Exhibit 10(a)97
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into between
Entergy Services, Inc. ("Employer"), a Delaware corporation, and
Xxxx X. Xxxxxx, Xx. ("Executive"). The earliest date upon which
both Executive and Employer have executed this Agreement shall be
its effective date ("Effective Date"), although the Agreement
shall be wholly voidable by Employer if Employer obtains
unsatisfactory pre-employment reference and security background
checks on Executive, Executive fails to provide suitable
documentation of Executive's identity and employment eligibility
(I-9 INS certification), or Executive fails to successfully
complete a pre-employment drug screening. The details of
employment under this Agreement are set forth below and supercede
any other oral or written employment offers, representations,
agreements or contracts Executive may have received from, or
entered into with, Employer, Entergy Corporation, or any other
affiliate or subsidiary of Entergy Corporation (each, an "Entergy
System Company," and collectively, the "Entergy System") prior to
the execution of this Agreement, which prior offers, agreements
or contracts Executive acknowledges are without effect.
In consideration of the premises and the mutual agreements set
forth below, the parties hereby agree as follows:
I. EMPLOYMENT AND DUTIES:
A. Employment. Employer agrees to employ Executive, and
Executive accepts such employment, on the terms and conditions
set forth in this Agreement. The employment contemplated by this
Agreement refers to employment by Employer or any other Entergy
System Company. Entergy System Companies other than Executive's
immediate employer shall be third party beneficiaries of
Executive's obligations under this Agreement. Moreover, Employer
may assign this Agreement, and Executive's employment, to any
successor company or business. Executive shall at all times
comply with and be subject to such policies and procedures as the
Entergy System or Employer may establish from time to time,
including, but not limited to, the Code of Entegrity and all
policies or practices referenced therein, as may be amended from
time to time.
B. Employment Period. The period during which Executive is
employed under this Agreement (the "Employment Period") shall
commence on September 1, 2001 (the "Employment Date") and,
subject to earlier termination in accordance with this Agreement,
the term of Executive's employment under this Agreement shall end
three calendar years thereafter on September 1, 2004 (the
"Term"). Executive and Employer agree that Executive's first day
actively at work for Employer shall be the Employment Date.
C. Duties. During the Employment Period, Executive shall serve
as Executive Vice President, External Affairs on behalf of the
Entergy System. Executive shall report to the Chief Executive
Officer of Entergy Corporation (the "CEO") and shall have those
powers and duties consistent with his position and as may be
established by the CEO. Executive agrees to devote all of his
full working time, attention, and energy to the performance of
his duties or such other activities as the CEO may approve and
shall faithfully render his best efforts to promote, advance, and
conduct the business of the Entergy System. Executive agrees
that he may not engage, directly or indirectly, in any other
business, investment, or activity that interferes with
Executive's performance of his duties hereunder, is contrary to
the interests of Employer or any other Entergy System Company, or
requires any significant portion of Executive's business time.
Executive further acknowledges and agrees that Executive owes a
fiduciary duty of loyalty, fidelity and allegiance to the Entergy
System to act at all times in the best interests of the Entergy
System Companies and to do no act which would injure the
business, interests, or reputation of any Entergy System Company.
The principal place of employment of the Executive shall be at
the Entergy System's principal corporate offices in New Orleans,
Louisiana.
II. COMPENSATION AND RELATED MATTERS:
A. Base Salary. Following the Employment Date and until the
termination of Executive's employment under this Agreement, as
compensation for the performance by the Executive of his duties
hereunder, Employer shall pay Executive a base salary at an
annual rate of THREE HUNDRED TWENTY FIVE THOUSAND ($325,000)
DOLLARS, or such greater rate as may be approved from time to
time by Executive's Entergy System employer, in its sole
discretion (the "Base Salary"). The Base Salary shall be payable
in accordance with the normal payroll practice of Executive's
Entergy System Company employer while Executive is employed by
such Entergy System Company in accordance with this Agreement.
The Base Salary shall be subject to all appropriate withholdings
or other deductions required by law or by the Entergy System
Company's established policies, and an Entergy System Company
employer shall have the right to require Executive to remit to
it, or to withhold from other amounts payable to Executive, as
compensation or otherwise, an amount sufficient to satisfy all
federal, state and local withholding tax requirements. If
Executive should die while still employed in accordance with the
terms of this Agreement, the amount of any monthly base salary
that was earned by Executive prior to his death but not yet paid
to Executive shall be paid to his estate.
