EXHIBIT 10
EMPLOYMENT AGREEMENT
Employment Agreement between FPL GROUP, INC., a
Florida corporation (the "Company"), and Xxxxxx X. Xxxxxxxx (the
"Executive"), dated as of September 16, 1996.
The Board of Directors of the Company (the
"Board"), has determined that it is in the best interests of the
Company and its shareholders to assure that the Company and its
affiliated companies will have the continued dedication of the
Executive, notwithstanding the possibility, threat or occurrence of a
Change of Control (as defined below) of the Company. The Board
believes it is imperative to diminish the inevitable distraction of
the Executive by virtue of the personal uncertainties and risks
created by a pending or threatened Change of Control and to encourage
the Executive's full attention and dedication to the Company and its
affiliated companies currently and in the event of any threatened or
pending Change of Control, and to provide the Executive with
compensation and benefits arrangements upon a Change of Control which
ensure that the compensation and benefits expectations of the
Executive will be satisfied and which are competitive with those of
other corporations. Therefore, in order to accomplish these
objectives, the Board has caused the Company to enter into this
Agreement.
Therefore, the Company and the Executive agree
as follows:
1. Effective Date. The effective date of this
Agreement shall be the date on which a Change of Control occurs (the
"Effective Date"). Anything in this Agreement to the contrary
notwithstanding, if a Change of Control occurs and if the Executive's
employment with the Company or its affiliated companies is terminated
or the Executive ceases to be an officer of the Company or its
affiliated companies prior to the date on which the Change of Control
occurs, and if it is reasonably demonstrated by the Executive that
such termination of employment or cessation of status as an officer
(i) was at the request of a third party who has taken steps
reasonably calculated to effect the Change of Control or (ii)
otherwise arose in connection with or anticipation of the Change of
Control, then for all purposes of this Agreement the "Effective Date"
shall mean the date immediately prior to the date of such termination
of employment or cessation of status as an officer.
2. Change of Control. For the purposes of this
Agreement, 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
Securities Exchange Act of 1934, as amended (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 or 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 immediately prior to such acquisition in
substantially the same proportions as their ownership, immediately
prior to such acquisition, 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.
3. Employment Period. The Company hereby
agrees to continue the Executive in its or its affiliated companies'
employ, or both, as the case may be, and the Executive hereby agrees
to remain in the employ of the Company, or its affiliated companies,
or both, as the case may be, for a period commencing on the Effective
Date and ending on the 4th anniversary of such date (the "Employment
Period"). As used in this Agreement, the term "affiliated companies"
shall include any corporation or other entity controlled by,
controlling or under common control with the Company.
4. Position and Duties. During the Employment
Period, the Executive's position (including status, offices, titles,
and reporting requirements), authority, duties, and responsibilities
with the Company or its affiliated companies or both, as the case may
be, shall be at least commensurate in all material respects with the
most significant of those held, exercised, and assigned at any time
during the 90-day period immediately preceding the Effective Date.
The Executive's services shall be performed at the location where the
Executive was employed immediately preceding the Effective Date or
any location less than 20 miles from such location.
During the Employment Period, and excluding any
periods of vacation and sick leave to which the Executive is
entitled, the Executive agrees to devote full time and attention
during normal business hours to the business and affairs of the
Company and its affiliated companies. It shall not be a violation of
this Agreement for the Executive to serve on corporate, civic or
charitable boards or committees, deliver lectures, fulfill speaking
engagements or teach at educational institutions and manage personal
investments, so long as such activities do not significantly
interfere with the performance of the Executive's responsibilities as
an employee of the Company or its affiliated companies in accordance
with this Agreement. It is expressly understood and agreed that to
the extent that any such activities have been conducted by the
Executive prior to the Effective Date, the continued conduct of such
activities (or the conduct of activities similar in nature and scope
thereto) subsequent to the Effective Date shall not be deemed to
interfere with the performance of the Executive's responsibilities to
the Company and its affiliated companies.
