CLECO CORPORATION SEPARATION AGREEMENT
EXHIBIT
10(g)(9)
CLECO
CORPORATION
THIS
SEPARATION AGREEMENT
(the “Agreement”) is made effective as of July 31, 2007 (the “Effective
Date”), between Cleco Corporation and each of its subsidiaries and affiliates
(collectively, the “Company”) and Xxxxxx X. Xxxxxxxx III
(“Employee”).
1. Separation
from Employment. Effective as of July 31, 2007, and pursuant
to Paragraph 3.5 of that certain Employment Agreement by and between the
Company
and Employee dated June 29, 2006 (the “Employment Agreement”), the parties agree
that Employee’s employment with the Company shall be separated (the “Separation
Date”).
2. Final
Wages. The Company shall pay to Employee any base
compensation accrued but unpaid as of his Separation Date as soon as practicable
thereafter.
3. General
Waiver and Release. In consideration for Employee’s
execution of the General Waiver and Release, attached as Exhibit A hereto,
and
provided that such General Waiver and Release is executed by Employee and
returned to the Company not later than 21 days after Employee’s Separation Date,
the Company shall pay to Employee an amount equal to
$112,200, which amount shall be paid in the form of a
single sum not later than ten business days after such General Waiver and
Release becomes irrevocable in accordance with its terms. The
Employee acknowledges and agrees that the consideration described herein
is not
for services he has rendered, is not otherwise due or owing to him under
any
agreement (whether oral or written) with the Company or under any Company
plan,
policy or practice, is to be paid solely on account of his separation, and
that
such payment would not be made or owing absent his execution of the General
Waiver and Release.
4. Separation
Payments and Benefits.
4.1 Severance
Pay. Provided Employee is not in breach of any
post-termination obligation imposed under the Employment Agreement, he shall
be
entitled to a payment in the amount of
$417,833, one-half of which shall be paid not
later than 30 days following his Separation Date and one-half of which shall
be
paid on February 1, 2008.
4.2 Relocation. If
Employee elects to cause the Company to provide the relocation assistance
set
forth in Paragraph 3.1e of the Employment Agreement, he shall request, not
later
than July 30, 2008, that the Company (a) pay or reimburse him for relocation
costs as provided in Paragraph 3.1e(ii) of the Employment Agreement, and/or
(b)
purchase his principal residence at a price equal to the greater of (i) its
appraised value, or (ii) Employee’s purchase price plus the documented cost of
any improvements made by Employee. Payment or reimbursement hereunder
shall be made not later than December 31, 2008.
4.3 Medical
Plan Continuation Coverage. If Employee and his eligible
dependents timely elect continuation coverage under the Company’s group medical
plan in accordance with the terms thereof, the Company shall pay directly
to
Employee the premium or premiums attributable to such election or elections
for
the maximum continuation coverage period available to each of Employee and
his
eligible dependents; provided, however, that the amount of any such payment
shall be included in Employee’s income and subject to the payment, withholding
and remittance of all applicable taxes. Employee acknowledges that he
shall be responsible for timely payment of monthly premiums.
5. Equity
Compensation.
As
used in this Paragraph 5, the terms “Restricted Stock,” “Opportunity Shares,”
“Common Stock Equivalent Units” and “Performance Cycles” shall have the meanings
ascribed to them in the Company’s 2000 Long-Term Incentive Compensation Plan, as
amended (the “2000 LTIP”).
5.1 Disposition
of Stock Awards. Under the 2000 LTIP, Employee has
outstanding awards of Restricted Stock and Opportunity Shares for the three-year
Performance Cycles beginning in 2005, 2006 and 2007, respectively, which
shall
be disposed of as follows:
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a.
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With
respect to the 2005 Performance Cycle, restrictions will lapse
as to 3,758
shares of Restricted Stock and 3,758
Opportunity Shares (collectively his “2005 Award”); such Restricted
Stock shall be distributed within 30 days following the Separation
Date;
such Opportunity Shares shall be distributed as of February 1,
2008,
together with any dividend equivalents regularly accruing on such
shares;
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b.
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With
respect to the 2006 Performance Cycle, Employee shall be entitled
to a
prorated portion of his actual award, if any, determined as of
December
31, 2009; any such award shall be pro rated with respect to the
number of
days elapsed in the 2006 Performance Cycle as of his Separation
Date; any
such award, whether Restricted Stock, Opportunity Shares, Common
Stock
Equivalent Units (CEUs) or Opportunity CEUs, shall be distributed
as of
the date set forth in Employee’s individual award made under the 2000
LTIP; and
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c.
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With
respect to the 2007 Performance Cycle, Employee shall be entitled
to a
prorated portion of his actual award, if any, determined as of
December
31, 2010; such awards shall be pro rated with respect to
the number of days elapsed in the applicable 2007 Performance Cycle
as of
Employee’s Separation Date; any such award, whether Restricted Stock,
Opportunity Shares, Common Stock Equivalent Units (CEUs) or Opportunity
CEUs, shall be distributed as of the date set forth in Employee’s
individual award made under the 2000
LTIP.
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Any
other Restricted Stock, Opportunity Shares or similar equity awards shall
be
deemed canceled and forfeited to the Company, without requirement of further
notice or compensation.