B. Signing Bonus. Within 60 days after the Employment Date,
but subject to the repayment provisions set forth herein,
Executive shall receive a one-time signing bonus of ONE HUNDRED
FIFTY THOUSAND AND NO/100 ($150,000.00) DOLLARS (the "Signing
Bonus"); provided that Executive may elect to defer receipt
(using various investment options available through X. Xxxx
Price) of such Signing Bonus until Executive leaves Entergy
System Company employment. Such deferral will be in accordance
with all of the terms and conditions of the Executive Deferred
Compensation Plan of Entergy Corporation and its Subsidiaries.
If Executive wishes to defer all or part of the Signing Bonus,
Executive must elect such deferral prior to Executive's
Employment Date and may specify the deferral amount at the bottom
of this Agreement. Executive agrees that Employer shall not have
received adequate consideration for the Signing Bonus if
Executive voluntarily resigns or if Executive's employment with
Employer or any other Entergy System Company is involuntarily
terminated for Cause (as defined in Section III of this
Agreement) prior to September 1, 2004. Accordingly, if prior to
September 1, 2004, Executive voluntarily resigns or his
employment with Employer or any other Entergy System Company is
involuntarily terminated for Cause (as defined in Section III of
this Agreement), Executive will repay to Employer within seven
calendar days following written demand by Employer (or, to the
extent payment of the Signing Bonus was deferred in accordance
with this Section, Executive's deferred compensation account
under the Executive Deferred Compensation Plan of Entergy
Corporation shall immediately be automatically reduced without
further action of Executive) a share of the Signing Bonus
according to the following schedule:
Before September 1, 2002: Entire Signing Bonus repayment required
After September 1, 2002 but
before September 1, 2003: $100,000 repayment required
After September 1, 2003 but
before September 1, 2004: $ 50,000 repayment required
On or after September 1, 2004: No repayment required
C. Up-front Stock Option Grant. Following Executive's
Employment Date and upon approval by the Personnel Committee of
the Entergy Corporation Board of Directors ("Personnel
Committee"), Executive will be granted 58,500 stock options of
Entergy Corporation common stock (at an option price equal to the
fair market value of Entergy Corporation common stock on the date
of grant) under the terms and conditions of the 1998 Equity
Ownership Plan of Entergy Corporation and Subsidiaries ("EOP") if
Executive is deemed an "insider" under Rule 16 of the Securities
Exchange Act of 1934, or otherwise under the terms and conditions
of the Entergy Corporation and Subsidiaries Equity Awards Plan
(the "EAP"). It is anticipated that the Personnel Committee will
grant such options to vest at the rate of one-third on each of
the first three anniversaries of the date of grant if Executive
is an Entergy System Company employee on each such anniversary
date, in accordance with the terms and conditions of the EOP or
EAP, as applicable.
D. Up-front Restricted Unit Grant. Following Executive's
Employment Date and upon approval by the Personnel Committee and
subject to the terms and conditions of the EOP or EAP, as
applicable, Executive will be granted 10,000 restricted units
("Restricted Units"), where each of the Restricted Units
represents the dollar value equivalent of one share of Entergy
Corporation common stock. Restrictions on the Restricted Units
(without dividends) will be lifted at the rate of one-third on
September 1, 2002; one-third on September 1, 2003; and the final
one-third on September 1, 2004, provided Executive is an Entergy
System Company employee on each such date, in accordance with the
terms and conditions of the EOP or EAP, as applicable.
E. Executive Annual Incentive Plan. Beginning with the
remainder of calendar year 2001, Executive will be eligible to
participate in the Executive Annual Incentive Plan ("EAIP") in
accordance with its terms and conditions, with a target value of
60% of Executive's annual base salary. Because the EAIP is on a
calendar year basis, Executive will be eligible for a pro-rated
pay out for calendar year 2001 based on Executive's actual
Employment Date. Individual EAIP awards are discretionary.
