EXHIBIT 10(a)
FPL GROUP, INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
Amended and Restated
Effective January 1, 1994
FPL GROUP, INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS
1.01 Base Compensation . . . . . . . . . . . . . . . . . . . . . 2
1.02 Beneficiary . . . . . . . . . . . . . . . . . . . . . . . . 3
1.03 Board . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.04 Bonus Compensation . . . . . . . . . . . . . . . . . . . . 3
1.05 Change of Control . . . . . . . . . . . . . . . . . . . . . 3
1.06 Class A Executive . . . . . . . . . . . . . . . . . . . . . 5
1.07 Code . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.08 Committee . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.09 Disability . . . . . . . . . . . . . . . . . . . . . . . . 5
1.10 EBPAC . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.11 Effective Date. . . . . . . . . . . . . . . . . . . . . . . 5
1.12 Employee. . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.13 Employer. . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.14 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.15 Group . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.16 Participant . . . . . . . . . . . . . . . . . . . . . . . . 5
1.17 Pension Plan . . . . . . . . . . . . . . . . . . . . . . . 5
1.18 Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.19 Restated Effective Date . . . . . . . . . . . . . . . . . . 6
1.20 Retirement Plan . . . . . . . . . . . . . . . . . . . . . . 6
1.21 Thrift Plan . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE II
ELIGIBILITY
2.01 Eligibility for Participation . . . . . . . . . . . . . . . 6
2.02 Terminated Employees . . . . . . . . . . . . . . . . . . . 6
ARTICLE III
BENEFITS
3.01 Benefits. . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.02 Vesting of Benefits . . . . . . . . . . . . . . . . . . . . 8
3.03 Transfer of Employment. . . . . . . . . . . . . . . . . . . 9
3.04 Payment of Benefits . . . . . . . . . . . . . . . . . . . . 9
3.05 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.06 Offset for Obligations to Employer. . . . . . . . . . . . . 10
ARTICLE IV
ADMINISTRATION
4.01 Administration. . . . . . . . . . . . . . . . . . . . . . . 10
4.02 Liability of Committee or EBPAC; Indemnification. . . . . . 10
4.03 Determination of Benefits . . . . . . . . . . . . . . . . . 11
4.04 Payment Due an Incompetent. . . . . . . . . . . . . . . . . 12
4.05 Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE V
AMENDMENT AND TERMINATION
5.01 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.02 Termination or Merger of the Plan . . . . . . . . . . . . . 12
5.03 Supplements . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE VI
MISCELLANEOUS
6.01 No Trust Created . . . . . . . . . . . . . . . . . . . . . 13
6.02 Funding . . . . . . . . . . . . . . . . . . . . . . . . . 13
6.03 Top Hat Plan . . . . . . . . . . . . . . . . . . . . . . . 13
6.04 Effect on Benefits under other Plans . . . . . . . . . . . 14
6.05 Spendthrift Clause. . . . . . . . . . . . . . . . . . . . . 14
6.06 Rights Against the Employer . . . . . . . . . . . . . . . . 14
6.07 No Contract of Employment . . . . . . . . . . . . . . . . . 14
6.08 Indemnity Upon Change of Control . . . . . . . . . . . . . 14
6.09 Successors . . . . . . . . . . . . . . . . . . . . . . . . 14
6.10 Severability. . . . . . . . . . . . . . . . . . . . . . . . 14
6.11 Governing Law . . . . . . . . . . . . . . . . . . . . . . . 15
6.12 Construction. . . . . . . . . . . . . . . . . . . . . . . . 15
Execution Page. . . . . . . . . . . . . . . . . . . . . . . . . 15
Appendix A . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Appendix B . . . . . . . . . . . . . . . . . . . . . . . . . . 17
FPL GROUP, INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
THIS SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN is adopted
by the Compensation Committee of the Board of Directors
("Compensation Committee") and the Board of Directors of FPL Group,
Inc. ("Board") on this 12th day of December, 1994,
effective as of January 1, 1994 (the "Restated Effective Date").
