EXHIBIT 10(y)
CLECO CORPORATION
EXECUTIVE EMPLOYMENT AGREEMENT
(LEVEL 1)
THIS AGREEMENT (the "Agreement") is entered into as of this 28th day of
July, 2000, by and between XXXXX X. XXXXXX ("Executive"), and Cleco Corporation,
a Louisiana corporation (the "Company"), and is intended to amend and restate,
in its entirety, that certain Executive Severance Agreement between Cleco
Utility Group Inc. and Executive, initially effective as of July 1, 1992.
1. EMPLOYMENT AND TERM
1.1 POSITION. The Company shall employ and retain Executive as its
President and Chief Executive Officer or in such other capacity or capacities as
shall be mutually agreed upon, from time to time, by Executive and the Company,
and Executive agrees to be so employed, subject to the terms and conditions set
forth herein. Executive's duties and responsibilities shall be those assigned to
him hereunder, from time to time, by the Board of Directors of the Company and
shall include such duties as are the type and nature normally assigned to
similar executive officers of a corporation of the size, type and stature of the
Company. Executive shall report to the Board of Directors.
1.2 CONCURRENT EMPLOYMENT. During the term of this Agreement, Executive
and the Company acknowledge that Executive may be concurrently employed by the
Company and a subsidiary or other entity with respect to which the Company owns
(within the meaning of Section 425(f) of the Internal Revenue Code of 1986, as
amended (the "Code")) 50% or more of the total combined voting power of all
classes of stock or other equity interests (an "Affiliate"), and that all of the
terms and conditions of this Agreement shall apply to such concurrent
employment. Reference to the Company hereunder shall be deemed to include any
such concurrent employers.
1.3 FULL TIME AND ATTENTION. During the term of this Agreement and any
extensions or renewals thereof, Executive shall devote his full time, attention
and energies to the business of the Company and will not, without the prior
written consent of the Board of Directors of the Company, be engaged (whether or
not during normal business hours) in any other business or professional
activity, whether or not such activities are pursued for gain, profit or other
pecuniary advantage.
Notwithstanding the foregoing, Executive shall not be prevented from (a)
engaging in any civic or charitable activity for which Executive receives no
compensation or other pecuniary advantage, (b) investing his personal assets in
businesses which do not compete with the Company, provided that such investment
will not require any services on the part of Executive in the operation of the
affairs of the businesses in which investments are made and provided further
that Executive's participation in such businesses is solely that of an investor,
or (c) purchasing
securities in any corporation whose securities are regularly traded, provided
that such purchases will not result in Executive owning beneficially at any time
5% or more of the equity securities of any corporation engaged in a business
competitive with that of the Company.
1.4 TERM. Executive's employment under this Agreement shall commence as
of July 28, 2000 (the "Effective Date"), and shall terminate on July 28, 2003
(such date or the last day of employment specified in any renewal or amendment
hereof referred to herein as the "Termination Date") (the period commencing as
of the Effective Date and ending as of the Termination Date referred to herein
as the "Employment Term").
Commencing on the second anniversary of the Effective Date and each
anniversary thereafter, Executive's employment shall automatically be extended
for an additional one-year period; provided, however, that either party may
provide written notice to the other that the Employment Term will not be further
extended, such notice to be provided not later than 30 days prior to the end of
the then current Employment Term.
2. COMPENSATION AND BENEFITS
2.1 BASE COMPENSATION. The Company shall pay Executive an annual salary
equal to his annual base salary in effect as of the Effective Date, such amount
shall be prorated and paid in equal installments in accordance with the
Company's regular payroll practices and policies and shall be subject to
applicable withholding and other applicable taxes (Executive's "Base
Compensation"). Executive's Base Compensation shall be reviewed no less often
than annually and may be increased or reduced by the Board of Directors of the
Company (the "Board"), in its sole discretion; provided, however, that
Executive's Base Compensation may not be reduced at any time unless such
reduction is part of a reduction in pay uniformly applicable to all officers of
the Company.
2.2 ANNUAL INCENTIVE BONUS. In addition to the foregoing, Executive shall
be eligible for participation in the Annual Incentive Compensation Plan or
similar bonus arrangement maintained by the Company or an Affiliate or such
other bonus or incentive plans which the Company or its Affiliates may adopt,
from time to time, for similarly situated executives (an "Incentive Bonus").
2.3 LONG-TERM INCENTIVES. In addition to the foregoing, Executive shall
be eligible for participation in the 2000 Long-Term Incentive Compensation Plan
maintained by the Company and such other long-term incentive plans which the
Company or its Affiliates may adopt, from time to time, for similarly situated
executives (a "Long-Term Incentive").
2.4 SUPPLEMENTAL RETIREMENT BENEFIT. In addition to the foregoing,
Executive shall be eligible to participate in the Supplemental Executive
Retirement Plan maintained by Cleco Utility Group Inc. or such other
supplemental retirement benefit plans which the Company or its Affiliates may
adopt, from time to time, for similarly situated executives (the "Supplemental
Plan").
Page 2
2.5 OTHER BENEFITS. During the term of this Agreement and in addition to
the amounts otherwise provided herein, Executive shall participate in such
plans, policies, and programs as may be maintained, from time to time, by the
Company or its Affiliates for the benefit of senior executives or employees,
including, without limitation, profit sharing, life insurance, and group medical
and other welfare benefit plans. Any such benefits shall be determined in
accordance with the specific terms and conditions of the documents evidencing
any such plans, policies, and programs.
2.6 REIMBURSEMENT OF EXPENSES. The Company shall reimburse Executive for
such reasonable and necessary expenses as are incurred in carrying out his
duties hereunder, consistent with the Company's standard policies and annual
budget. The Company's obligation to reimburse Executive hereunder shall be
contingent upon the presentment by Executive of an itemized accounting of such
expenditures.
3. TERMINATION
3.1 TERMINATION PAYMENTS TO EXECUTIVE. As set forth more fully in this
Section 3 and except as provided in Sections 3.3 or 3.8 hereof, Executive shall
be paid the greater of the amounts or benefits set forth below or the amounts or
benefits provided under the terms of the separate plan or arrangement maintained
by the Company (or its Affiliates) on account of termination of employment
hereunder:
a. Executive's Base Compensation accrued but not yet paid as of the date
of his termination.
b. Executive's Base Compensation payable until the Termination Date
(determined without regard to the automatic renewal provisions of
Section 1.4 hereof), but not less than 100% of such annual Base
Compensation.
c. Executive's Incentive Bonus payable with respect to the year of his
termination, prorated to reflect Executive's actual period of service
during such year.
d. Executive's Incentive Bonus payable in the target amount for the year
in which his termination of employment occurs.
e. If Executive's principal office is located in Pineville, Louisiana,
the Company shall, at the written request of Executive:
i. Purchase his principal residence if such residence is located
within 60 miles of the Company's Pineville, Louisiana office (the
"Principal Residence") for an amount equal to the greater of (1)
the purchase price of such Principal Residence plus the
documented cost of any capital improvements to the Principal
Residence made by Executive, or (2) the fair market value of such
Principal Residence as determined by the Company's usual
relocation practice; and
Page 3
ii. Pay or reimburse Executive for the cost of relocating Executive,
his family and their household goods and other personal property,
in accordance with the Company's usual relocation practice, to
any location in the United States.
Notwithstanding the foregoing, the Company shall not be obligated
hereunder, unless, within 12 months after the termination of his
employment with the Company (and its Affiliates), the Company is
requested to purchase such Principal Residence or Executive has
actually relocated from the Pineville, Louisiana area.
f. If Executive and/or his dependents elects to continue group medical
coverage, within the meaning of Code Section 4980B(f)(2), with respect
to a group health plan sponsored by the Company or an Affiliate (other
than a health flexible spending account under a self-insured medical
reimbursement plan described in Code Sections 125 and 105(h)), the
Company shall pay the continuation coverage premium for the same type
and level of group health plan coverage received by Executive and his
electing dependents immediately prior to such termination of
Executive's employment for the maximum period provided under Code
Section 4980B.
g. Executive shall be fully vested for purposes of any service or similar
requirement imposed under the Cleco Utility Group Inc. Supplemental
Executive Retirement Plan (the "Supplemental Plan"), regardless of the
actual number of years of service attained by Executive.
Except as expressly provided in Section 3.3 hereof, Executive shall also be
entitled to receive such compensation or benefits as may be provided under the
terms of a separate plan or amendment maintained by the Company (or its
Affiliates) to the extent such compensation or benefits are not duplicative of
the compensation or benefits described above.
3.2 TERMINATION FOR DEATH OR DISABILITY. If Executive dies or becomes
disabled during the Employment Term, this Agreement and Executive's employment
hereunder shall immediately terminate and the Company's obligations hereunder
shall automatically cease. In such event, the Company shall pay to Executive
(or his estate) the amounts described in Sections 3.1a and 3.1c hereof. Payment
shall be made in the form of one or more single-sums as soon as practicable
after Executive's death or disability or as and when such amounts are
ascertainable.
For purposes of this Section 3.2, Executive shall be deemed "disabled" if
he or she is actually receiving benefits or is eligible to receive benefits
under the Company's (or an Affiliate's) separate long-term disability plan. The
Board shall determine whether Executive is disabled hereunder.
Page 4
3.3 COMPANY'S TERMINATION FOR CAUSE. This Agreement and Executive's
employment hereunder may be terminated by the Company on account of Cause. In
such event, the Company shall pay to Executive the amount described in Section
3.1a hereof. Payment shall be made in the form of a single-sum not later than
three days after such termination. Notwithstanding any provision of this
Agreement or any other plan, policy or agreement evidencing any other
compensation arrangement or benefit payable to Executive, no additional amount
shall be paid to Executive, except as may be required by law.
For purposes of this Agreement "Cause" means that Executive has:
a. Committed an intentional act of fraud, embezzlement or theft in the
course of his employment or otherwise engaged in any intentional
misconduct which is materially injurious to the Company's (or an
Affiliate's) financial condition or business reputation;
b. Committed intentional damage to the property of the Company (or an
Affiliate) or committed intentional wrongful disclosure of
Confidential Information (as defined in Section 5.2) which is
materially injurious to the Company's (or an Affiliate's) financial
condition or business reputation;
c. Intentionally refused to perform the material duties of his position;
or
d. A material breach of this Agreement by Executive.
No act or failure to act on the part of Executive will be deemed "intentional"
if it was due primarily to an error in judgment or negligence, but will be
deemed "intentional" only if done or omitted to be done by Executive not in good
faith and without reasonable belief that his action or omission was in the best
interest of the Company (or an Affiliate).
The Board, acting in good faith, may terminate Executive's employment
hereunder on account of Cause (or may determine that any termination by the
Company is on account of Cause). The Board shall provide written notice to
Executive, including a description of the specific reasons for the determination
of Cause. Executive shall have the opportunity to appear before the Board, with
or without legal representation, to present arguments and evidence on his
behalf. Following such presentation (or upon Executive's failure to appear),
the Board, by an affirmative vote of not less than 66% of its members, shall
confirm that the actions or inactions of Executive constitute Cause hereunder.
3.4 EXECUTIVE'S CONSTRUCTIVE TERMINATION. Executive may terminate this
Agreement and his employment hereunder on account of a Constructive Termination
upon 30 days prior written notice to the Board of Directors (or such shorter
period as may be agreed upon by the parties hereto.) In such event, the Company
shall provide to Executive (a) the amount described in Section 3.1a hereof,
payable not later than three days after his termination of employment, (b) the
amounts determined under Sections 3.1b and 3.1d hereof, payable in not more than
two equal installments, one-half not later than 30 days after termination and
the other
Page 5
one-half six months after such termination, and (c) the benefits described in
Sections 3.1e, 3.1f and 3.1g hereof.
For purposes of this Agreement, "Constructive Termination" means:
a. A material reduction (other than a reduction in pay uniformly
applicable to all officers of the Company) in the amount of
Executive's Base Compensation;
b. A material reduction in Executive's authority, duties or
responsibilities from those contemplated in Section 1.1 of this
Agreement; or
c. A material breach of this Agreement by the Company or its Affiliates.
No event or condition described in this Section 3.4 shall constitute a
Constructive Termination unless (a) Executive promptly gives the Company notice
of his objection to such event or condition, which notice may be provided orally
or in writing to the Board of Directors or his designee, (b) such event or
condition is not corrected by the Company promptly after receipt of such notice,
but in no event more than 30 days after receipt of notice, and (c) Executive
resigns his employment with the Company (and all Affiliates) not more than 15
days following the expiration of the 30-day period described in subparagraph (b)
hereof.
3.5 TERMINATION BY THE COMPANY, WITHOUT CAUSE. The Company may terminate
this Agreement and Executive's employment hereunder, without Cause, upon 30 days
prior written notice to Executive (or such shorter period as may be agreed upon
by Executive and the Board of Directors.) In such event, the Company shall
provide to Executive (a) the amount described in Section 3.1a hereof, payable
not later than three days after such termination, (b) the amounts determined
under Sections 3.1b and 3.1d hereof, payable in not more than two equal
installments, one-half not later than 30 days after termination and the other
one-half six months after such termination, and (c) the benefits described in
Sections 3.1e, 3.1f and 3.1g hereof.
3.6 TERMINATION BY EXECUTIVE. Executive may terminate this Agreement and
his employment hereunder, other than on account of Constructive Termination,
upon 30 days prior written notice to the Company or such shorter period as may
be agreed upon by the Board of Directors and Executive. In such event, the
Company shall pay to Executive the amount described in Section 3.1a hereof.
Payment shall be made in the form of a single-sum not later than three days
after such termination. No additional payments or benefits shall be due
hereunder, except as may be provided under a separate plan, policy or program
evidencing such compensation arrangement or benefit or as may be required by
law.
3.7 RETURN OF PROPERTY. Upon termination of this Agreement for any
reason, Executive shall promptly return to the Company all of the property of
the Company (and its Affiliates), including, without limitation, automobiles,
equipment, computers, fax machines, portable telephones, printers, software,
credit cards, manuals, customer lists, financial data, letters, notes,
notebooks, reports and copies of any of the above and any Confidential
Page 6
Information (as defined in Section 5.2 hereof) that is in the possession or
under the control of Executive.
3.8 CONSIDERATION FOR OTHER AGREEMENTS. Executive acknowledges that all
or a portion of the amount payable under Section 3.1d hereof is in excess of the
amount otherwise due or payable under the Annual Incentive Compensation Plan and
that the payment of such excess amount shall constitute adequate consideration
for the execution of such separate waivers or releases as the Company (or
Affiliate) may request Executive to execute in connection with the termination
of his employment hereunder. Executive agrees that failure to execute any such
waiver or release within the time request by the Company shall result in the
forfeiture of the excess amount payable under Section 3.1d hereof.
4. CHANGE IN CONTROL AND BUSINESS TRANSACTION
4.1 DEFINITIONS. The terms "Change in Control" and "Business Transaction"
shall have the meanings ascribed to them in the Cleco Corporation 2000 Long-Term
Incentive Compensation Plan, as the same may be amended from time to time.
The term "Good Reason," when used herein, shall mean that in connection
with a Change in Control:
a. Executive's Base Compensation in effect immediately before such Change
in Control is reduced or there is a significant reduction or
termination of Executive's rights to any employee benefit in effect
immediately prior to the Change in Control;
b. Executive's authority, duties or responsibilities are significantly
reduced from those contemplated in Section 1.1 hereof or Executive has
reasonably determined that, as a result of a change in circumstances
that significantly affects his employment with the Company (or an
Affiliate), he or she is unable to exercise the authority, power,
duties and responsibilities contemplated in Section 1.1 hereof;
c. Executive is required to be away from his office in the course of
discharging his duties and responsibilities under this Agreement
significantly more than was required prior to the Change in Control;
or
d. Executive is required to transfer to an office or business location
located more than 60 miles from the location to which he or she was
assigned prior to the Change in Control.
No event or condition described in this Section 4.1 shall constitute Good Reason
unless (a) Executive gives the Company notice of his objection to such event or
condition within a reasonable period after Executive learns of such event, which
notice may be delivered orally or in writing to the Board of Directors (or his
designee), (b) such event or condition is not promptly
Page 7
corrected by the Company, but in no event later than 30 days after receipt of
such notice, and (c) Executive resigns his employment with the Company (and its
Affiliates) not more than 60 days following the expiration of the 30-day period
described in subparagraph (b) hereof.
4.2 TERMINATION IN CONNECTION WITH A CHANGE IN CONTROL. If Executive's
employment described herein is terminated by the Company, without Cause (as
defined in Section 3.3 hereof), or Executive terminates his employment hereunder
for Good Reason at any time within the 60-day period preceding or 36-month
period following such Change in Control, then notwithstanding any provision of
this Agreement to the contrary and in lieu of any compensation or benefits
otherwise payable hereunder:
a. The Company shall pay to Executive the amount described in Section
3.1a in the form of a single-sum not later than three days after such
termination.
b. The Company shall pay to Executive the amount described in Section
3.1d in the form of a single-sum not later than 30 days after such
termination.
c. The Company shall pay an amount equal to three times Executive's "base
amount" as determined under Code Section 280G, payable in the form of
a single-sum not later than 30 days after such termination.
d. The Company shall provide to Executive and his dependents coverage
under the Company's or an Affiliate's group medical plan for the same
type and level of health benefits received by Executive and his
dependents immediately prior to such termination for a period of three
years or until Executive and/or his dependents obtain coverage under a
reasonably satisfactory group health plan with no applicable
preexisting condition limitation, whichever comes first; such coverage
to be in addition to any coverage available to Executive and his
dependents under Code Section 4980B.
e. Vesting shall be accelerated, any restrictions shall lapse, and all
performance objectives shall be deemed satisfied as to any outstanding
grants or awards made to Executive under the 2000 Long-Term Incentive
Compensation Plan and/or the 1990 Long-Term Incentive Compensation
Plan. Executive shall be entitled to such additional benefits or
rights as may be provided in the documents evidencing such plans or
the terms of any agreement evidencing such grant or award.
f. Executive shall be fully vested for purposes of any service or similar
requirement imposed under the Supplemental Plan, regardless of the
actual number of years of service attained by Executive. Executive
shall be credited with an additional three years of age for purposes
of determining his benefit percentage under the Supplemental Plan, but
in no event shall such benefit percentage be less than 50%; and
Executive shall be credited with an additional three years of age for
purposes of determining any reduction taken with respect to benefits
commencing before Executive's normal retirement date (as defined in
such plan).
Page 8
g. If Executive's principal office is located in Pineville, Louisiana,
the Company shall, at the written request of Executive:
i. Purchase his principal residence if such residence is located
within 60 miles of the Company's Pineville, Louisiana office (the
"Principal Residence") for an amount equal to the greater of (1)
the purchase price of such Principal Residence plus the
documented cost of any capital improvements to the Principal
Residence made by Executive, or (2) the fair market value of such
Principal Residence as determined by the Company's usual
relocation practice; and
ii. Pay or reimburse Executive for the cost of relocating Executive,
his family and their household goods and other personal property,
in accordance with the Company's usual relocation practice, to
any location in the United States.
Notwithstanding the foregoing, the Company shall not be obligated
hereunder, unless, within 12 months after the termination of his
employment with the Company (and its Affiliates), the Company is
requested to purchase such Principal Residence or Executive has
actually relocated from the Pineville, Louisiana area.
h. The Company shall pay to Executive an amount equal to the Company's
(including all Affiliates) maximum matching contribution obligation
under the Cleco Corporation 401(k) Savings and Investment Plan, as the
same may be amended from time to time, for each of the three years
immediately following Executive's termination of employment,
determined as if Executive was credited with at least 1,000 hours of
service in each such plan year, was employed as of the last day of
each plan year, and contributed the maximum permissible amount under
Code Section 402(g) in each such year, but determined using the amount
in effect as of the date of Executive's termination of employment;
such amount shall be paid in the form of a single-sum not later than
30 days after Executive's termination of employment hereunder.