F. Long Term Incentive Program. The Long Term Incentive Program
("LTIP") of the EOP or the EAP, as applicable, provides
participants with performance units ("Performance Units"). Each
of the Performance Units represents the cash equivalent of one
share of Entergy Corporation common stock. The Personnel
Committee determines the grant of Performance Units at the end of
the applicable three-calendar year performance period
("Performance Period") based on the Entergy System's attained
achievement level for such Performance Period. Subject to
Personnel Committee approval and the terms and conditions of the
EOP or EAP, as applicable, Executive will be eligible for a
Target LTIP award of 8,500 Performance Units for each Performance
Period during which Executive is a System Company employee,
although Executive's Performance Units shall be pro-rated based
on the number of full months Executive is employed with Employer
or any other Entergy System Company during each applicable
Performance Period.
G. Annual Stock Option Plan. During Executive's Entergy System
Company employment, Executive will be eligible to receive such
stock option grants, if any, as may be determined in the
discretion of the Personnel Committee. Subject to approval by
the Personnel Committee, in the calendar year 2002, it is
anticipated that Executive will be eligible to receive 58,500
stock options at target level under the terms and conditions of
the EOP or EAP, as applicable. Although it is anticipated that
one-third of all options granted will vest at the first, second
and third anniversaries of the date of grant, provided Executive
is an active System Company employee on each such date, the
vesting schedule and other grant terms will be established in
accordance with the terms of the EOP or EAP, as applicable, and
as specified in the grant letter.
H. Vacation and Other Absences. Executive shall be entitled to
paid vacation and other paid absences, whether for holidays,
illness, personal time or any similar purposes during the
Employment Period, in accordance with policies applicable
generally to senior executives within the Entergy System.
Notwithstanding the generality of the foregoing, Executive shall
be entitled to a minimum of four weeks of paid vacation per
calendar year during the Employment Period, with such vacation
grant being pro-rated for calendar year 2001 based on Executive's
actual Employment Date.
I. Relocation Allowance. Executive will be eligible for
benefits under the Entergy System's relocation program, including
a lump sum cash payment of one month's base salary paid at the
time Executive relocates, for miscellaneous relocation expenses.
J. Pension Equalization Plan. Executive will be eligible to
participate in the Pension Equalization Plan of Entergy
Corporation and Subsidiaries ("PEP") under the terms and
conditions of the PEP, including, but not limited to, the
participation eligibility provisions thereunder. Solely for
purposes of calculating the amount of Executive's PEP benefit, an
additional 13 years of Benefit Service will be added to
Executive's actual Entergy System service. However, in
accordance with the terms of the PEP, the resulting benefit
amount will be offset by any qualified retirement benefits
payable to Executive by the Entergy System and by Executive's
former employer(s). The added Benefit Service is contingent upon
Executive's execution of a Participant Application under the PEP,
which document will be finalized once Executive provides detailed
information concerning his former employer(s) and the amounts of
all accrued qualified retirement benefits available from such
employer(s).
K. Supplemental Retirement Benefit. Executive will be eligible
to participate in the System Executive Retirement Plan of Entergy
Corporation and Subsidiaries (the "SERP") under the terms and
conditions of the SERP, including, but not limited to, the
participation eligibility provisions thereunder.
L. Other Benefits. While employed by an Entergy System Company
employer under this Agreement, Executive may participate in all
other Entergy Corporation sponsored qualified employee benefit
plans, welfare benefit plans, and programs for which Executive is
eligible to participate, in accordance with the terms and
conditions of such plans and programs as in effect and as may be
amended from time to time. As of the date hereof, such plans and
programs include, but not by way of limitation, the Executive
Deferred Compensation Plan, qualified Savings Plan, qualified
Retirement Plan, Benefits Plus family of welfare plans, Defined
Contribution Restoration Plan, Pension Equalization Plan,
Executive Disability Plan, Executive Financial Counseling
Program, and Executive Continuity Plan. Executive's
participation in some or all of these plans will be contingent
upon his execution, and the plan administrator's acceptance, of a
participant application, and upon satisfaction of other terms and
conditions. Except as specifically set forth herein, the
benefits provided under this Agreement shall in no way alter or
affect the terms and conditions of any Entergy System Company
sponsored qualified employee benefit plans, non-qualified
employee benefits plans, programs, and welfare benefit plans in
which Executive may otherwise be eligible to participate, and his
eligibility to participate in any such plans or programs shall
continue to be determined in accordance with the terms and
conditions of such plans or programs, as may be amended from time
to time. Unless specifically provided for in a written plan
document properly adopted pursuant to such plan, none of the
benefits or arrangements described in this Section shall be
secured or funded in any way, and each shall instead constitute
an unfunded and unsecured promise to pay money in the future
exclusively from the general assets of Executive's Entergy System
Company employer.