5. Compensation. During the Employment Period,
the Executive shall be compensated as follows:
(a) Annual Base Salary. The Executive shall be
paid an annual base salary ("Annual Base Salary"), in equal biweekly
installments, at least equal to the annual base salary being paid to
the Executive by the Company and its affiliated companies with
respect to the year in which the Effective Date occurs. The Annual
Base Salary shall be reviewed at least annually and shall be
increased substantially consistent with increases in base salary
generally awarded to other peer executives of the Company and its
affiliated companies. Such increases shall in no event be less than
the increases in the U.S. Department of Labor Consumer Price Index -
U.S. City Average Index. Any increase in Annual Base Salary shall
not serve to limit or reduce any other obligation to the Executive
under this Agreement. Annual Base Salary shall not be reduced after
any such increase and the term Annual Base Salary as utilized in this
Agreement shall refer to Annual Base Salary as so increased. As used
in this Agreement, the term "affiliated companies" shall include any
corporation or other entity controlled by, controlling or under
common control with the Company.
(b) Annual Bonus. In addition to Annual Base
Salary, the Executive shall be awarded, for each fiscal year ending
during the Employment Period, an annual bonus (the "Annual Bonus") in
cash at least equal to the average annual incentive compensation
(annualized for any fiscal year consisting of less than twelve full
months or with respect to which the Executive has been employed by
the Company for less than twelve full months) paid or payable,
including by reason of any deferral, to the Executive by the Company
and its affiliated companies in respect of the two fiscal years
immediately preceding the fiscal year in which the Effective Date
occurs (the "Recent Average Bonus"). The higher of the Recent
Average Bonus or the most recent Annual Bonus awarded by the Company
and its affiliated companies after the Effective Date is herein
called the "Highest Annual Bonus". Each such Annual Bonus shall be
paid no later than the end of the third month of the fiscal year next
following the fiscal year for which the Annual Bonus is awarded,
unless the Executive shall elect to defer the receipt of such Annual
Bonus.
(c) Long Term Incentive Compensation. During
the Employment Period, the Executive shall be entitled to participate
in all incentive compensation plans, practices, policies, and
programs applicable generally to other peer executives of the Company
and its affiliated companies, but in no event shall such plans,
practices, policies, and programs provide the Executive with
incentive opportunities and potential benefits, both as to amount and
percentage of compensation, less favorable, in the aggregate, than
those provided by the Company and its affiliated companies for the
Executive under the FPL Group Long Term Incentive Plan (including,
without limitation, performance share grants and awards) as in effect
at any time during the 90-day period immediately preceding the
Effective Date or; if more favorable to the Executive, those provided
generally at any time after the Effective Date to other peer
executives of the Company and its affiliated companies.
(d) Savings and Retirement Plans. During the
Employment Period, the Executive shall be entitled to participate in
all savings and retirement plans, practices, policies, and programs
applicable generally to other peer executives of the Company and its
affiliated companies, but in no event shall such plans, practices,
policies, and programs provide the Executive with savings
opportunities and retirement benefit opportunities, in each case,
less favorable, in the aggregate, than the most favorable of those
provided by the Company and its affiliated companies for the
Executive under such plans, practices, policies, and programs as in
effect at any time during the 90-day period immediately preceding the
Effective Date or, if more favorable to the Executive, those provided
generally at any time after the Effective Date to other peer
executives of the Company and its affiliated companies.
(e) Benefit Plans. During the Employment
Period, the Executive and/or the Executive's family, as the case may
be, shall be eligible for participation in and shall receive all
benefits under welfare benefit plans, practices, policies, and
programs provided by the Company and its affiliated companies
(including, without limitation, medical, executive medical,
prescription, dental, vision, short-term disability, long-term
disability, executive long-term disability, salary continuance,
employee life, group life, benefits pursuant to a split dollar
arrangement, accidental death and dismemberment, and travel accident
insurance plans and programs) to the extent applicable generally to
other peer executives of the Company and its affiliated companies but
in no event shall such plans, practices, policies, and programs
provide the Executive with benefits which are less favorable, in the
aggregate, than the most favorable of such plans, practices,
policies, and programs in effect for the Executive at any time during
the 90-day period immediately preceding the Effective Date or, if
more favorable to the Executive, those provided generally at any time
after the Effective Date to other peer executives of the Company and
its affiliated companies.
(f) Expenses. During the Employment Period,
the Executive shall be entitled to receive prompt reimbursement for
all reasonable expenses incurred by the Executive in accordance with
the most favorable policies, practices, and procedures of the Company
and its affiliated companies in effect for the Executive at any time
during the 90-day period immediately preceding the Effective Date or,
if more favorable to the Executive, as in effect generally at any
time thereafter with respect to other peer executives of the Company
and its affiliated companies.
