Exhibit 99.3
EMPLOYMENT AGREEMENT
AGREEMENT by and between WCB Holding Corp., a
Delaware corporation (the "Company"), and J. Xxxxx
Xxxxxxx (the "Executive"), dated as of _________, 200__.
WHEREAS, the Executive is currently serving as
Chief Executive Officer of Entergy Corporation, a
Delaware corporation ("E Corp"); and
WHEREAS, the Company, E Corp, FPL Group, Inc.,
a Florida corporation ("F Corp"), Ring Acquisition Corp.,
a Delaware corporation and a wholly-owned subsidiary of
the Company ("E Acquisition Corp") and Ranger Acquisition
Corp., a Florida corporation and a wholly-owned
subsidiary of the Company ("F Acquisition Corp") have
entered into an Agreement and Plan of Merger, dated as of
July 30, 2000 (the AMerger Agreement@), pursuant to which
E Acquisition Corp and F Acquisition Corp will merge with
and into E Corp and F Corp, respectively; and
WHEREAS, the Company wishes to provide for the
orderly succession of the management of the Company, E
Corp, F Corp and their affiliates following the Effective
Time (as defined in the Merger Agreement); and
WHEREAS, the Executive is willing to commit
himself to be employed by the Company on the terms and
conditions herein set forth; and
WHEREAS, the parties desire to enter into this
Agreement setting forth the terms and conditions for the
employment relationship of the Executive with the Company
during the Employment Period (as hereinafter defined),
NOW, THEREFORE, IN CONSIDERATION of the mutual
premises, covenants and agreements set forth below, it is
hereby agreed as follows:
1. General.
(a) Employment. The Company agrees to employ
the Executive, and the Executive agrees to be employed by
the Company, in accordance with the terms and provisions
of this Agreement during the Employment Period.
(b) Term. The term of the Executive's
employment under this Agreement (the AEmployment Period@)
shall commence at the Effective Time and shall continue
until the third anniversary thereof; provided, however,
that on the first anniversary of the Effective Time and
each subsequent anniversary thereof (each of such first
and subsequent anniversaries, an "Extension Date"), the
Employment Period shall automatically be extended for one
additional year unless, at least three months prior to
the applicable Extension Date, the Company or the
Executive shall have given written notice not to extend
the Employment Period. Notwithstanding anything herein
to the contrary, if the Merger Agreement is terminated,
then as of the time of such termination this Agreement
shall be deemed canceled and of no force or effect.
2. Duties and Powers of the Executive.
(a) Position, Duties and Reporting.
(i) During the period beginning on the
first day of the Employment Period and ending on the
earlier of (A) the first anniversary thereof or (B)
the date on which the individual serving as the
Company's Executive Chairman as of the Effective
Time (the "Executive Chairman") ceases to so serve
(the "Initial Period"), the Executive shall serve as
President and Chief Executive Officer of the Company
and shall report directly to the Executive Chairman.
During the Initial Period, the Executive shall have
all of the powers, duties and responsibilities
typically associated with the positions of President
and Chief Executive Officer, including but not
limited to direct charge of and general supervision
over the business affairs of the Company,
interaction with and presentation of matters to the
Board of Directors of the Company (the "Board") and
such other duties, rights and responsibilities which
may be assigned to him by the Board. Notwithstand
ing the foregoing, during the Initial Period, the
Executive shall have input into, but shall not have
primary responsibility with respect to, transition
and integration matters relating to the transactions
contemplated by the Merger Agreement, the primary
responsibility for which matters shall be the respon
sibility of the Executive Chairman. During the
Initial Period, all Company officers shall report to
the Executive.
(ii) During the remaining portion of the
Employment Period (the "Secondary Period"), the
Executive shall serve as President and Chief
Executive Officer of the Company and shall report
directly to the Board. During the Secondary Period,
the Executive shall have all of the powers, duties
and responsibilities typically associated with the
positions of President and Chief Executive Officer,
including but not limited to direct charge of and
general supervision over the business affairs of the
Company, interaction with and presentation of
matters to the Board and such other duties, rights
and responsibilities which may be assigned to him by
the Board. During the Secondary Period, all Company
officers shall report to the Executive.
(b) Board Membership. The Executive shall be a
member of the Board commencing as of the first day of the
Employment Period, and the Board shall propose the
Executive for re-election to the Board throughout the
Employment Period. At the end of the Employment Period,
the Executive may continue as a member of the Board and
may be considered for nomination for reelection to the
Board thereafter on the same basis as the other
non-employee directors.
(c) Other Positions. During the Employment
Period, the Executive agrees to serve, if elected, at no
additional compensation in the position of officer or
director of any subsidiary or affiliate of the Company;
provided, however, that such position shall be of no less
status relative to such subsidiary or affiliate as the
position that the Executive holds pursuant to subsection
(a) is relative to the Company.
