EXHIBIT 10(f)
FPL GROUP, INC.
DEFERRED COMPENSATION PLAN
Amended and Restated
Effective January 1, 1995
FPL GROUP, INC.
DEFERRED COMPENSATION PLAN
TABLE OF CONTENTS
Page
ARTICLE 1 - DEFINITIONS
1.01 Account ...................................................... 2
1.02 Board ....................................................... 2
1.03 Bonus ....................................................... 2
1.04 Change of Control ............................................ 2
1.05 Committee ................................................... 4
1.06 Common Stock ................................................ 4
1.07 Company ..................................................... 4
1.08 Compensation ................................................ 4
1.09 Director's Fees ............................................. 4
1.10 Disability .................................................. 4
1.11 Distribution Date ........................................... 4
1.12 EBPAC ....................................................... 5
1.13 Effective Date .............................................. 5
1.14 Eligible Individual ......................................... 5
1.15 Employer ..................................................... 5
1.16 ERISA ....................................................... 5
1.17 IRC ......................................................... 5
1.18 Market Value Per Share ...................................... 5
1.19 Non-Employee Director ...................................... 5
1.20 Participant ................................................. 6
1.21 Phantom Stock Account ....................................... 6
1.22 Phantom Stock Unit ........................................... 6
1.23 Plan ......................................................... 6
1.24 Plan Year .................................................... 6
1.25 Restated Effective Date ..................................... 6
ARTICLE 2 - ELIGIBILITY
2.01 Eligibility to Participate in the Plan ...................... 6
ARTICLE 3 - DEFERRED COMPENSATION BENEFITS
3.01 Election to Defer Compensation, Bonus, and Director's Fees ... 6
3.02 Establishment and Maintenance of Cash Account ................ 7
3.03 Investment of Cash Account .................................. 7
3.04 Non-Employee Director Investment in Phantom Stock Account ... 7
ARTICLE 4 - PAYMENT OF BENEFITS
4.01 Timing and Form of Payment .................................. 8
4.02 Hardship Distributions ...................................... 9
4.03 Distribution Upon a Change of Control ....................... 9
4.04 Beneficiary Designation ..................................... 9
4.05 Taxes ....................................................... 9
4.06 Offset for Obligations to Employer .......................... 9
ARTICLE 5 - ADMINISTRATION
5.01 Administration .............................................. 10
5.02 Liability of Committee and EBPAC; Indemnification ........... 10
5.03 Determination of Benefits ................................... 10
5.04 Expenses .................................................... 11
ARTICLE 6 - MISCELLANEOUS
6.01 No Trust Created ............................................ 11
6.02 No Requirement to Fund ...................................... 12
6.03 Benefits Payable from General Assets ........................ 12
6.04 Successors .................................................. 12
6.05 No Contract of Employment ................................... 12
6.06 Amendment or Termination of Plan ............................ 12
6.07 Top Hat Plan ................................................ 13
6.08 Governing Law ............................................... 13
6.09 Severability ................................................ 13
6.10 Construction ................................................ 13
6.11 Merger or Consolidation or Sale of Assets of Employer ....... 13
6.12 Transfer to an Affiliate of the Company ..................... 13
6.13 Assignment .................................................. 13
6.14 Incapacity .................................................. 14
6.15 Effect on Benefits under other Plans ........................ 14
6.16 Indemnity Upon Change of Control ............................ 14
6.17 No Rights as Stockholders ................................... 14
Execution Page .............................................. 14
FPL GROUP, INC.
DEFERRED COMPENSATION PLAN
THIS DEFERRED COMPENSATION PLAN (the "Plan") effective as
of January 1, 1995, 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 of the Company and its affiliates
(hereinafter collectively referred to as the "Employer") are entitled
to fees which result from or are attributable to their performance of
services as employees of the Employer and may be awarded bonuses
pursuant to the Annual Incentive Plan 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 a select group of
officers and directors of the Employer pursuant to which such
officers may elect to defer receipt of all or a portion of their base
salary and/or bonuses and directors may elect to defer receipt of all
or a portion of their directors' fees; 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
("ERISA");
NOW, THEREFORE, the deferred compensation plan set forth
herein is hereby amended and restated as of the Restated 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" shall collectively refer to the Cash Account
described in Sections 3.02 and 3.03, and the Phantom
Stock Account described in Section 3.04, if applicable.