W I T N E S S E T H T H A T:
WHEREAS, on December 12, 1988 FPL Group, Inc. ("Group")
adopted the FPL Group, Inc. Supplemental Executive Retirement Plan
(the "Plan") effective as of January 1, 1986 (the "Effective Date")
for the exclusive benefit of a select group of management and highly
compensated employees to provide retirement benefits in addition to
those benefits available under the qualified pension and profit
sharing plans established and maintained by Group and, if applicable,
the FPL Group, Inc. Benefit Restoration Plan; and
WHEREAS, Group amended and restated the Plan effective as of
January 1, 1991, which amendments, among other things, expanded
eligibility to participate in the Plan and, for certain participants,
took into account annual bonus payments when determining benefits
under the Plan; and
WHEREAS, on December 15, 1986 Group adopted the FPL
Group, Inc. Benefit Restoration Plan effective as of January 1, 1986;
and
WHEREAS, Group amended and restated the FPL Group, Inc. Benefit
Restoration Plan effective as of January 1, 1991, which plan, among other
things, merged the Florida Power & Light Company Benefit Restoration Plan
into the plan and renamed the plan the "Benefit Restoration Plan of FPL
Group, Inc. and Affiliates"; and
WHEREAS, Group desires to merge the Benefit Restoration Plan of FPL
Group, Inc. and Affiliates into the Plan effective as of January 1, 1994; and
WHEREAS, Group has determined that the best method to
accomplish this merger is to amend and restate the Plan; and
WHEREAS, Group has been authorized by its Board of
Directors and the Compensation Committee to amend and restate the Plan;
NOW, THEREFORE, Group hereby establishes a supplemental
executive retirement plan for the exclusive benefit of Employees and
their Beneficiaries on the following terms and conditions:
ARTICLE I
DEFINITIONS
The following terms when used herein shall have the
meaning indicated, unless the context indicates otherwise:
1.01 "Base Compensation" shall mean Monthly Base Pay (as defined
in the Pension Plan) with respect to the supplemental pension benefit
described in Subsection 3.01(b), and Earnings (as defined in the Thrift
Plan) with respect to the supplemental matching contributions described in
Subsection 3.01(c)(1), plus, to the extent not otherwise included, (i) any
salary deferred under the FPL Group, Inc. Deferred Compensation Plan, and
(ii) any amounts contributed by the Employer pursuant to a salary reduction
agreement which are not includible in the gross income of the Participant
under Code Sections 125, 402(e)(3), or 402(h). The term "Base Compensation"
shall not include (a) amounts received as fringe benefits irrespective of the
includibility of such amounts on the Participant's Form W-2 (other than
salary reduction contributions described in clause (ii) above), (b) amounts
received under the FPL Group, Inc. Long-Term Incentive Plan of 1985 or the
FPL Group, Inc. Long Term Incentive Plan of 1994, and (c) bonuses awarded
under the Annual Incentive Plan maintained by the Employer (whether or not
such bonuses were deferred under the FPL Group, Inc. Deferred Compensation
Plan).
1.02 "Beneficiary" shall mean the Beneficiary designated under the
applicable Retirement Plan with respect to which benefits hereunder are paid,
except that the Participant may designate a Beneficiary hereunder by
delivering to the Employer a written designation of Beneficiary specifically
made with respect to this Plan.
1.03 "Board" shall mean the Board of Directors of Group.
1.04 "Bonus Compensation" shall mean Base Compensation, plus any
bonuses awarded under the Annual Incentive Plan maintained by the Employer
(whether or not such bonuses were deferred under the FPL Group, Inc. Deferred
Compensation Plan).