(d) Attention. During the Employment Period,
and excluding any periods of vacation and sick leave to
which the Executive is entitled, the Executive agrees to
devote full attention and time during normal business
hours to the business and affairs of the Company and to
use the his reasonable best efforts to perform such
responsibilities in a professional manner. It shall not
be a violation of this Agreement for the Executive to (i)
serve on corporate, civic or charitable boards or
committees, (ii) deliver lectures, fulfill speaking
engagements or teach at educational institutions and
(iii) manage personal investments, so long as such
activities do not significantly interfere with the
performance of the Executive=s responsibilities as an
officer of the Company in accordance with this Agreement.
(e) Location. During the Employment Period,
the Company=s headquarters shall be located in Juno
Beach, Florida, and the Executive shall be employed at
such headquarters except for reasonably required travel
on the Company's business. The Executive shall establish
a principal residence in the general area of Juno Beach,
Florida. The Company shall assure that the Executive
suffers no financial loss on the sale of the principal
residence presently maintained by the Executive in the
New Orleans metropolitan area (including a gross-up
payment for the additional income taxes payable by the
Executive as a result of such payment for any such loss).
The Company shall reimburse the Executive for all of his
moving expenses incurred in relocating to the Juno Beach,
Florida area. During the period from the first day of
the Employment Period and the date of such relocation,
the Company shall provide the Executive with an apartment
in the Juno Beach, Florida area and reimburse him for
reasonable expenses while in the Juno Beach, Florida area
and travel between the Juno Beach, Florida area and his
principal residence, provided in each case that the
Executive complies with the policies, practices and
procedures of the Company for relocation benefits for
senior executives of the Company, and for submission of
expense reports, receipts, or similar documentation of
such expenses.
(f) By-laws of the Company. At all times from
the Effective Time through the respective periods set
forth in Sections 2.11 and 3.03 of the Company's By-laws,
as in effect as of the date hereof (the "By-laws"), such
Sections of the By-laws shall remain in effect unless
amended by the affirmative vote of at least two-thirds of
the Board (a AQualified Majority@).
3. Compensation.
(a) Base Salary. The annual rate of base
salary payable to the Executive from and after the
Effective Time (the "Annual Base Salary") will be
determined by the compensation committee of the Board
(the "Compensation Committee") at or before the Effective
Time (subject to annual reviews and increases thereafter)
based on competitive practices for the chief executive
officers of companies of comparable size and standing,
but in no event shall such base salary during the Initial
Period be less than the base salary payable to the
Executive Chairman. The Annual Base Salary shall be
payable in accordance with the Company=s regular payroll
practice for its senior executives, as in effect from
time to time. During the Employment Period, the Annual
Base Salary shall be reviewed by the Compensation
Committee for possible increase at least annually. The
Annual Base Salary shall not be reduced after any such
increase, and the term AAnnual Base Salary@ shall thereaf
ter refer to the Annual Base Salary as so increased.
(b) Annual Incentive Compensation. The
Executive shall be eligible to earn such annual incentive
compensation as is determined by the Compensation
Committee at or before the Effective Time (subject to
annual reviews and increases thereafter) based on
competitive practices for the chief executive officers of
companies of comparable size and standing. The annual
incentive compensation paid to the Executive with respect
to the Initial Period shall not be less than the annual
incentive compensation paid to the Executive Chairman
with respect to the Initial Period and the Executive's
annual incentive compensation opportunity during the
Secondary Period shall be on terms and conditions no less
favorable than those made available to any other senior
officer of the Company.
(c) Long-Term Incentives. The Executive shall
be eligible to earn such long-term incentive compensation
as is determined by the Compensation Committee at or
before the Effective Time (subject to annual reviews and
increases thereafter) based on competitive practices for
the chief executive officers of companies of comparable
size and standing. Such opportunities may, in the
discretion of the Compensation Committee, include stock
options, stock appreciation rights, restricted stock or
stock units, performance stock or units and/or other
types of long-term incentive awards. The long-term
incentive compensation awarded to the Executive with
respect to performance periods commencing on or after the
Effective Time during the Initial Period shall be on
terms and conditions no less favorable than the long-term
incentive compensation awarded to the Executive Chairman
with respect to the Initial Period and the Executive's
long-term incentive compensation opportunity with respect
to performance periods commencing on or after the Effec
tive Time during the Secondary Period shall be on terms
and conditions no less favorable than those made
available to any other senior officer of the Company.
(d) Employee Benefit Programs. During the
Employment Period, (i) the Executive shall be eligible to
participate in all savings and retirement plans,
practices, policies and programs on at least as favorable
a basis as any other senior executive of the Company and,
during the Initial Period, at least as favorable a basis
as the Executive Chairman and (ii) the Executive and/or
the Executive=s family, as the case may be, shall be
eligible for participation in and shall receive all
benefits under welfare benefit plans, practices, policies
and programs provided by the Company, other than
severance plans, practices, policies and programs but
including, without limitation, medical, prescription,
dental, disability, salary continuance, employee life
insurance, group life insurance, accidental death and
travel accident insurance plans and programs, and, upon
retirement, all applicable retirement benefit plans to
the same extent and subject to the same terms,
conditions, cost-sharing requirements and the like, as
any other senior executive of the Company and, during the
Initial Period, as the Executive Chairman, as such plans
may be amended from time to time.
