UNITED
STATES SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K/A
Amendment
No. 1
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d)
OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of
earliest event reported: March 1,
2010
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Commission
File
Number
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Exact
name of registrant as specified in its
charter,
address of principal executive offices and
registrant's
telephone number
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IRS
Employer
Identification
Number
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1-8841
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FPL
GROUP, INC.
700
Universe Boulevard
Juno
Beach, Florida 33408
(561)
694-4000
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59-2449419
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State or
other jurisdiction of incorporation or
organization: Florida
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
o Written communications pursuant to Rule
425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule
14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant
to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o Pre-commencement communications pursuant
to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Under
Item 8.01 of a current report on Form 8-K filed on January 26, 2009 (the
Original Form 8-K), FPL Group, Inc. (FPL Group) provided a summary description
of the terms of FPL Group’s common stock. The purpose of this
amendment to the Original Form 8-K is to amend and restate the description of
the common stock in order to include information about amendments to FPL Group’s
Amended and Restated Bylaws adopted effective February 12, 2010 that
changed certain bylaw provisions relating to the shareholder votes required to
approve particular matters. FPL Group previously reported the bylaw
amendments in a current report on Form 8-K filed on February 19,
2010. Accordingly, Item 8.01 of the Original Form 8-K is amended and
restated as set forth below.
SECTION
8 – OTHER EVENTS
Item
8.01 Other Events
The
following is a summary description of the terms of the common stock of FPL
Group, Inc. (FPL Group). The description is qualified in its entirety
by reference to the provisions of FPL Group's Restated Articles of Incorporation
(the Charter) and Amended and Restated Bylaws (the bylaws) as in effect on the
date of this report, as well as provisions of the Florida Business Corporation
Act and other applicable laws. Copies of the Charter and the bylaws
have been filed by FPL Group with the Securities and Exchange
Commission.
Authorized
and Outstanding Capital Stock
FPL
Group's Charter authorizes it to issue 900,000,000 shares of capital stock, each
with a par value of $.01, consisting of:
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800,000,000
shares of common stock; and
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100,000,000
shares of preferred stock.
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As of
the date of this report, FPL Group's board of directors had not authorized for
issuance any series of preferred stock.
Common
Stock Terms
Voting Rights. In
general, each holder of common stock is entitled to one vote for each share held
by such holder on all matters submitted to a vote of holders of the common
stock, including the election of directors. Each holder of common
stock is entitled to attend all special and annual meetings of FPL Group's
shareholders. The holders of common stock do not have cumulative
voting rights.
In
general, if a quorum exists at a meeting of FPL Group’s shareholders, unless a
greater or different vote is required by the Florida Business Corporation Act,
the Charter or the bylaws, or by action of the board of directors, (1) on all
matters other than the election of directors, action on such matters will be
approved if the votes cast favoring the action exceed the votes cast opposing
the action, (2) in an uncontested director election, a nominee for director will
be elected if the votes cast for the nominee’s election exceed the votes cast
against the nominee’s election, and (3) in a contested director election, which
is an election in which the number of persons considered for election to the
board of directors exceeds the total number of directors to be elected, a
nominee for director will be elected by a plurality of the votes
cast. Other voting rights of shareholders are described below under
“Anti-Takeover Effects of Provisions in FPL Group’s Charter and
Bylaws.”
Dividend
Rights. The holders of common stock are entitled to
participate on an equal per-share basis in any dividends declared on the common
stock by FPL Group's board of directors out of funds legally available for
dividend payments.
The
declaration and payment of dividends on the common stock is within the sole
discretion of FPL Group's board of directors. FPL Group's Charter does not limit
the dividends that may be paid on the common stock.
The
ability of FPL Group to pay dividends on the common stock is currently subject
to, and in the future may be limited by:
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various
risks which affect the businesses of Florida Power & Light Company and
FPL Group’s other subsidiaries that may in certain instances limit the
ability of such subsidiaries to pay dividends to FPL Group;
and
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various
contractual restrictions applicable to FPL Group and some of its
subsidiaries, including those described
below.
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Florida
Power & Light Company is subject to the terms of its Mortgage and Deed of
Trust dated as of January 1, 1944, with Deutsche Bank Trust Company
Americas (formerly known as Bankers Trust Company), as Trustee, as amended and
supplemented from time to time (the Mortgage), that secures its obligations
under outstanding first mortgage bonds issued by it from time to time. In
specified circumstances, the terms of the Mortgage could restrict the ability of
Florida Power & Light Company to pay dividends and make other distributions
to FPL Group.