1.02 "Board" shall mean the Board of Directors of the Company.
1.03 "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 Senior Vice
President of Human Resources of the Company as eligible
for deferral under this Plan.
1.04 "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 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 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.
1.05 "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 (3) members
of the Board each of whom are not employees of the
Company or any of its subsidiaries.
1.06 Common Stock shall mean the common stock, $.01 par
value per share, of the Company.
1.07 "Company" shall mean FPL Group, Inc.
1.08 "Compensation" shall mean the base salary of a
Participant paid by the Employer, exclusive of Bonus and
Director's Fees.
1.09 "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.
1.10 "Disability" shall have the meaning set forth in the Long
Term Disability Plan For Employees of FPL Group and
Affiliates.
1.11 "Distribution 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 EBPAC (or its delegatee) authorizing a
Participant to select a specific date on which
his benefits under the Plan shall commence, the
date so 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
established by EBPAC (or its delegatee). It is the
intent of the Employer that such election period end
before the time in 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). In
the event the Participant fails to elect one of the dates
described above, his "Distribution Date" shall be the
first day of the first month following the Participant's
retirement, death, Disability, or other termination of
service or as soon thereafter as is administratively
feasible.
1.12 "EBPAC" shall have the same meaning set forth in the FPL
Group Employee Pension Plan.
1.13 "Effective Date" means January 1, 1995.
1.14 "Eligible Individual" shall mean any officer, director in
grade 12 or above, or member of the Board of Directors of
the Employer.
1.15 "Employer" shall mean the Company and its affiliates.
1.16 "ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended.
1.17 "IRC" shall mean the Internal Revenue Code of 1986, as
amended.
1.18 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 Committee.
1.19 Non-Employee Director shall mean a member of the Board
who is not an employee of the Company or any of its
subsidiaries.
1.20 "Participant" shall mean an Eligible Individual who has
elected to defer Compensation, Bonus, and/or Director's
Fees, as provided in Section 3.01.
1.21 Phantom Stock Account shall refer to the account
described in Section 3.04.
1.22 Phantom Stock Unit shall mean a theoretical unit of
Common Stock.
1.23 "Plan" shall mean the FPL Group, Inc. Deferred
Compensation Plan, as contained herein, and as may be
amended from time to time.
1.24 "Plan Year" shall mean the calendar year.
1.25 Restated Effective Date shall mean January 1, 1995.
ARTICLE 2
Eligibility
2.01 Eligibility to Participate in the Plan. Each Eligible
Individual shall be eligible to participate in the Plan,
provided such individual is among a select group of
management and highly compensated employees (within the
meaning of ERISA 201(2)).
ARTICLE 3
Deferred Compensation Benefits
3.01 Election to Defer Compensation, Bonus, and Director's
Fees. Each Eligible Individual may elect to defer all or
a portion of his Compensation, Bonus, and/or Director's
Fees with respect to any Plan Year commencing on or after
the Effective Date of this Plan by completing and signing
a deferral agreement prior to the beginning of such Plan
Year.
If a Participant incurs a financial hardship (as
determined by EBPAC (or its delegatee)) and the
Participant requests in writing a reduction or
elimination of deferrals for the remainder of a Plan
Year, EBPAC (or its delegatee), in its sole and absolute
discretion, may reduce or eliminate such future
deferrals.
Notwithstanding anything to the contrary in this Plan,
the amount to be deferred under this Plan may not reduce
the amount of Compensation, Bonus, and 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 Establishment and Maintenance of Cash Account. The
amounts deferred by a Participant shall be credited to a
separate account (a Cash Account ) maintained for the
Participant, as of the date such amounts would otherwise
have been paid to the Participant, on books established
by the Employer for that purpose in accordance with IRC
404(a)(5). The Employer shall provide to each
Participant, within one hundred twenty (120) days after
the end of each Plan Year, a statement setting forth the
balance in the Participant s Cash Account.