4.3 BUSINESS TRANSACTION. If Executive's employment hereunder is
terminated (other than on account of Cause as defined in Section 3.3 hereof) in
connection with a Business Transaction, then notwithstanding any provision of
this Agreement to the contrary, the Company shall pay or provide to Executive
(a) the amount described in Section 3.1a hereof, payable not later than three
days after his termination of employment, (b) the amounts determined under
Sections 3.1b and 3.1d hereof, payable in not more than two equal installments,
one-half not later than 30 days after termination and the other one-half six
months after such termination, and (c) the benefits described in Sections 3.1e
and 3.1f and 4.2e and 4.2f hereof.
Page 9
4.4 TAX PAYMENT. If any payment to Executive pursuant to this Agreement
or any other payment or benefit from the Company or an Affiliate in connection
with a Change in Control or Business Transaction is subject to the excise tax
imposed under Code Section 4999 or any similar excise or penalty tax payable
under any United States federal, state, local or other law, the Company shall
pay an amount to Executive such that, after the payment by Executive of all
taxes on such amount, there remains a balance sufficient to pay such excise or
penalty tax. Executive shall submit to the Company the amount to be paid under
this Section 4.4, together with supporting documentation. If Executive and the
Company disagree as to such amount, an independent public accounting firm agreed
upon by Executive and the Company shall make such determination.
5. LIMITATIONS ON ACTIVITIES
5.1. CONSIDERATION FOR LIMITATION ON ACTIVITIES. Executive acknowledges
that the execution of this Agreement and the payments described herein
constitute consideration for the limitations on activities set forth in this
Section 5, the adequacy of which is hereby expressly acknowledged by Executive.
5.2 CONFIDENTIAL INFORMATION. Executive recognizes and acknowledges that
during the terms of his employment, he will have access to confidential,
proprietary, non-public information concerning the Company and its Affiliates,
which may include, without limitation, (a) books and records relating to
operations, finance, accounting, personnel and management, (b) price, rate and
volume data, future price and rate plans, and test data, (c) information related
to product design and development, (d) computer software, customer lists,
information obtained on competitors, and sales tactics, and (e) various other
non-public trade or business information, including business opportunities,
marketing or business diversification plans, methods and processes, and
financial data and the like (collectively, the "Confidential Information").
Executive agrees that he or she will not at any time, either while employed by
the Company or afterwards, make any independent use of, or disclose to any other
person or organization (except as authorized by the Company or pursuant to court
order) any of the Confidential Information.
5.3 NON-SOLICITATION. Executive agrees that during the one-year period
commencing as of the date of voluntary termination by Executive (as described in
Section 3.6 hereof) or the involuntary termination of Executive on account of
Cause (as described in Section 3.3 hereof), he or she shall not, directly or
indirectly, for his own benefit or on behalf of another or to the Company's (or
an Affiliate's) detriment:
a. Hire or offer to hire any of the Company's (or Affiliate's) officers,
employees or agents;
b. Persuade or attempt to persuade in any manner any officer, employee or
agent of the Company (or an Affiliate) to discontinue any relationship
with the Company; or
Page 10
c. Solicit or divert or attempt to divert any customer or supplier of the
Company or an Affiliate.
The provisions of this Section 5.3 shall apply in the locations set forth on
Exhibit A hereto, as the same may be amended from time to time. Executive
acknowledges that the Company (or its Affiliates) is presently doing business in
such locations and that during the Employment Term Executive will be required to
provide services to or for the benefit of the Company (or its Affiliates) in
such locations.
The parties agree that each of the foregoing prohibitions is intended to
constitute a separate restriction. Accordingly, should any such prohibition be
declared invalid or unenforceable, such prohibition shall be deemed severable
from and shall not affect the remainder thereof. The parties further agree that
each of the foregoing restrictions is reasonable in both time and geographic
scope.
5.4 BUSINESS REPUTATION. Executive agrees that during his employment with
the Company (and its Affiliate) and at all times thereafter, he shall refrain
from performing any act, engaging in any conduct or course of action or making
or publishing an adverse, untrue or misleading statement which has or may
reasonably have the effect of demeaning the name or business reputation of the
Company or its Affiliates or which adversely affects (or may reasonably
adversely affect) the best interests (economic or otherwise) of the Company or
an Affiliate.
5.5 REMEDIES. In the event of a breach or threatened breach by Executive
of the provisions of Sections 5.2, 5.3 or 5.4 hereof, Executive agrees that the
Company shall be entitled to a temporary restraining order or a preliminary
injunction (without the necessity of posting bond in connection therewith) and
that any additional payments or benefits due to Executive or his dependents
under Sections 3 and 4 hereof shall be canceled and forfeited. Nothing herein
shall be construed as prohibiting the Company from pursuing any other remedy
available to it for such breach or threatened breach, including the recovery of
damages from Executive.
6. MISCELLANEOUS
6.1 MITIGATION NOT REQUIRED. As a condition of any payment hereunder,
Executive shall not be required to mitigate the amount of such payment by
seeking other employment or otherwise, nor will any profits, income, earnings or
other benefits from any source whatsoever create any mitigation, offset,
reduction or any other obligation on the part of Executive under this Agreement.
6.2 ENFORCEMENT OF THIS AGREEMENT. In the event any dispute in connection
with this Agreement arises with respect to obligations of Executive or the
Company that were required prior to the occurrence of a Change in Control or a
Business Transaction, all costs, fees and expenses, including attorney fees, of
any litigation, arbitration or other legal action in connection with such
matters in which Executive substantially prevails, shall be borne by, and be the
obligation of, the Company.
Page 11
After a Change in Control or Business Transaction has occurred, Executive
shall not be required to incur legal fees and the related expenses associated
with the interpretation, enforcement or defense of Executive's rights under this
Agreement by litigation or otherwise. Accordingly, if, following a Change in
Control or Business Transaction, the Company has failed to comply with any of
its obligations under this Agreement or the Company or any other person takes or
threatens to take any action to declare this Agreement void or unenforceable or
in any way reduce the possibility of collecting the amounts due hereunder, or
institutes any litigation or other action or proceeding designed to deny or to
recover from Executive the benefits provided or intended to be provided under
this Agreement, Executive shall be entitled to retain counsel of Executive's
choice, at the expense of the Company, to advise and represent Executive in
connection with any such interpretation, enforcement or defense, including
without limitation the initiation or defense of any litigation, arbitration or
other legal action, whether by or against the Company or any director, officer,
stockholder or other person affiliated with the Company, in any jurisdiction.
The Company shall pay and be solely financially responsible for any and all
attorneys' and related fees and expenses incurred by Executive in connection
with any of the foregoing, without regard to whether Executive prevails, in
whole or in part.
In no event shall Executive be required to reimburse the Company for any of
the costs and expenses incurred by the Company relating to arbitration,
litigation or other legal action in connection with this Agreement.
6.3 NO SET-OFF. There shall be no right of set-off or counterclaim in
respect of any claim, debt or obligation against any payment to Executive
provided for in this Agreement.
6.4 ASSISTANCE WITH LITIGATION. For a period of one year after the end of
the last period for which Executive will have received any compensation under
this Agreement, Executive will furnish such information and proper assistance as
may be reasonably necessary in connection with any litigation in which the
Company (or an Affiliate) is then or may become involved.
6.5 HEADINGS. Section and other headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
6.6 ENTIRE AGREEMENT. This Agreement constitutes the entire understanding
and agreement among the parties hereto with respect to the subject matter
hereof, and there are no other agreements, understandings, restrictions,
representations or warranties among the parties other than those set forth
herein.
6.7 AMENDMENTS. This Agreement may be amended or modified at any time in
any or all respects, but only by an instrument in writing executed by the
parties hereto.
6.8 CHOICE OF LAW. The validity of this Agreement, the construction of
its terms, and the determination of the rights and duties of the parties hereto
shall be governed by and
Page 12
construed in accordance with the internal laws of the State of Louisiana
applicable to contracts made to be performed wholly within such state.
6.9 NOTICES. All notices and other communications under this Agreement
must be in writing and will be deemed to have been duly given when (a) delivered
by hand, (b) sent by telecopier to a telecopier number given below, provided
that a copy is sent by a nationally recognized overnight delivery service
(receipt requested), or (c) when received by the addressee, if sent by a
nationally recognized overnight delivery service (receipt requested), in each
case as follows:
If to Executive: Xxxxx X. Xxxxxx
000 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
If to the Company: Cleco Corporation
0000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Chairman, Board of Directors
Telecopier: (000) 000-0000
or to such other addresses as a party may designate by notice to the other
party.
6.10 ASSIGNMENT. This Agreement will inure to the benefit of and be
binding upon the Company, its Affiliates, successors and assigns, including,
without limitation, any person, partnership, company, corporation or other
entity that may acquire substantially all of the Company's assets or business or
with or into which the Company may be liquidated, consolidated, merged or
otherwise combined, and will inure to the benefit of and be binding upon
Executive, his heirs, estate, legatees and legal representatives. If payments
become payable to Executive's surviving spouse or other assigns and such person
thereafter dies, such payment will revert to Executive's estate.
6.11 SEVERABILITY. Each provision of this Agreement is intended to be
severable. In the event that any one or more of the provisions contained in
this Agreement shall for any reason be held to be invalid, illegal or
unenforceable, the same shall not affect the validity or enforceability of any
other provision of this Agreement, but this Agreement shall be construed as if
such invalid, illegal or unenforceable provisions was not contained herein.
Notwithstanding the foregoing, however, no provision shall be severed if it is
clearly apparent under the circumstances that the parties would not have entered
into this Agreement without such provision.
6.12 WITHHOLDING. The Company (or an Affiliate) may withhold from any
payment hereunder any federal, state or local taxes required to be withheld.
6.13 SURVIVAL. Notwithstanding anything herein to the contrary, to the
extent applicable, the obligations of the Company (and its Affiliates) under
Sections 3 and 4, and the
Page 13
obligations of Executive under Sections 3 and 5, shall remain operative and in
full force and effect regardless of the expiration of this Agreement.
6.14 WAIVER. The failure of either party to insist in any one or more
instances upon performance of any terms or conditions of this Agreement will not
be construed as a waiver of future performance of any such term, covenant, or
condition and the obligations of either party with respect to such term,
covenant or condition will continue in full force and effect.
THIS AGREEMENT is executed in multiple counterparts as of the dates set
forth below, each of which shall be deemed an original, to be effective as of
the Effective Date designated above.
CLECO CORPORATION EXECUTIVE
By:
------------------------------ -------------------------------------
XXXXX X. XXXXXX
Its:
-----------------------------
Date: Date:
---------------------------- --------------------------------
Page 14
CLECO CORPORATION
EXECUTIVE EMPLOYMENT AGREEMENT
EXHIBIT A
This Exhibit A is intended to form a part of that certain Executive
Employment Agreement by and between Cleco Corporation and XXXXX X. XXXXXX, first
effective as of July 28, 2000. The parties agree that the proscriptions set
forth in Section 5.3 thereof shall apply in the State of Louisiana, Parishes of:
Acadia Parish
Xxxxx Xxxxxx
Avoyelles Parish
Xxxxxxxxxx Parish
Calcasieu Parish
Catahoula Parish
Desoto Parish
Xxxxxxxxxx Xxxxxx
Xxxxx Xxxxxx
Iberia Parish
Xxxxxxxxx Xxxxx Parish
Lafayette Parish
Lasalle Parish
Natchitoches Parish
Rapides Parish
Red River Parish
Xxxxxx Xxxxxx
St. Landry Parish
St. Xxxxxx Xxxxxx
St. Xxxx Xxxxxx
St. Tammany Parish
Xxxxxx Xxxxxx
Washington Parish
Executive and the Company agree that the Company shall amend this Exhibit A,
from time to time, to eliminate Parishes in which the Company is no longer doing
business and to add Parishes in which the Company is currently doing business.
Page 15
EXHIBIT 10(y)
CLECO CORPORATION
EXECUTIVE EMPLOYMENT AGREEMENT
(LEVEL 1)
THIS AGREEMENT (the "Agreement") is entered into as of this 28th day of
July, 2000, by and between XXXXXX X. XXXXXX ("Executive"), and Cleco
Corporation, a Louisiana corporation (the "Company"), and is intended to amend
and restate, in its entirety, that certain Executive Severance Agreement between
Cleco Utility Group Inc. and Executive, initially effective as of January 1,
1998.
1. EMPLOYMENT AND TERM
1.1 POSITION. The Company shall employ and retain Executive as its Senior
Vice President and Chief Financial Officer or in such other capacity or
capacities as shall be mutually agreed upon, from time to time, by Executive and
the Company, and Executive agrees to be so employed, subject to the terms and
conditions set forth herein. Executive's duties and responsibilities shall be
those assigned to him hereunder, from time to time, by the Chief Executive
Officer of the Company and shall include such duties as are the type and nature
normally assigned to similar executive officers of a corporation of the size,
type and stature of the Company. Executive shall report to the Chief Executive
Officer.
1.2 CONCURRENT EMPLOYMENT. During the term of this Agreement, Executive
and the Company acknowledge that Executive may be concurrently employed by the
Company and a subsidiary or other entity with respect to which the Company owns
(within the meaning of Section 425(f) of the Internal Revenue Code of 1986, as
amended (the "Code")) 50% or more of the total combined voting power of all
classes of stock or other equity interests (an "Affiliate"), and that all of the
terms and conditions of this Agreement shall apply to such concurrent
employment. Reference to the Company hereunder shall be deemed to include any
such concurrent employers.
1.3 FULL TIME AND ATTENTION. During the term of this Agreement and any
extensions or renewals thereof, Executive shall devote his full time, attention
and energies to the business of the Company and will not, without the prior
written consent of the Chief Executive Officer of the Company, be engaged
(whether or not during normal business hours) in any other business or
professional activity, whether or not such activities are pursued for gain,
profit or other pecuniary advantage.
Notwithstanding the foregoing, Executive shall not be prevented from (a)
engaging in any civic or charitable activity for which Executive receives no
compensation or other pecuniary advantage, (b) investing his personal assets in
businesses which do not compete with the Company, provided that such investment
will not require any services on the part of Executive in the operation of the
affairs of the businesses in which investments are made and provided further
that Executive's participation in such businesses is solely that of an investor,
or (c) purchasing
securities in any corporation whose securities are regularly traded, provided
that such purchases will not result in Executive owning beneficially at any time
5% or more of the equity securities of any corporation engaged in a business
competitive with that of the Company.
1.4 TERM. Executive's employment under this Agreement shall commence as
of July 28, 2000 (the "Effective Date"), and shall terminate on July 28, 2003
(such date or the last day of employment specified in any renewal or amendment
hereof referred to herein as the "Termination Date") (the period commencing as
of the Effective Date and ending as of the Termination Date referred to herein
as the "Employment Term").
Commencing on the second anniversary of the Effective Date and each
anniversary thereafter, Executive's employment shall automatically be extended
for an additional one-year period; provided, however, that either party may
provide written notice to the other that the Employment Term will not be further
extended, such notice to be provided not later than 30 days prior to the end of
the then current Employment Term.
2. COMPENSATION AND BENEFITS
2.1 BASE COMPENSATION. The Company shall pay Executive an annual salary
equal to his annual base salary in effect as of the Effective Date, such amount
shall be prorated and paid in equal installments in accordance with the
Company's regular payroll practices and policies and shall be subject to
applicable withholding and other applicable taxes (Executive's "Base
Compensation"). Executive's Base Compensation shall be reviewed no less often
than annually and may be increased or reduced by the Board of Directors of the
Company (the "Board"), in its sole discretion; provided, however, that
Executive's Base Compensation may not be reduced at any time unless such
reduction is part of a reduction in pay uniformly applicable to all officers of
the Company.
2.2 ANNUAL INCENTIVE BONUS. In addition to the foregoing, Executive shall
be eligible for participation in the Annual Incentive Compensation Plan or
similar bonus arrangement maintained by the Company or an Affiliate or such
other bonus or incentive plans which the Company or its Affiliates may adopt,
from time to time, for similarly situated executives (an "Incentive Bonus").
2.3 LONG-TERM INCENTIVES. In addition to the foregoing, Executive shall
be eligible for participation in the 2000 Long-Term Incentive Compensation Plan
maintained by the Company and such other long-term incentive plans which the
Company or its Affiliates may adopt, from time to time, for similarly situated
executives (a "Long-Term Incentive").
2.4 SUPPLEMENTAL RETIREMENT BENEFIT. In addition to the foregoing,
Executive shall be eligible to participate in the Supplemental Executive
Retirement Plan maintained by Cleco Utility Group Inc. or such other
supplemental retirement benefit plans which the Company or its Affiliates may
adopt, from time to time, for similarly situated executives (the "Supplemental
Plan").
Page 2
2.5 OTHER BENEFITS. During the term of this Agreement and in addition to
the amounts otherwise provided herein, Executive shall participate in such
plans, policies, and programs as may be maintained, from time to time, by the
Company or its Affiliates for the benefit of senior executives or employees,
including, without limitation, profit sharing, life insurance, and group medical
and other welfare benefit plans. Any such benefits shall be determined in
accordance with the specific terms and conditions of the documents evidencing
any such plans, policies, and programs.
2.6 REIMBURSEMENT OF EXPENSES. The Company shall reimburse Executive for
such reasonable and necessary expenses as are incurred in carrying out his
duties hereunder, consistent with the Company's standard policies and annual
budget. The Company's obligation to reimburse Executive hereunder shall be
contingent upon the presentment by Executive of an itemized accounting of such
expenditures.
3. TERMINATION
3.1 TERMINATION PAYMENTS TO EXECUTIVE. As set forth more fully in this
Section 3 and except as provided in Sections 3.3 or 3.8 hereof, Executive shall
be paid the greater of the amounts or benefits set forth below or the amounts or
benefits provided under the terms of the separate plan or arrangement maintained
by the Company (or its Affiliates) on account of termination of employment
hereunder:
a. Executive's Base Compensation accrued but not yet paid as of the date
of his termination.
b. Executive's Base Compensation payable until the Termination Date
(determined without regard to the automatic renewal provisions of
Section 1.4 hereof), but not less than 100% of such annual Base
Compensation.
c. Executive's Incentive Bonus payable with respect to the year of his
termination, prorated to reflect Executive's actual period of service
during such year.
d. Executive's Incentive Bonus payable in the target amount for the year
in which his termination of employment occurs.
e. If Executive's principal office is located in Pineville, Louisiana,
the Company shall, at the written request of Executive:
i. Purchase his principal residence if such residence is located
within 60 miles of the Company's Pineville, Louisiana office (the
"Principal Residence") for an amount equal to the greater of (1)
the purchase price of such Principal Residence plus the
documented cost of any capital improvements to the Principal
Residence made by Executive, or (2) the fair market value of such
Principal Residence as determined by the Company's usual
relocation practice; and
Page 3
ii. Pay or reimburse Executive for the cost of relocating Executive,
his family and their household goods and other personal property,
in accordance with the Company's usual relocation practice, to
any location in the United States.
Notwithstanding the foregoing, the Company shall not be obligated
hereunder, unless, within 12 months after the termination of his
employment with the Company (and its Affiliates), the Company is
requested to purchase such Principal Residence or Executive has
actually relocated from the Pineville, Louisiana area.
f. If Executive and/or his dependents elects to continue group medical
coverage, within the meaning of Code Section 4980B(f)(2), with respect
to a group health plan sponsored by the Company or an Affiliate (other
than a health flexible spending account under a self-insured medical
reimbursement plan described in Code Sections 125 and 105(h)), the
Company shall pay the continuation coverage premium for the same type
and level of group health plan coverage received by Executive and his
electing dependents immediately prior to such termination of
Executive's employment for the maximum period provided under Code
Section 4980B.
g. Executive shall be fully vested for purposes of any service or similar
requirement imposed under the Cleco Utility Group Inc. Supplemental
Executive Retirement Plan (the "Supplemental Plan"), regardless of the
actual number of years of service attained by Executive.