(e) Supplemental Retirement Benefits. During
the Employment Period, the Executive shall participate in
one or more supplemental executive retirement plans,
agreements and arrangements ("SERPs") such that the
aggregate value of the retirement benefits that he and
his beneficiaries will receive at the end of the
Employment Period under all pension benefit plans,
agreements and arrangements of the Company and its
affiliates (whether qualified or not) will be not less
than the benefits he would have received had he
continued, through the end of the Employment Period, to
participate in all pension benefit plans, agreements and
arrangements of E Corp and its affiliates in which he
participates on the date hereof, including but not
limited to the letter agreement between the Executive and
Entergy Services Inc. dated as of March 13, 1998.
(f) Expenses. The Executive is authorized to
incur reasonable expenses in carrying out his duties and
responsibilities under this Agreement and the Company
shall promptly reimburse him for all such expenses,
subject to documentation in accordance with reasonable
policies of the Company in effect from time to time.
(g) Fringe Benefits. During the Employment
Period, the Executive shall be furnished with such fringe
benefits and perquisites as are customary for the
President and Chief Executive Officer of a corporation of
the size and nature of the Company and shall participate
in all fringe benefits and perquisites available to any
other senior executive of the Company and, during the
Initial Period, to the Executive Chairman.
(h) Vacation. During the Employment Period.
the Executive shall be entitled to paid vacation on at
least as favorable a basis as any other senior executive
of the Company and, during the Initial Period, as the
Executive Chairman.
(i) Compensation Review. Prior to the end of
the Initial Period, the Compensation Committee shall
undertake, with the aid of an independent,
nationally-recognized compensation consultant, a
comprehensive review of all components of the Executive's
compensation and shall adjust the Executive's
compensation, effective as of the first day of the
Secondary Period, in a manner consistent with the results
of such review; provided, however, that in no event shall
any component of the Executive's compensation be reduced
or otherwise adversely affected without the Executive's
consent.
4. Termination of Employment.
(a) Death or Disability. The Executive=s
employment shall terminate automatically upon the
Executive=s death during the Employment Period. If the
Company determines in good faith that the Disability of
the Executive has occurred during the Employment Period
(pursuant to the definition of Disability set forth
below), it may give to the Executive written notice in
accordance with Section 4(b) of this Agreement of its
intention to terminate the Executive=s employment. In
such event, the Executive=s employment with the Company
shall terminate effective on the 30th day after receipt
of such notice by the Executive (the ADisability Effec
tive Date@), provided that, within the 30 days after such
receipt, the Executive shall not have returned to
full-time performance of the Executive=s duties. For
purposes of this Agreement, ADisability@ means that (i)
the Executive has been unable, for the period, if any,
specified in the Company=s disability plan for senior
executives, but not less than a period of 180 consecutive
days, to perform the Executive=s duties under this
Agreement and (ii) a physician selected by the Company or
its insurers, and reasonably acceptable to the Executive
or the Executive=s legal representative, has determined
that the Executive is disabled within the meaning of the
applicable disability plan for senior executives.
(b) By the Company.
(i) The Company may terminate the Executive=s
employment during the Employment Period for Cause or
without Cause. For purposes of this Agreement,
ACause@ shall mean (A) willful and continued failure
by the Executive to substantially perform his duties
under this Agreement or (B) the conviction of, or
the entering of plea of nolo contendere by, the
Executive of a felony. For purposes of the
foregoing, (1) no act or failure to act on the part
of the Executive shall be considered Awillful@
unless it is done, or omitted to be done, by the
Executive in bad faith or without reasonable belief
that the Executive=s action or omission was in the
best interests of the Company and (2) any act or
failure to act that is based upon authority given
pursuant to a resolution duly adopted by the Board,
or the advice of counsel for the Company, shall be
conclusively presumed to be done, or omitted to be
done, by the Executive in good faith and in the best
interests of the Company. The Company expressly
acknowledges that Cause will not exist merely
because of a failure of the Company or its
affiliates to meet budgeted results.
(ii) A termination of the Executive's
employment for Cause shall be effected only in
accordance with the following procedures. The
Company shall give the Executive written notice
("Notice of Termination for Cause") of its intention
to terminate the Executive's employment for Cause,
setting forth in reasonable detail the specific
conduct of the Executive that it considers to
constitute Cause and the specific provision(s) of
this Agreement on which it relies. The Executive
shall have 30 days after receiving the Notice of
Termination for Cause in which to cure such act or
failure. If the Executive fails to cure such act or
failure to the reasonable satisfaction of the Board,
the Company shall give the Executive a second
written notice stating the date, time and place of a
special meeting of the Board called and held
specifically for the purpose of considering the
Executive's termination for Cause, which special
meeting shall take place not less than ten and not
more than twenty business days after the Executive
receives notice thereof. The Executive shall be
given an opportunity, together with counsel, to be
heard at the special meeting of the Board. The
Executive's termination for Cause shall be effective
when and if a resolution is duly adopted at such
special meeting by the affirmative vote of at least
2/3 of the Board stating that in the good faith
opinion of the Board, the Executive is guilty of the
conduct described in the Notice of Termination for
Cause and that such conduct constitutes Cause under
this Agreement.