1.05 "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 Group (the "Outstanding Company Common
Stock") or (ii) the combined voting power of the then outstanding
voting securities of Group 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 Group or any
of its subsidiaries, (ii) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by Group 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 Group'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
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 Group 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 Group of (i) a complete
liquidation or dissolution of Group or (ii) the sale or other
disposition of all or substantially all of the assets of Group,
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 Group of all or
substantially all of the assets of Group" shall mean a sale or
other disposition transaction or series of related transactions
involving assets of Group or of any direct or indirect subsidiary
of Group (including the stock of any direct or indirect
subsidiary of Group) 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 Group (as hereinafter defined). The "fair
market value of Group" shall be the aggregate market value of the
then Outstanding Company Common Stock (on a fully diluted basis)
plus the aggregate market value of Group'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 Group 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.
1.06 "Class A Executive" shall mean an Employee who
is designated for purposes of this Plan as such by the Committee.
1.07 "Code" shall mean the Internal Revenue Code of 1986, as it may
be amended from time to time, and the rules and regulations promulgated
thereunder.
1.08 "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 Group
or any of its subsidiaries.
1.09 "Disability" shall have the meaning set forth in the Executive
Long Term Disability Plan of FPL Group, Inc. and Affiliates.
1.10 "EBPAC" shall have the meaning set forth in the Pension Plan.
1.11 "Effective Date" shall mean January 1, 1986, the
effective date of the Plan as originally adopted.
1.12 "Employee" shall mean an elected officer of Group or Florida
Power & Light Company, and the President of ESI Energy, Inc.
1.13 "Employer" shall mean Group and any of its
subsidiaries listed in Appendix A.
1.14 "ERISA" shall mean the Employee Retirement
Income Security Act of 1974, as it may be amended from time to time,
and the rules and regulations promulgated thereunder.
1.15 "Group" shall mean FPL Group, Inc.
1.16 "Participant" shall mean an Employee who satisfies the
requirements for participation in the Plan in accordance with Section 2.01.
1.17 "Pension Plan" shall mean the FPL Group Employee
Pension Plan, as it may be amended from time to time.
1.18 "Plan" shall mean the plan as set forth in this
document as it may be amended from time to time. This plan shall be
known as the FPL Group, Inc. Supplemental Executive Retirement Plan.
1.19 "Restated Effective Date" shall mean January 1, 1994.
1.20 "Retirement Plan" shall mean the Pension Plan
and the Thrift Plan.
1.21 "Thrift Plan" shall mean the FPL Group Employee
Thrift Plan, as it may be amended from time to time.
ARTICLE II
ELIGIBILITY
2.01 Eligibility for Participation - An Employee
shall become a Participant as follows:
(a) An individual listed on Appendix B shall
remain a Participant hereunder; and
(b) Any other Employee who qualifies for a benefit under
any of the Retirement Plans shall be a Participant in the Plan;
provided such Employee is among a select group of management or highly
compensated employees within the meaning of Section 201(2) of ERISA.
2.02 Terminated Employees - This Plan is applicable only to
Participants who perform one or more hours of service for the Employer on
or after the Restated Effective Date. The rights and benefits of any
participant whose active employment terminated by retirement or otherwise
prior to the Restated Effective Date and his Beneficiaries shall be
determined under the Plan and/or the Benefit Restoration Plan of FPL
Group, Inc. and Affiliates as in effect prior to the Restated Effective Date.
ARTICLE III
BENEFITS
3.01 Benefits -
(a) In General - The benefits under this Plan to which a
Participant shall be entitled shall be (i) the supplemental pension
benefit described in Subsection 3.01(b), and (ii) the supplemental
matching contribution account described in Subsection 3.01(c).
(b) Supplemental Pension Benefit - The "supplemental pension
benefit" shall be the difference, if any, between (1) and (2) where:
(1) is the benefit to which the Participant would be
entitled under the Pension Plan, expressed in the normal
form of benefit, if such benefit was computed (i) as if
benefits under such plan were based upon the Participant's
Base Compensation, (ii) without the annual compensation
limitation imposed by Section 401(a)(17) of the Code, and
(iii) without the restrictions or the limitations imposed by
Sections 415(b) or 415(e) of the Code; and
(2) is the benefit payable to the Participant under
the Pension Plan, expressed in the normal form of benefit.