Except as expressly provided in Section 3.3 hereof, Executive shall also be
entitled to receive such compensation or benefits as may be provided under the
terms of a separate plan or amendment maintained by the Company (or its
Affiliates) to the extent such compensation or benefits are not duplicative of
the compensation or benefits described above.
3.2 TERMINATION FOR DEATH OR DISABILITY. If Executive dies or becomes
disabled during the Employment Term, this Agreement and Executive's employment
hereunder shall immediately terminate and the Company's obligations hereunder
shall automatically cease. In such event, the Company shall pay to Executive
(or his estate) the amounts described in Sections 3.1a and 3.1c hereof. Payment
shall be made in the form of one or more single-sums as soon as practicable
after Executive's death or disability or as and when such amounts are
ascertainable.
For purposes of this Section 3.2, Executive shall be deemed "disabled" if
he is actually receiving benefits or is eligible to receive benefits under the
Company's (or an Affiliate's) separate long-term disability plan. The Board
shall determine whether Executive is disabled hereunder.
Page 4
3.3 COMPANY'S TERMINATION FOR CAUSE. This Agreement and Executive's
employment hereunder may be terminated by the Company on account of Cause. In
such event, the Company shall pay to Executive the amount described in Section
3.1a hereof. Payment shall be made in the form of a single-sum not later than
three days after such termination. Notwithstanding any provision of this
Agreement or any other plan, policy or agreement evidencing any other
compensation arrangement or benefit payable to Executive, no additional amount
shall be paid to Executive, except as may be required by law.
For purposes of this Agreement "Cause" means that Executive has:
a. Committed an intentional act of fraud, embezzlement or theft in the
course of his employment or otherwise engaged in any intentional
misconduct which is materially injurious to the Company's (or an
Affiliate's) financial condition or business reputation;
b. Committed intentional damage to the property of the Company (or an
Affiliate) or committed intentional wrongful disclosure of
Confidential Information (as defined in Section 5.2) which is
materially injurious to the Company's (or an Affiliate's) financial
condition or business reputation;
c. Intentionally refused to perform the material duties of his position;
or
d. A material breach of this Agreement by Executive.
No act or failure to act on the part of Executive will be deemed "intentional"
if it was due primarily to an error in judgment or negligence, but will be
deemed "intentional" only if done or omitted to be done by Executive not in good
faith and without reasonable belief that his action or omission was in the best
interest of the Company (or an Affiliate).
The Board, acting in good faith, may terminate Executive's employment
hereunder on account of Cause (or may determine that any termination by the
Company is on account of Cause). The Board shall provide written notice to
Executive, including a description of the specific reasons for the determination
of Cause. Executive shall have the opportunity to appear before the Board, with
or without legal representation, to present arguments and evidence on his
behalf. Following such presentation (or upon Executive's failure to appear),
the Board, by an affirmative vote of not less than 66% of its members, shall
confirm that the actions or inactions of Executive constitute Cause hereunder.
3.4 EXECUTIVE'S CONSTRUCTIVE TERMINATION. Executive may terminate this
Agreement and his employment hereunder on account of a Constructive Termination
upon 30 days prior written notice to the Chief Executive Officer (or such
shorter period as may be agreed upon by the parties hereto.) In such event, the
Company shall provide to Executive (a) the amount described in Section 3.1a
hereof, payable not later than three days after his termination of employment,
(b) the amounts determined under Sections 3.1b and 3.1d hereof, payable in not
more than two equal installments, one-half not later than 30 days after
termination and the other
Page 5
one-half six months after such termination, and (c) the benefits described in
Sections 3.1e, 3.1f and 3.1g hereof.
For purposes of this Agreement, "Constructive Termination" means:
a. A material reduction (other than a reduction in pay uniformly
applicable to all officers of the Company) in the amount of
Executive's Base Compensation;
b. A material reduction in Executive's authority, duties or
responsibilities from those contemplated in Section 1.1 of this
Agreement; or
c. A material breach of this Agreement by the Company or its Affiliates.
No event or condition described in this Section 3.4 shall constitute a
Constructive Termination unless (a) Executive promptly gives the Company notice
of his objection to such event or condition, which notice may be provided orally
or in writing to the Chief Executive Officer or his designee, (b) such event or
condition is not corrected by the Company promptly after receipt of such notice,
but in no event more than 30 days after receipt of notice, and (c) Executive
resigns his employment with the Company (and all Affiliates) not more than 15
days following the expiration of the 30-day period described in subparagraph (b)
hereof.
3.5 TERMINATION BY THE COMPANY, WITHOUT CAUSE. The Company may terminate
this Agreement and Executive's employment hereunder, without Cause, upon 30 days
prior written notice to Executive (or such shorter period as may be agreed upon
by Executive and the Chief Executive officer). In such event, the Company shall
provide to Executive (a) the amount described in Section 3.1a hereof, payable
not later than three days after such termination, (b) the amounts determined
under Sections 3.1b and 3.1d hereof, payable in not more than two equal
installments, one-half not later than 30 days after termination and the other
one-half six months after such termination, and (c) the benefits described in
Sections 3.1e, 3.1f and 3.1g hereof.
3.6 TERMINATION BY EXECUTIVE. Executive may terminate this Agreement and
his employment hereunder, other than on account of Constructive Termination,
upon 30 days prior written notice to the Company or such shorter period as may
be agreed upon by the Chief Executive Officer and Executive. In such event, the
Company shall pay to Executive the amount described in Section 3.1a hereof.
Payment shall be made in the form of a single-sum not later than three days
after such termination. No additional payments or benefits shall be due
hereunder, except as may be provided under a separate plan, policy or program
evidencing such compensation arrangement or benefit or as may be required by
law.
3.7 RETURN OF PROPERTY. Upon termination of this Agreement for any
reason, Executive shall promptly return to the Company all of the property of
the Company (and its Affiliates), including, without limitation, automobiles,
equipment, computers, fax machines, portable telephones, printers, software,
credit cards, manuals, customer lists, financial data, letters, notes,
notebooks, reports and copies of any of the above and any Confidential
Page 6
Information (as defined in Section 5.2 hereof) that is in the possession or
under the control of Executive.
3.8 CONSIDERATION FOR OTHER AGREEMENTS. Executive acknowledges that all
or a portion of the amount payable under Section 3.1d hereof is in excess of the
amount otherwise due or payable under the Annual Incentive Compensation Plan and
that the payment of such excess amount shall constitute adequate consideration
for the execution of such separate waivers or releases as the Company (or
Affiliate) may request Executive to execute in connection with the termination
of his employment hereunder. Executive agrees that failure to execute any such
waiver or release within the time request by the Company shall result in the
forfeiture of the excess amount payable under Section 3.1d hereof.
4. CHANGE IN CONTROL AND BUSINESS TRANSACTION
4.1 DEFINITIONS. The terms "Change in Control" and "Business Transaction"
shall have the meanings ascribed to them in the Cleco Corporation 2000 Long-Term
Incentive Compensation Plan, as the same may be amended from time to time.
The term "Good Reason," when used herein, shall mean that in connection
with a Change in Control:
a. Executive's Base Compensation in effect immediately before such Change
in Control is reduced or there is a significant reduction or
termination of Executive's rights to any employee benefit in effect
immediately prior to the Change in Control;
b. Executive's authority, duties or responsibilities are significantly
reduced from those contemplated in Section 1.1 hereof or Executive has
reasonably determined that, as a result of a change in circumstances
that significantly affects his employment with the Company (or an
Affiliate), he is unable to exercise the authority, power, duties and
responsibilities contemplated in Section 1.1 hereof;
c. Executive is required to be away from his office in the course of
discharging his duties and responsibilities under this Agreement
significantly more than was required prior to the Change in Control;
or
d. Executive is required to transfer to an office or business location
located more than 60 miles from the location to which he was assigned
prior to the Change in Control.
No event or condition described in this Section 4.1 shall constitute Good Reason
unless (a) Executive gives the Company notice of his objection to such event or
condition within a reasonable period after Executive learns of such event, which
notice may be delivered orally or in writing to the Chief Executive Officer (or
his designee), (b) such event or condition is not promptly corrected by the
Company, but in no event later than 30 days after receipt of such
Page 7
notice, and (c) Executive resigns his employment with the Company (and its
Affiliates) not more than 60 days following the expiration of the 30-day period
described in subparagraph (b) hereof.
4.2 TERMINATION IN CONNECTION WITH A CHANGE IN CONTROL. If Executive's
employment described herein is terminated by the Company, without Cause (as
defined in Section 3.3 hereof), or Executive terminates his employment hereunder
for Good Reason at any time within the 60-day period preceding or 36-month
period following such Change in Control, then notwithstanding any provision of
this Agreement to the contrary and in lieu of any compensation or benefits
otherwise payable hereunder:
a. The Company shall pay to Executive the amount described in Section
3.1a in the form of a single-sum not later than three days after such
termination.
b. The Company shall pay to Executive the amount described in Section
3.1d in the form of a single-sum not later than 30 days after such
termination.
c. The Company shall pay an amount equal to three times Executive's "base
amount" as determined under Code Section 280G, payable in the form of
a single-sum not later than 30 days after such termination.
d. The Company shall provide to Executive and his dependents coverage
under the Company's or an Affiliate's group medical plan for the same
type and level of health benefits received by Executive and his
dependents immediately prior to such termination for a period of three
years or until Executive and/or his dependents obtain coverage under a
reasonably satisfactory group health plan with no applicable
preexisting condition limitation, whichever comes first; such coverage
to be in addition to any coverage available to Executive and his
dependents under Code Section 4980B.
e. Vesting shall be accelerated, any restrictions shall lapse, and all
performance objectives shall be deemed satisfied as to any outstanding
grants or awards made to Executive under the 2000 Long-Term Incentive
Compensation Plan and/or the 1990 Long-Term Incentive Compensation
Plan. Executive shall be entitled to such additional benefits or
rights as may be provided in the documents evidencing such plans or
the terms of any agreement evidencing such grant or award.
f. Executive shall be fully vested for purposes of any service or similar
requirement imposed under the Supplemental Plan, regardless of the
actual number of years of service attained by Executive. Executive
shall be credited with an additional three years of age for purposes
of determining his benefit percentage under the Supplemental Plan, but
in no event shall such benefit percentage be less than 50%; and
Executive shall be credited with an additional three years of age for
purposes of determining any reduction taken with respect to benefits
commencing before Executive's normal retirement date (as defined in
such plan).
Page 8
g. If Executive's principal office is located in Pineville, Louisiana,
the Company shall, at the written request of Executive:
i. Purchase his principal residence if such residence is located
within 60 miles of the Company's Pineville, Louisiana office (the
"Principal Residence") for an amount equal to the greater of (1)
the purchase price of such Principal Residence plus the
documented cost of any capital improvements to the Principal
Residence made by Executive, or (2) the fair market value of such
Principal Residence as determined by the Company's usual
relocation practice; and
ii. Pay or reimburse Executive for the cost of relocating Executive,
his family and their household goods and other personal property,
in accordance with the Company's usual relocation practice, to
any location in the United States.
Notwithstanding the foregoing, the Company shall not be obligated
hereunder, unless, within 12 months after the termination of his
employment with the Company (and its Affiliates), the Company is
requested to purchase such Principal Residence or Executive has
actually relocated from the Pineville, Louisiana area.
h. The Company shall pay to Executive an amount equal to the Company's
(including all Affiliates) maximum matching contribution obligation
under the Cleco Corporation 401(k) Savings and Investment Plan, as the
same may be amended from time to time, for each of the three years
immediately following Executive's termination of employment,
determined as if Executive was credited with at least 1,000 hours of
service in each such plan year, was employed as of the last day of
each plan year, and contributed the maximum permissible amount under
Code Section 402(g) in each such year, but determined using the amount
in effect as of the date of Executive's termination of employment;
such amount shall be paid in the form of a single-sum not later than
30 days after Executive's termination of employment hereunder.
4.3 BUSINESS TRANSACTION. If Executive's employment hereunder is
terminated (other than on account of Cause as defined in Section 3.3 hereof) in
connection with a Business Transaction, then notwithstanding any provision of
this Agreement to the contrary, the Company shall pay or provide to Executive
(a) the amount described in Section 3.1a hereof, payable not later than three
days after his termination of employment, (b) the amounts determined under
Sections 3.1b and 3.1d hereof, payable in not more than two equal installments,
one-half not later than 30 days after termination and the other one-half six
months after such termination, and (c) the benefits described in Sections 3.1e
and 3.1f and 4.2e and 4.2f hereof.
Page 9
4.4 TAX PAYMENT. If any payment to Executive pursuant to this Agreement or
any other payment or benefit from the Company or an Affiliate in connection with
a Change in Control or Business Transaction is subject to the excise tax imposed
under Code Section 4999 or any similar excise or penalty tax payable under any
United States federal, state, local or other law, the Company shall pay an
amount to Executive such that, after the payment by Executive of all taxes on
such amount, there remains a balance sufficient to pay such excise or penalty
tax. Executive shall submit to the Company the amount to be paid under this
Section 4.4, together with supporting documentation. If Executive and the
Company disagree as to such amount, an independent public accounting firm agreed
upon by Executive and the Company shall make such determination.
5. LIMITATIONS ON ACTIVITIES
5.1. CONSIDERATION FOR LIMITATION ON ACTIVITIES. Executive acknowledges that
the execution of this Agreement and the payments described herein constitute
consideration for the limitations on activities set forth in this Section 5, the
adequacy of which is hereby expressly acknowledged by Executive.
5.2 CONFIDENTIAL INFORMATION. Executive recognizes and acknowledges that
during the terms of his employment, he will have access to confidential,
proprietary, non-public information concerning the Company and its Affiliates,
which may include, without limitation, (a) books and records relating to
operations, finance, accounting, personnel and management, (b) price, rate and
volume data, future price and rate plans, and test data, (c) information related
to product design and development, (d) computer software, customer lists,
information obtained on competitors, and sales tactics, and (e) various other
non-public trade or business information, including business opportunities,
marketing or business diversification plans, methods and processes, and
financial data and the like (collectively, the "Confidential Information").
Executive agrees that he will not at any time, either while employed by the
Company or afterwards, make any independent use of, or disclose to any other
person or organization (except as authorized by the Company or pursuant to court
order) any of the Confidential Information.
5.3 NON-SOLICITATION. Executive agrees that during the one-year period
commencing as of the date of voluntary termination by Executive (as described in
Section 3.6 hereof) or the involuntary termination of Executive on account of
Cause (as described in Section 3.3 hereof), he shall not, directly or
indirectly, for his own benefit or on behalf of another or to the Company's (or
an Affiliate's) detriment:
a. Hire or offer to hire any of the Company's (or Affiliate's) officers,
employees or agents;
b. Persuade or attempt to persuade in any manner any officer, employee or
agent of the Company (or an Affiliate) to discontinue any relationship
with the Company; or
Page 10
c. Solicit or divert or attempt to divert any customer or supplier of the
Company or an Affiliate.
The provisions of this Section 5.3 shall apply in the locations set forth on
Exhibit A hereto, as the same may be amended from time to time. Executive
acknowledges that the Company (or its Affiliates) is presently doing business in
such locations and that during the Employment Term Executive will be required to
provide services to or for the benefit of the Company (or its Affiliates) in
such locations.
The parties agree that each of the foregoing prohibitions is intended to
constitute a separate restriction. Accordingly, should any such prohibition be
declared invalid or unenforceable, such prohibition shall be deemed severable
from and shall not affect the remainder thereof. The parties further agree that
each of the foregoing restrictions is reasonable in both time and geographic
scope.
5.4 BUSINESS REPUTATION. Executive agrees that during his employment with
the Company (and its Affiliate) and at all times thereafter, he shall refrain
from performing any act, engaging in any conduct or course of action or making
or publishing an adverse, untrue or misleading statement which has or may
reasonably have the effect of demeaning the name or business reputation of the
Company or its Affiliates or which adversely affects (or may reasonably
adversely affect) the best interests (economic or otherwise) of the Company or
an Affiliate.
5.5 REMEDIES. In the event of a breach or threatened breach by Executive
of the provisions of Sections 5.2, 5.3 or 5.4 hereof, Executive agrees that the
Company shall be entitled to a temporary restraining order or a preliminary
injunction (without the necessity of posting bond in connection therewith) and
that any additional payments or benefits due to Executive or his dependents
under Sections 3 and 4 hereof shall be canceled and forfeited. Nothing herein
shall be construed as prohibiting the Company from pursuing any other remedy
available to it for such breach or threatened breach, including the recovery of
damages from Executive.
6. MISCELLANEOUS
6.1 MITIGATION NOT REQUIRED. As a condition of any payment hereunder,
Executive shall not be required to mitigate the amount of such payment by
seeking other employment or otherwise, nor will any profits, income, earnings or
other benefits from any source whatsoever create any mitigation, offset,
reduction or any other obligation on the part of Executive under this Agreement.
6.2 ENFORCEMENT OF THIS AGREEMENT. In the event any dispute in connection
with this Agreement arises with respect to obligations of Executive or the
Company that were required prior to the occurrence of a Change in Control or a
Business Transaction, all costs, fees and expenses, including attorney fees, of
any litigation, arbitration or other legal action in connection with such
matters in which Executive substantially prevails, shall be borne by, and be the
obligation of, the Company.
Page 11
After a Change in Control or Business Transaction has occurred, Executive
shall not be required to incur legal fees and the related expenses associated
with the interpretation, enforcement or defense of Executive's rights under this
Agreement by litigation or otherwise. Accordingly, if, following a Change in
Control or Business Transaction, the Company has failed to comply with any of
its obligations under this Agreement or the Company or any other person takes or
threatens to take any action to declare this Agreement void or unenforceable or
in any way reduce the possibility of collecting the amounts due hereunder, or
institutes any litigation or other action or proceeding designed to deny or to
recover from Executive the benefits provided or intended to be provided under
this Agreement, Executive shall be entitled to retain counsel of Executive's
choice, at the expense of the Company, to advise and represent Executive in
connection with any such interpretation, enforcement or defense, including
without limitation the initiation or defense of any litigation, arbitration or
other legal action, whether by or against the Company or any director, officer,
stockholder or other person affiliated with the Company, in any jurisdiction.
The Company shall pay and be solely financially responsible for any and all
attorneys' and related fees and expenses incurred by Executive in connection
with any of the foregoing, without regard to whether Executive prevails, in
whole or in part.
In no event shall Executive be required to reimburse the Company for any of
the costs and expenses incurred by the Company relating to arbitration,
litigation or other legal action in connection with this Agreement.
6.3 NO SET-OFF. There shall be no right of set-off or counterclaim in
respect of any claim, debt or obligation against any payment to Executive
provided for in this Agreement.
6.4 ASSISTANCE WITH LITIGATION. For a period of one year after the end of
the last period for which Executive will have received any compensation under
this Agreement, Executive will furnish such information and proper assistance as
may be reasonably necessary in connection with any litigation in which the
Company (or an Affiliate) is then or may become involved.
6.5 HEADINGS. Section and other headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
6.6 ENTIRE AGREEMENT. This Agreement constitutes the entire understanding
and agreement among the parties hereto with respect to the subject matter
hereof, and there are no other agreements, understandings, restrictions,
representations or warranties among the parties other than those set forth
herein.
6.7 AMENDMENTS. This Agreement may be amended or modified at any time in
any or all respects, but only by an instrument in writing executed by the
parties hereto.
6.8 CHOICE OF LAW. The validity of this Agreement, the construction of
its terms, and the determination of the rights and duties of the parties hereto
shall be governed by and
Page 12
construed in accordance with the internal laws of the State of Louisiana
applicable to contracts made to be performed wholly within such state.