(iii) Any termination of the Executive's
employment without Cause shall be approved, for so
long as the By-laws contain the provision described
in Section 2(f) above, by at least a Qualified
Majority of the Board and, at all other times, by at
least a majority of the full membership of the
Board. Termination without Cause shall be
communicated to the Executive by written notice
specifying the effective date of termination, which
date shall be not less than 30 days after the
delivery of such notice, and that such termination
is without Cause for purposes of this Agreement.
(c) Good Reason.
(i) The Executive may terminate his employment
for Good Reason or without Good Reason. For purpose
of this Agreement, AGood Reason@ shall mean:
(A) any adverse change in the Executive=s
titles, authority, duties, responsibilities and
reporting lines as specified in Section 2(a) of
this Agreement or the assignment to the
Executive of any duties or responsibilities
inconsistent in any respect with those
customarily associated with the position to be
held by the Executive pursuant to this
Agreement;
(B) the failure by the Board to nominate
the Executive for reelection to the Board at
any annual meeting of the Company's
shareholders during the Employment Period at
which the Executive's term as a director is
scheduled to expire;
(C) except as otherwise expressly
provided herein, the appointment at any time
during the Employment Period of any person
other than the Executive to (x) the position of
Chief Executive Officer, or (y) any other
position or title conferring similar status or
authority;
(D) the failure by the Company to
maintain the provisions of the By-laws
specified in Section 2(f) for the respective
periods specified in the By-laws as of the date
hereof;
(E) any failure by the Company to comply
with any provision of Section 3 of this
Agreement;
(F) any requirement by the Company that
the Executive's services be rendered primarily
at a location or locations other than that
provided for in Section 2(e);
(G) any purported termination of the
Executive's employment by the Company for a
reason or in a manner not expressly permitted
by this Agreement;
(H) any failure by the Company to comply
with Section 10(c) of this Agreement; or
(I) any other material breach of this
Agreement by the Company that either is not
taken in good faith or, even if taken in good
faith, is not remedied by the Company promptly
after receipt of notice thereof from the
Executive.
Following a Change in Control, the Executive's
determination that an act or failure to act
constitutes Good Reason shall be presumed to be
valid unless such determination is deemed to be
unreasonable by an arbitrator.
(ii) A termination of employment by the
Executive for Good Reason shall be effectuated by
giving the Company written notice ("Notice of
Termination for Good Reason") of the termination,
setting forth in reasonable detail the specific acts
or omissions of the Company that constitute Good
Reason and the specific provision(s) of this
Agreement on which the Executive relies. The
Company shall have 30 days from the receipt of such
Notice of Termination for Good Reason to cure the
conduct cited therein. A termination of employment
by the Executive for Good Reason shall be effective
on the final day of such 30-day cure period unless
prior to such time the Company has cured the
specific conduct asserted by the Executive to
constitute Good Reason to the reasonable
satisfaction of the Executive (unless the notice
sets forth a later date (which date shall in no
event be later than 30 days after the notice is
given) as of which such termination shall be effec
tive).
(iii) A termination of the Executive=s
employment by the Executive without Good Reason
shall be effected by giving the Company written
notice specifying the effective date of termination
and that such termination is without Good Reason for
purposes of this Agreement.
(d) Date of Termination. The "Date of
Termination" means the date of the Executive's death, the
Disability Effective Date, the date on which the
termination of the Executive's employment by the Company
for Cause or without Cause or by the Executive for Good
Reason is effective, or the effective date specified in a
notice of a termination of employment without Good Reason
from the Executive to the Company, as the case may be.
5. Obligations of the Company upon
Termination.