(g) Fringe Benefits. During the Employment
Period, the Executive shall be entitled to fringe benefits in
accordance with the most favorable plans, practices, programs, and
policies of the Company and its affiliated companies in effect for
the Executive at any time during the 90-day period immediately
preceding the Effective Date or, if more favorable to the Executive,
as in effect generally at any time thereafter with respect to other
peer executives of the Company and its affiliated companies.
(h) Office and Support Staff. During the
Employment Period, the Executive shall be entitled to an office or
offices of a size and with furnishings and other appointments, and to
exclusive personal secretarial and other assistance, at least equal
to the most favorable of the foregoing provided to the Executive by
the Company and its affiliated companies at any time during the 90-
day period immediately preceding the Effective Date or, if more
favorable to the Executive, as provided generally at any time
thereafter with respect to other peer executives of the Company and
its affiliated companies.
(i) Vacation. During the Employment Period,
the Executive shall be entitled to paid vacation in accordance with
the most favorable plans, policies, programs, and practices of the
Company and its affiliated companies as in effect for the Executive
at any time during the 90-day period immediately preceding the
Effective Date or, if more favorable to the Executive, as in effect
generally at any time thereafter with respect to other peer
incentives of the Company and its affiliated companies.
6. Termination of Employment.
(a) Disability. If the Company determines in
good faith that the Disability of the Executive has occurred during
the Employment Period (pursuant to the definition of Disability set
forth below), it may give to the Executive written notice in
accordance with Section 13(b) of this Agreement of its intention to
terminate the Executive's employment. In such event, the Executive's
employment with the Company shall terminate effective on the 30th day
after receipt of such notice by the Executive (the "Disability
Effective Date"), provided that, within the 30 days after such
receipt, the Executive shall not have returned to full-time
performance of the Executive's duties. For purposes of this
Agreement, "Disability" shall mean the absence of the Executive from
the Executive's duties with the Company on a full-time basis for 180
consecutive business days as a result of incapacity due to mental or
physical illness which is determined to be total and permanent by a
physician selected by the Company or its insurers and acceptable to
the Executive or the Executive's legal representative (such agreement
as to acceptability not to be withheld unreasonably).
(b) Cause. The Company may terminate the
Executive's employment during the Employment Period for Cause. For
purposes of this Agreement, "Cause" shall mean (i) repeated
violations by the Executive of the Executive's obligations under
Section 4 of this Agreement (other than as a result of incapacity due
to physical or mental illness) which are demonstrably willful and
deliberate on the Executive's part, which are committed in bad faith
or without reasonable belief that such violations are in the best
interests of the Company and which are not remedied in a reasonable
period of time after receipt of written notice from the Company
specifying such violations or (ii) the conviction of the Executive of
a felony involving an act of dishonesty intended to result in
substantial personal enrichment at the expense of the Company or its
affiliated companies.
(c) Good Reason. The Executive's employment
may be terminated during the Employment Period by the Executive for
Good Reason.
For purposes of this Agreement, "Good Reason"
shall mean:
(i) the assignment to the Executive of
any duties inconsistent in any respect with the
Executive's position (including status, offices,
titles and reporting requirements), authority,
duties or responsibilities as contemplated by
Section 4 of this Agreement, or any other action
by the Company which results in a diminution in
such position, authority, duties or
responsibilities, excluding for this purpose an
isolated, insubstantial and inadvertent action
not taken in bad faith and which is remedied by
the Company promptly after receipt of notice
thereof given by the Executive;
(ii) any failure by the Company to
comply with any of the provisions of Section 5
of this Agreement, other than isolated,
insubstantial and inadvertent failure not
occurring in bad faith and which is remedied by
the Company promptly after receipt of notice
thereof given by the Executive;
(iii) the Company's requiring the
Executive to be based at any office or location
other than that described in Section 4 hereof;
(iv) any purported termination by the
Company of the Executive's employment otherwise
than as expressly permitted by this Agreement;
or
(v) any failure by the Company to
comply with and satisfy Section 12(c) of this
Agreement, provided that such successor has
received at least ten days prior written notice
from the Company or the Executive of the
requirements of Section 12(c) of the Agreement.
For purposes of this Section 6(c), any good
faith determination of "Good Reason" made by the Executive shall be
conclusive.