6.9 NOTICES. All notices and other communications under this Agreement
must be in writing and will be deemed to have been duly given when (a) delivered
by hand, (b) sent by telecopier to a telecopier number given below, provided
that a copy is sent by a nationally recognized overnight delivery service
(receipt requested), or (c) when received by the addressee, if sent by a
nationally recognized overnight delivery service (receipt requested), in each
case as follows:
If to Executive: Xxxxxx X. Xxxxxx
000 Xxx Xxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
If to the Company: Cleco Corporation
0000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Chief Executive Officer
Telecopier: (000) 000-0000
or to such other addresses as a party may designate by notice to the other
party.
6.10 ASSIGNMENT. This Agreement will inure to the benefit of and be
binding upon the Company, its Affiliates, successors and assigns, including,
without limitation, any person, partnership, company, corporation or other
entity that may acquire substantially all of the Company's assets or business or
with or into which the Company may be liquidated, consolidated, merged or
otherwise combined, and will inure to the benefit of and be binding upon
Executive, his heirs, estate, legatees and legal representatives. If payments
become payable to Executive's surviving spouse or other assigns and such person
thereafter dies, such payment will revert to Executive's estate.
6.11 SEVERABILITY. Each provision of this Agreement is intended to be
severable. In the event that any one or more of the provisions contained in
this Agreement shall for any reason be held to be invalid, illegal or
unenforceable, the same shall not affect the validity or enforceability of any
other provision of this Agreement, but this Agreement shall be construed as if
such invalid, illegal or unenforceable provisions was not contained herein.
Notwithstanding the foregoing, however, no provision shall be severed if it is
clearly apparent under the circumstances that the parties would not have entered
into this Agreement without such provision.
6.12 WITHHOLDING. The Company (or an Affiliate) may withhold from any
payment hereunder any federal, state or local taxes required to be withheld.
6.13 SURVIVAL. Notwithstanding anything herein to the contrary, to the
extent applicable, the obligations of the Company (and its Affiliates) under
Sections 3 and 4, and the
Page 13
obligations of Executive under Sections 3 and 5, shall remain operative and in
full force and effect regardless of the expiration of this Agreement.
6.14 WAIVER. The failure of either party to insist in any one or more
instances upon performance of any terms or conditions of this Agreement will not
be construed as a waiver of future performance of any such term, covenant, or
condition and the obligations of either party with respect to such term,
covenant or condition will continue in full force and effect.
THIS AGREEMENT is executed in multiple counterparts as of the dates set
forth below, each of which shall be deemed an original, to be effective as of
the Effective Date designated above.
CLECO CORPORATION EXECUTIVE
By:
------------------------------- --------------------------------
XXXXXX X. XXXXXX
Its:
-------------------------------
Date: Date:
----------------------------- ---------------------------
Page 14
CLECO CORPORATION
EXECUTIVE EMPLOYMENT AGREEMENT
EXHIBIT A
This Exhibit A is intended to form a part of that certain Executive
Employment Agreement by and between Cleco Corporation and XXXXXX X. XXXXXX,
effective as of July 28, 2000. The parties agree that the proscriptions set
forth in Section 5.3 thereof shall apply in the State of Louisiana, Parishes of:
Acadia Parish
Xxxxx Xxxxxx
Avoyelles Parish
Xxxxxxxxxx Parish
Calcasieu Parish
Catahoula Parish
Desoto Parish
Xxxxxxxxxx Xxxxxx
Xxxxx Xxxxxx
Iberia Parish
Xxxxxxxxx Xxxxx Parish
Lafayette Parish
Lasalle Parish
Natchitoches Parish
Rapides Parish
Red River Parish
Xxxxxx Xxxxxx
St. Landry Parish
St. Xxxxxx Xxxxxx
St. Xxxx Xxxxxx
St. Tammany Parish
Xxxxxx Xxxxxx
Washington Parish
Executive and the Company agree that the Company shall amend this Exhibit A,
from time to time, to eliminate Parishes in which the Company is no longer doing
business and to add Parishes in which the Company is currently doing business.
Page 15
EXHIBIT 10(y)
CLECO CORPORATION
EXECUTIVE EMPLOYMENT AGREEMENT
(LEVEL 1)
THIS AGREEMENT (the "Agreement") is entered into as of this 28th day of
July, 2000, by and between XXXXXXXXX X. XXXXXX ("Executive"), and Cleco
Corporation, a Louisiana corporation (the "Company"), and is intended to amend
and restate, in its entirety, that certain Executive Severance Agreement between
Cleco Utility Group Inc. and Executive, initially effective as of July 1, 1993.
1. EMPLOYMENT AND TERM
1.1 POSITION. The Company shall employ and retain Executive as its Senior
Vice President Employee and Corporate Services or in such other capacity or
capacities as shall be mutually agreed upon, from time to time, by Executive and
the Company, and Executive agrees to be so employed, subject to the terms and
conditions set forth herein. Executive's duties and responsibilities shall be
those assigned to her hereunder, from time to time, by the Chief Executive
Officer of the Company and shall include such duties as are the type and nature
normally assigned to similar executive officers of a corporation of the size,
type and stature of the Company. Executive shall report to the Chief Executive
Officer.
1.2 CONCURRENT EMPLOYMENT. During the term of this Agreement, Executive
and the Company acknowledge that Executive may be concurrently employed by the
Company and a subsidiary or other entity with respect to which the Company owns
(within the meaning of Section 425(f) of the Internal Revenue Code of 1986, as
amended (the "Code")) 50% or more of the total combined voting power of all
classes of stock or other equity interests (an "Affiliate"), and that all of the
terms and conditions of this Agreement shall apply to such concurrent
employment. Reference to the Company hereunder shall be deemed to include any
such concurrent employers.
1.3 FULL TIME AND ATTENTION. During the term of this Agreement and any
extensions or renewals thereof, Executive shall devote her full time, attention
and energies to the business of the Company and will not, without the prior
written consent of the Chief Executive Officer of the Company, be engaged
(whether or not during normal business hours) in any other business or
professional activity, whether or not such activities are pursued for gain,
profit or other pecuniary advantage.
Notwithstanding the foregoing, Executive shall not be prevented from (a)
engaging in any civic or charitable activity for which Executive receives no
compensation or other pecuniary advantage, (b) investing her personal assets in
businesses which do not compete with the Company, provided that such investment
will not require any services on the part of Executive in the operation of the
affairs of the businesses in which investments are made and provided further
that Executive's participation in such businesses is solely that of an investor,
or (c) purchasing securities in any corporation whose securities are regularly
traded, provided that such purchases
will not result in Executive owning beneficially at any time 5% or more of the
equity securities of any corporation engaged in a business competitive with that
of the Company.
1.4 TERM. Executive's employment under this Agreement shall commence as
of July 28, 2000 (the "Effective Date"), and shall terminate on July 28, 2003
(such date or the last day of employment specified in any renewal or amendment
hereof referred to herein as the "Termination Date") (the period commencing as
of the Effective Date and ending as of the Termination Date referred to herein
as the "Employment Term").
Commencing on the second anniversary of the Effective Date and each
anniversary thereafter, Executive's employment shall automatically be extended
for an additional one-year period; provided, however, that either party may
provide written notice to the other that the Employment Term will not be further
extended, such notice to be provided not later than 30 days prior to the end of
the then current Employment Term.
2. COMPENSATION AND BENEFITS
2.1 BASE COMPENSATION. The Company shall pay Executive an annual salary
equal to her annual base salary in effect as of the Effective Date, such amount
shall be prorated and paid in equal installments in accordance with the
Company's regular payroll practices and policies and shall be subject to
applicable withholding and other applicable taxes (Executive's "Base
Compensation"). Executive's Base Compensation shall be reviewed no less often
than annually and may be increased or reduced by the Board of Directors of the
Company (the "Board"), in its sole discretion; provided, however, that
Executive's Base Compensation may not be reduced at any time unless such
reduction is part of a reduction in pay uniformly applicable to all officers of
the Company.
2.2 ANNUAL INCENTIVE BONUS. In addition to the foregoing, Executive shall
be eligible for participation in the Annual Incentive Compensation Plan or
similar bonus arrangement maintained by the Company or an Affiliate or such
other bonus or incentive plans which the Company or its Affiliates may adopt,
from time to time, for similarly situated executives (an "Incentive Bonus").
2.3 LONG-TERM INCENTIVES. In addition to the foregoing, Executive shall
be eligible for participation in the 2000 Long-Term Incentive Compensation Plan
maintained by the Company and such other long-term incentive plans which the
Company or its Affiliates may adopt, from time to time, for similarly situated
executives (a "Long-Term Incentive").
2.4 SUPPLEMENTAL RETIREMENT BENEFIT. In addition to the foregoing,
Executive shall be eligible to participate in the Supplemental Executive
Retirement Plan maintained by Cleco Utility Group Inc. or such other
supplemental retirement benefit plans which the Company or its Affiliates may
adopt, from time to time, for similarly situated executives (the "Supplemental
Plan").
Page 2
2.5 OTHER BENEFITS. During the term of this Agreement and in addition to
the amounts otherwise provided herein, Executive shall participate in such
plans, policies, and programs as may be maintained, from time to time, by the
Company or its Affiliates for the benefit of senior executives or employees,
including, without limitation, profit sharing, life insurance, and group medical
and other welfare benefit plans. Any such benefits shall be determined in
accordance with the specific terms and conditions of the documents evidencing
any such plans, policies, and programs.
2.6 REIMBURSEMENT OF EXPENSES. The Company shall reimburse Executive for
such reasonable and necessary expenses as are incurred in carrying out her
duties hereunder, consistent with the Company's standard policies and annual
budget. The Company's obligation to reimburse Executive hereunder shall be
contingent upon the presentment by Executive of an itemized accounting of such
expenditures.
3. TERMINATION
3.1 TERMINATION PAYMENTS TO EXECUTIVE. As set forth more fully in this
Section 3 and except as provided in Sections 3.3 or 3.8 hereof, Executive shall
be paid the greater of the amounts or benefits set forth below or the amounts or
benefits provided under the terms of the separate plan or arrangement maintained
by the Company (or its Affiliates) on account of termination of employment
hereunder:
a. Executive's Base Compensation accrued but not yet paid as of the date
of her termination.
b. Executive's Base Compensation payable until the Termination Date
(determined without regard to the automatic renewal provisions of
Section 1.4 hereof), but not less than 100% of such annual Base
Compensation.
c. Executive's Incentive Bonus payable with respect to the year of her
termination, prorated to reflect Executive's actual period of service
during such year.
d. Executive's Incentive Bonus payable in the target amount for the year
in which her termination of employment occurs.
e. If Executive's principal office is located in Pineville, Louisiana,
the Company shall, at the written request of Executive:
i. Purchase her principal residence if such residence is located
within 60 miles of the Company's Pineville, Louisiana office (the
"Principal Residence") for an amount equal to the greater of (1)
the purchase price of such Principal Residence plus the
documented cost of any capital improvements to the Principal
Residence made by Executive, or (2) the fair market value of such
Principal Residence as determined by the Company's usual
relocation practice; and
Page 3
ii. Pay or reimburse Executive for the cost of relocating Executive,
her family and their household goods and other personal property,
in accordance with the Company's usual relocation practice, to
any location in the United States.
Notwithstanding the foregoing, the Company shall not be obligated
hereunder, unless, within 12 months after the termination of her
employment with the Company (and its Affiliates), the Company is
requested to purchase such Principal Residence or Executive has
actually relocated from the Pineville, Louisiana area.
f. If Executive and/or her dependents elects to continue group medical
coverage, within the meaning of Code Section 4980B(f)(2), with respect
to a group health plan sponsored by the Company or an Affiliate (other
than a health flexible spending account under a self-insured medical
reimbursement plan described in Code Sections 125 and 105(h)), the
Company shall pay the continuation coverage premium for the same type
and level of group health plan coverage received by Executive and her
electing dependents immediately prior to such termination of
Executive's employment for the maximum period provided under Code
Section 4980B.
g. Executive shall be fully vested for purposes of any service or similar
requirement imposed under the Cleco Utility Group Inc. Supplemental
Executive Retirement Plan (the "Supplemental Plan"), regardless of the
actual number of years of service attained by Executive.
Except as expressly provided in Section 3.3 hereof, Executive shall also be
entitled to receive such compensation or benefits as may be provided under the
terms of a separate plan or amendment maintained by the Company (or its
Affiliates) to the extent such compensation or benefits are not duplicative of
the compensation or benefits described above.
3.2 TERMINATION FOR DEATH OR DISABILITY. If Executive dies or becomes
disabled during the Employment Term, this Agreement and Executive's employment
hereunder shall immediately terminate and the Company's obligations hereunder
shall automatically cease. In such event, the Company shall pay to Executive
(or her estate) the amounts described in Sections 3.1a and 3.1c hereof. Payment
shall be made in the form of one or more single-sums as soon as practicable
after Executive's death or disability or as and when such amounts are
ascertainable.
For purposes of this Section 3.2, Executive shall be deemed "disabled" if
she is actually receiving benefits or is eligible to receive benefits under the
Company's (or an Affiliate's) separate long-term disability plan. The Board
shall determine whether Executive is disabled hereunder.
Page 4
3.3 COMPANY'S TERMINATION FOR CAUSE. This Agreement and Executive's
employment hereunder may be terminated by the Company on account of Cause. In
such event, the Company shall pay to Executive the amount described in Section
3.1a hereof. Payment shall be made in the form of a single-sum not later than
three days after such termination. Notwithstanding any provision of this
Agreement or any other plan, policy or agreement evidencing any other
compensation arrangement or benefit payable to Executive, no additional amount
shall be paid to Executive, except as may be required by law.
For purposes of this Agreement "Cause" means that Executive has:
a. Committed an intentional act of fraud, embezzlement or theft in the
course of her employment or otherwise engaged in any intentional
misconduct which is materially injurious to the Company's (or an
Affiliate's) financial condition or business reputation;
b. Committed intentional damage to the property of the Company (or an
Affiliate) or committed intentional wrongful disclosure of
Confidential Information (as defined in Section 5.2) which is
materially injurious to the Company's (or an Affiliate's) financial
condition or business reputation;
c. Intentionally refused to perform the material duties of her position;
or
d. A material breach of this Agreement by Executive.
No act or failure to act on the part of Executive will be deemed "intentional"
if it was due primarily to an error in judgment or negligence, but will be
deemed "intentional" only if done or omitted to be done by Executive not in good
faith and without reasonable belief that her action or omission was in the best
interest of the Company (or an Affiliate).
The Board, acting in good faith, may terminate Executive's employment
hereunder on account of Cause (or may determine that any termination by the
Company is on account of Cause). The Board shall provide written notice to
Executive, including a description of the specific reasons for the determination
of Cause. Executive shall have the opportunity to appear before the Board, with
or without legal representation, to present arguments and evidence on her
behalf. Following such presentation (or upon Executive's failure to appear),
the Board, by an affirmative vote of not less than 66% of its members, shall
confirm that the actions or inactions of Executive constitute Cause hereunder.
3.4 EXECUTIVE'S CONSTRUCTIVE TERMINATION. Executive may terminate this
Agreement and her employment hereunder on account of a Constructive Termination
upon 30 days prior written notice to the Chief Executive Officer (or such
shorter period as may be agreed upon by the parties hereto.) In such event, the
Company shall provide to Executive (a) the amount described in Section 3.1a
hereof, payable not later than three days after her termination of employment,
(b) the amounts determined under Sections 3.1b and 3.1d hereof, payable in not
more than two equal installments, one-half not later than 30 days after
termination and the other
Page 5
one-half six months after such termination, and (c) the benefits described in
Sections 3.1e, 3.1f and 3.1g hereof.
For purposes of this Agreement, "Constructive Termination" means:
a. A material reduction (other than a reduction in pay uniformly
applicable to all officers of the Company) in the amount of
Executive's Base Compensation;
b. A material reduction in Executive's authority, duties or
responsibilities from those contemplated in Section 1.1 of this
Agreement; or
c. A material breach of this Agreement by the Company or its Affiliates.
No event or condition described in this Section 3.4 shall constitute a
Constructive Termination unless (a) Executive promptly gives the Company notice
of her objection to such event or condition, which notice may be provided orally
or in writing to the Chief Executive Officer or his designee, (b) such event or
condition is not corrected by the Company promptly after receipt of such notice,
but in no event more than 30 days after receipt of notice, and (c) Executive
resigns her employment with the Company (and all Affiliates) not more than 15
days following the expiration of the 30-day period described in subparagraph (b)
hereof.
3.5 TERMINATION BY THE COMPANY, WITHOUT CAUSE. The Company may terminate
this Agreement and Executive's employment hereunder, without Cause, upon 30 days
prior written notice to Executive (or such shorter period as may be agreed upon
by Executive and the Chief Executive officer). In such event, the Company shall
provide to Executive (a) the amount described in Section 3.1a hereof, payable
not later than three days after such termination, (b) the amounts determined
under Sections 3.1b and 3.1d hereof, payable in not more than two equal
installments, one-half not later than 30 days after termination and the other
one-half six months after such termination, and (c) the benefits described in
Sections 3.1e, 3.1f and 3.1g hereof.
3.6 TERMINATION BY EXECUTIVE. Executive may terminate this Agreement and
her employment hereunder, other than on account of Constructive Termination,
upon 30 days prior written notice to the Company or such shorter period as may
be agreed upon by the Chief Executive Officer and Executive. In such event, the
Company shall pay to Executive the amount described in Section 3.1a hereof.
Payment shall be made in the form of a single-sum not later than three days
after such termination. No additional payments or benefits shall be due
hereunder, except as may be provided under a separate plan, policy or program
evidencing such compensation arrangement or benefit or as may be required by
law.
3.7 RETURN OF PROPERTY. Upon termination of this Agreement for any
reason, Executive shall promptly return to the Company all of the property of
the Company (and its Affiliates), including, without limitation, automobiles,
equipment, computers, fax machines, portable telephones, printers, software,
credit cards, manuals, customer lists, financial data, letters, notes,
notebooks, reports and copies of any of the above and any Confidential
Page 6
Information (as defined in Section 5.2 hereof) that is in the possession or
under the control of Executive.
3.8 CONSIDERATION FOR OTHER AGREEMENTS. Executive acknowledges that all
or a portion of the amount payable under Section 3.1d hereof is in excess of the
amount otherwise due or payable under the Annual Incentive Compensation Plan and
that the payment of such excess amount shall constitute adequate consideration
for the execution of such separate waivers or releases as the Company (or
Affiliate) may request Executive to execute in connection with the termination
of her employment hereunder. Executive agrees that failure to execute any such
waiver or release within the time request by the Company shall result in the
forfeiture of the excess amount payable under Section 3.1d hereof.
4. CHANGE IN CONTROL AND BUSINESS TRANSACTION
4.1 DEFINITIONS. The terms "Change in Control" and "Business Transaction"
shall have the meanings ascribed to them in the Cleco Corporation 2000 Long-Term
Incentive Compensation Plan, as the same may be amended from time to time.
The term "Good Reason," when used herein, shall mean that in connection
with a Change in Control:
a. Executive's Base Compensation in effect immediately before such Change
in Control is reduced or there is a significant reduction or
termination of Executive's rights to any employee benefit in effect
immediately prior to the Change in Control;
b. Executive's authority, duties or responsibilities are significantly
reduced from those contemplated in Section 1.1 hereof or Executive has
reasonably determined that, as a result of a change in circumstances
that significantly affects her employment with the Company (or an
Affiliate), she is unable to exercise the authority, power, duties and
responsibilities contemplated in Section 1.1 hereof;
c. Executive is required to be away from her office in the course of
discharging her duties and responsibilities under this Agreement
significantly more than was required prior to the Change in Control;
or
d. Executive is required to transfer to an office or business location
located more than 60 miles from the location to which she was assigned
prior to the Change in Control.