III. TERMINATION PRIOR TO EXPIRATION OF TERM:
A. Early Termination. Upon the occurrence of any one of the
following termination events prior to the expiration of the Term,
and except as otherwise provided in this Section III, Executive
shall no longer be an employee of any Entergy System Company
employer and shall forfeit all remaining unpaid compensation and
all benefits otherwise granted or due Executive under this
Agreement and any and all future compensation and benefits for
which Executive is eligible, including individual bonuses or
incentive compensation not yet paid to Executive at the date of
such event, unless the terms and conditions of an applicable
Entergy System plan or program specifically provide otherwise:
1. if there should occur a Change in Control, as defined in the
System Executive Continuity Plan of Entergy Corporation and
Subsidiaries (the "Continuity Plan"), and Executive should become
eligible for benefits under the Continuity Plan;
2. if there should occur any of the following events that do
not result in eligibility for benefits as described in IIIA1:
(a) Good Reason by Executive. Executive terminates his Entergy
System employment for Good Reason, which for purposes of this
Agreement shall mean any material breach of this Agreement by his
Entergy System Company employer, the occurrence of which is not
remedied by a System Company within ten business days following
receipt of the Executive's written notice (in accordance with
this Agreement) thereof, in which case Executive shall be
entitled to the following severance benefits: (i) a total
severance payment equal to two (2) years Base Salary (subject to
all appropriate withholdings or other deductions required by law)
payable over the twenty-four consecutive month period following
the date of termination, in accordance with the normal payroll
practice of Executive's last Entergy System Company employer and
(ii) retention of the Signing Bonus described in Section IIB of
this Agreement without any repayment obligations thereunder;
(b) Resignation. Executive resigns his employment, other than
for the purpose of transferring employment to another Entergy
System Company and other than for Good Reason as defined in this
Section IIIA2(a), in which case Executive shall be entitled only
to any monthly base salary that was earned by Executive prior to
his resignation but not yet paid to Executive;
(c) Cause. Executive is terminated by his Entergy System Company
employer for Cause, which termination shall be immediately
effective upon the giving of written notice thereof to Executive,
or at such later time as the notice may specify. Cause for
termination shall mean (a) Executive's engagement in
embezzlement, theft, material fraud, or other acts of dishonesty;
(b) Executive's material violation of any agreement between
Executive and any Entergy System Company; (c) Executive's neglect
or intentional disregard of the duties and services required of
Executive under this Agreement; (d) Executive's material
violation of the Code of Entegrity or any policies therein
referenced; (e) Executive's conviction of or entrance of a plea
of guilty or nolo contendere to a felony; (f) Executive's absence
from work for five consecutive days for any reason other than
vacation, approved leave of absence (such approval not to be
unreasonably withheld) or disability or illness pursuant to
System Company policy or law; (g) Executive's gross or repeated
insubordination; or (h) Executive's unauthorized disclosure of
the confidences of any Entergy System Company as defined in
Section V of this Agreement. No act or failure to act by the
Executive shall be considered Cause unless the Entergy System
Company employer has given detailed written notice thereof to the
Executive and, where remedial action is feasible, he has failed
to remedy the act or omission within twenty business days after
Executive's Entergy System Company employer has forwarded such
notice to Executive in accordance with the notice procedures of
this Agreement.
(d) Termination without Cause. Executive is terminated by his
Entergy System Company employer without Cause (as defined in
subparagraph IIIA2(c) above), which termination shall be
immediately effective upon the giving of written notice thereof
to Executive, or at such later time as the notice may specify, in
which case Executive shall be entitled to the following severance
benefits: (i) a total severance payment equal to two (2) years
Base Salary (subject to all appropriate withholdings or other
deductions required by law) payable over the twenty-four
consecutive month period following the date of termination, in
accordance with the normal payroll practice of Executive's last
Entergy System Company employer and (ii) retention of the Signing
Bonus described in Section IIB of this Agreement without any
repayment obligations thereunder;
(e) Death. Executive dies, in which case only any monthly base
salary that was earned by Executive prior to his death but not
yet paid to Executive shall be paid to Executive's estate and any
repayment obligations with regard to the Signing Bonus described
in Section IIB of this Agreement shall not apply; or
(f) Disability. Executive becomes disabled so as to entitle
Executive to benefits under his Entergy System Company employer's
long-term disability plan and any repayment obligations with
regard to the Signing Bonus described in Section IIB of this
Agreement shall not apply.
