EXHIBIT 10
EMPLOYMENT AGREEMENT
Employment Agreement between FPL GROUP, INC., a Florida corporation
(the "Company"), and Xxxxx Xxxxx (the "Executive"), dated as of February 22,
1999.
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:
Xxxxx Xxxxx
00000 XX Xxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
If to the Company:
FPL Group, Inc.
000 Xxxxxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Vice President, Human Resources
or such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be
effective when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
(d) The Company may withhold from any amounts payable under this
Agreement such Federal, state or local taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
(e) The Executive's or the Company's failure to insist upon strict
compliance with any provision hereof or any other provision of this Agreement
or the failure to assert any right the Executive or the Company may
hereunder, including, without limitation, the right of the Executive to
terminate employment for Good Reason pursuant to Section 6(c)(i)-(v) of
this Agreement, shall not be deemed to be a waiver of such provision or
right or any other provision or right of this Agreement.
(f) The Executive and the Company acknowledge that, except as may
otherwise be provided under any other written agreement between the Executive
and the Company, the employment of the Executive by the Company is "at will"
and, prior to the Effective Date, may be terminated by either the Executive or
the Company at any time. Moreover, except as provided in Section 1, if prior
to the Effective Date, (i) the Executive's employment with the Company
terminates or (ii) the Executive ceases to be an officer of the Company, then
the Executive shall have no further rights under this Agreement.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's
hand and, pursuant to the authorization from the Board of Directors, the
Company has caused these presents to be executed in its name on its behalf,
all as of the day and year first above written.
XXXXX XXXXX
Xxxxx Xxxxx
FPL GROUP, INC.
By XXXXXXXX X. XXXXXXXX
Xxxxxxxx X. Xxxxxxxx
Vice President Human Resources