No event or condition described in this Section 4.1 shall constitute Good Reason
unless (a) Executive gives the Company notice of her objection to such event or
condition within a reasonable period after Executive learns of such event, which
notice may be delivered orally or in writing to the Chief Executive Officer (or
his designee), (b) such event or condition is not promptly corrected by the
Company, but in no event later than 30 days after receipt of such
Page 7
notice, and (c) Executive resigns her employment with the Company (and its
Affiliates) not more than 60 days following the expiration of the 30-day period
described in subparagraph (b) hereof.
4.2 TERMINATION IN CONNECTION WITH A CHANGE IN CONTROL. If Executive's
employment described herein is terminated by the Company, without Cause (as
defined in Section 3.3 hereof), or Executive terminates her employment hereunder
for Good Reason at any time within the 60-day period preceding or 36-month
period following such Change in Control, then notwithstanding any provision of
this Agreement to the contrary and in lieu of any compensation or benefits
otherwise payable hereunder:
a. The Company shall pay to Executive the amount described in Section
3.1a in the form of a single-sum not later than three days after such
termination.
b. The Company shall pay to Executive the amount described in Section
3.1d in the form of a single-sum not later than 30 days after such
termination.
c. The Company shall pay an amount equal to three times Executive's "base
amount" as determined under Code Section 280G, payable in the form of
a single-sum not later than 30 days after such termination.
d. The Company shall provide to Executive and her dependents coverage
under the Company's or an Affiliate's group medical plan for the same
type and level of health benefits received by Executive and her
dependents immediately prior to such termination for a period of three
years or until Executive and/or her dependents obtain coverage under a
reasonably satisfactory group health plan with no applicable
preexisting condition limitation, whichever comes first; such coverage
to be in addition to any coverage available to Executive and her
dependents under Code Section 4980B.
e. Vesting shall be accelerated, any restrictions shall lapse, and all
performance objectives shall be deemed satisfied as to any outstanding
grants or awards made to Executive under the 2000 Long-Term Incentive
Compensation Plan and/or the 1990 Long-Term Incentive Compensation
Plan. Executive shall be entitled to such additional benefits or
rights as may be provided in the documents evidencing such plans or
the terms of any agreement evidencing such grant or award.
f. Executive shall be fully vested for purposes of any service or similar
requirement imposed under the Supplemental Plan, regardless of the
actual number of years of service attained by Executive. Executive
shall be credited with an additional three years of age for purposes
of determining her benefit percentage under the Supplemental Plan, but
in no event shall such benefit percentage be less than 50%; and
Executive shall be credited with an additional three years of age for
purposes of determining any reduction taken with respect to benefits
commencing before Executive's normal retirement date (as defined in
such plan).
Page 8
g. If Executive's principal office is located in Pineville, Louisiana,
the Company shall, at the written request of Executive:
i. Purchase her principal residence if such residence is located
within 60 miles of the Company's Pineville, Louisiana office (the
"Principal Residence") for an amount equal to the greater of (1)
the purchase price of such Principal Residence plus the
documented cost of any capital improvements to the Principal
Residence made by Executive, or (2) the fair market value of such
Principal Residence as determined by the Company's usual
relocation practice; and
ii. Pay or reimburse Executive for the cost of relocating Executive,
her family and their household goods and other personal property,
in accordance with the Company's usual relocation practice, to
any location in the United States.
Notwithstanding the foregoing, the Company shall not be obligated
hereunder, unless, within 12 months after the termination of her
employment with the Company (and its Affiliates), the Company is
requested to purchase such Principal Residence or Executive has
actually relocated from the Pineville, Louisiana area.
h. The Company shall pay to Executive an amount equal to the Company's
(including all Affiliates) maximum matching contribution obligation
under the Cleco Corporation 401(k) Savings and Investment Plan, as the
same may be amended from time to time, for each of the three years
immediately following Executive's termination of employment,
determined as if Executive was credited with at least 1,000 hours of
service in each such plan year, was employed as of the last day of
each plan year, and contributed the maximum permissible amount under
Code Section 402(g) in each such year, but determined using the amount
in effect as of the date of Executive's termination of employment;
such amount shall be paid in the form of a single-sum not later than
30 days after Executive's termination of employment hereunder.
4.3 BUSINESS TRANSACTION. If Executive's employment hereunder is
terminated (other than on account of Cause as defined in Section 3.3 hereof) in
connection with a Business Transaction, then notwithstanding any provision of
this Agreement to the contrary, the Company shall pay or provide to Executive
(a) the amount described in Section 3.1a hereof, payable not later than three
days after her termination of employment, (b) the amounts determined under
Sections 3.1b and 3.1d hereof, payable in not more than two equal installments,
one-half not later than 30 days after termination and the other one-half six
months after such termination, and (c) the benefits described in Sections 3.1e
and 3.1f and 4.2e and 4.2f hereof.
Page 9
4.4 TAX PAYMENT. If any payment to Executive pursuant to this Agreement or
any other payment or benefit from the Company or an Affiliate in connection with
a Change in Control or Business Transaction is subject to the excise tax imposed
under Code Section 4999 or any similar excise or penalty tax payable under any
United States federal, state, local or other law, the Company shall pay an
amount to Executive such that, after the payment by Executive of all taxes on
such amount, there remains a balance sufficient to pay such excise or penalty
tax. Executive shall submit to the Company the amount to be paid under this
Section 4.4, together with supporting documentation. If Executive and the
Company disagree as to such amount, an independent public accounting firm agreed
upon by Executive and the Company shall make such determination.
5. LIMITATIONS ON ACTIVITIES
5.1 CONSIDERATION FOR LIMITATION ON ACTIVITIES. Executive acknowledges that
the execution of this Agreement and the payments described herein constitute
consideration for the limitations on activities set forth in this Section 5, the
adequacy of which is hereby expressly acknowledged by Executive.
5.2 CONFIDENTIAL INFORMATION. Executive recognizes and acknowledges that
during the terms of her employment, he will have access to confidential,
proprietary, non-public information concerning the Company and its Affiliates,
which may include, without limitation, (a) books and records relating to
operations, finance, accounting, personnel and management, (b) price, rate and
volume data, future price and rate plans, and test data, (c) information related
to product design and development, (d) computer software, customer lists,
information obtained on competitors, and sales tactics, and (e) various other
non-public trade or business information, including business opportunities,
marketing or business diversification plans, methods and processes, and
financial data and the like (collectively, the "Confidential Information").
Executive agrees that she will not at any time, either while employed by the
Company or afterwards, make any independent use of, or disclose to any other
person or organization (except as authorized by the Company or pursuant to court
order) any of the Confidential Information.
5.3 NON-SOLICITATION. Executive agrees that during the one-year period
commencing as of the date of voluntary termination by Executive (as described in
Section 3.6 hereof) or the involuntary termination of Executive on account of
Cause (as described in Section 3.3 hereof), she shall not, directly or
indirectly, for his own benefit or on behalf of another or to the Company's (or
an Affiliate's) detriment:
a. Hire or offer to hire any of the Company's (or Affiliate's) officers,
employees or agents;
b. Persuade or attempt to persuade in any manner any officer, employee or
agent of the Company (or an Affiliate) to discontinue any relationship
with the Company; or
Page 10
c. Solicit or divert or attempt to divert any customer or supplier of the
Company or an Affiliate.
The provisions of this Section 5.3 shall apply in the locations set forth on
Exhibit A hereto, as the same may be amended from time to time. Executive
acknowledges that the Company (or its Affiliates) is presently doing business in
such locations and that during the Employment Term Executive will be required to
provide services to or for the benefit of the Company (or its Affiliates) in
such locations.
The parties agree that each of the foregoing prohibitions is intended to
constitute a separate restriction. Accordingly, should any such prohibition be
declared invalid or unenforceable, such prohibition shall be deemed severable
from and shall not affect the remainder thereof. The parties further agree that
each of the foregoing restrictions is reasonable in both time and geographic
scope.
5.4 BUSINESS REPUTATION. Executive agrees that during her employment with
the Company (and its Affiliate) and at all times thereafter, she shall refrain
from performing any act, engaging in any conduct or course of action or making
or publishing an adverse, untrue or misleading statement which has or may
reasonably have the effect of demeaning the name or business reputation of the
Company or its Affiliates or which adversely affects (or may reasonably
adversely affect) the best interests (economic or otherwise) of the Company or
an Affiliate.
5.5 REMEDIES. In the event of a breach or threatened breach by Executive
of the provisions of Sections 5.2, 5.3 or 5.4 hereof, Executive agrees that the
Company shall be entitled to a temporary restraining order or a preliminary
injunction (without the necessity of posting bond in connection therewith) and
that any additional payments or benefits due to Executive or her dependents
under Sections 3 and 4 hereof shall be canceled and forfeited. Nothing herein
shall be construed as prohibiting the Company from pursuing any other remedy
available to it for such breach or threatened breach, including the recovery of
damages from Executive.
6. MISCELLANEOUS
6.1 MITIGATION NOT REQUIRED. As a condition of any payment hereunder,
Executive shall not be required to mitigate the amount of such payment by
seeking other employment or otherwise, nor will any profits, income, earnings or
other benefits from any source whatsoever create any mitigation, offset,
reduction or any other obligation on the part of Executive under this Agreement.
6.2 ENFORCEMENT OF THIS AGREEMENT. In the event any dispute in connection
with this Agreement arises with respect to obligations of Executive or the
Company that were required prior to the occurrence of a Change in Control or a
Business Transaction, all costs, fees and expenses, including attorney fees, of
any litigation, arbitration or other legal action in connection with such
matters in which Executive substantially prevails, shall be borne by, and be the
obligation of, the Company.
Page 11
After a Change in Control or Business Transaction has occurred, Executive
shall not be required to incur legal fees and the related expenses associated
with the interpretation, enforcement or defense of Executive's rights under this
Agreement by litigation or otherwise. Accordingly, if, following a Change in
Control or Business Transaction, the Company has failed to comply with any of
its obligations under this Agreement or the Company or any other person takes or
threatens to take any action to declare this Agreement void or unenforceable or
in any way reduce the possibility of collecting the amounts due hereunder, or
institutes any litigation or other action or proceeding designed to deny or to
recover from Executive the benefits provided or intended to be provided under
this Agreement, Executive shall be entitled to retain counsel of Executive's
choice, at the expense of the Company, to advise and represent Executive in
connection with any such interpretation, enforcement or defense, including
without limitation the initiation or defense of any litigation, arbitration or
other legal action, whether by or against the Company or any director, officer,
stockholder or other person affiliated with the Company, in any jurisdiction.
The Company shall pay and be solely financially responsible for any and all
attorneys' and related fees and expenses incurred by Executive in connection
with any of the foregoing, without regard to whether Executive prevails, in
whole or in part.
In no event shall Executive be required to reimburse the Company for any of
the costs and expenses incurred by the Company relating to arbitration,
litigation or other legal action in connection with this Agreement.
6.3 NO SET-OFF. There shall be no right of set-off or counterclaim in
respect of any claim, debt or obligation against any payment to Executive
provided for in this Agreement.
6.4 ASSISTANCE WITH LITIGATION. For a period of one year after the end of
the last period for which Executive will have received any compensation under
this Agreement, Executive will furnish such information and proper assistance as
may be reasonably necessary in connection with any litigation in which the
Company (or an Affiliate) is then or may become involved.
6.5 HEADINGS. Section and other headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
6.6 ENTIRE AGREEMENT. This Agreement constitutes the entire understanding
and agreement among the parties hereto with respect to the subject matter
hereof, and there are no other agreements, understandings, restrictions,
representations or warranties among the parties other than those set forth
herein.
6.7 AMENDMENTS. This Agreement may be amended or modified at any time in
any or all respects, but only by an instrument in writing executed by the
parties hereto.
6.8 CHOICE OF LAW. The validity of this Agreement, the construction of
its terms, and the determination of the rights and duties of the parties hereto
shall be governed by and
Page 12
construed in accordance with the internal laws of the State of Louisiana
applicable to contracts made to be performed wholly within such state.
6.9 NOTICES. All notices and other communications under this Agreement
must be in writing and will be deemed to have been duly given when (a) delivered
by hand, (b) sent by telecopier to a telecopier number given below, provided
that a copy is sent by a nationally recognized overnight delivery service
(receipt requested), or (c) when received by the addressee, if sent by a
nationally recognized overnight delivery service (receipt requested), in each
case as follows:
If to Executive: Xxxxxxxxx X. Xxxxxx
000 Xxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxx 00000
If to the Company: Cleco Corporation
0000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Chief Executive Officer
Telecopier: (000) 000-0000
or to such other addresses as a party may designate by notice to the other
party.
6.10 ASSIGNMENT. This Agreement will inure to the benefit of and be
binding upon the Company, its Affiliates, successors and assigns, including,
without limitation, any person, partnership, company, corporation or other
entity that may acquire substantially all of the Company's assets or business or
with or into which the Company may be liquidated, consolidated, merged or
otherwise combined, and will inure to the benefit of and be binding upon
Executive, her heirs, estate, legatees and legal representatives. If payments
become payable to Executive's surviving spouse or other assigns and such person
thereafter dies, such payment will revert to Executive's estate.
6.11 SEVERABILITY. Each provision of this Agreement is intended to be
severable. In the event that any one or more of the provisions contained in
this Agreement shall for any reason be held to be invalid, illegal or
unenforceable, the same shall not affect the validity or enforceability of any
other provision of this Agreement, but this Agreement shall be construed as if
such invalid, illegal or unenforceable provisions was not contained herein.
Notwithstanding the foregoing, however, no provision shall be severed if it is
clearly apparent under the circumstances that the parties would not have entered
into this Agreement without such provision.
6.12 WITHHOLDING. The Company (or an Affiliate) may withhold from any
payment hereunder any federal, state or local taxes required to be withheld.
6.13 SURVIVAL. Notwithstanding anything herein to the contrary, to the
extent applicable, the obligations of the Company (and its Affiliates) under
Sections 3 and 4, and the
Page 13
obligations of Executive under Sections 3 and 5, shall remain operative and in
full force and effect regardless of the expiration of this Agreement.
6.14 WAIVER. The failure of either party to insist in any one or more
instances upon performance of any terms or conditions of this Agreement will not
be construed as a waiver of future performance of any such term, covenant, or
condition and the obligations of either party with respect to such term,
covenant or condition will continue in full force and effect.
THIS AGREEMENT is executed in multiple counterparts as of the dates set
forth below, each of which shall be deemed an original, to be effective as of
the Effective Date designated above.
CLECO CORPORATION EXECUTIVE
By:
------------------------------ -------------------------------
XXXXXXXXX X. XXXXXX
Its:
-----------------------------
Date: Date:
---------------------------- --------------------------
Page 14
CLECO CORPORATION
EXECUTIVE EMPLOYMENT AGREEMENT
EXHIBIT A
This Exhibit A is intended to form a part of that certain Executive
Employment Agreement by and between Cleco Corporation and XXXXXXXXX X. XXXXXX,
first effective as of July 28, 2000. The parties agree that the proscriptions
set forth in Section 5.3 thereof shall apply in the State of Louisiana, Parishes
of:
Acadia Parish
Xxxxx Xxxxxx
Avoyelles Parish
Xxxxxxxxxx Parish
Calcasieu Parish
Catahoula Parish
Desoto Parish
Xxxxxxxxxx Xxxxxx
Xxxxx Xxxxxx
Iberia Parish
Xxxxxxxxx Xxxxx Parish
Lafayette Parish
Lasalle Parish
Natchitoches Parish
Rapides Parish
Red River Parish
Xxxxxx Xxxxxx
St. Landry Parish
St. Xxxxxx Xxxxxx
St. Xxxx Xxxxxx
St. Tammany Parish
Xxxxxx Xxxxxx
Washington Parish
Executive and the Company agree that the Company shall amend this Exhibit A,
from time to time, to eliminate Parishes in which the Company is no longer doing
business and to add Parishes in which the Company is currently doing business.
Page 15
EXHIBIT 10(y)
CLECO CORPORATION
EXECUTIVE EMPLOYMENT AGREEMENT
(LEVEL 1)
THIS AGREEMENT (the "Agreement") is entered into as of this 28th day of
July, 2000, by and between XXXXXXX X. XXXXXX ("Executive"), and Cleco
Corporation, a Louisiana corporation (the "Company"), and is intended to amend
and restate, in its entirety, that certain Executive Severance Agreement between
Cleco Utility Group Inc. and Executive, initially effective as of January 1,
1998.
1. EMPLOYMENT AND TERM
1.1 POSITION. The Company shall employ and retain Executive as its Senior
Vice President Generation Services or in such other capacity or capacities as
shall be mutually agreed upon, from time to time, by Executive and the Company,
and Executive agrees to be so employed, subject to the terms and conditions set
forth herein. Executive's duties and responsibilities shall be those assigned
to him hereunder, from time to time, by the Chief Executive Officer of the
Company and shall include such duties as are the type and nature normally
assigned to similar executive officers of a corporation of the size, type and
stature of the Company. Executive shall report to the Chief Executive Officer.
1.2 CONCURRENT EMPLOYMENT. During the term of this Agreement, Executive
and the Company acknowledge that Executive may be concurrently employed by the
Company and a subsidiary or other entity with respect to which the Company owns
(within the meaning of Section 425(f) of the Internal Revenue Code of 1986, as
amended (the "Code")) 50% or more of the total combined voting power of all
classes of stock or other equity interests (an "Affiliate"), and that all of the
terms and conditions of this Agreement shall apply to such concurrent
employment. Reference to the Company hereunder shall be deemed to include any
such concurrent employers.
1.3 FULL TIME AND ATTENTION. During the term of this Agreement and any
extensions or renewals thereof, Executive shall devote his full time, attention
and energies to the business of the Company and will not, without the prior
written consent of the Chief Executive Officer of the Company, be engaged
(whether or not during normal business hours) in any other business or
professional activity, whether or not such activities are pursued for gain,
profit or other pecuniary advantage.
Notwithstanding the foregoing, Executive shall not be prevented from (a)
engaging in any civic or charitable activity for which Executive receives no
compensation or other pecuniary advantage, (b) investing his personal assets in
businesses which do not compete with the Company, provided that such investment
will not require any services on the part of Executive in the operation of the
affairs of the businesses in which investments are made and provided further
that Executive's participation in such businesses is solely that of an investor,
or (c) purchasing
securities in any corporation whose securities are regularly traded, provided
that such purchases will not result in Executive owning beneficially at any time
5% or more of the equity securities of any corporation engaged in a business
competitive with that of the Company.
1.4 TERM. Executive's employment under this Agreement shall commence as
of July 28, 2000 (the "Effective Date"), and shall terminate on July 28, 2003
(such date or the last day of employment specified in any renewal or amendment
hereof referred to herein as the "Termination Date") (the period commencing as
of the Effective Date and ending as of the Termination Date referred to herein
as the "Employment Term").
Commencing on the second anniversary of the Effective Date and each
anniversary thereafter, Executive's employment shall automatically be extended
for an additional one-year period; provided, however, that either party may
provide written notice to the other that the Employment Term will not be further
extended, such notice to be provided not later than 30 days prior to the end of
the then current Employment Term.
2. COMPENSATION AND BENEFITS
2.1 BASE COMPENSATION. The Company shall pay Executive an annual salary
equal to his annual base salary in effect as of the Effective Date, such amount
shall be prorated and paid in equal installments in accordance with the
Company's regular payroll practices and policies and shall be subject to
applicable withholding and other applicable taxes (Executive's "Base
Compensation"). Executive's Base Compensation shall be reviewed no less often
than annually and may be increased or reduced by the Board of Directors of the
Company (the "Board"), in its sole discretion; provided, however, that
Executive's Base Compensation may not be reduced at any time unless such
reduction is part of a reduction in pay uniformly applicable to all officers of
the Company.
