 16 Reporting Person shall not elect to transfer deferred
amounts into and out of his or her Phantom Stock Account within any six-month
period or otherwise take any actions or make any elections which could result
in short-swing trading liability under Section 16 of the Exchange Act.
ARTICLE 6
Miscellaneous
6.01 No Trust Created. Nothing contained in this Plan, and no action
taken pursuant to its provisions by any party shall create, or be construed
to create, a trust of any kind, or a fiduciary relationship between the
Employer and the Participants or their beneficiaries.
6.02 No Requirement to Fund. The Employer is not required to and
shall not fund (within the meaning of the Federal tax laws) this Plan. Even
though amounts deferred under this Plan are credited to the Accounts of the
Participants, the Employer shall not be required to earmark, deposit,
contribute to a trust, or otherwise set aside funds for such Accounts.
6.03 Benefits Payable from General Assets. The benefits payable
under this Plan to a Participant or his or her beneficiary or beneficiaries
may be made from the general assets of the Employer or from such other assets
earmarked, deposited, contributed to a trust, or otherwise set aside to fund
benefits under this Plan. It is intended that the Employer's obligation under
this Plan be an unfunded and unsecured promise to pay money in the future.
Any funds earmarked, deposited, contributed to a trust, or otherwise set
aside by the Employer to assist it in satisfying its obligations under this
Plan shall be subject to the claims of general creditors of the Employer. The
Participants' (or their beneficiaries') rights to benefits under this Plan
which are payable by the Employer shall be no greater than the right of any
unsecured general creditor of the Employer, and the Participants (and their
beneficiaries) shall not have any security interest in any assets (including,
but not limited to, assets earmarked, deposited, contributed to a trust, or
otherwise set aside to fund benefits provided under this Plan) of the
Employer.
6.04 Successors. This Plan shall be binding upon the Employer and
its successors and assigns, and the Participant, his or her successors, heirs,
executors, administrators and beneficiaries.
6.05 No Contract of Employment. Nothing contained in this Plan
shall be construed to be a contract of employment or as conferring upon an
Eligible Individual the right to continue to be employed by the Employer in
his or her present capacity or in any capacity.
6.06 Amendment or Termination of Plan. Except to the extent
otherwise reserved to the Administrator, the President or any Vice President
or the General Counsel of the Company (the "Corporate Officers") shall have
the right to amend this Plan at any time and from time to time, including a
retroactive amendment. The Committee expressly reserves the right to
terminate the Plan and to amend Sections 1.05, 1.08, 1.09, 1.10, 1.11, 1.12,
1.13, 1.14, 1.16, 1.18, 1.19, 1.28, 1.29, 1.30, 1.31, 2.01, 3.01, 4.01, 4.03,
4.04, 6.02, 6.03, and 6.06 hereof and shall have the right to amend any such
section or sections at any time or from time to time, including a retroactive
amendment. No amendment or termination of the Plan shall, without the consent
of any person affected thereby, modify or in any way affect any right or
obligation under this Plan created prior to such amendment or termination.
6.07 Top Hat Plan. It is the Employer's intention that this Plan
be construed as an unfunded, non-qualified deferred compensation plan
maintained for a select group of management or highly compensated employees
within the meaning of ERISA 201(2).
6.08 Governing Law. The validity and effect of this Plan and the
rights and obligations of all persons affected hereby shall be construed and
determined in accordance with the laws of the State of Florida unless
superseded by federal law.
6.09 Severability. In the event that any provision of this Plan
shall be declared illegal or invalid for any reason, said illegality or
invalidity shall not affect the remaining provisions of this Plan but shall
be fully severable and this Plan shall be construed and enforced as if said
illegal or invalid provisions had never been inserted herein.
6.10 Construction. The article and section headings and numbers
are included only for convenience of reference and are not to be taken as
limiting or extending the meaning of any of the terms and provisions of the
Plan. Whenever appropriate, words used in the singular shall include the
plural or the plural may be read as the singular.