3.03 Investment of Cash Account. Amounts credited to the Cash
Account of a Participant will be deemed invested in one
or more investment funds selected by the Employer. Each
Participant (or his beneficiary if the Participant is
deceased) shall designate the investment fund(s) under
which his deferrals under this Plan are to be
hypothetically invested. The Cash Account shall be
adjusted each business day to reflect the hypothetical
income, gain and loss, including any unrealized
appreciation or depreciation; provided, however, that
adjustments to a Non-Employee Director s Phantom Stock
Account shall be made as described in Sections 3.04(b),
3.04(c), and 3.04(d).
3.04 Non-Employee Director Investment in Phantom Stock Account.
(a) In addition to the investment funds made
available pursuant to Section 3.03, a Non-
Employee Director may designate that deferrals of
his Director s Fees under this Plan be deemed to
be invested in Phantom Stock Units. The number
of Phantom Stock Units credited to such
director s Phantom Stock Account shall equal the
dollar amount of deferred Director s Fees
designated by such Non-Employee Director to be
invested in hypothetical Phantom Stock Units,
divided by the Market Value Per Share on the date
that such deferred compensation would otherwise
have been paid to such director. The number of
such Phantom Stock Units shall be computed to
four decimal places.
(b) From time to time, an amount shall be credited to
a Non-Employee Director s Cash Account equal to
the amount of any cash dividend paid on Common
Stock (or the fair market value of a dividend
paid in property, other than a dividend paid in
Common Stock) which the Non-Employee Director
would have received if on the record date for
such dividend the Non-Employee Director had been
the owner of record of a number of shares of
Common Stock equal to the number of Phantom Stock
Units (including fractions) then credited to his
Phantom Stock Account.
(c) From time to time, additional Phantom Stock Units
shall be credited to a Non-Employee Director s
Phantom Stock Account in amounts equal to the
number of full and fractional shares of Common
Stock which the Non-Employee Director would have
received if on the record date for a dividend
paid in Common Stock the Non-Employee Director
had been the owner of record of a number of
shares of Common Stock equal to the number of
Phantom Stock Units (including fractions) then
credited to his Phantom Stock Account.
(d) The Phantom Stock Account shall be appropriately
adjusted for any change in the Common Stock by
reason of any recapitalization, reorganization,
merger, consolidation, split-up, or any similar
change affecting the Common Stock.
ARTICLE 4
Payment of Benefits
4.01 Timing and Form of Payment. The Employer shall pay to
the Participant (or his beneficiary if the Participant is
deceased) his entire Account in cash in:
(a) a single sum on the Distribution Date, or
(b) substantially equal monthly installments
commencing on the Distribution Date and
continuing for a period of up to 10 years,
as elected by the Participant. For any such election to
be valid, it must be made during an election period
established by EBPAC (or its delegatee). It is the
intent of the Employer that such election period end
before the time in 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). In
the event the Participant fails to elect the form of
distribution described above, the Employer shall pay to
the Participant (or his beneficiary if the Participant is
deceased) his entire Account in a single sum on the
Distribution Date.
Upon distribution of a Non-Employee Director's Phantom
Stock Account in cash, a Non-Employee Director shall be
entitled to receive, subject to the provisions of
Sections 4.05 and 4.06 of this Plan, a sum equal to the
number of Phantom Stock Units credited to such Non-
Employee Director's Phantom Stock Account, multiplied by
the Market Value Per Share on the Distribution Date.
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.
4.02 Hardship Distributions. The Participant shall be
entitled to a distribution of all or a portion of his
Account upon written application to EBPAC (or its
delegatee) and the determination of EBPAC (or its
delegatee) and the Committee (or its delegatee), in their
sole and absolute discretion, that without such
distribution, the Participant would suffer or continue to
suffer a financial hardship. No hardship distributions
shall be allowable pursuant to this Section prior to
September 11, 1995.