2.2 ANNUAL INCENTIVE BONUS. In addition to the foregoing, Executive shall
be eligible for participation in the Annual Incentive Compensation Plan or
similar bonus arrangement maintained by the Company or an Affiliate or such
other bonus or incentive plans which the Company or its Affiliates may adopt,
from time to time, for similarly situated executives (an "Incentive Bonus").
2.3 LONG-TERM INCENTIVES. In addition to the foregoing, Executive shall
be eligible for participation in the 2000 Long-Term Incentive Compensation Plan
maintained by the Company and such other long-term incentive plans which the
Company or its Affiliates may adopt, from time to time, for similarly situated
executives (a "Long-Term Incentive").
2.4 SUPPLEMENTAL RETIREMENT BENEFIT. In addition to the foregoing,
Executive shall be eligible to participate in the Supplemental Executive
Retirement Plan maintained by Cleco Utility Group Inc. or such other
supplemental retirement benefit plans which the Company or its Affiliates may
adopt, from time to time, for similarly situated executives (the "Supplemental
Plan").
Page 2
2.5 OTHER BENEFITS. During the term of this Agreement and in addition to
the amounts otherwise provided herein, Executive shall participate in such
plans, policies, and programs as may be maintained, from time to time, by the
Company or its Affiliates for the benefit of senior executives or employees,
including, without limitation, profit sharing, life insurance, and group medical
and other welfare benefit plans. Any such benefits shall be determined in
accordance with the specific terms and conditions of the documents evidencing
any such plans, policies, and programs.
2.6 REIMBURSEMENT OF EXPENSES. The Company shall reimburse Executive for
such reasonable and necessary expenses as are incurred in carrying out his
duties hereunder, consistent with the Company's standard policies and annual
budget. The Company's obligation to reimburse Executive hereunder shall be
contingent upon the presentment by Executive of an itemized accounting of such
expenditures.
3. TERMINATION
3.1 TERMINATION PAYMENTS TO EXECUTIVE. As set forth more fully in this
Section 3 and except as provided in Sections 3.3 or 3.8 hereof, Executive shall
be paid the greater of the amounts or benefits set forth below or the amounts or
benefits provided under the terms of the separate plan or arrangement maintained
by the Company (or its Affiliates) on account of termination of employment
hereunder:
a. Executive's Base Compensation accrued but not yet paid as of the date
of his termination.
b. Executive's Base Compensation payable until the Termination Date
(determined without regard to the automatic renewal provisions of
Section 1.4 hereof), but not less than 100% of such annual Base
Compensation.
c. Executive's Incentive Bonus payable with respect to the year of his
termination, prorated to reflect Executive's actual period of service
during such year.
d. Executive's Incentive Bonus payable in the target amount for the year
in which his termination of employment occurs.
e. If Executive's principal office is located in Pineville, Louisiana,
the Company shall, at the written request of Executive:
i. Purchase his principal residence if such residence is located
within 60 miles of the Company's Pineville, Louisiana office (the
"Principal Residence") for an amount equal to the greater of (1)
the purchase price of such Principal Residence plus the
documented cost of any capital improvements to the Principal
Residence made by Executive, or (2) the fair market value of such
Principal Residence as determined by the Company's usual
relocation practice; and
Page 3
ii. Pay or reimburse Executive for the cost of relocating Executive,
his family and their household goods and other personal property,
in accordance with the Company's usual relocation practice, to
any location in the United States.
Notwithstanding the foregoing, the Company shall not be obligated
hereunder, unless, within 12 months after the termination of his
employment with the Company (and its Affiliates), the Company is
requested to purchase such Principal Residence or Executive has
actually relocated from the Pineville, Louisiana area.
f. If Executive and/or his dependents elects to continue group medical
coverage, within the meaning of Code Section 4980B(f)(2), with respect
to a group health plan sponsored by the Company or an Affiliate (other
than a health flexible spending account under a self-insured medical
reimbursement plan described in Code Sections 125 and 105(h)), the
Company shall pay the continuation coverage premium for the same type
and level of group health plan coverage received by Executive and his
electing dependents immediately prior to such termination of
Executive's employment for the maximum period provided under Code
Section 4980B.
g. Executive shall be fully vested for purposes of any service or similar
requirement imposed under the Cleco Utility Group Inc. Supplemental
Executive Retirement Plan (the "Supplemental Plan"), regardless of the
actual number of years of service attained by Executive.
Except as expressly provided in Section 3.3 hereof, Executive shall also be
entitled to receive such compensation or benefits as may be provided under the
terms of a separate plan or amendment maintained by the Company (or its
Affiliates) to the extent such compensation or benefits are not duplicative of
the compensation or benefits described above.
3.2 TERMINATION FOR DEATH OR DISABILITY. If Executive dies or becomes
disabled during the Employment Term, this Agreement and Executive's employment
hereunder shall immediately terminate and the Company's obligations hereunder
shall automatically cease. In such event, the Company shall pay to Executive
(or his estate) the amounts described in Sections 3.1a and 3.1c hereof. Payment
shall be made in the form of one or more single-sums as soon as practicable
after Executive's death or disability or as and when such amounts are
ascertainable.
For purposes of this Section 3.2, Executive shall be deemed "disabled" if
he is actually receiving benefits or is eligible to receive benefits under the
Company's (or an Affiliate's) separate long-term disability plan. The Board
shall determine whether Executive is disabled hereunder.
Page 4
3.3 COMPANY'S TERMINATION FOR CAUSE. This Agreement and Executive's
employment hereunder may be terminated by the Company on account of Cause. In
such event, the Company shall pay to Executive the amount described in Section
3.1a hereof. Payment shall be made in the form of a single-sum not later than
three days after such termination. Notwithstanding any provision of this
Agreement or any other plan, policy or agreement evidencing any other
compensation arrangement or benefit payable to Executive, no additional amount
shall be paid to Executive, except as may be required by law.
For purposes of this Agreement "Cause" means that Executive has:
a. Committed an intentional act of fraud, embezzlement or theft in the
course of his employment or otherwise engaged in any intentional
misconduct which is materially injurious to the Company's (or an
Affiliate's) financial condition or business reputation;
b. Committed intentional damage to the property of the Company (or an
Affiliate) or committed intentional wrongful disclosure of
Confidential Information (as defined in Section 5.2) which is
materially injurious to the Company's (or an Affiliate's) financial
condition or business reputation;
c. Intentionally refused to perform the material duties of his position;
or
d. A material breach of this Agreement by Executive.
No act or failure to act on the part of Executive will be deemed "intentional"
if it was due primarily to an error in judgment or negligence, but will be
deemed "intentional" only if done or omitted to be done by Executive not in good
faith and without reasonable belief that his action or omission was in the best
interest of the Company (or an Affiliate).
The Board, acting in good faith, may terminate Executive's employment
hereunder on account of Cause (or may determine that any termination by the
Company is on account of Cause). The Board shall provide written notice to
Executive, including a description of the specific reasons for the determination
of Cause. Executive shall have the opportunity to appear before the Board, with
or without legal representation, to present arguments and evidence on his
behalf. Following such presentation (or upon Executive's failure to appear),
the Board, by an affirmative vote of not less than 66% of its members, shall
confirm that the actions or inactions of Executive constitute Cause hereunder.
3.4 EXECUTIVE'S CONSTRUCTIVE TERMINATION. Executive may terminate this
Agreement and his employment hereunder on account of a Constructive Termination
upon 30 days prior written notice to the Chief Executive Officer (or such
shorter period as may be agreed upon by the parties hereto.) In such event, the
Company shall provide to Executive (a) the amount described in Section 3.1a
hereof, payable not later than three days after his termination of employment,
(b) the amounts determined under Sections 3.1b and 3.1d hereof, payable in not
more than two equal installments, one-half not later than 30 days after
termination and the other
Page 5
one-half six months after such termination, and (c) the benefits described in
Sections 3.1e, 3.1f and 3.1g hereof.
For purposes of this Agreement, "Constructive Termination" means:
a. A material reduction (other than a reduction in pay uniformly
applicable to all officers of the Company) in the amount of
Executive's Base Compensation;
b. A material reduction in Executive's authority, duties or
responsibilities from those contemplated in Section 1.1 of this
Agreement; or
c. A material breach of this Agreement by the Company or its Affiliates.
No event or condition described in this Section 3.4 shall constitute a
Constructive Termination unless (a) Executive promptly gives the Company notice
of his objection to such event or condition, which notice may be provided orally
or in writing to the Chief Executive Officer or his designee, (b) such event or
condition is not corrected by the Company promptly after receipt of such notice,
but in no event more than 30 days after receipt of notice, and (c) Executive
resigns his employment with the Company (and all Affiliates) not more than 15
days following the expiration of the 30-day period described in subparagraph (b)
hereof.
3.5 TERMINATION BY THE COMPANY, WITHOUT CAUSE. The Company may terminate
this Agreement and Executive's employment hereunder, without Cause, upon 30 days
prior written notice to Executive (or such shorter period as may be agreed upon
by Executive and the Chief Executive officer). In such event, the Company shall
provide to Executive (a) the amount described in Section 3.1a hereof, payable
not later than three days after such termination, (b) the amounts determined
under Sections 3.1b and 3.1d hereof, payable in not more than two equal
installments, one-half not later than 30 days after termination and the other
one-half six months after such termination, and (c) the benefits described in
Sections 3.1e, 3.1f and 3.1g hereof.
3.6 TERMINATION BY EXECUTIVE. Executive may terminate this Agreement and
his employment hereunder, other than on account of Constructive Termination,
upon 30 days prior written notice to the Company or such shorter period as may
be agreed upon by the Chief Executive Officer and Executive. In such event, the
Company shall pay to Executive the amount described in Section 3.1a hereof.
Payment shall be made in the form of a single-sum not later than three days
after such termination. No additional payments or benefits shall be due
hereunder, except as may be provided under a separate plan, policy or program
evidencing such compensation arrangement or benefit or as may be required by
law.
3.7 RETURN OF PROPERTY. Upon termination of this Agreement for any
reason, Executive shall promptly return to the Company all of the property of
the Company (and its Affiliates), including, without limitation, automobiles,
equipment, computers, fax machines, portable telephones, printers, software,
credit cards, manuals, customer lists, financial data, letters, notes,
notebooks, reports and copies of any of the above and any Confidential
Page 6
Information (as defined in Section 5.2 hereof) that is in the possession or
under the control of Executive.
3.8 CONSIDERATION FOR OTHER AGREEMENTS. Executive acknowledges that all
or a portion of the amount payable under Section 3.1d hereof is in excess of the
amount otherwise due or payable under the Annual Incentive Compensation Plan and
that the payment of such excess amount shall constitute adequate consideration
for the execution of such separate waivers or releases as the Company (or
Affiliate) may request Executive to execute in connection with the termination
of his employment hereunder. Executive agrees that failure to execute any such
waiver or release within the time request by the Company shall result in the
forfeiture of the excess amount payable under Section 3.1d hereof.
4. CHANGE IN CONTROL AND BUSINESS TRANSACTION
4.1 DEFINITIONS. The terms "Change in Control" and "Business Transaction"
shall have the meanings ascribed to them in the Cleco Corporation 2000 Long-Term
Incentive Compensation Plan, as the same may be amended from time to time.
The term "Good Reason," when used herein, shall mean that in connection
with a Change in Control:
a. Executive's Base Compensation in effect immediately before such Change
in Control is reduced or there is a significant reduction or
termination of Executive's rights to any employee benefit in effect
immediately prior to the Change in Control;
b. Executive's authority, duties or responsibilities are significantly
reduced from those contemplated in Section 1.1 hereof or Executive has
reasonably determined that, as a result of a change in circumstances
that significantly affects his employment with the Company (or an
Affiliate), he is unable to exercise the authority, power, duties and
responsibilities contemplated in Section 1.1 hereof;
c. Executive is required to be away from his office in the course of
discharging his duties and responsibilities under this Agreement
significantly more than was required prior to the Change in Control;
or
d. Executive is required to transfer to an office or business location
located more than 60 miles from the location to which he was assigned
prior to the Change in Control.
No event or condition described in this Section 4.1 shall constitute Good Reason
unless (a) Executive gives the Company notice of his objection to such event or
condition within a reasonable period after Executive learns of such event, which
notice may be delivered orally or in writing to the Chief Executive Officer (or
his designee), (b) such event or condition is not promptly corrected by the
Company, but in no event later than 30 days after receipt of such
Page 7
notice, and (c) Executive resigns his employment with the Company (and its
Affiliates) not more than 60 days following the expiration of the 30-day period
described in subparagraph (b) hereof.
4.2 TERMINATION IN CONNECTION WITH A CHANGE IN CONTROL. If Executive's
employment described herein is terminated by the Company, without Cause (as
defined in Section 3.3 hereof), or Executive terminates his employment hereunder
for Good Reason at any time within the 60-day period preceding or 36-month
period following such Change in Control, then notwithstanding any provision of
this Agreement to the contrary and in lieu of any compensation or benefits
otherwise payable hereunder:
a. The Company shall pay to Executive the amount described in Section
3.1a in the form of a single-sum not later than three days after such
termination.
b. The Company shall pay to Executive the amount described in Section
3.1d in the form of a single-sum not later than 30 days after such
termination.
c. The Company shall pay an amount equal to three times Executive's "base
amount" as determined under Code Section 280G, payable in the form of
a single-sum not later than 30 days after such termination.
d. The Company shall provide to Executive and his dependents coverage
under the Company's or an Affiliate's group medical plan for the same
type and level of health benefits received by Executive and his
dependents immediately prior to such termination for a period of three
years or until Executive and/or his dependents obtain coverage under a
reasonably satisfactory group health plan with no applicable
preexisting condition limitation, whichever comes first; such coverage
to be in addition to any coverage available to Executive and his
dependents under Code Section 4980B.
e. Vesting shall be accelerated, any restrictions shall lapse, and all
performance objectives shall be deemed satisfied as to any outstanding
grants or awards made to Executive under the 2000 Long-Term Incentive
Compensation Plan and/or the 1990 Long-Term Incentive Compensation
Plan. Executive shall be entitled to such additional benefits or
rights as may be provided in the documents evidencing such plans or
the terms of any agreement evidencing such grant or award.
f. Executive shall be fully vested for purposes of any service or similar
requirement imposed under the Supplemental Plan, regardless of the
actual number of years of service attained by Executive. Executive
shall be credited with an additional three years of age for purposes
of determining his benefit percentage under the Supplemental Plan, but
in no event shall such benefit percentage be less than 50%; and
Executive shall be credited with an additional three years of age for
purposes of determining any reduction taken with respect to benefits
commencing before Executive's normal retirement date (as defined in
such plan).
Page 8
g. If Executive's principal office is located in Pineville, Louisiana,
the Company shall, at the written request of Executive:
i. Purchase his principal residence if such residence is located
within 60 miles of the Company's Pineville, Louisiana office (the
"Principal Residence") for an amount equal to the greater of (1)
the purchase price of such Principal Residence plus the
documented cost of any capital improvements to the Principal
Residence made by Executive, or (2) the fair market value of such
Principal Residence as determined by the Company's usual
relocation practice; and
ii. Pay or reimburse Executive for the cost of relocating Executive,
his family and their household goods and other personal property,
in accordance with the Company's usual relocation practice, to
any location in the United States.
Notwithstanding the foregoing, the Company shall not be obligated
hereunder, unless, within 12 months after the termination of his
employment with the Company (and its Affiliates), the Company is
requested to purchase such Principal Residence or Executive has
actually relocated from the Pineville, Louisiana area.
h. The Company shall pay to Executive an amount equal to the Company's
(including all Affiliates) maximum matching contribution obligation
under the Cleco Corporation 401(k) Savings and Investment Plan, as the
same may be amended from time to time, for each of the three years
immediately following Executive's termination of employment,
determined as if Executive was credited with at least 1,000 hours of
service in each such plan year, was employed as of the last day of
each plan year, and contributed the maximum permissible amount under
Code Section 402(g) in each such year, but determined using the amount
in effect as of the date of Executive's termination of employment;
such amount shall be paid in the form of a single-sum not later than
30 days after Executive's termination of employment hereunder.
4.3 BUSINESS TRANSACTION. If Executive's employment hereunder is
terminated (other than on account of Cause as defined in Section 3.3 hereof) in
connection with a Business Transaction, then notwithstanding any provision of
this Agreement to the contrary, the Company shall pay or provide to Executive
(a) the amount described in Section 3.1a hereof, payable not later than three
days after his termination of employment, (b) the amounts determined under
Sections 3.1b and 3.1d hereof, payable in not more than two equal installments,
one-half not later than 30 days after termination and the other one-half six
months after such termination, and (c) the benefits described in Sections 3.1e
and 3.1f and 4.2e and 4.2f hereof.
Page 9
4.4 TAX PAYMENT. If any payment to Executive pursuant to this Agreement or
any other payment or benefit from the Company or an Affiliate in connection with
a Change in Control or Business Transaction is subject to the excise tax imposed
under Code Section 4999 or any similar excise or penalty tax payable under any
United States federal, state, local or other law, the Company shall pay an
amount to Executive such that, after the payment by Executive of all taxes on
such amount, there remains a balance sufficient to pay such excise or penalty
tax. Executive shall submit to the Company the amount to be paid under this
Section 4.4, together with supporting documentation. If Executive and the
Company disagree as to such amount, an independent public accounting firm agreed
upon by Executive and the Company shall make such determination.
5. LIMITATIONS ON ACTIVITIES
5.1 CONSIDERATION FOR LIMITATION ON ACTIVITIES. Executive acknowledges that
the execution of this Agreement and the payments described herein constitute
consideration for the limitations on activities set forth in this Section 5, the
adequacy of which is hereby expressly acknowledged by Executive.
5.2 CONFIDENTIAL INFORMATION. Executive recognizes and acknowledges that
during the terms of his employment, he will have access to confidential,
proprietary, non-public information concerning the Company and its Affiliates,
which may include, without limitation, (a) books and records relating to
operations, finance, accounting, personnel and management, (b) price, rate and
volume data, future price and rate plans, and test data, (c) information related
to product design and development, (d) computer software, customer lists,
information obtained on competitors, and sales tactics, and (e) various other
non-public trade or business information, including business opportunities,
marketing or business diversification plans, methods and processes, and
financial data and the like (collectively, the "Confidential Information").
Executive agrees that he will not at any time, either while employed by the
Company or afterwards, make any independent use of, or disclose to any other
person or organization (except as authorized by the Company or pursuant to court
order) any of the Confidential Information.
5.3 NON-SOLICITATION. Executive agrees that during the one-year period
commencing as of the date of voluntary termination by Executive (as described in
Section 3.6 hereof) or the involuntary termination of Executive on account of
Cause (as described in Section 3.3 hereof), he shall not, directly or
indirectly, for his own benefit or on behalf of another or to the Company's (or
an Affiliate's) detriment:
a. Hire or offer to hire any of the Company's (or Affiliate's) officers,
employees or agents;
b. Persuade or attempt to persuade in any manner any officer, employee or
agent of the Company (or an Affiliate) to discontinue any relationship
with the Company; or
Page 10
c. Solicit or divert or attempt to divert any customer or supplier of the
Company or an Affiliate.
The provisions of this Section 5.3 shall apply in the locations set forth on
Exhibit A hereto, as the same may be amended from time to time. Executive
acknowledges that the Company (or its Affiliates) is presently doing business in
such locations and that during the Employment Term Executive will be required to
provide services to or for the benefit of the Company (or its Affiliates) in
such locations.
The parties agree that each of the foregoing prohibitions is intended to
constitute a separate restriction. Accordingly, should any such prohibition be
declared invalid or unenforceable, such prohibition shall be deemed severable
from and shall not affect the remainder thereof. The parties further agree that
each of the foregoing restrictions is reasonable in both time and geographic
scope.