(c) Supplemental Matching Contribution Account - The
"supplemental matching contribution account" shall be an account
that is credited annually with (i) supplemental matching
contributions described in Subsection 3.01(c)(1), and (ii)
theoretical earnings described in Subsection 3.01(c)(2).
(1) "Supplemental matching contributions" shall for
each year of participation in this Plan be the difference,
if any, between (A) and (B) where:
(A) is the matching contribution allocation to
which the Participant would be entitled under the
Thrift Plan for such year of participation if such
allocation were computed (i) as if the matching
contribution allocation under such plan was based upon
the Participant's Base Compensation, (ii) without the
annual compensation limitation imposed by Section
401(a)(17) of the Code, (iii) without the restrictions
or the limitations imposed by Sections 415(c) or 415(e)
of the Code, and (iv) as if he made After Tax Member
Basic Contributions (within the meaning of the Thrift
Plan) and Tax Saver Member Basic Contributions (within
the meaning of the Thrift Plan) at the same percentage
of Base Compensation as he made such contributions to
the Thrift Plan for such year of participation; and
(B) is the matching contribution allocated to the
Participant under the Thrift Plan for such year of
participation.
(2) "Theoretical earnings" shall be the income, gains
and losses which would have been credited on a Participant's
account balance if such account were invested in the Company
Stock Fund (within the meaning of the Thrift Plan) offered
as a part of the Thrift Plan.
(d) Benefits for Class A Executives - In the case of a
Participant who is a Class A Executive, Subsections 3.01(b) and
3.01(c) shall be applied by substituting the term, "Bonus
Compensation" for the term,"Base Compensation".
(e) Prior Benefit - With respect to a Participant
described in Subsection 2.01(a), in no event shall such
Participant's benefits under this Section 3.01 be less than
his benefits accrued as of December 31, 1993 under both the
Plan and the Benefit Restoration Plan of FPL Group, Inc. and
Affiliates as in effect on that date.
3.02 Vesting of Benefits -
(a) In General - Except as otherwise provided in this
Section 3.02, if the Participant's employment with the
Employer and all of its affiliates is terminated (whether
such termination is initiated by the Participant, the
Employer or its affiliates, and without regard to the reason
therefor) before the Participant reaches Normal or Early
Retirement Age (as defined in the respective Retirement Plan)
and fully vested in a benefit under all Retirement Plans, no
benefits shall be payable under this Plan.
(b) Accelerated Vesting Upon Death, Disability, or
Change of Control - If the Participant's employment with the
Employer and all of its affiliates is terminated as a result
of death, Disability, or Change of Control (irrespective of
whether such termination is initiated by the Participant or the
Employer or its affiliates and without regard to the reason
therefor), all benefits accrued hereunder for the Participant
shall become fully vested and shall be paid in accordance with
Subsection 3.04(b).
(c) Termination for Cause. Except as provided in
Subsection 3.02(b), if the termination of a Participant's
employment with the Employer and all of its affiliates is
as a result of or caused by the Participant's theft or
embezzlement from the Employer or any of its affiliates, the
violation of a material term or condition of his employment,
the disclosure by the Participant of confidential information
of the Employer or its affiliates, the commission of a crime
of moral turpitude by the Participant, the Participant's
stealing trade secrets or intellectual property owned by the
Employer or its affiliates, the commission of fraud, disloyalty,
dishonesty or willful violation of any law or company policy, any
act by the Participant in competition with the Employer or its
affiliates, or any other act, activity or conduct of the
Participant which in the opinion of the Board is adverse to the
best interests of the Employer or its affiliates, then the
benefits of such Participant hereunder, to the extent not yet
received, shall become null and void effective as of the date of
the occurrence of the event which results in the Participant
ceasing to be an employee of the Employer and all of its
affiliates and any purported claim for benefits by or on behalf
of said Participant following such date shall be of no effect.