3. In no event shall Executive or his beneficiaries be
entitled to payments and benefits under both IIIA1 and
IIIA2 of this Agreement, nor shall Executive or his
beneficiaries be entitled to payments and benefits under
more than one subsection of IIIA2.
B. Offset. In all cases, the compensation and benefits payable
to Executive under this Agreement upon termination of the
employment relationship shall be offset against any amounts to
which Executive may otherwise be entitled under any and all
severance plans, or programs or policies of his terminating
Entergy System Company employer.
C. Sole Remedy. In the event Executive's employment is
terminated in accordance with Section III.A prior to expiration
of the Term, Executive's rights as outlined in this Section III
are (1) Executive's sole and exclusive rights against his Entergy
System Company employer or any other Entergy System Company and
(2) the sole and exclusive liability to Executive by any Entergy
System Company employer under this Agreement, in contract, tort,
or otherwise, for any termination of the employment relationship.
Executive covenants not to lodge against any Entergy System
Company any claim, demand, or cause of action based on
termination of the employment relationship for any monies
allegedly due under this Agreement other than those specified in
this Section III.
D. Continuing Obligations. Termination of the employment
relationship shall not terminate those obligations imposed by
this Agreement which are continuing in nature, including, without
limitation, Executive's continuing obligations of confidence,
Executive's continuing obligations with respect to business
opportunities that were entrusted to Executive during the
employment relationship, and specifically Executive's obligations
under Sections V and VI of this Agreement.
IV. CONTINUATION OF EMPLOYMENT BEYOND TERM:
Should Executive remain employed by Employer or any other
Entergy System Company employer beyond the expiration of the
Term, such employment shall convert to an at will employment
relationship, terminable at any time by either the Entergy
System Company employer or Executive for any reason
whatsoever, with or without Cause. Section III of this
Agreement shall not apply if Executive's termination should
occur after expiration of the Term.
V. PROTECTION OF INFORMATION:
A. Position of Confidence. Executive acknowledges that his
employment with Employer or any other Entergy System Company has
placed him in a position to have access to or develop trade
secrets or confidential information of any one or all of the
Entergy System Companies and has placed Executive in a position
to develop business good will on behalf of any one or all of the
Entergy System Companies.
B. Information Obtained During Employment. All information,
ideas, concepts, improvements, discoveries, and inventions,
whether patentable or not, which were or are conceived, made,
developed, or acquired by Executive, individually or in
conjunction with others, during Executive's employment with any
Entergy System Company employer, whether during business hours or
otherwise and whether at the work site or otherwise, which relate
to Entergy System Company business, products, or services
(including, without limitation, all such information relating to
corporate opportunities, research, financial and sales data,
pricing and trading terms, evaluations, opinions,
interpretations, acquisition prospects, the identity of customers
or their requirements, the identity of key contacts within the
customer's organizations or within the organization of
acquisition prospects, or marketing and merchandising techniques,
prospective names, and marks) shall be disclosed to Executive's
Entergy System Company employer and are and shall be such
employer's sole and exclusive property. All documents, drawings,
memoranda, notes, records, files, correspondence, manuals,
models, specifications, computer programs, e-mail, voice mail,
electronic databases, maps and all other writings or materials of
any type embodying any of such information, ideas, concepts,
improvements, discoveries, and inventions are and shall be the
sole and exclusive property of the Executive's Entergy System
Company employer. Upon termination of Executive's employment
with his Entergy System Company employer, for any reason,
Executive shall promptly deliver the items referenced in this
Section V(B), and all copies thereof, to his last Entergy System
Company employer.
C. Confidentiality. Executive will not, at any time during or
after Executive's employment with any Entergy System Company
employer, make any unauthorized disclosure of any confidential
business information or trade secrets of any Entergy System
Company, or make any use thereof, except in the carrying out of
Executive's employment responsibilities under this Agreement. As
a result of Executive's employment under this Agreement,
Executive may, from time to time, have access to, or knowledge
of, confidential business information or trade secrets of third
parties, such as customers, suppliers, partners, or joint
venturers of Employer or other Entergy System Companies, and
Executive agrees to preserve and protect the confidentiality of
such third party confidential information and trade secrets to
the same extent, and on the same basis, as Employer's
confidential business information and trade secrets.