4.03 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 in Control
the Participant s employment with the Company or its
affiliated companies is terminated, then the Employer
shall pay to the Participant (or his beneficiary if the
Participant is deceased) his entire Account in a single
sum on the first day of the month following the
termination of employment.
4.04 Beneficiary Designation. For purposes of this Plan, a
Participant's beneficiaries under this Plan shall be the
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
beneficiaries under this Plan shall be the beneficiaries
of his death benefits under the Medical, Dental and Life
Insurance Plan for Employees of FPL Group, Inc. (or any
successor plan thereof). If a Participant desires to
designate beneficiaries other than those described above,
the Participant may submit a written designation of
beneficiary(s), which shall become effective when
received by the Employer and shall revoke all prior
designations.
If a Participant is not a participant in either of the
above described plans, the Participant may submit a
written designation of beneficiary(s), which shall become
effective when received by the Employer and shall revoke
all prior designations. If no such designation has been
received by the Employer prior to the Participant s
death, the Participant s beneficiary shall be his estate.
4.05 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 beneficiary
which are required to be withheld by the Employer.
4.06 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.
ARTICLE 5
Administration
5.01 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 may have a claim to any interest
whatsoever under this Plan.
5.02 Liability of Committee and 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.
5.03 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 ninety (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 ninety (90) days for reasonable cause.
If the claim is denied in whole or in part, EBPAC
(or its delegatee) 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 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 sixty (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 EBPAC (or its
delegatee). 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 by the Committee (or
its delegatee) within such sixty (60) day period,
he shall be barred and estopped from challenging
EBPAC's (or its delegatee's) determination.
(d) Review of Decision. Within sixty (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 sixty (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 one hundred twenty
(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.
ARTICLE 6
Miscellaneous
6.01 No Trust Created. Nothing contained in this Plan, and no
action taken pursuant to its provisions by either 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
beneficiary 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
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 present
capacity or in any capacity.
6.06 Amendment or Termination of Plan. Except to the extent
otherwise reserved to the Committee, the President or any
Vice President or the General Counsel and Secretary 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 1.01, 1.03, 1.04, 1.05, 1.06, 1.07, 1.08,
1.09, 1.10, 1.11,1.14, 1.15, 1.18, 1.19, 1.20, 1.21,
1.22, 2.01, 3.01, 3.03, 3.04, 4.01, 4.02, 4.03, 4.07,
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, nonqualified 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, 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 Compensation, Bonus, and/or Director's Fees under
this Plan shall apply only with respect to Compensation,
Bonus, and/or Director's Fees paid by the Employer. If
the Participant transfers from one Employer to another
Employer and the Participant desires to defer
Compensation, Bonus, and/or Director's Fees paid by the
new Employer, the Participant must execute a separate
deferral agreement.
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 Section 4.05 and 4.06.
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 EBPAC (or its delegatee) determines that
any person to whom any distribution is payable under this
Plan is unable to care for his 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 EBPAC (or its
delegatee) to have incurred expense for such person
otherwise entitled to payment, in such manner as EBPAC
(or its delegatee) 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 Compensation,
Bonus, 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 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
beneficiary) to institute a claim, by litigation or
otherwise, to enforce his rights under this Plan, the
Employer (and its successors or transferee in accordance
with Section 6.11) 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.
6.17 No Rights as Stockholders. A Non-Employee Director who
elects pursuant to Section 3.04 to invest deferred
Director s Fees in Phantom Stock Units will not have any
rights as a result of such investment arising out of the
ownership of Common Stock.
IN WITNESS WHEREOF the Board of Directors has caused this
Plan to be signed by its duly appointed officer and its corporate
seal to be hereunto affixed as of this 11th day of September, 1995.
ATTEST: FPL GROUP, INC.
MARK MITCHELL By: L.J. KELLELHER
Title: Sr. Vice Pres.
(Seal)