3.03 Transfer of Employment -
(a) Transfer to Nonparticipating Affiliate - The benefits
of a Participant who transfers to an affiliate of the Employer
(other than Group or any of its subsidiaries listed in Appendix A)
shall be determined under Section 3.01 by taking into consideration
only (i) the Participant's Base Compensation or Bonus Compensation
for services performed for the Employer, and (ii) the Participant's
years of service with the Employer for purposes of determining
accrual of benefits. Such Participant shall continue as a
Participant until the occurrence of his death, Disability, Change of
Control, or other termination of employment with all affiliates of
the Employer.
(b) Transfer from Nonparticipating Affiliate - The benefits
of a Participant who was previously employed by an affiliate of
the Employer (other than Group or any of its subsidiaries listed
in Appendix A) immediately before his employment with the
Employer shall be determined under Section 3.01 as if the
Participant's employment with the affiliate of the Employer was
performed for the Employer, except that such Participant's Base
Compensation and Bonus Compensation shall not include any bonuses
paid by an affiliate.
3.04 Payment of Benefits -
(a) Time and Method of Payment of Normal or Early Retirement
Benefits - Except as otherwise provided in Subsections 3.04(b) and
3.04(c), the benefits to which a Participant or his Beneficiary
are entitled under this Plan shall be paid at the same time and in
the same manner as the Participant's benefits under each of the
Retirement Plans to which his benefits under this Plan relate.
Notwithstanding the foregoing, benefits may be distributable in a
lump sum or in such other form as may be agreed in writing by the
Participant and EBPAC (or its delegatee). Any optional form of
benefit payable under this Plan shall be the actuarial equivalent
(within the meaning of the applicable Retirement Plan) of the
benefit, expressed in the normal form of benefit, otherwise payable
under this Plan.
(b) Time and Method of Payment of Benefits Upon Death,
Disability, or Change of Control - If the Participant's employment
with the Employer and all of its affiliates is terminated as a
result of death, Disability, or Change of Control (irrespective of
whether such termination is initiated by the Participant or the
Employer or its affiliates and without regard to the reason
therefor), all benefits accrued hereunder for the Participant
shall be paid to the Participant or his Beneficiary, as the case
may be, at the option of the Participant or if the Participant is
deceased, at the option of such Beneficiary, in a lump sum
distribution to be made not later than three months after the
occurrence of such event or in the same manner as the Participant's
benefits under each of the Retirement Plans to which his benefits
under this Plan relates.
(c) No Company Stock Distributable - In no event shall a
Participant or Beneficiary receive the benefits to which he is
entitled to under this Plan in the form of Company Stock (as
defined in the Thrift Plan).
(d) No Spousal Rights - Nothing contained in this Plan is
intended to give or shall give any spouse or former spouse of a
Participant or any other person any right to benefits under the
Plan by virtue of Code Sections 401(a)(11) or 417 or ERISA
Section 205 (relating to qualified preretirement survivor
annuities and qualified joint and survivor annuities) or Code
Section 401(a)(13)(B) or 414(p) or ERISA Section 206(d)(3)
(relating to qualified domestic relations orders).
3.05 Taxes - Notwithstanding the foregoing, all
amounts payable hereunder shall be reduced by any and all federal,
state and local taxes imposed upon the Participant or his Beneficiary
which are required to be paid or withheld by the Employer.
3.06 Offset for Obligations to Employer - Subject to Section
3.05, if, at such time as a Participant or his Beneficiary becomes
entitled to benefit payments hereunder, the Participant has any debt,
obligation, or other liability representing an amount owing to the
Employer or its affiliates, the Employer may offset the amount owing it or
its affiliates against the amount of benefits otherwise distributable
hereunder notwithstanding any provision of this Plan to the contrary.
ARTICLE IV
ADMINISTRATION
4.01 Administration - The Committee (or its delegatee) and EBPAC
(or its delegatee) shall administer and interpret this Plan in accordance
with the provisions of the Plan and in their sole and absolute discretion.