(a) Good Reason; Other Than for Cause. If,
during the Employment Period, the Company shall terminate
the Executive=s employment other than for Cause, death or
Disability, or the Executive shall terminate his
employment for Good Reason:
(i) the Company shall pay to the Executive in
a lump sum in cash, within 10 days after the Date of
Termination, the aggregate of the amounts set forth
in clauses A, B and C below:
(A) The sum of:
(1) the Executive=s Annual Base
Salary through the Date of
Termination to the extent not
theretofore paid;
(2) the product of (x) the greater
of (i) the highest annual bonus
paid or payable to the Executive
by the Company and its
affiliated companies, including
by reason of any deferral, in
respect of the three fiscal
years immediately preceding the
fiscal year in which occurs the
Date of Termination or (ii) the
"target" annual bonus as in
effect under the Company=s
annual incentive plan for the
fiscal year in which occurs the
Date of Termination (the
"Highest Bonus") and (y) a
fraction, the numerator of which
is the number of days in the
current calendar year through
the Date of Termination, and the
denominator of which is 365; and
(3) any accrued vacation pay;
in each case to the extent not
theretofore paid (the sum of the
amounts described in clauses (1),
(2) and (3) shall be hereinafter
referred to as the AAccrued Obliga
tions@);
(B) the amount equal to the product of
(1) three and (2) the sum of (x) the
Executive=s Annual Base Salary and
(y) the Highest Bonus; and
(C) an amount equal to the excess of
(1) the actuarial equivalent of the
benefit under the Company's
applicable qualified defined
benefit retirement plan in which
the Executive is participating
immediately prior to his Date of
Termination (the "Retirement
Plan") (utilizing the rate used
to determine lump sums and, to
the extent applicable, other
actuarial assumptions no less
favorable to the Executive than
those in effect under E Corp's
tax-qualified defined benefit
pension plan immediately prior
to the Effective Time) and any
SERPs in which the Executive
participates which the Executive
would receive if the Executive's
employment continued for three
additional years beyond the Date
of Termination (or, if later,
until the Executive attains age
55), assuming for this purpose
that all accrued benefits are
fully vested, and, assuming that
the Executive=s compensation for
such deemed additional period
was the Executive=s Annual Base
Salary as in effect immediately
prior to the Date of Termination
and assuming a bonus in each
year during such deemed
additional period equal to the
Highest Bonus, over
(2) the actuarial equivalent of the
Executive=s actual benefit (paid
or payable), if any, under the
Retirement Plan and the SERPs as
of the Date of Termination
(utilizing the rate used to
determine lump sums and, to the
extent applicable, other
actuarial assumptions no less
favorable to the Executive than
those in effect under E Corp's
tax-qualified defined benefit
pension plan immediately prior
to the Effective Time);
(ii) any stock awards, stock options, stock
appreciation rights or other equity-based awards
that were outstanding immediately prior to the Date
of Termination (APrior Stock Awards@) shall vest
and/or become exercisable, as the case may be, as of
the Date of Termination, and the Executive shall
have the right to exercise any such stock option,
stock appreciation right or other exercisable
equity-based award until the earlier of (A) three
years from the Date of Termination (or such longer
period as may be provided under the terms of any
such stock option, stock appreciation right or other
equity-based award) and (B) the normal expiration
date of such stock option, stock appreciation right
or other equity-based award;
(iii) for three years after the Executive=s
Date of Termination or such longer period as may be
provided by the terms of the appropriate plan,
program, practice or policy, the Company shall
continue benefits to the Executive and/or the
Executive=s family at least equal to those which
would have been provided to them in accordance with
the welfare plans, programs, practices and policies
described in Section 3(d) of this Agreement if the
Executive=s employment had not been terminated or,
if more favorable to the Executive, as in effect
generally at any time thereafter with respect to
other peer executives of the Company and its
affiliated companies and their families, provided,
however, that if the Executive becomes reemployed
with another employer and is eligible to receive
medical or dental benefits under another employer
provided plan, the medical and dental benefits
described herein shall be secondary to those
provided under such other plan during such
applicable period of eligibility. For purposes of
determining eligibility (but not the time of
commencement of benefits) of the Executive for
retiree benefits pursuant to such plans, practices,
programs and policies, the Executive shall be
considered to have remained employed until three
years after the date of Termination and to have
retired on the last day of such period; and
(iv) to the extent not theretofore paid or
provided, the Company shall timely pay or provide to
the Executive any other amounts or benefits required
to be paid or provided or which the Executive is
entitled to receive under any plan, program, policy,
practice, contract or agreement of the Company and
its affiliated companies (such other amounts and
benefits shall be hereinafter referred to as the
AOther Benefits@).
(b) Cause; Other than for Good Reason. If the
Executive=s employment shall be terminated for Cause
during the Employment Period, or if the Executive
voluntarily terminates employment during the Employment
Period, excluding a resignation for Good Reason, this
Agreement shall terminate without further obligations to
the Executive other than for amounts described in
Sections 5(a)(i)(A)(1) and 5(a)(i)(A)(3), which amounts
shall be paid to the Executive in a lump sum within 30
days of the Date of Termination, and the payment or
provision of Other Benefits in accordance with their
terms.
(c) Death. If the Executive=s employment
terminates by reason of the Executive=s death during the
Employment Period, the Company shall pay or provide, as
applicable, to the Executive's estate or beneficiary, as
applicable, (i) all amounts and benefits that would have
been paid or provided to or on behalf of the Executive
had the Executive terminated his employment for Good
Reason on the Date of Termination and (ii) all Accrued
Obligations as of the Date of Termination in a lump sum
in cash within 30 days of the Date of Termination, and
the Executive=s estate or beneficiary shall be entitled
to any Other Benefits in accordance with their terms.