6.11 Merger or Consolidation or Sale of Assets of Employer.
Subject to the requirement that the Employer make distributions upon
termination of a Participant's employment following a Change of Control
pursuant to Section 4.04, in the event of the merger or consolidation of the
Employer with any other entity, or in the event substantially all of the
assets of the Employer are to be transferred to another entity, the successor
entity resulting from the merger or consolidation, or the transferee of such
assets, as the case may be, shall assume the obligations of the Employer
hereunder and shall be substituted for the Employer hereunder.
6.12 Transfer to an Affiliate of the Company. An election to
defer Base Salary, Bonuses, LTIP Awards, and/or Director's Fees under this
Plan shall apply only with respect to Base Salary, Bonuses, LTIP Awards and/or
Director's Fees paid by a Participant's Employer at the time of such deferral
election. If the Participant transfers from one affiliate of the Employer to
another affiliate of the Employer and the Participant desires to defer Base
Salary, Bonuses, LTIP Awards and/or Director's Fees paid by the new Employer,
the new Employer, in its discretion may require that the Participant execute
a separate Annual Deferral Election Form, Investment Allocation Form and/or
Distribution Election Form.
6.13 Assignment. No right, title or interest of any kind in the
Plan shall be transferable or assignable by a Participant or beneficiary or
be subject to alienation, anticipation, encumbrance, garnishment, attachment,
execution or levy or any kind, whether voluntary or involuntary nor subject
to the debts, contracts, liabilities, engagements, or torts of a Participant
or beneficiary, except as provided by Sections 4.06, 4.07 and 4.08. Except
as provided in this Section 6.13, any attempt to alienate, sell, transfer,
assign, pledge, garnish, attach or otherwise subject to legal or equitable
process or encumber or dispose of any interest in the Plan shall be void.
6.14 Incapacity. If the Administrator determines that any person
to whom any distribution is payable under this Plan is unable to care for his
or her affairs because of illness or accident, or is a minor, any payment due
(unless a prior claim therefor has been made by a duly appointed guardian,
committee or other legal representative) may be paid to the spouse, a child,
a parent, or a brother or sister, or to any person deemed by the Administrator
to have incurred expense for such person otherwise entitled to payment, in
such manner as the Administrator may determine. Any such payment shall be a
complete discharge of the liabilities of the Employer under this Plan.
6.15 Effect on Benefits Under Other Plans. Any Base Salary,
Bonuses, LTIP Award and/or Director's Fees deferred hereunder and any benefits
payable under this Plan shall not be considered salary or other compensation
to the Participant for the purposes of computing benefits to which he or she
may be entitled under any other employee benefit plan established or
maintained by the Employer, except to the extent provided in such other
employee benefit plan.
6.16 Indemnity Upon Change of Control. If upon a Change of
Control it becomes necessary for a Participant (or his or her beneficiary or
beneficiaries) to institute a claim, by litigation or otherwise, to enforce
his or her rights under this Plan, the Employer (and its successors or
transferee in accordance with Section 6.11) shall indemnify such Participant
(or his or her beneficiary or beneficiaries) from and against all costs and
expenses, including legal fees, incurred by him or her in instituting and
maintaining such claim.
6.17 No Rights as Stockholders. No Participant who elects to defer
compensation into a Phantom Stock Account pursuant to Section 3.01 will have
any rights arising out of the ownership of Common Stock as a result of such
deferral election.
IN WITNESS WHEREOF the Committee has caused this Plan to be signed
by a duly appointed officer of the Company and the Company's corporate seal
to be hereunto affixed as of this 28th day of September, 1999.
ATTEST: FPL GROUP, INC.
/s/ Patricia D. Rue By: /s/ Dennis P. Coyle
/s/ Anita Kabana Name: Dennis P. Coyle
Title: General Counsel and Secretary
(Seal)
