EXHIBIT 10(a)
EMPLOYMENT AGREEMENT
Employment Agreement between FPL GROUP,
INC., a Florida corporation (the "Company"), and Kenneth R. Werneburg
(the "Executive"), dated as of March 17, 1997.
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:
Kenneth R. Werneburg
4000 N. Ocean Drive, Apt. 2001
Singer Island, FL 33404-2849
If to the Company:
FPL Group, Inc.
700 Universe
Boulevard
Juno Beach, Florida 33408
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.
KENNETH R. WERNEBURG
Kenneth R. Werneburg
FPL GROUP, INC.
By LAWRENCE J. KELLEHER
Lawrence J. Kelleher