Any determination or decision by the Committee (or its delegatee) or EBPAC
(or its delegatee) shall be conclusive and binding on all persons who at any
time have, have had, or claim to have any interest whatsoever under this Plan.
4.02 Liability of Committee or EBPAC; Indemnification - To the extent
permitted by law, no member of the Committee (or its delegatee) or EBPAC
(or its delegatee) 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 own gross negligence or willful misconduct.
The Employer shall indemnify the members of the Committee (or its delegatee)
and EBPAC (or its delegatee) 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.
4.03 Determination of Benefits -
(a) Claim - A person who believes that he is being denied a
benefit to which he is entitled under the Plan (hereinafter
referred to as a "Claimant") may file a written request for such
benefit with EBPAC (or its delegatee), setting forth his claim.
The request must be addressed to EBPAC (or its delegatee) at its
then principal place of business.
(b) Claim Decision - Upon receipt of a claim, EBPAC (or its
delegatee) shall advise the Claimant that a reply will be forthcoming
within 90 days and shall, in fact, deliver such reply within such
period. EBPAC (or its delegatee) may, however, extend the reply
period for an additional 90 days for reasonable cause.
If the claim is denied in whole or in part, EBPAC (or its
delegatee) shall adopt 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 references to
pertinent provisions of the Plan on which such denial is based,
(iii) a description of any additional material or information
necessary for the Claimant to perfect his 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 as described in Subsection 4.03(c) and for review as
described in Subsection 4.03(d).
(c) Request for Review - Within 60 days after the receipt
by the Claimant of the written opinion described in Subsection
4.03(b), the Claimant may request in writing that the Committee
(or its delegatee) review the initial determination. Such
request must be addressed to the Committee (or its delegatee), at
its then principal place of business. The Claimant or his 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 EBPAC's (or its delegatee s)
determination within such 60 day period, he shall be barred and
estopped from challenging EBPAC's (or its delegatee'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 the 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.
4.04 Payment Due an Incompetent - If EBPAC (or its delegatee)
receives evidence that the Participant or Beneficiary entitled to receive
any payment under the Plan is physically or mentally incompetent to receive
such payment, EBPAC (or its delegatee) may, in its sole discretion, direct
the payment to any other person or trust which has been legally appointed
by the courts.
4.05 Expenses - The cost of this Plan and the
expenses of administering the Plan shall be borne by the Employer.
ARTICLE V
AMENDMENT AND TERMINATION
5.01 Amendment -
(a) In General - Except to the extent otherwise reserved
to the Board, the Committee shall have the right to amend this Plan at any
time and from time to time, including a retroactive amendment. The Board
expressly reserves the right to amend Sections 1.01, 1.03, 1.04, 1.05,
1.06, 1.08, 1.12, 1.13, 1.16, 2.01, 3.01, 3.02, 3.04(b), 5.01, 5.02, 5.03,
and 6.02 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. Any such amendment shall become effective upon the date stated
therein, and shall be binding on the Participant and his Beneficiary,
except as otherwise provided in such amendment or this Section 5.01.
(b) Amendment Affecting Accrued Benefit - No amendment to
the Plan (including a change in the actuarial basis for determining
optional or early retirement benefits) shall be effective to the extent
that it has the effect of decreasing a Participant s benefits accrued under
the Plan as of the date of such amendment.
(c) Amendment of Vesting Schedule - If the vesting provisions
of the Plan are amended in any way that directly or indirectly affects the
computation of a Participant's vested benefits accrued under the Plan, each
Participant may elect to have his vested benefits accrued under the Plan
computed without regard to such amendment, except that no such election
shall be required for any Participant whose vested percentage under the
Plan, as amended, cannot at any time be less than such Participant's
vested percentage determined without regard to such amendment.