(d) Notice of Termination. Any termination by
the Company for Cause, or by the Executive for Good Reason, shall be
communicated by Notice of Termination to the other party hereto given
in accordance with Section 13(b) of this Agreement. For purposes of
this Agreement, a "Notice of Termination" means a written notice
which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets forth in
reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the
provision so indicated and (iii) if the Date of Termination (as
defined below) is other than the date of receipt of such notice,
specifies the termination date (which date shall be not more than
fifteen days after the giving of such notice). The failure by the
Executive or the Company to set forth in the Notice of Termination
any fact or circumstances which contributes to a showing of Good
Reason or Cause shall not waive any right of the Executive or the
Company hereunder or preclude the Executive or the Company from
asserting such fact or circumstance in enforcing the Executive's or
the Company's rights hereunder.
(e) Date of Termination. "Date of Termination"
means (i) if the Executive's employment is terminated by the Company
for Cause, or by the Executive for Good Reason, the date of receipt
of the Notice of Termination or any later date specified therein, as
the case may be, (ii) if the Executive's employment is terminated by
the Company other than for Cause or Disability, the Date of
Termination shall be the date on which the Company notifies the
Executive of such termination and (iii) if the Executive's employment
is terminated by reason of Disability, the Date of Termination shall
be the Disability Effective Date.
7. Obligations of the Company upon Termination.
(a) Good Reason; Other Than for Cause or
Disability. If, during the Employment Period, the Company terminates
the Executive's employment other than for Cause or Disability or the
Executive terminates employment for Good Reason:
(i) the Company shall pay to the
Executive in a lump sum in cash within 30 days
after the Date of Termination the aggregate of
the following amounts (such aggregate being
hereinafter referred to as the "Special
Termination Amount"):
A. the sum of (1) the
Executive's Annual Base Salary through
the Date of Termination to the extent
not theretofore paid, (2) the product of
(x) the Highest Annual Bonus and (y) a
fraction, the numerator of which is the
number of days in the current fiscal
year through the Date of Termination,
and the denominator of which is 365 and
(3) any compensation previously deferred
by the Executive (together with any
accrued interest or earnings thereon)
(including, without limitation,
compensation, bonus, incentive
compensation or awards deferred under
the FPL Group, Inc. Deferred
Compensation Plan or incentive
compensation or awards deferred under
the FPL Group, Inc. Long-Term Incentive
Plan of 1985, the FPL Group, Inc. Long
Term Incentive Plan of 1994, or pursuant
to an individual deferral agreement) and
any accrued vacation pay, in each case
to the extent not theretofore paid (the
sum of the amounts described in clauses
(1), (2), and (3) being herein called
the "Accrued Obligations"); and
B. the amount equal to the
product of (1) the greater of two or the
number of years (with any partial year
expressed as a fraction) remaining in
the Employment Period and (2) the sum of
(x) the Executive's Annual Base Salary
and (y) the Highest Annual Bonus;
provided, however, that such amount
shall be paid in lieu of, and the
Executive hereby waives the right to
receive, any other amount of severance
relating to salary or bonus continuation
to be received by the Executive upon
termination of employment of the
Executive under any severance plan,
policy or arrangement of the Company;
and
C. the maximum amount payable
under all performance share grants and
all other long term incentive
compensation grants to the Executive,
calculated as though the Executive had
remained employed by the Company for the
remainder of the Employment Period and
on the basis of actual achievement of
performance measures through the end of
the fiscal year preceding the fiscal
year in which the Date of Termination
occurs and thereafter assuming 100%
achievement of all performance measures
through the end of the Employment
Period; and
D. a separate lump-sum
supplemental retirement benefit equal to
the difference between (1) the actuarial
equivalent (utilizing for this purpose
the actuarial assumptions utilized with
respect to the FPL Group Employee
Pension Plan (or any successor plan
thereto) (the "Retirement Plan") during
the 90-day period immediately preceding
the Effective Date) of the benefit
payable under the Retirement Plan and
all supplemental and/or excess
retirement plans providing benefits for
the Executive (the "SERP") (including,
but not limited to the Supplemental
Pension Benefit (as defined in the FPL
Group, Inc. Supplemental Executive
Retirement Plan)) which the Executive
would receive if the Executive's
employment continued at the compensation
level provided for in Sections 5(a) and
5(b) of this Agreement for the remainder
of the Employment Period, assuming for
this purpose that all accrued benefits
are fully vested and that benefit
accrual formulas are no less
advantageous to the Executive than those
in effect during the 90-day period
immediately preceding the Effective