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Other
contractual restrictions on the dividend-paying ability of FPL Group or its
subsidiaries are contained in outstanding financing arrangements, and may be
included in future financing arrangements. FPL Group has issued
equity units. In accordance with the terms of the equity units, FPL Group has
the right, from time to time, to defer the payment of contract adjustment
payments on the purchase contracts that form a part of the equity units to a
date no later than the purchase contract settlement date. In the
event that FPL Group exercises its right to defer the payment of contract
adjustment payments, then, until the deferred contract adjustment payments have
been paid, FPL Group would not be able, with limited exceptions, to pay
dividends on the common stock. A subsidiary of FPL Group, FPL Group
Capital Inc (FPL Group Capital), has issued junior subordinated debentures that
are guaranteed by FPL Group. FPL Group Capital has the right, from time to time,
to defer the payment of interest on its outstanding junior subordinated
debentures for a deferral period of up to 20 consecutive quarters, in the case
of one series of such securities, and on one or more occasions for up to ten
consecutive years, in the case of other series of such
securities. FPL Group, Florida Power & Light Company or FPL Group
Capital may issue, from time to time, additional equity units, junior
subordinated debentures or other securities that (1) provide them with rights to
defer the payment of interest or other payments and (2) contain dividend
restrictions in the event of the exercise of such rights. In the
event that FPL Group or FPL Group Capital were to exercise any right to defer
interest or other payments on currently outstanding or future series of equity
units, junior subordinated debentures or other securities, or if there were to
occur certain payment defaults on those securities, FPL Group would not be able,
with limited exceptions, to pay dividends on the common stock during the periods
in which such payments were deferred or such payment defaults
continued. In the event that Florida Power & Light Company were
to exercise any such right to defer the payment of interest or other payments,
it would not be able, with limited exceptions, to pay dividends to FPL Group or
any other holder of its common stock or preferred stock during the periods in
which such payments were deferred. In addition, FPL Group, FPL Group Capital and
Florida Power & Light Company might issue other securities in the future
containing similar or other restrictions on FPL Group's ability to pay dividends
on the common stock and on Florida Power & Light Company's ability to pay
dividends to any holder of its common stock or preferred stock, including FPL
Group.
In
addition, the right of the holders of FPL Group's common stock to receive
dividends might become subject to the preferential dividend, redemption, sinking
fund or other rights of the holders of any series of FPL Group preferred stock
that may be issued in the future, and the right of the holders of Florida Power
& Light Company common stock or preferred stock, including FPL Group, to
receive dividends might become subject to the preferential dividend, redemption,
sinking fund or other rights of the holders of any series of Florida Power &
Light Company preferred stock that may be issued in the future.
Liquidation
Rights. If there is a liquidation, dissolution or winding up
of FPL Group, the holders of common stock are entitled to share equally and
ratably in any assets remaining after FPL Group has paid, or provided for the
payment of, all of its debts and other liabilities, and after FPL Group has
paid, or provided for the payment of, any preferential amounts payable to the
holders of any outstanding preferred stock.
Other Rights. The
holders of common stock do not have any preemptive, subscription, conversion or
sinking fund rights. The common stock is not subject to redemption.
Anti-Takeover
Effects of Provisions in FPL Group's Charter and Bylaws
FPL
Group's Charter and bylaws contain provisions that may make it difficult and
expensive for a third party to pursue a takeover attempt that FPL Group's board
of directors and management oppose even if a change in control of FPL Group
might be beneficial to the interests of holders of common stock.
FPL Group's Charter
Provisions. Among FPL Group's Charter provisions that could
have an anti-takeover effect are those that:
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permit
the shareholders to remove a director only for cause and only by the
affirmative vote of holders of at least 75% of the voting power of the
outstanding shares of voting stock (which FPL Group's Charter defines to
include the common stock and any other capital stock entitled to vote
generally in the election of directors), voting together as a single
class;
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provide
that a vacancy on the board of directors may be filled only by a majority
vote of the remaining directors;
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prohibit
the shareholders from taking action by written consent in lieu of a
meeting of shareholders;
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limit
the persons who may call a special meeting of shareholders to the chairman
of the FPL Group board of directors, the president or secretary, a
majority of the board of directors or the holders of a majority of the
outstanding shares of stock entitled to vote on the matter or matters to
be presented at the meeting;
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require
the affirmative vote of holders of at least 75% of the voting power of the
outstanding shares of voting stock, voting together as a single class, to
approve certain "business combinations" with an "interested shareholder,"
as those terms are defined in FPL Group's Charter, or the interested
shareholder's affiliate, unless such transactions are approved by a
majority of the "continuing directors," as defined in FPL Group's Charter,
or, in some cases, unless specified minimum price and procedural
requirements are met;
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require
any action by shareholders to amend or repeal the FPL Group bylaws, or to
adopt new bylaws, to receive the affirmative vote of holders of at least
75% of the voting power of the outstanding shares of voting stock, voting
together as a single class; and
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require
the affirmative vote of holders of at least 75% of the voting power of the
outstanding shares of voting stock, voting together as a single class, to
alter, amend or repeal specified provisions of FPL Group's Charter,
including the foregoing provisions.
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FPL
Group's Charter defines the term "interested shareholder" to include a security
holder who is the direct or indirect beneficial owner of 10% or more of the
voting power of the outstanding shares of voting stock, and the term "continuing
director" to include any director who is not an affiliate of an interested
shareholder. The foregoing provisions may discriminate against a
security holder who becomes an interested shareholder by reason of its
beneficial ownership of the specified amount of common or other voting
stock.