5.02 Termination or Merger of the Plan - Group has established
this Plan with the bona fide intention and expectation that from year to
year it will deem it advisable to continue it in effect. However, the
Board, in its sole discretion, reserves the right to terminate the Plan
in its entirety at any time. In the event this Plan is terminated, the
rights of all affected participants to benefits accrued under the Plan
as of the date of such termination shall be immediately vested, subject
to Subsection 3.02(c). In the event of a merger or consolidation of
this Plan with any other plan, each Participant s benefits under the
Plan immediately after such merger or consolidation shall be equal to or
greater than the accrued benefits the Participant would have received
had the Plan terminated immediately before the merger or consolidation.
5.03 Supplements - In adopting the Plan or at any time thereafter,
an Employer may adopt a Supplement which modifies or adds to the Plan.
Any Supplement shall be effective only if approved by the Committee, and
the Board if, and to the extent, that such Supplement modifies a provision
of a section enumerated in Section 5.01 which is amendable only by the
Board. Upon its effective date, such Supplement shall be deemed
incorporated by reference into the Plan as adopted by such Employer. In
the event of any discrepancy between a Supplement and the provisions of the
Plan, the provisions of the Supplement shall govern.
ARTICLE VI
MISCELLANEOUS
6.01 No Trust Created - Nothing contained in this Plan, and no
action taken pursuant to its provisions by the Employer or its affiliates
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 Funding - The Employer is not required to and shall not fund
(within the meaning of the Federal tax laws) this Plan. The benefits payable
under this Plan to Participants or their 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 the Plan) of the Employer.
6.03 Top Hat Plan - It is the Employer's intention that this Plan
be construed as an unfunded, nonqualified deferred compensation plan
maintained for a select group of management or highly compensated employees
within the meaning of Section 201(2) of ERISA.
6.04 Effect on Benefits under other Plans - Any benefits payable
under this Plan shall not be considered salary or other compensation to the
Participant for purposes of computing benefits to which he may be entitled
under any other employee benefit plan established or maintained by the
Employer or its affiliates, except to the extent provided in such other
employee benefit plan.
6.05 Spendthrift Clause - Except as provided in Sections 3.05 and
3.06, 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 of any kind, whether voluntary or involuntary nor
subject to the debts, contracts, liabilities, engagements, or torts of
a Participant or Beneficiary. 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, except as provided by Sections 3.05 and 3.06.
6.06 Rights Against the Employer - The establishment of this
Plan shall not be construed as giving to a Participant, Beneficiary,
employee or any person whomsoever, any legal, equitable or other rights
against Group or its affiliates, or their officers, directors, agents
or shareholders, or as giving to the Participant, Beneficiary, employee
or any person whomsoever any equity or other interest in the assets,
business or shares of Group or its affiliates' stock.
6.07 No Contract of Employment - Nothing contained in this Plan
shall be construed to be a contract of employment or as conferring upon a
Participant the right to continue to be employed by the Employer in his
present capacity or in any capacity. The Participant shall be subject
to discharge to the same extent he would have been if this Plan had never
been adopted.
6.08 Indemnity Upon Change of Control - If upon a Change of
Control it becomes necessary for a Participant (or his Beneficiary) to
institute a claim, by litigation or otherwise, to enforce his rights
under this Plan, Group (and its successors and assigns) shall indemnify
such Participant (or his Beneficiary) from and against all costs and
expenses, including legal fees, incurred by him in instituting and
maintaining such claim.
6.09 Successors - This Plan shall be binding upon Group and its
successors and assigns, and Participants, their Beneficiaries, successors,
heirs, executors, administrators and beneficiaries.
6.10 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 provision had never been inserted herein.
6.11 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.
6.12 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 this Plan. Whenever appropriate, words used in the singular shall
include the plural or the plural may be read as the singular. When used
herein, the masculine gender includes the feminine gender.
IN WITNESS WHEREOF, the Board of Directors has caused this Plan
to be signed by its duly appointed officers and its corporate seal to be
hereunto affixed as of the day and year first written above.
ATTEST: FPL GROUP, INC.
MARK MITCHELL By: L.J. KELLEHER
Title: Sr. Vice President
(Seal)