5.4 BUSINESS REPUTATION. Executive agrees that during his employment with
the Company (and its Affiliate) and at all times thereafter, he shall refrain
from performing any act, engaging in any conduct or course of action or making
or publishing an adverse, untrue or misleading statement which has or may
reasonably have the effect of demeaning the name or business reputation of the
Company or its Affiliates or which adversely affects (or may reasonably
adversely affect) the best interests (economic or otherwise) of the Company or
an Affiliate.
5.5 REMEDIES. In the event of a breach or threatened breach by Executive
of the provisions of Sections 5.2, 5.3 or 5.4 hereof, Executive agrees that the
Company shall be entitled to a temporary restraining order or a preliminary
injunction (without the necessity of posting bond in connection therewith) and
that any additional payments or benefits due to Executive or his dependents
under Sections 3 and 4 hereof shall be canceled and forfeited. Nothing herein
shall be construed as prohibiting the Company from pursuing any other remedy
available to it for such breach or threatened breach, including the recovery of
damages from Executive.
6. MISCELLANEOUS
6.1 MITIGATION NOT REQUIRED. As a condition of any payment hereunder,
Executive shall not be required to mitigate the amount of such payment by
seeking other employment or otherwise, nor will any profits, income, earnings or
other benefits from any source whatsoever create any mitigation, offset,
reduction or any other obligation on the part of Executive under this Agreement.
6.2 ENFORCEMENT OF THIS AGREEMENT. In the event any dispute in connection
with this Agreement arises with respect to obligations of Executive or the
Company that were required prior to the occurrence of a Change in Control or a
Business Transaction, all costs, fees and expenses, including attorney fees, of
any litigation, arbitration or other legal action in connection with such
matters in which Executive substantially prevails, shall be borne by, and be the
obligation of, the Company.
Page 11
After a Change in Control or Business Transaction has occurred, Executive
shall not be required to incur legal fees and the related expenses associated
with the interpretation, enforcement or defense of Executive's rights under this
Agreement by litigation or otherwise. Accordingly, if, following a Change in
Control or Business Transaction, the Company has failed to comply with any of
its obligations under this Agreement or the Company or any other person takes or
threatens to take any action to declare this Agreement void or unenforceable or
in any way reduce the possibility of collecting the amounts due hereunder, or
institutes any litigation or other action or proceeding designed to deny or to
recover from Executive the benefits provided or intended to be provided under
this Agreement, Executive shall be entitled to retain counsel of Executive's
choice, at the expense of the Company, to advise and represent Executive in
connection with any such interpretation, enforcement or defense, including
without limitation the initiation or defense of any litigation, arbitration or
other legal action, whether by or against the Company or any director, officer,
stockholder or other person affiliated with the Company, in any jurisdiction.
The Company shall pay and be solely financially responsible for any and all
attorneys' and related fees and expenses incurred by Executive in connection
with any of the foregoing, without regard to whether Executive prevails, in
whole or in part.
In no event shall Executive be required to reimburse the Company for any of
the costs and expenses incurred by the Company relating to arbitration,
litigation or other legal action in connection with this Agreement.
6.3 NO SET-OFF. There shall be no right of set-off or counterclaim in
respect of any claim, debt or obligation against any payment to Executive
provided for in this Agreement.
6.4 ASSISTANCE WITH LITIGATION. For a period of one year after the end of
the last period for which Executive will have received any compensation under
this Agreement, Executive will furnish such information and proper assistance as
may be reasonably necessary in connection with any litigation in which the
Company (or an Affiliate) is then or may become involved.
6.5 HEADINGS. Section and other headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
6.6 ENTIRE AGREEMENT. This Agreement constitutes the entire understanding
and agreement among the parties hereto with respect to the subject matter
hereof, and there are no other agreements, understandings, restrictions,
representations or warranties among the parties other than those set forth
herein.
6.7 AMENDMENTS. This Agreement may be amended or modified at any time in
any or all respects, but only by an instrument in writing executed by the
parties hereto.
6.8 CHOICE OF LAW. The validity of this Agreement, the construction of
its terms, and the determination of the rights and duties of the parties hereto
shall be governed by and
Page 12
construed in accordance with the internal laws of the State of Louisiana
applicable to contracts made to be performed wholly within such state.
6.9 NOTICES. All notices and other communications under this Agreement
must be in writing and will be deemed to have been duly given when (a) delivered
by hand, (b) sent by telecopier to a telecopier number given below, provided
that a copy is sent by a nationally recognized overnight delivery service
(receipt requested), or (c) when received by the addressee, if sent by a
nationally recognized overnight delivery service (receipt requested), in each
case as follows:
If to Executive: Xxxxxxx X. Xxxxxx
0000 Xxxxxxx 0
Xxxxxxxxxx, Xxxxxxxxx 00000
If to the Company: Cleco Corporation
0000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Chief Executive Officer
Telecopier: (000) 000-0000
or to such other addresses as a party may designate by notice to the other
party.
6.10 ASSIGNMENT. This Agreement will inure to the benefit of and be
binding upon the Company, its Affiliates, successors and assigns, including,
without limitation, any person, partnership, company, corporation or other
entity that may acquire substantially all of the Company's assets or business or
with or into which the Company may be liquidated, consolidated, merged or
otherwise combined, and will inure to the benefit of and be binding upon
Executive, his heirs, estate, legatees and legal representatives. If payments
become payable to Executive's surviving spouse or other assigns and such person
thereafter dies, such payment will revert to Executive's estate.
6.11 SEVERABILITY. Each provision of this Agreement is intended to be
severable. In the event that any one or more of the provisions contained in
this Agreement shall for any reason be held to be invalid, illegal or
unenforceable, the same shall not affect the validity or enforceability of any
other provision of this Agreement, but this Agreement shall be construed as if
such invalid, illegal or unenforceable provisions was not contained herein.
Notwithstanding the foregoing, however, no provision shall be severed if it is
clearly apparent under the circumstances that the parties would not have entered
into this Agreement without such provision.
6.12 WITHHOLDING. The Company (or an Affiliate) may withhold from any
payment hereunder any federal, state or local taxes required to be withheld.
6.13 SURVIVAL. Notwithstanding anything herein to the contrary, to the
extent applicable, the obligations of the Company (and its Affiliates) under
Sections 3 and 4, and the
Page 13
obligations of Executive under Sections 3 and 5, shall remain operative and in
full force and effect regardless of the expiration of this Agreement.
6.14 WAIVER. The failure of either party to insist in any one or more
instances upon performance of any terms or conditions of this Agreement will not
be construed as a waiver of future performance of any such term, covenant, or
condition and the obligations of either party with respect to such term,
covenant or condition will continue in full force and effect.
THIS AGREEMENT is executed in multiple counterparts as of the dates set
forth below, each of which shall be deemed an original, to be effective as of
the Effective Date designated above.
CLECO CORPORATION EXECUTIVE
By:
------------------------------- --------------------------------
XXXXXXX X. XXXXXX
Its:
------------------------------
Date: Date:
----------------------------- ---------------------------
Page 14
CLECO CORPORATION
EXECUTIVE EMPLOYMENT AGREEMENT
EXHIBIT A
This Exhibit A is intended to form a part of that certain Executive
Employment Agreement by and between Cleco Corporation and XXXXXXX X. XXXXXX,
first effective as of July 28, 2000. The parties agree that the proscriptions
set forth in Section 5.3 thereof shall apply in the State of Louisiana, Parishes
of:
Acadia Parish
Xxxxx Xxxxxx
Avoyelles Parish
Xxxxxxxxxx Parish
Calcasieu Parish
Catahoula Parish
Desoto Parish
Xxxxxxxxxx Xxxxxx
Xxxxx Xxxxxx
Iberia Parish
Xxxxxxxxx Xxxxx Parish
Lafayette Parish
Lasalle Parish
Natchitoches Parish
Rapides Parish
Red River Parish
Xxxxxx Xxxxxx
St. Landry Parish
St. Xxxxxx Xxxxxx
St. Xxxx Xxxxxx
St. Tammany Parish
Xxxxxx Xxxxxx
Washington Parish
Executive and the Company agree that the Company shall amend this Exhibit A,
from time to time, to eliminate Parishes in which the Company is no longer doing
business and to add Parishes in which the Company is currently doing business.
Page 15
EXHIBIT 10(y)
CLECO CORPORATION
EXECUTIVE EMPLOYMENT AGREEMENT
(LEVEL 1)
THIS AGREEMENT (the "Agreement") is entered into as of this 28th day of
July, 2000, by and between XXXX X. XXXXXX ("Executive"), and Cleco Corporation,
a Louisiana corporation (the "Company"), and is intended to amend and restate,
in its entirety, that certain Executive Severance Agreement between Cleco
Utility Group Inc. and Executive, initially effective as of January 1, 1998.
1. EMPLOYMENT AND TERM
1.1 POSITION. The Company shall employ and retain Executive as its Senior
Vice President Utility Services or in such other capacity or capacities as shall
be mutually agreed upon, from time to time, by Executive and the Company, and
Executive agrees to be so employed, subject to the terms and conditions set
forth herein. Executive's duties and responsibilities shall be those assigned to
him hereunder, from time to time, by the Chief Executive Officer of the Company
and shall include such duties as are the type and nature normally assigned to
similar executive officers of a corporation of the size, type and stature of the
Company. Executive shall report to the Chief Executive Officer.
1.2 CONCURRENT EMPLOYMENT. During the term of this Agreement, Executive
and the Company acknowledge that Executive may be concurrently employed by the
Company and a subsidiary or other entity with respect to which the Company owns
(within the meaning of Section 425(f) of the Internal Revenue Code of 1986, as
amended (the "Code")) 50% or more of the total combined voting power of all
classes of stock or other equity interests (an "Affiliate"), and that all of the
terms and conditions of this Agreement shall apply to such concurrent
employment. Reference to the Company hereunder shall be deemed to include any
such concurrent employers.
1.3 FULL TIME AND ATTENTION. During the term of this Agreement and any
extensions or renewals thereof, Executive shall devote his full time, attention
and energies to the business of the Company and will not, without the prior
written consent of the Chief Executive Officer of the Company, be engaged
(whether or not during normal business hours) in any other business or
professional activity, whether or not such activities are pursued for gain,
profit or other pecuniary advantage.
Notwithstanding the foregoing, Executive shall not be prevented from (a)
engaging in any civic or charitable activity for which Executive receives no
compensation or other pecuniary advantage, (b) investing his personal assets in
businesses which do not compete with the Company, provided that such investment
will not require any services on the part of Executive in the operation of the
affairs of the businesses in which investments are made and provided further
that Executive's participation in such businesses is solely that of an investor,
or (c) purchasing
securities in any corporation whose securities are regularly traded, provided
that such purchases will not result in Executive owning beneficially at any time
5% or more of the equity securities of any corporation engaged in a business
competitive with that of the Company.
1.4 TERM. Executive's employment under this Agreement shall commence as
of July 28, 2000 (the "Effective Date"), and shall terminate on July 28, 2003
(such date or the last day of employment specified in any renewal or amendment
hereof referred to herein as the "Termination Date") (the period commencing as
of the Effective Date and ending as of the Termination Date referred to herein
as the "Employment Term").
Commencing on the second anniversary of the Effective Date and each
anniversary thereafter, Executive's employment shall automatically be extended
for an additional one-year period; provided, however, that either party may
provide written notice to the other that the Employment Term will not be further
extended, such notice to be provided not later than 30 days prior to the end of
the then current Employment Term.
2. COMPENSATION AND BENEFITS
2.1 BASE COMPENSATION. The Company shall pay Executive an annual salary
equal to his annual base salary in effect as of the Effective Date, such amount
shall be prorated and paid in equal installments in accordance with the
Company's regular payroll practices and policies and shall be subject to
applicable withholding and other applicable taxes (Executive's "Base
Compensation"). Executive's Base Compensation shall be reviewed no less often
than annually and may be increased or reduced by the Board of Directors of the
Company (the "Board"), in its sole discretion; provided, however, that
Executive's Base Compensation may not be reduced at any time unless such
reduction is part of a reduction in pay uniformly applicable to all officers of
the Company.
2.2 ANNUAL INCENTIVE BONUS. In addition to the foregoing, Executive shall
be eligible for participation in the Annual Incentive Compensation Plan or
similar bonus arrangement maintained by the Company or an Affiliate or such
other bonus or incentive plans which the Company or its Affiliates may adopt,
from time to time, for similarly situated executives (an "Incentive Bonus").
2.3 LONG-TERM INCENTIVES. In addition to the foregoing, Executive shall
be eligible for participation in the 2000 Long-Term Incentive Compensation Plan
maintained by the Company and such other long-term incentive plans which the
Company or its Affiliates may adopt, from time to time, for similarly situated
executives (a "Long-Term Incentive").
2.4 SUPPLEMENTAL RETIREMENT BENEFIT. In addition to the foregoing,
Executive shall be eligible to participate in the Supplemental Executive
Retirement Plan maintained by Cleco Utility Group Inc. or such other
supplemental retirement benefit plans which the Company or its Affiliates may
adopt, from time to time, for similarly situated executives (the "Supplemental
Plan").
Page 2
2.5 OTHER BENEFITS. During the term of this Agreement and in addition to
the amounts otherwise provided herein, Executive shall participate in such
plans, policies, and programs as may be maintained, from time to time, by the
Company or its Affiliates for the benefit of senior executives or employees,
including, without limitation, profit sharing, life insurance, and group medical
and other welfare benefit plans. Any such benefits shall be determined in
accordance with the specific terms and conditions of the documents evidencing
any such plans, policies, and programs.
2.6 REIMBURSEMENT OF EXPENSES. The Company shall reimburse Executive for
such reasonable and necessary expenses as are incurred in carrying out his
duties hereunder, consistent with the Company's standard policies and annual
budget. The Company's obligation to reimburse Executive hereunder shall be
contingent upon the presentment by Executive of an itemized accounting of such
expenditures.
3. TERMINATION
3.1 TERMINATION PAYMENTS TO EXECUTIVE. As set forth more fully in this
Section 3 and except as provided in Sections 3.3 or 3.8 hereof, Executive shall
be paid the greater of the amounts or benefits set forth below or the amounts or
benefits provided under the terms of the separate plan or arrangement maintained
by the Company (or its Affiliates) on account of termination of employment
hereunder:
a. Executive's Base Compensation accrued but not yet paid as of the date
of his termination.
b. Executive's Base Compensation payable until the Termination Date
(determined without regard to the automatic renewal provisions of
Section 1.4 hereof), but not less than 100% of such annual Base
Compensation.
c. Executive's Incentive Bonus payable with respect to the year of his
termination, prorated to reflect Executive's actual period of service
during such year.
d. Executive's Incentive Bonus payable in the target amount for the year
in which his termination of employment occurs.
e. If Executive's principal office is located in Pineville, Louisiana,
the Company shall, at the written request of Executive:
i. Purchase his principal residence if such residence is located
within 60 miles of the Company's Pineville, Louisiana office (the
"Principal Residence") for an amount equal to the greater of (1)
the purchase price of such Principal Residence plus the
documented cost of any capital improvements to the Principal
Residence made by Executive, or (2) the fair market value of such
Principal Residence as determined by the Company's usual
relocation practice; and
Page 3
ii. Pay or reimburse Executive for the cost of relocating Executive,
his family and their household goods and other personal property,
in accordance with the Company's usual relocation practice, to
any location in the United States.
Notwithstanding the foregoing, the Company shall not be obligated
hereunder, unless, within 12 months after the termination of his
employment with the Company (and its Affiliates), the Company is
requested to purchase such Principal Residence or Executive has
actually relocated from the Pineville, Louisiana area.
f. If Executive and/or his dependents elects to continue group medical
coverage, within the meaning of Code Section 4980B(f)(2), with respect
to a group health plan sponsored by the Company or an Affiliate (other
than a health flexible spending account under a self-insured medical
reimbursement plan described in Code Sections 125 and 105(h)), the
Company shall pay the continuation coverage premium for the same type
and level of group health plan coverage received by Executive and his
electing dependents immediately prior to such termination of
Executive's employment for the maximum period provided under Code
Section 4980B.
g. Executive shall be fully vested for purposes of any service or similar
requirement imposed under the Cleco Utility Group Inc. Supplemental
Executive Retirement Plan (the "Supplemental Plan"), regardless of the
actual number of years of service attained by Executive.
Except as expressly provided in Section 3.3 hereof, Executive shall also be
entitled to receive such compensation or benefits as may be provided under the
terms of a separate plan or amendment maintained by the Company (or its
Affiliates) to the extent such compensation or benefits are not duplicative of
the compensation or benefits described above.
3.2 TERMINATION FOR DEATH OR DISABILITY. If Executive dies or becomes
disabled during the Employment Term, this Agreement and Executive's employment
hereunder shall immediately terminate and the Company's obligations hereunder
shall automatically cease. In such event, the Company shall pay to Executive
(or his estate) the amounts described in Sections 3.1a and 3.1c hereof. Payment
shall be made in the form of one or more single-sums as soon as practicable
after Executive's death or disability or as and when such amounts are
ascertainable.
For purposes of this Section 3.2, Executive shall be deemed "disabled" if
he or she is actually receiving benefits or is eligible to receive benefits
under the Company's (or an Affiliate's) separate long-term disability plan. The
Board shall determine whether Executive is disabled hereunder.
Page 4
3.3 COMPANY'S TERMINATION FOR CAUSE. This Agreement and Executive's
employment hereunder may be terminated by the Company on account of Cause. In
such event, the Company shall pay to Executive the amount described in Section
3.1a hereof. Payment shall be made in the form of a single-sum not later than
three days after such termination. Notwithstanding any provision of this
Agreement or any other plan, policy or agreement evidencing any other
compensation arrangement or benefit payable to Executive, no additional amount
shall be paid to Executive, except as may be required by law.
For purposes of this Agreement "Cause" means that Executive has:
a. Committed an intentional act of fraud, embezzlement or theft in the
course of his employment or otherwise engaged in any intentional
misconduct which is materially injurious to the Company's (or an
Affiliate's) financial condition or business reputation;
b. Committed intentional damage to the property of the Company (or an
Affiliate) or committed intentional wrongful disclosure of
Confidential Information (as defined in Section 5.2) which is
materially injurious to the Company's (or an Affiliate's) financial
condition or business reputation;
c. Intentionally refused to perform the material duties of his position;
or
d. A material breach of this Agreement by Executive.
No act or failure to act on the part of Executive will be deemed "intentional"
if it was due primarily to an error in judgment or negligence, but will be
deemed "intentional" only if done or omitted to be done by Executive not in good
faith and without reasonable belief that his action or omission was in the best
interest of the Company (or an Affiliate).
The Board, acting in good faith, may terminate Executive's employment
hereunder on account of Cause (or may determine that any termination by the
Company is on account of Cause). The Board shall provide written notice to
Executive, including a description of the specific reasons for the determination
of Cause. Executive shall have the opportunity to appear before the Board, with
or without legal representation, to present arguments and evidence on his
behalf. Following such presentation (or upon Executive's failure to appear),
the Board, by an affirmative vote of not less than 66% of its members, shall
confirm that the actions or inactions of Executive constitute Cause hereunder.
3.4 EXECUTIVE'S CONSTRUCTIVE TERMINATION. Executive may terminate this
Agreement and his employment hereunder on account of a Constructive Termination
upon 30 days prior written notice to the Chief Executive Officer (or such
shorter period as may be agreed upon by the parties hereto.) In such event, the
Company shall provide to Executive (a) the amount described in Section 3.1a
hereof, payable not later than three days after his termination of employment,
(b) the amounts determined under Sections 3.1b and 3.1d hereof, payable in not
more than two equal installments, one-half not later than 30 days after
termination and the other
Page 5
one-half six months after such termination, and (c) the benefits described in
Sections 3.1e, 3.1f and 3.1g hereof.
For purposes of this Agreement, "Constructive Termination" means:
a. A material reduction (other than a reduction in pay uniformly
applicable to all officers of the Company) in the amount of
Executive's Base Compensation;
b. A material reduction in Executive's authority, duties or
responsibilities from those contemplated in Section 1.1 of this
Agreement; or
c. A material breach of this Agreement by the Company or its Affiliates.