Date, or, if more favorable to the
Executive, as in effect generally at any
time thereafter during the Employment
Period with respect to other peer
executives of the Company and its
affiliated companies, and (2) the
actuarial equivalent (utilizing for this
purpose the actuarial assumptions
utilized with respect to the Retirement
Plan during the 90-day period
immediately preceding the Effective
Date) of the Executive's actual benefit
(paid or payable), if any, under the
Retirement Plan and the SERP; and
E. a separate lump-sum
supplemental retirement benefit equal to
the difference between (1) the value of
the Company Account (as defined in the
FPL Group Employee Thrift Plan or any
successor plan thereto) (the "Thrift
Plan") and any other matching
contribution accounts (including, but
not limited to the Supplemental Matching
Contribution Account (as defined in the
FPL Group, Inc. Supplemental Executive
Retirement Plan)) under a SERP which the
Executive would receive if (i) the
Executive s employment continued at the
compensation level provided for in
Sections 5(a) and 5(b) of this Agreement
for the remainder of the Employment
Period, (ii) the Executive made pre- and
after-tax contributions at the highest
permissible rate (disregarding any
limitations imposed by the Internal
Revenue Code, which may or may not be
set forth in the Thrift Plan) for each
year remaining in the Employment Period,
(iii) the Company Account and the
matching contribution accounts are fully
vested, and (iv) the matching
contribution formulas are no less
advantageous to the Executive than those
in effect during the 90-day period
immediately preceding the Effective Date
or, if more favorable to the Executive,
as in effect generally at any time
during the remainder of the Employment
Period with respect to other peer
executives of the Company and its
affiliated companies, and (2) the actual
value of the Executive s Company Account
and matching contribution accounts (paid
or payable), if any, under the Thrift
Plan and the SERP; and
(ii) for the remainder of the
Employment Period, or such longer period as any
plan, program, practice or policy may provide,
the Company shall continue benefits to the
Executive and/or the Executive's family at least
equal to those which would have been provided to
them in accordance with the plans, programs,
practices and policies described in Sections
5(e) and 5(g) of this Agreement if the
Executive's employment had not been terminated,
in accordance with the most favorable plans,
practices, programs or policies of the Company
and its affiliated companies applicable
generally to other peer executives and their
families during the 90-day period immediately
preceding the Effective Date or, if more
favorable to the Executive, as in effect
generally at any time thereafter with respect to
other peer executives of the Company and its
affiliated companies and their families,
provided, however, that if the Executive becomes
reemployed with another employer and is eligible
to receive medical or other welfare benefits
under another employer provided plan, the
medical and other welfare benefits described
herein shall be secondary to those provided
under such other plan during such applicable
period of eligibility. For purposes of
determining eligibility of the Executive for
retiree benefits pursuant to such plans,
practices, programs and policies, the Executive
shall be considered to have remained employed
until the end of the Employment Period and to
have retired on the last day of such period; and
(iii) to the extent not theretofore
paid or provided, the Company shall timely pay
or provide to the Executive any other amounts or
benefits required to be paid or provided or
which the Executive is eligible to receive
pursuant to this Agreement or otherwise under
any plan, program, policy or practice or
contract or agreement of the Company and its
affiliated companies (such other amounts and
benefits shall be hereinafter referred to as the
"Other Benefits"), but excluding solely for
purposes of this Section 7(a)(iii) amounts
waived by the Executive pursuant to Section
7(a)(i)(B).
(b) Death. Upon the Executive's death during
the Employment Period, this Agreement shall terminate without further
obligations to the Executive's legal representatives under this
Agreement, other than for payment of Accrued Obligations and the
timely payment or provision of Other Benefits. All Accrued
Obligations shall be paid to the Executive's estate or beneficiary,
as applicable, in a lump sum in cash within 30 days of the Date of
Termination. The term Other Benefits as utilized in this Section
7(b) shall include, without limitation, and the Executive's family
shall be entitled to receive, benefits at least equal to the most
favorable benefits provided by the Company and any of its affiliated
companies to surviving families of peer executives of the Company and
such affiliated companies under such plans, programs, practices and
policies relating to family death benefits, if any, as in effect with
respect to other peer executives and their families at any time
during the 90-day period immediately preceding the Effective Date or,
if more favorable to the Executive and/or the Executive's family, as
in effect on the date of the Executive's death with respect to other
peer executives of the Company and its affiliated companies and their
families.