D. Terms of the Agreement. Executive understands and
acknowledges that the terms and conditions of this Agreement
constitute confidential information. Executive shall keep
confidential the terms of this Agreement and shall not disclose
this confidential information to anyone other than Executive's
attorneys, tax advisors, or as required by law.
E. Assignment of Rights. Executive agrees to and hereby does
assign to Executive's Entergy System Company employer all rights
in and to all inventions, business plans, work models or
procedures, whether patentable or not, which are made or
conceived solely or jointly by Executive at any time during
Executive's Entergy System Company employment or with the use of
any Entergy System Company time and materials. Executive will
disclose to such Entergy System Company all facts known to
Executive concerning such matters and, at the Entergy System
Company's expense, do everything reasonably practicable to aid it
in obtaining and enforcing proper legal protection for, and
vesting the Entergy System Company in title to, such matters.
Both during Executive's employment and thereafter, Executive
shall assist his Entergy System Company employer and its nominee,
at any time, in the protection of his employer's worldwide right,
title, and interest in and to information, ideas, concepts,
improvements, discoveries, and inventions, and its copyrighted
works, including, without limitation, the execution of all formal
assignment documents requested by employer or its nominee and the
execution of all lawful oaths and applications for patents and
registration of copyright in the United States or foreign
countries.
F. Breach. Executive acknowledges and understands that
Executive's breach of any provision of this Section V would
constitute a material breach of this Agreement and could subject
Executive to disciplinary action, including, without limitation,
termination of employment for Cause under Section III. Executive
acknowledges that money damages would be an insufficient remedy
for any breach of this Section V by Executive, and Employer or
any other Entergy System Company employer shall be entitled to
enforce the provisions of this Section V by terminating any
payments (including severance payments) then owing to Executive
under this Agreement and/or to seek specific performance and
injunctive relief as remedies for a breach or threatened breach
of this Section. Such remedies shall not be deemed the exclusive
remedies for a breach of this Section, but shall be in addition
to all remedies available at law or in equity.
VI. NON-COMPETE OBLIGATIONS:
A. Fiduciary Obligations. As part of the consideration for the
compensation and benefits to be paid to Executive hereunder, in
keeping with Executive's duties as a fiduciary, and in order to
protect Employer's interest in the trade secrets of Employer, and
as an additional incentive for Employer to enter into this
Agreement, Employer and Executive agree to the non-competition
provisions of this Section. Executive agrees that he will not
engage in any employment or other activity (without the prior
written consent of his last Entergy System Company employer)
either in his individual capacity or together with any other
person, corporation, governmental agency or body, or other
entity, that is (1) listed in the Standard & Poor's Electric
Index or the Dow Xxxxx Utilities Index; or (2) in competition
with, or similar in nature to, any business conducted by any
System Company at any time during such period, where such
competing employer is located in, or servicing in any way
customers located in, those parishes and counties in which any
System Company services customers during such period. Executive
further agrees not to take any action or make any statement,
written or oral, to any current or former employee of any Entergy
System Company, or to any other person, which disparages any
Entergy System Company, its management, directors or
shareholders, or its practices, or which disrupts or impairs
their normal operations, including actions or statements (i) that
would harm the reputation of any Entergy System Company with its
clients, suppliers, employees or the public; or (ii) that would
interfere with existing or prospective contractual or employment
relationships with any Entergy System Company or its clients,
suppliers or employees. The non-competition and non-disparagement
obligations in this Section shall extend throughout the Term of
this Agreement and, to the greatest extent allowed by law, shall
extend for the longer of a period of one (1) year after
Executive's employment has ended or the severance payment period
described in Section IIIA2(a) and (d) if applicable.