No event or condition described in this Section 3.4 shall constitute a
Constructive Termination unless (a) Executive promptly gives the Company notice
of his objection to such event or condition, which notice may be provided orally
or in writing to the Chief Executive Officer or his designee, (b) such event or
condition is not corrected by the Company promptly after receipt of such notice,
but in no event more than 30 days after receipt of notice, and (c) Executive
resigns his employment with the Company (and all Affiliates) not more than 15
days following the expiration of the 30-day period described in subparagraph (b)
hereof.
3.5 TERMINATION BY THE COMPANY, WITHOUT CAUSE. The Company may terminate
this Agreement and Executive's employment hereunder, without Cause, upon 30 days
prior written notice to Executive (or such shorter period as may be agreed upon
by Executive and the Chief Executive officer). In such event, the Company shall
provide to Executive (a) the amount described in Section 3.1a hereof, payable
not later than three days after such termination, (b) the amounts determined
under Sections 3.1b and 3.1d hereof, payable in not more than two equal
installments, one-half not later than 30 days after termination and the other
one-half six months after such termination, and (c) the benefits described in
Sections 3.1e, 3.1f and 3.1g hereof.
3.6 TERMINATION BY EXECUTIVE. Executive may terminate this Agreement and
his employment hereunder, other than on account of Constructive Termination,
upon 30 days prior written notice to the Company or such shorter period as may
be agreed upon by the Chief Executive Officer and Executive. In such event, the
Company shall pay to Executive the amount described in Section 3.1a hereof.
Payment shall be made in the form of a single-sum not later than three days
after such termination. No additional payments or benefits shall be due
hereunder, except as may be provided under a separate plan, policy or program
evidencing such compensation arrangement or benefit or as may be required by
law.
3.7 RETURN OF PROPERTY. Upon termination of this Agreement for any
reason, Executive shall promptly return to the Company all of the property of
the Company (and its Affiliates), including, without limitation, automobiles,
equipment, computers, fax machines, portable telephones, printers, software,
credit cards, manuals, customer lists, financial data, letters, notes,
notebooks, reports and copies of any of the above and any Confidential
Page 6
Information (as defined in Section 5.2 hereof) that is in the possession or
under the control of Executive.
3.8 CONSIDERATION FOR OTHER AGREEMENTS. Executive acknowledges that all
or a portion of the amount payable under Section 3.1d hereof is in excess of the
amount otherwise due or payable under the Annual Incentive Compensation Plan and
that the payment of such excess amount shall constitute adequate consideration
for the execution of such separate waivers or releases as the Company (or
Affiliate) may request Executive to execute in connection with the termination
of his employment hereunder. Executive agrees that failure to execute any such
waiver or release within the time request by the Company shall result in the
forfeiture of the excess amount payable under Section 3.1d hereof.
4. CHANGE IN CONTROL AND BUSINESS TRANSACTION
4.1 DEFINITIONS. The terms "Change in Control" and "Business Transaction"
shall have the meanings ascribed to them in the Cleco Corporation 2000 Long-Term
Incentive Compensation Plan, as the same may be amended from time to time.
The term "Good Reason," when used herein, shall mean that in connection
with a Change in Control:
a. Executive's Base Compensation in effect immediately before such Change
in Control is reduced or there is a significant reduction or
termination of Executive's rights to any employee benefit in effect
immediately prior to the Change in Control;
b. Executive's authority, duties or responsibilities are significantly
reduced from those contemplated in Section 1.1 hereof or Executive has
reasonably determined that, as a result of a change in circumstances
that significantly affects his employment with the Company (or an
Affiliate), he or she is unable to exercise the authority, power,
duties and responsibilities contemplated in Section 1.1 hereof;
c. Executive is required to be away from his office in the course of
discharging his duties and responsibilities under this Agreement
significantly more than was required prior to the Change in Control;
or
d. Executive is required to transfer to an office or business location
located more than 60 miles from the location to which he or she was
assigned prior to the Change in Control.
No event or condition described in this Section 4.1 shall constitute Good Reason
unless (a) Executive gives the Company notice of his objection to such event or
condition within a reasonable period after Executive learns of such event, which
notice may be delivered orally or in writing to the Chief Executive Officer (or
his designee), (b) such event or condition is not promptly corrected by the
Company, but in no event later than 30 days after receipt of such
Page 7
notice, and (c) Executive resigns his employment with the Company (and its
Affiliates) not more than 60 days following the expiration of the 30-day period
described in subparagraph (b) hereof.
4.2 TERMINATION IN CONNECTION WITH A CHANGE IN CONTROL. If Executive's
employment described herein is terminated by the Company, without Cause (as
defined in Section 3.3 hereof), or Executive terminates his employment hereunder
for Good Reason at any time within the 60-day period preceding or 36-month
period following such Change in Control, then notwithstanding any provision of
this Agreement to the contrary and in lieu of any compensation or benefits
otherwise payable hereunder:
a. The Company shall pay to Executive the amount described in Section
3.1a in the form of a single-sum not later than three days after such
termination.
b. The Company shall pay to Executive the amount described in Section
3.1d in the form of a single-sum not later than 30 days after such
termination.
c. The Company shall pay an amount equal to three times Executive's "base
amount" as determined under Code Section 280G, payable in the form of
a single-sum not later than 30 days after such termination.
d. The Company shall provide to Executive and his dependents coverage
under the Company's or an Affiliate's group medical plan for the same
type and level of health benefits received by Executive and his
dependents immediately prior to such termination for a period of three
years or until Executive and/or his dependents obtain coverage under a
reasonably satisfactory group health plan with no applicable
preexisting condition limitation, whichever comes first; such coverage
to be in addition to any coverage available to Executive and his
dependents under Code Section 4980B.
e. Vesting shall be accelerated, any restrictions shall lapse, and all
performance objectives shall be deemed satisfied as to any outstanding
grants or awards made to Executive under the 2000 Long-Term Incentive
Compensation Plan and/or the 1990 Long-Term Incentive Compensation
Plan. Executive shall be entitled to such additional benefits or
rights as may be provided in the documents evidencing such plans or
the terms of any agreement evidencing such grant or award.
f. Executive shall be fully vested for purposes of any service or similar
requirement imposed under the Supplemental Plan, regardless of the
actual number of years of service attained by Executive. Executive
shall be credited with an additional three years of age for purposes
of determining his benefit percentage under the Supplemental Plan, but
in no event shall such benefit percentage be less than 50%; and
Executive shall be credited with an additional three years of age for
purposes of determining any reduction taken with respect to benefits
commencing before Executive's normal retirement date (as defined in
such plan).
Page 8
g. If Executive's principal office is located in Pineville, Louisiana,
the Company shall, at the written request of Executive:
i. Purchase his principal residence if such residence is located
within 60 miles of the Company's Pineville, Louisiana office (the
"Principal Residence") for an amount equal to the greater of (1)
the purchase price of such Principal Residence plus the
documented cost of any capital improvements to the Principal
Residence made by Executive, or (2) the fair market value of such
Principal Residence as determined by the Company's usual
relocation practice; and
ii. Pay or reimburse Executive for the cost of relocating Executive,
his family and their household goods and other personal property,
in accordance with the Company's usual relocation practice, to
any location in the United States.
Notwithstanding the foregoing, the Company shall not be obligated
hereunder, unless, within 12 months after the termination of his
employment with the Company (and its Affiliates), the Company is
requested to purchase such Principal Residence or Executive has
actually relocated from the Pineville, Louisiana area.
h. The Company shall pay to Executive an amount equal to the Company's
(including all Affiliates) maximum matching contribution obligation
under the Cleco Corporation 401(k) Savings and Investment Plan, as the
same may be amended from time to time, for each of the three years
immediately following Executive's termination of employment,
determined as if Executive was credited with at least 1,000 hours of
service in each such plan year, was employed as of the last day of
each plan year, and contributed the maximum permissible amount under
Code Section 402(g) in each such year, but determined using the amount
in effect as of the date of Executive's termination of employment;
such amount shall be paid in the form of a single-sum not later than
30 days after Executive's termination of employment hereunder.
4.3 BUSINESS TRANSACTION. If Executive's employment hereunder is
terminated (other than on account of Cause as defined in Section 3.3 hereof) in
connection with a Business Transaction, then notwithstanding any provision of
this Agreement to the contrary, the Company shall pay or provide to Executive
(a) the amount described in Section 3.1a hereof, payable not later than three
days after his termination of employment, (b) the amounts determined under
Sections 3.1b and 3.1d hereof, payable in not more than two equal installments,
one-half not later than 30 days after termination and the other one-half six
months after such termination, and (c) the benefits described in Sections 3.1e
and 3.1f and 4.2e and 4.2f hereof.
Page 9
4.4 TAX PAYMENT. If any payment to Executive pursuant to this Agreement or
any other payment or benefit from the Company or an Affiliate in connection with
a Change in Control or Business Transaction is subject to the excise tax imposed
under Code Section 4999 or any similar excise or penalty tax payable under any
United States federal, state, local or other law, the Company shall pay an
amount to Executive such that, after the payment by Executive of all taxes on
such amount, there remains a balance sufficient to pay such excise or penalty
tax. Executive shall submit to the Company the amount to be paid under this
Section 4.4, together with supporting documentation. If Executive and the
Company disagree as to such amount, an independent public accounting firm agreed
upon by Executive and the Company shall make such determination.
5. LIMITATIONS ON ACTIVITIES
5.1. CONSIDERATION FOR LIMITATION ON ACTIVITIES. Executive acknowledges that
the execution of this Agreement and the payments described herein constitute
consideration for the limitations on activities set forth in this Section 5, the
adequacy of which is hereby expressly acknowledged by Executive.
5.2 CONFIDENTIAL INFORMATION. Executive recognizes and acknowledges that
during the terms of his employment, he will have access to confidential,
proprietary, non-public information concerning the Company and its Affiliates,
which may include, without limitation, (a) books and records relating to
operations, finance, accounting, personnel and management, (b) price, rate and
volume data, future price and rate plans, and test data, (c) information related
to product design and development, (d) computer software, customer lists,
information obtained on competitors, and sales tactics, and (e) various other
non-public trade or business information, including business opportunities,
marketing or business diversification plans, methods and processes, and
financial data and the like (collectively, the "Confidential Information").
Executive agrees that he or she will not at any time, either while employed by
the Company or afterwards, make any independent use of, or disclose to any other
person or organization (except as authorized by the Company or pursuant to court
order) any of the Confidential Information.
5.3 NON-SOLICITATION. Executive agrees that during the one-year period
commencing as of the date of voluntary termination by Executive (as described in
Section 3.6 hereof) or the involuntary termination of Executive on account of
Cause (as described in Section 3.3 hereof), he or she shall not, directly or
indirectly, for his own benefit or on behalf of another or to the Company's (or
an Affiliate's) detriment:
a. Hire or offer to hire any of the Company's (or Affiliate's) officers,
employees or agents;
b. Persuade or attempt to persuade in any manner any officer, employee or
agent of the Company (or an Affiliate) to discontinue any relationship
with the Company; or
Page 10
c. Solicit or divert or attempt to divert any customer or supplier of the
Company or an Affiliate.
The provisions of this Section 5.3 shall apply in the locations set forth on
Exhibit A hereto, as the same may be amended from time to time. Executive
acknowledges that the Company (or its Affiliates) is presently doing business in
such locations and that during the Employment Term Executive will be required to
provide services to or for the benefit of the Company (or its Affiliates) in
such locations.
The parties agree that each of the foregoing prohibitions is intended to
constitute a separate restriction. Accordingly, should any such prohibition be
declared invalid or unenforceable, such prohibition shall be deemed severable
from and shall not affect the remainder thereof. The parties further agree that
each of the foregoing restrictions is reasonable in both time and geographic
scope.
5.4 BUSINESS REPUTATION. Executive agrees that during his employment with
the Company (and its Affiliate) and at all times thereafter, he shall refrain
from performing any act, engaging in any conduct or course of action or making
or publishing an adverse, untrue or misleading statement which has or may
reasonably have the effect of demeaning the name or business reputation of the
Company or its Affiliates or which adversely affects (or may reasonably
adversely affect) the best interests (economic or otherwise) of the Company or
an Affiliate.
5.5 REMEDIES. In the event of a breach or threatened breach by Executive
of the provisions of Sections 5.2, 5.3 or 5.4 hereof, Executive agrees that the
Company shall be entitled to a temporary restraining order or a preliminary
injunction (without the necessity of posting bond in connection therewith) and
that any additional payments or benefits due to Executive or his dependents
under Sections 3 and 4 hereof shall be canceled and forfeited. Nothing herein
shall be construed as prohibiting the Company from pursuing any other remedy
available to it for such breach or threatened breach, including the recovery of
damages from Executive.
6. MISCELLANEOUS
6.1 MITIGATION NOT REQUIRED. As a condition of any payment hereunder,
Executive shall not be required to mitigate the amount of such payment by
seeking other employment or otherwise, nor will any profits, income, earnings or
other benefits from any source whatsoever create any mitigation, offset,
reduction or any other obligation on the part of Executive under this Agreement.
6.2 ENFORCEMENT OF THIS AGREEMENT. In the event any dispute in connection
with this Agreement arises with respect to obligations of Executive or the
Company that were required prior to the occurrence of a Change in Control or a
Business Transaction, all costs, fees and expenses, including attorney fees, of
any litigation, arbitration or other legal action in connection with such
matters in which Executive substantially prevails, shall be borne by, and be the
obligation of, the Company.
Page 11
After a Change in Control or Business Transaction has occurred, Executive
shall not be required to incur legal fees and the related expenses associated
with the interpretation, enforcement or defense of Executive's rights under this
Agreement by litigation or otherwise. Accordingly, if, following a Change in
Control or Business Transaction, the Company has failed to comply with any of
its obligations under this Agreement or the Company or any other person takes or
threatens to take any action to declare this Agreement void or unenforceable or
in any way reduce the possibility of collecting the amounts due hereunder, or
institutes any litigation or other action or proceeding designed to deny or to
recover from Executive the benefits provided or intended to be provided under
this Agreement, Executive shall be entitled to retain counsel of Executive's
choice, at the expense of the Company, to advise and represent Executive in
connection with any such interpretation, enforcement or defense, including
without limitation the initiation or defense of any litigation, arbitration or
other legal action, whether by or against the Company or any director, officer,
stockholder or other person affiliated with the Company, in any jurisdiction.
The Company shall pay and be solely financially responsible for any and all
attorneys' and related fees and expenses incurred by Executive in connection
with any of the foregoing, without regard to whether Executive prevails, in
whole or in part.
In no event shall Executive be required to reimburse the Company for any of
the costs and expenses incurred by the Company relating to arbitration,
litigation or other legal action in connection with this Agreement.
6.3 NO SET-OFF. There shall be no right of set-off or counterclaim in
respect of any claim, debt or obligation against any payment to Executive
provided for in this Agreement.
6.4 ASSISTANCE WITH LITIGATION. For a period of one year after the end of
the last period for which Executive will have received any compensation under
this Agreement, Executive will furnish such information and proper assistance as
may be reasonably necessary in connection with any litigation in which the
Company (or an Affiliate) is then or may become involved.
6.5 HEADINGS. Section and other headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
6.6 ENTIRE AGREEMENT. This Agreement constitutes the entire understanding
and agreement among the parties hereto with respect to the subject matter
hereof, and there are no other agreements, understandings, restrictions,
representations or warranties among the parties other than those set forth
herein.
6.7 AMENDMENTS. This Agreement may be amended or modified at any time in
any or all respects, but only by an instrument in writing executed by the
parties hereto.
6.8 CHOICE OF LAW. The validity of this Agreement, the construction of
its terms, and the determination of the rights and duties of the parties hereto
shall be governed by and
Page 12
construed in accordance with the internal laws of the State of Louisiana
applicable to contracts made to be performed wholly within such state.
6.9 NOTICES. All notices and other communications under this Agreement
must be in writing and will be deemed to have been duly given when (a) delivered
by hand, (b) sent by telecopier to a telecopier number given below, provided
that a copy is sent by a nationally recognized overnight delivery service
(receipt requested), or (c) when received by the addressee, if sent by a
nationally recognized overnight delivery service (receipt requested), in each
case as follows:
If to Executive: Xxxx X. Xxxxxx
00 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
If to the Company: Cleco Corporation
0000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Chief Executive Officer
Telecopier: (000) 000-0000
or to such other addresses as a party may designate by notice to the other
party.
6.10 ASSIGNMENT. This Agreement will inure to the benefit of and be
binding upon the Company, its Affiliates, successors and assigns, including,
without limitation, any person, partnership, company, corporation or other
entity that may acquire substantially all of the Company's assets or business or
with or into which the Company may be liquidated, consolidated, merged or
otherwise combined, and will inure to the benefit of and be binding upon
Executive, his heirs, estate, legatees and legal representatives. If payments
become payable to Executive's surviving spouse or other assigns and such person
thereafter dies, such payment will revert to Executive's estate.
6.11 SEVERABILITY. Each provision of this Agreement is intended to be
severable. In the event that any one or more of the provisions contained in
this Agreement shall for any reason be held to be invalid, illegal or
unenforceable, the same shall not affect the validity or enforceability of any
other provision of this Agreement, but this Agreement shall be construed as if
such invalid, illegal or unenforceable provisions was not contained herein.
Notwithstanding the foregoing, however, no provision shall be severed if it is
clearly apparent under the circumstances that the parties would not have entered
into this Agreement without such provision.
6.12 WITHHOLDING. The Company (or an Affiliate) may withhold from any
payment hereunder any federal, state or local taxes required to be withheld.
6.13 SURVIVAL. Notwithstanding anything herein to the contrary, to the
extent applicable, the obligations of the Company (and its Affiliates) under
Sections 3 and 4, and the
Page 13
obligations of Executive under Sections 3 and 5, shall remain operative and in
full force and effect regardless of the expiration of this Agreement.
6.14 WAIVER. The failure of either party to insist in any one or more
instances upon performance of any terms or conditions of this Agreement will not
be construed as a waiver of future performance of any such term, covenant, or
condition and the obligations of either party with respect to such term,
covenant or condition will continue in full force and effect.
THIS AGREEMENT is executed in multiple counterparts as of the dates set
forth below, each of which shall be deemed an original, to be effective as of
the Effective Date designated above.
CLECO CORPORATION EXECUTIVE
By:
------------------------------- --------------------------------
XXXX X. XXXXXX
Its:
------------------------------
Date: Date:
----------------------------- ---------------------------
Page 14
CLECO CORPORATION
EXECUTIVE EMPLOYMENT AGREEMENT
EXHIBIT A
This Exhibit A is intended to form a part of that certain Executive
Employment Agreement by and between Cleco Corporation and XXXX X. XXXXXX, first
effective as of July 28, 2000. The parties agree that the proscriptions set
forth in Section 5.3 thereof shall apply in the State of Louisiana, Parishes of:
Acadia Parish
Xxxxx Xxxxxx
Avoyelles Parish
Xxxxxxxxxx Parish
Calcasieu Parish
Catahoula Parish
Desoto Parish
Xxxxxxxxxx Xxxxxx
Xxxxx Xxxxxx
Iberia Parish
Xxxxxxxxx Xxxxx Parish
Lafayette Parish
Lasalle Parish
Natchitoches Parish
Rapides Parish
Red River Parish
Xxxxxx Xxxxxx
St. Landry Parish
St. Xxxxxx Xxxxxx
St. Xxxx Xxxxxx
St. Tammany Parish
Xxxxxx Xxxxxx
Washington Parish
Executive and the Company agree that the Company shall amend this Exhibit A,
from time to time, to eliminate Parishes in which the Company is no longer doing
business and to add Parishes in which the Company is currently doing business.
Page 15