(c) Disability. If the Executive's employment
is terminated by reason of the Executive's Disability during the
Employment Period, this Agreement shall terminate without further
obligations to the Executive, other than for payment of Accrued
Obligations and the timely payment or provision of Other Benefits.
All Accrued Obligations shall be paid to the Executive in a lump sum
in cash within 30 days of the Date of Termination. The term Other
Benefits as utilized in this Section 7(c) shall include, and the
Executive shall be entitled after the Disability Effective Date to
receive, disability and other benefits at least equal to the most
favorable of those generally provided by the Company and its
affiliated companies to disabled executives and/or their families in
accordance with such plans, programs, practices and policies relating
to disability, if any, as in effect generally with respect to other
peer executives and their families at any time during the 90-day
period immediately preceding the Effective Date or, if more favorable
to the Executive and/or the Executive's family, as in effect at any
time thereafter generally with respect to other peer executives of
the Company and its affiliated companies and their families.
(d) Cause; Other Than for Good Reason. If the
Executive's employment shall be terminated for Cause during the
Employment Period, this Agreement shall terminate without further
obligations to the Executive other than the obligation to pay to the
Executive Annual Base Salary through the Date of Termination plus the
amount of any compensation previously deferred by the Executive, in
each case to the extent theretofore unpaid. If the Executive
terminates employment during the Employment Period, excluding a
termination for Good Reason, this Agreement shall terminate without
further obligations to the Executive, other than for Accrued
Obligations and the timely payment or provision of Other Benefits.
In such case, all Accrued Obligations shall be paid to the Executive
in a lump sum in cash within 30 days of the Date of Termination.
8. Non-exclusivity of Rights. Except as
provided in Sections 7(a)(i)(B), 7(a)(ii), and 7(a)(iii) of this
Agreement, nothing in this Agreement shall prevent or limit the
Executive's continuing or future participation in any plan, program,
policy or practice provided by the Company or any of its affiliated
companies and for which the Executive may qualify, nor shall anything
herein limit or otherwise affect such rights as the Executive may
have under any contract or agreement with the Company or any of its
affiliated companies. Amounts which are vested benefits or which the
Executive is otherwise entitled to receive under any plan, policy,
practice or program of or any contract or agreement with the Company
or any of its affiliated companies at or subsequent to the Date of
Termination shall be payable in accordance with such plan, policy,
practice or program or contract or agreement except as explicitly
modified by this Agreement.
9. Full Settlement. The Company's obligation
to make the payments provided for in this Agreement and otherwise to
perform its obligations hereunder shall not be affected by any set-
off, counterclaim, recoupment, defense or other claim, right or
action which the Company may have against the Executive or others.
In no event shall the Executive be obligated to seek other employment
or take any other action by way of mitigation of the amounts payable
to the Executive under any of the provisions of this Agreement and,
except as provided in Section 7(a)(ii) of this Agreement, such
amounts shall not be reduced whether or not the Executive obtains
other employment. The Company agrees to pay, to the full extent
permitted by law, all legal fees and expenses which the Executive may
reasonably incur at all stages of proceedings, including, without
limitation, preparation and appellate review, as a result of any
contest (regardless of whether formal legal proceedings are ever
commenced and regardless of the outcome thereof) by the Company, the
Executive or others of the validity or enforceability of, or
liability under, any provision of this Agreement or any guarantee of
performance thereof (including as a result of any contest by the
Executive about the amount of any payment pursuant to this
Agreement), plus in each case interest on any delayed payment at the
applicable Federal rate provided for in Section 7872 (f)(2)(A) of the
Internal Revenue Code of 1986, as amended (the"Code").