B. Breach of Covenant. Executive acknowledges that Executive's
breach of any provision of this Section VI would constitute a
material breach of this Agreement and could subject Executive to
disciplinary action, including, without limitation, termination
of employment for Cause. Executive understands that the
foregoing restrictions may limit Executive's ability to engage in
certain businesses anywhere in the world during the period
provided for above, but acknowledges that Executive will receive
sufficiently high remuneration and other benefits to justify such
restriction. Executive acknowledges that money damages would not
be a sufficient remedy for any breach of this Section VI by
Executive, and Employer shall be entitled to enforce the
provisions of this Section VI by terminating any payments
(including severance payments) then owing to Executive under this
Agreement and/or to specific performance and injunctive relief as
remedies for such breach or any threatened breach. Such remedies
shall not be deemed the exclusive remedies for a breach of this
Section, but shall be in addition to all remedies available at
law or in equity to Employer, including, without limitation, the
recovery of damages from Executive and his or her agents involved
in such breach.
C. Modification by Court. It is expressly understood and
agreed that Employer and Executive consider the restrictions
contained in this Section VI to be reasonable and necessary to
protect the proprietary information of the Entergy System.
Nevertheless, if any of the aforesaid restrictions are found by a
court having jurisdiction to be unreasonable, or overly broad as
to geographic area or time, or otherwise unenforceable, the
parties intend for the restrictions therein set forth to be
modified by such courts so as to be reasonable and enforceable
and, as so modified by the court, to be fully enforced.
VII. ADDITIONAL PROVISIONS
A. Representations and Warranties. Executive and Employer
represent and warrant that neither is under a restriction or
obligation inconsistent with the execution of this Agreement or
the performance of either party's obligations hereunder and
neither knows of any reason why the performance due under this
Agreement should be hindered in any way.
B. Notices. Any notice required under this Agreement shall be
in writing and deemed received (a) on the date delivered if hand-
delivered, or (b) on the fifth business day after being deposited
in the mail, first class, registered or certified, return receipt
requested, with proper postage prepaid, and shall be addressed as
follows, unless changed otherwise by any party in accordance with
the notice provisions of this Section:
If to an Entergy System Company, addressed in care of:
General Counsel
Entergy Services, Inc.
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
If to Executive, addressed as follows:
Xxxx X. Xxxxxx, Xx.
000 Xxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
C. Binding Agreement. Upon its effective date, this Agreement
is binding upon Executive and his heirs and upon Employer and its
successors, agents, heirs or assigns. Executive expressly
acknowledges the right of Employer to assign this Agreement to
any Entergy System Company successor.
D. Nonassignability. This Agreement or the right to receive
benefits hereunder may not be assigned, encumbered or alienated
by Executive in any manner.
E. Applicable Law. The validity, interpretation, construction
and performance of this Agreement shall be governed by the laws
of the State of Delaware without regard to its conflicts of law
principles.
F. Headings. Section headings contained in this Agreement are
for reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
G. No Inducements. Each party to this Agreement acknowledges
that no representation, inducement, promise, or agreement, oral
or written, has been made by either party with respect to such
subject matters, which is not embodied herein, and that no
agreement, statement, or promise relating to the Entergy System
Company employment of Executive that is not contained in this
Agreement shall be valid or binding.
H. Modifications and Waivers. This Agreement contains the
entire understanding between Executive and Employer relating to
Entergy System Company employment, unless otherwise specifically
provided as in the case of written company policies promulgated
by, and in the applicable written benefit plans and programs of,
Employer or any other Entergy System Company. No provision of
this Agreement may be modified, amended or waived except in a
writing signed by both parties. The waiver by either party of a
breach of any provision of this Agreement shall not operate to
waive any subsequent breach of the Agreement.
I. Severability. Should any part of this Agreement be found to
be invalid or in violation of law, such part shall be of no force
and effect and the rest of this Agreement shall survive as valid
and enforceable to the fullest extent permitted by law.
IN WITNESS WHEREOF, Employer and Executive have duly executed
this Agreement, which may be executed in multiple originals, to
be effective on the Effective Date herein provided.
ACCEPTED BY EMPLOYER: ACCEPTED BY EXECUTIVE:
Entergy Services, Inc.
By its Duly Authorized Agent:
/s/ Xxxxxxx Xxxxxxx /s/ Xxxx X. Xxxxxx, Xx.
Xxxxxxx Xxxxxxx Xxxx X. Xxxxxx, Xx.
Sr. Vice-President, Social Security No. ###-##-####
Human Resources and Administration Executed this 7th day of
Executed this 7th day of August, 2001.
August 2001.
Signing Bonus amount Executive wishes to defer: _______
Signature: ________________ Date: ______