The term
"business combination" is defined in FPL Group's Charter to include the
following transactions:
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any
merger or consolidation of FPL Group or any direct or indirect
majority-owned subsidiary with (1) any interested shareholder or
(2) any other corporation (whether or not itself an interested
shareholder) which is, or after such merger or consolidation would be, an
affiliate of an interested
shareholder;
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any
sale, lease, exchange, mortgage, pledge, transfer or other disposition in
one transaction or a series of transactions to or with any interested
shareholder or any affiliate of any interested shareholder of assets of
FPL Group or any direct or indirect majority-owned subsidiary having an
aggregate fair market value of $10 million or
more;
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the
issuance or transfer by FPL Group or any direct or indirect majority-owned
subsidiary in one transaction or a series of transactions of any
securities of FPL Group or any such subsidiary to any interested
shareholder or any affiliate of any interested shareholder in exchange for
cash, securities or other property, or a combination thereof, having an
aggregate fair market value of $10 million or
more;
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the
adoption of any plan or proposal for the liquidation or dissolution of FPL
Group proposed by or on behalf of an interested shareholder or an
affiliate of an interested shareholder;
or
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any
reclassification of securities (including any reverse stock split) or
recapitalization of FPL Group, or any merger or consolidation of FPL Group
with any of its direct or indirect majority-owned subsidiaries or any
other transaction which has the direct or indirect effect of increasing
the proportionate share of the outstanding shares of any class of equity
or convertible securities of FPL Group or any direct or indirect
majority-owned subsidiary which is directly or indirectly owned by any
interested shareholder or any affiliate of any interested
shareholder.
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For
purposes of the foregoing "business combination" provisions, FPL Group's Charter
defines the term "subsidiary" as any corporation of which FPL Group owns,
directly or indirectly, a majority of any class of equity
securities.
The
foregoing shareholder approval requirements are in addition to those required by
law, including the provisions of the Florida Business Corporation
Act.
Bylaw
Provisions. The FPL Group bylaws contain some of the foregoing
provisions contained in FPL Group's Charter. The bylaws also contain
a provision limiting to 16 directors the maximum number of authorized directors
of FPL Group. In addition, the bylaws contain provisions that
establish advance notice requirements for shareholders to nominate candidates
for election as directors at any annual or special meeting of shareholders or to
present any other business for consideration at any annual meeting of
shareholders. These provisions generally require a shareholder to
submit in writing to FPL Group's secretary any nomination of a candidate for
election to the board of directors or any other proposal for consideration at
any annual meeting not earlier than 120 days or later than 90 days
before the first anniversary of the preceding year's annual
meeting. The bylaws also require a shareholder to submit in writing
to FPL Group's secretary any nomination of a candidate for election to the board
of directors for consideration at any special meeting not earlier than
120 days before such special meeting and not after the later of
90 days before such special meeting or the tenth day following the day of
the first public announcement of the date of the special meeting and of the fact
that directors are to be elected at the meeting. For the
shareholder's notice to be in proper form, it must include all of the
information specified in the bylaws.
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Preferred
Stock
FPL
Group's Charter authorizes FPL Group's board of directors from time to time and
without shareholder action to provide for the issuance of up to 100,000,000
shares of preferred stock in one or more series, and to determine the
designations, preferences, limitations and relative or other rights of any such
series, including voting rights, dividend rights, liquidation preferences,
sinking fund provisions, conversion privileges and redemption
rights. FPL Group's board of directors has broad discretion with
respect to the creation and issuance of any series of preferred stock without
shareholder approval, subject to any applicable rights of holders of any shares
of preferred stock outstanding at any time. The rights and privileges
of holders of common stock may be adversely affected by the rights, privileges
and preferences of holders of shares of any series of preferred stock which FPL
Group's board of directors may authorize for issuance from time to
time. Among other things, by authorizing the issuance of shares of
preferred stock with particular voting, conversion or other rights, the board of
directors could adversely affect the voting power of the holders of the common
stock and could discourage any attempt to effect a change in control of FPL
Group, even if such a transaction would be beneficial to the interests of
holders of the common stock.
Indemnification
Florida
law generally provides that a Florida corporation, such as FPL Group, may
indemnify its directors, officers, employees and agents against liabilities and
expenses they may incur. Florida law also limits the liability of
directors to FPL Group and other persons. FPL Group's bylaws contain
provisions requiring FPL Group to indemnify its directors, officers, employees
and agents under specified conditions. In addition, FPL Group carries
insurance permitted by the laws of Florida on behalf of its directors, officers,
employees and agents.
Transfer
Agent and Registrar
The
transfer agent and registrar for the common stock is Computershare Investor
Services, LLC.
Listing
The
common stock is listed on the New York Stock Exchange and trades under the
symbol "FPL."
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned thereunto
duly authorized.
FPL
GROUP, INC.
(Registrant)
Date: March
1, 2010
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CHARLES
E. SIEVING
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Charles
E. Sieving
Executive
Vice President & General Counsel
of
FPL Group, Inc.
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