10. Certain Additional Payments by the Company.
Anything in this Agreement to the contrary notwithstanding, in the
event it shall be determined that any payment or distribution by the
Company to or for the benefit of the Executive (whether paid or
payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise, but determined without regard to any
additional payments required under this Section 10) (a "Payment")
would be subject to the excise tax imposed by Section 4999 of the
Code or any interest or penalties are incurred by the Executive with
respect to such excise tax (such excise tax, together with any such
interest and penalties, are hereinafter collectively referred to as
the "Excise Tax"), then the Executive shall be entitled to receive an
additional payment (a "Gross-Up Payment") in an amount such that
after payment by the Executive of all taxes (including any interest
or penalties imposed with respect to such taxes), including, without
limitation, any income taxes (and any interest and penalties imposed
with respect thereto) and Excise Tax imposed upon the Gross-Up
Payment, the Executive retains an amount of Gross-Up Payment equal to
the Excise Tax imposed upon the Payments.
11. Confidential Information. The Executive
shall hold in a fiduciary capacity for the benefit of the Company all
secret or confidential information, knowledge or data relating to the
Company or any of its affiliated companies, and their respective
businesses, which shall have been obtained by the Executive during
the Executive's employment by the Company or any of its affiliated
companies and which shall not be or become public knowledge (other
than by acts by the Executive or representatives of the Executive in
violation of this Agreement). After termination of the Executive's
employment with the Company, the Executive shall not, without the
prior written consent of the Company or as may otherwise be required
by law or legal process, communicate or divulge any such information,
knowledge or data to anyone other than the Company and those
designated by it. In no event shall an asserted violation of the
provisions of this Section 11 constitute a basis for deferring or
withholding any amounts otherwise payable to the Executive under this
Agreement.
12. Successors.
(a) This Agreement is personal to the Executive
and without the prior written consent of the Company shall not be
assignable by the Executive otherwise than by will or the laws of
descent and distribution. This Agreement shall inure to the benefit
of and be enforceable by the Executive's legal representatives.
(b) This Agreement shall inure to the benefit
of and be binding upon the Company and its successors and assigns.
(c) The Company shall require any successor
(whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and /or assets
of the Company to assume expressly and agree to perform this
Agreement in the same manner and to the same extent that the Company
would be required to perform it if no such succession had taken
place. As used in this Agreement, "Company" shall mean the Company
as hereinbefore defined and any successor to its business and/or
assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law, or otherwise.
13. Miscellaneous.
(a) This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida,
without reference to principles of conflict of laws. The captions of
this Agreement are not part of the provisions hereof and shall have
no force or effect. This Agreement may not be amended or modified
otherwise than by a written agreement executed by the parties hereto
or their respective successors and legal representatives.
(b) All notices and other communications
hereunder shall be in writing and shall be given by hand delivery to
the other party or by registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to the Executive:
Xxxxxx X. Xxxxxxxx
00000 Xxxxxxxxxx Xxx
Xxxx Xxxx Xxxxx, XX 00000
If to the Company:
FPL Group, Inc.
000 Xxxxxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Vice President, Human Resources
or such other address as either party shall have furnished to the
other in writing in accordance herewith. Notice and communications
shall be effective when actually received by the addressee.
(c) The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement.
(d) The Company may withhold from any amounts
payable under this Agreement such Federal, state or local taxes as
shall be required to be withheld pursuant to any applicable law or
regulation.
(e) The Executive's or the Company's failure to
insist upon strict compliance with any provision hereof or any other
provision of this Agreement or the failure to assert any right the
Executive or the Company may hereunder, including, without
limitation, the right of the Executive to terminate employment for
Good Reason pursuant to Section 6(c)(i)-(v) of this Agreement, shall
not be deemed to be a waiver of such provision or right or any other
provision or right of this Agreement.
(f) The Executive and the Company acknowledge
that, except as may otherwise be provided under any other written
agreement between the Executive and the Company, the employment of
the Executive by the Company is "at will" and, prior to the Effective
Date, may be terminated by either the Executive or the Company at any
time. Moreover, except as provided in Section 1, if prior to the
Effective Date, (i) the Executive's employment with the Company
terminates or (ii) the Executive ceases to be an officer of the
Company, then the Executive shall have no further rights under this
Agreement.
IN WITNESS WHEREOF, the Executive has hereunto
set the Executive's hand and, pursuant to the authorization from the
Board of Directors, the Company has caused these presents to be
executed in its name on its behalf, all as of the day and year first
above written.
XXXXXX X. XXXXXXXX
Xxxxxx X. Xxxxxxxx
FPL GROUP, INC.
By XXXXXXXX X. XXXXXXXX
Xxxxxxxx X. Xxxxxxxx
Vice President Human Resources