Any Prior Stock Awards shall vest and/or become
exercisable, as the case may be, as of the Date of
Termination and the Executive=s estate or beneficiary, as
the case may be, shall have the right to exercise any
such stock option, stock appreciation right or other
exercisable equity-based award until the earlier of (A)
one year from the Date of Termination (or such longer
period as may be provided under the terms of any such
stock option, stock appreciation right or other
equity-based award) and (B) the normal expiration date of
such stock option, stock appreciation right or other
equity-based award.
(d) Disability. If the Executive=s employment
is terminated by reason of Disability during the
Employment Period, the Company shall pay or provide, as
applicable, to the Executive (i) all amounts and benefits
that would have been paid or provided to or on behalf of
the Executive had the Executive terminated his employment
for Good Reason on the Date of Termination and (ii) all
Accrued Obligations as of the Date of Termination in a
lump sum in cash within 30 days of the Date of
Termination, and the Executive shall be entitled to any
Other Benefits in accordance with their terms. Any Prior
Stock Awards shall vest immediately and/or become
exercisable, as the case may be, and the Executive shall
have the right to exercise any such stock option, stock
appreciation right or other exercisable equity-based
award until the earlier of (A) one year from the Date of
Termination (or such longer period as may be provided
under the terms of any such stock option, stock
appreciation right or other equity-based award) and (B)
the normal expiration date of such stock option, stock
appreciation right or other equity-based award.
(e) Retirement. If the Executive's employment
terminates at the expiration of the Employment Period,
the Executive shall be paid the Accrued Obligations in a
lump sum in cash within 30 days of the Date of
Termination and the Executive shall be entitled to any
Other Benefits in accordance with their terms.
6. Change in Control.
(a) Benefits Upon a Change in Control. The
Executive=s rights upon a termination of employment that
occurs following a Change in Control shall be as
specified in Section 5 generally for termination of
employment. In addition, notwithstanding anything else
in this Agreement, a termination by the Executive for any
reason during the 30-day period immediately following the
first anniversary of the occurrence of the Change in
Control shall be deemed to be a termination for Good
Reason for all purposes of this Agreement.
(b) Definition. For purposes of this
Agreement, a AChange in Control@ shall mean the
occurrence of any of the following events after the
Effective Time:
(i) the purchase or other acquisition by
any person, entity or group of persons, acting in
concert within the meaning of Sections 13(d) or
14(d) of the Securities Exchange Act of 1934, or any
comparable successor provisions, of beneficial
ownership (within the meaning of Rule 13d-3
promulgated under the Act) of twenty-five percent
(25%) or more of either the shares of common stock
outstanding immediately following such acquisition
or the combined voting power of the Company's voting
securities entitled to vote generally and
outstanding immediately following such acquisition,
other than any such purchase or acquisition in
connection with a Non-CIC Merger (defined in
subsection (ii) below);
(ii) the consummation of a merger or
consolidation of the Company, or any direct or
indirect subsidiary of the Company with any other
corporation, other than a Non-CIC Merger, which
shall mean a merger or consolidation immediately
following which the individuals who comprise the
Board of Directors immediately prior thereto
constitute at least a majority of the Board of
Directors, or the board of directors of the entity
surviving such merger or consolidation, or the board
of directors of any parent thereof;
(iii) the stockholders of the Company
approve a plan of complete liquidation or
dissolution of the Company or there is consummated
an agreement for the sale or disposition by the
Company of all or substantially all of the Company=s
assets; or
(iv) the following individuals cease for
any reason to constitute a majority of the number of
directors then serving: individuals who, at the
Effective Time, constitute the Board of Directors
and any new director (other than a director whose
initial assumption of office is in connection with
an actual or threatened election contest, including
but not limited to a consent solicitation, relating
to the election of directors of the Company) whose
appointment or election by the Board of Directors or
nomination for election by the Company's
stockholders was approved or recommended by a vote
of at least two-thirds (2/3) of the directors then
still in office who either were directors at the
Effective Time or whose appointment, election or
nomination for election was previously so approved
or recommended, cease for any reason to constitute
at least a majority thereof.
Notwithstanding the foregoing, no Change in Control
shall be deemed to occur solely by virtue of the
consummation of any transaction or series of
integrated transactions immediately following which
the record holders of the common stock of the
Company immediately prior to such transaction or
series of transactions continue to have
substantially the same proportionate ownership in an
entity which owns all or substantially all of the
assets of the Company immediately following such
transaction or series of transactions.
7. Confidential Information.
The Executive shall hold in a fiduciary
capacity for the benefit of the Company all secret or
confidential information, knowledge or data relating to
the Company or any of its affiliated companies, and their
respective businesses, which shall have been obtained by
the Executive during the Executive's employment by the
Company or any of its affiliated companies and which
shall not be or become public knowledge (other than by
acts by the Executive or representatives of the Executive
in violation of this Agreement). After termination of
the Executive's employment with the Company, the
Executive shall not, without the prior written consent of
the Company or as may otherwise be required by law or
legal process, communicate or divulge any such
information, knowledge or data to anyone other than the
Company and those designated by it, except (x) otherwise
publicly available information, or (y) as may be
necessary to enforce his rights under this Agreement or
necessary to defend himself against a claim asserted
directly or indirectly by the Company or its affiliates.
8. Full Settlement.
(a) No Duty to Mitigate; No Reduction. The
Company=s obligation to make the payments provided for in
this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off,
counterclaim, recoupment, defense or other claim, right
or action which the Company may have against the
Executive or others. In no event shall the Executive be
obligated to seek other employment or take any other
action by way of mitigation of the amounts payable to the
Executive under any of the provisions of this Agreement
and, except as specifically provided in Section 5(a)(iii)
with respect to certain medical and dental benefits, such
amounts shall not be reduced whether or not the Executive
obtains other employment.
(b) Non-exclusivity of Rights. Nothing in the
Agreement shall prevent or limit the Executive's
continuing or future participation in any plan, program,
policy or practice provided by the Company or any of its
affiliated companies for which the Executive may qualify,
nor, subject to Section 12(h), shall anything in this
Agreement limit or otherwise affect such rights as the
Executive may have under any contract or agreement with
the Company or any of its affiliated companies. Vested
benefits and other amounts that the Executive is
otherwise entitled to receive under any plan, policy,
practice or program of, or any contract of agreement
with, the Company or any of its affiliated companies on
or after the Date of Termination shall be payable in
accordance with the terms of each such plan, policy,
practice, program, contract or agreement, as the case may
be, except as explicitly modified by this Agreement.
9. Disputes
Any dispute about the validity, interpretation,
effect or alleged violation of this Agreement shall be
resolved by binding confidential arbitration to be held
in Palm Beach, Florida, in accordance with the Commercial
Arbitration Rules of the American Arbitration
Association. Judgment upon the award rendered by the
arbitrator(s) may be entered in any court having
jurisdiction thereover. The Company shall pay all costs
and expenses incurred by the Executive or the Executive=s
beneficiaries in connection with any such controversy or
dispute, including without limitation reasonable
attorney=s fees as such fees and expenses are incurred,
except that the Executive shall be responsible for any
such costs and expenses incurred in connection with any
claim determined by the arbitrator(s) to have been
brought in bad faith. The Company shall bear its own
costs and expenses incurred in connection with any such
controversy or dispute. The Executive shall be entitled
to interest at the applicable Federal rate provided for
in Section 7872 (f) (2)(A) of the Internal Revenue Code
of 1986, as amended (the ACode@), on any delayed payment
which the arbitrator(s) determine he was entitled to
under this Agreement.
10. Successors.
(a) No Assignment by Executive. This
Agreement is personal to the Executive and without the
prior written consent of the Company shall not be
assignable by the Executive otherwise than by will or the
laws of descent and distribution. This Agreement shall
inure to the benefit of and be enforceable by the
Executive=s legal representatives.
(b) Successors to the Company. This Agreement
shall inure to the benefit of and be binding upon the
Company and its successors and assigns.
(c) Performance by a Successor to the Company.
The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business
and/or assets of the Company, contemporaneously with such
succession, to assume expressly and agree to perform this
Agreement in the same manner and to the same extent that
the Company would be required to perform it if no such
succession had taken place. As used in this Agreement,
ACompany@ shall mean the Company as hereinbefore defined
and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this
Agreement by operation of law, or otherwise.
11. Certain Additional Payments by the
Company.
(a) If any of the payments or benefits
received or to be received by a Participant in connection
with a Change in Control or the Participant=s termination
of employment (whether pursuant to the terms of this
Agreement or any other plan, arrangement or agreement
with a System Company) (all such payments and benefits,
excluding the Gross-Up Payment, being hereinafter
referred to as the ATotal Payments@) will be subject to
any excise tax imposed under Section 4999 of the Code
(AExcise Tax@), the Employer shall pay to the Participant
an additional amount (the AGross-Up Payment@) such that
the net amount retained by the Participant, after
deduction of any Excise Tax on the Total Payments and any
federal, state and local income and employment taxes and
Excise Tax upon the Gross-Up Payment, shall be equal to
the Total Payments.
(b) For purposes of determining whether any of
the Total Payments will be subject to the Excise Tax and
the amount of such Excise Tax, (1) all of the Total
Payments shall be treated as Aparachute payments@ (within
the meaning of Section 280G(b)(2) of the Code) unless, in
the opinion of tax counsel (ATax Counsel@) reasonably
acceptable to the Participant and selected by the
accounting firm which was, immediately prior to the
Change in Control Period, the Company=s independent
auditor (the AAuditor@), such payments or benefits (in
whole or in part) do not constitute parachute payments,
including by reason of Section 280G(b)(4)(A) of the Code;
(2) all Aexcess parachute payments@ (within the meaning
of Section 280G(b)(1) of the Code shall be treated as
subject to the Excise Tax unless, in the opinion of Tax
Counsel, such excess parachute payments (in whole or in
part) represent reasonable compensation for services
actually rendered (within the meaning of Section
280G(b)(4)(B) of the Code) in excess of the ABase Amount@
(within the meaning of Section 280G(b)(3) of the Code)
allocable to such reasonable compensation, or are
otherwise not subject to the Excise Tax; and (3) the
value of any noncash benefits or any deferred payment or
benefit shall be determined by the Auditor in accordance
with the principles of Sections 280G(d)(3) and (4) of the
Code. For purposes of determining the amount of the
Gross-Up Payment, the Participant shall be deemed to pay
federal income tax at the highest marginal rate of
federal income taxation in the calendar year in which the
Gross-Up Payment is to be made and state and local income
taxes at the highest marginal rate of taxation in the
state and locality of the Participant=s residence on the
Date of Termination (or if there is no Date of
Termination, then the date on which the Gross-Up Payment
is calculated for purposes of this Section 4.03(c)), net
of the maximum reduction in federal income taxes which
could be obtained from deduction of such state and local
taxes.
(c) In the event that the Excise Tax is
finally determined to exceed the amount taken into
account hereunder in calculating the Gross-Up Payment
(including by reason of any payment the existence or
amount of which cannot be determined at the time of the
Gross-Up Payment), the Employer shall make additional
Gross-Up Payment in respect of such excess (plus any
interest, penalties or additions payable by the
Participant with respect to such excess) within five (5)
business days following the time that the amount of such
excess is finally determined. The Participant and the
Employer shall each reasonably cooperate with the other
in connection with any administrative or judicial
proceedings concerning the existence or amount of
liability for Excise Tax with respect to the Total
Payments.
(d) The payments provided in this subsection
4.03(c) shall be made not later than the 5th day
following the Date of Termination; provided, however,
that if the amounts of such payments cannot be finally
determined on or before such day, the Employer shall pay
to the Participant on such day an estimate, in accordance
with this subsection 4.03(c), of the minimum amount of
such payments to which the Participant is clearly
entitled and shall pay the remainder of such payments
(together with interest on the unpaid remainder (or on
all such payments to the extent the Employer fails to
make such payments when due) at 120% of the rate provided
in Section 1274(b)(2)(B) of the Code) as soon as the
amount thereof can be determined but in no event later
than the thirtieth (30th) day after the Date of Termi
nation.
12. Miscellaneous.
(a) Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of
the State of Florida applicable to agreements executed
and performed entirely therein. The captions of this
Agreement are not part of the provisions hereof and shall
have no force or effect. This Agreement may not be
amended or modified otherwise than by a written agreement
executed by the parties hereto or their respective
successors and legal representatives.
(b) Notices. All notices and other
communications hereunder shall be in writing and shall be
given by hand delivery to the other party or by
registered or certified mail, return receipt requested,
postage prepaid, addressed to such address as either
party shall have furnished to the other in writing in
accordance herewith. Notice and communications shall be
effective when actually received by the addressee.
(c) Invalidity. The invalidity or
unenforceability of any provision of this Agreement shall
not affect the validity or enforceability of any other
provision of this Agreement. If any provision of this
Agreement shall be held invalid or unenforceable in part,
the remaining portion of such provision, together with
all other provisions of this Agreement, shall remain
valid and enforceable and continue in full force and
effect to the fullest extent consistent with law.
(d) Tax Withholding. Notwithstanding any
other provision of this Agreement, the Company may
withhold from any amounts payable under this Agreement
such Federal, state, local or foreign taxes as shall be
required to be withheld pursuant to any applicable law or
regulation.
(e) Failure to Assert Rights. The Executive=s
or the Company=s failure to insist upon strict compliance
with any provisions of, or to assert any right under,
this Agreement shall not be deemed to be a waiver of such
provision or right or of any other provision of or right
under this Agreement.
(f) No Alienation. The rights and benefits of
the Executive under this Agreement may not be
anticipated, assigned, alienated or subject to
attachment, garnishment, levy, execution or other legal
or equitable process except as required by law. Any
attempt by the Executive to anticipate, alienate, assign,
sell, transfer, pledge, encumber or charge the same shall
be void. Payments hereunder shall not be considered
assets of the Executive in the event of insolvency or
bankruptcy.
(g) Counterparts. This Agreement may be
executed in several counterparts, each of which shall be
deemed an original, and said counterparts shall
constitute but one and the same original.
(h) Other Agreements. This Agreement
supercedes any other agreements or representations, oral
or otherwise, express or implied, with respect to the
subject matter hereof which have been made by either
party.
IN WITNESS WHEREOF, the Executive and, pursuant
to due authorization from its Board of Directors, the
Company have caused this Agreement to be executed as of
the day and year first above written.
EXECUTIVE
___________________________
COMPANY
By:________________________