The
Company shall directly remit for the benefit of Employee an income tax
adjustment with respect to his 2005 Award, such amount determined in accordance
with Paragraph 12.4 of the 2000 LTIP such direct remission shall be made
as of
the time or times determined in accordance with the Company’s regular remission
practices, but no later than December 31, 2008. For this purpose (a) the
value
of Restricted Stock shall be determined as the closing sales price of the
Company’s common stock on the Separation Date, and (b) the value of Opportunity
Shares shall be the closing sales price of the Company’s common stock on January
31, 2008. Employee shall not be entitled to an income tax
adjustment with respect to any award made with respect to the 2006 and 2007
Performance Cycles and will be solely responsible for any Federal or state
taxes
due with respect thereto.
5.2 Stock
Options. Any stock options granted to Employee under the
2000 LTIP that are vested and remain unexercised as of his Separation Date
shall
remain exercisable during the 30-day period following his Separation Date
in accordance with their terms. Employee acknowledges that
options not vested as of his Separation Date shall be cancelled and
forfeited to the Company as of such date options otherwise exercisable hereunder
that remain unexercised at the conclusion of such 30-day period shall be
cancelled and forfeited to the Company at the conclusion of such
period.
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6. Supplemental
Executive Retirement Plan. As of his Separation Date,
Employee shall be entitled to a benefit under the Company’s Supplemental
Executive Retirement Plan (“SERP”) in an amount equal to 65% of his final
compensation (as defined in Paragraph 2.9 of the SERP), reduced appropriately
for retirement prior to age 65 as described in paragraphs 3.3B and offset
as
otherwise provided in 3.5 thereof. The amount and payment of
such benefit shall be further subject to the terms of the SERP, as it may
be
amended from time to time
7. Other
Benefits. Notwithstanding the foregoing and except as may be
expressly provided herein, this Agreement is not intended to affect or restrict
Employee’s benefits under the employee benefit plans generally maintained for
the benefit of all of the employees of the Company, as in effect as of the
Separation Date.
8. Extinguishment. Employee
acknowledges that, except as otherwise provided in this Agreement, payment
of
the amounts and benefits described herein extinguishes the Company’s obligations
under the Employment Agreement and the Annual Incentive Compensation Plan,
in
their entirety.
9. Surviving
Covenants. Employee acknowledges that he is subject to and
bound by covenants concerning the use of the Company’s confidential information
and the nonsolicitation of the Company’s employees set forth in his Employment
Agreement, and that they shall survive his separation of employment in
accordance with their terms.
10. Return
of Property. Employee shall promptly return to the Company
all of the property of the Company, 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
information that is in the possession or under the control of
Employee.
11. Nondisparagement. As
a material inducement to the Company to enter into this Agreement, Employee
agrees that he will not:
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a.
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Publicly
criticize or disparage the Company, or privately criticize or disparage
the Company in a manner intended or reasonably calculated to result
in
public embarrassment to, or injury to the reputation of, the Company
in
any community in which the Company is engaged in
business;
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b.
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Directly
or indirectly, acting alone or acting in concert with others, institute
or
prosecute, or assist any person in any manner in instituting or
prosecuting, any legal proceedings of any nature against the Company,
excluding any legal action relating to claims of employment
discrimination or retaliation involving the Employee’s or another’s
employment;
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c.
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Damage
the property of the Company or otherwise engage in any misconduct
which is
injurious to the business or reputation of the Company;
or
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d.
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Take
any other action, or assist any person in taking any other action,
that is
adverse to the interests of the Company or inconsistent with fostering
the
goodwill of the Company.
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Notwithstanding
the foregoing, Employee shall not be deemed in breach of the covenants contained
herein solely by reason of testimony compelled by process of law or the conduct
permitted in subparagraph b above.
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The
Company agrees that it will not publicly or privately criticize or disparage
Employee in a manner intended or reasonably calculated to result in
embarrassment to, or injury to the reputation of, Employee in the
community.
12. No
Participation in Claims. Employee waives any right to in any
way voluntarily assist any individual or entity in commencing or prosecuting
any
action or proceeding including, but not limited to, any administrative claims,
charges or complaints and/or any lawsuit against the Company, or to in any
way
voluntarily participate or cooperate in any such action or proceeding,
except to the extent such waiver may be prohibited by law or as to an
employment discrimination claim prosecuted by another employee or administrative
body.
13. Representations. By
execution of this Agreement, Employee represents that no claim, charge,
complaint or action by Employee against the Company exists in any forum or
form. In the event any such claim, charge, complaint or action has
been filed, Employee shall not be entitled to recover any monies or other
relief
therefrom.
By
execution of this Agreement, the
Company represents, that no claim, charge, complaint or action by it against
Employee exists in any forum or form. In the event that any such
claim, charge, complaint or action has been filed, the Company shall not
be
entitled to recover any monies or other relief therefrom. The Company
also represents that Employee is entitled to no other payments or benefits
resulting from his separation from employment other than those set forth
herein.
14. Assistance
and Cooperation. Employee agrees he will furnish such
information and proper assistance as may be reasonably necessary and requested
by the Company in connection with any administrative agency claim, charge
or
complaint and/or any litigation in which the Company is or may become
involved. The Company agrees to reimburse Employee for his direct
expenses incurred in providing any such assistance.
15. Nonassignability. Neither
this Agreement nor any right or interest hereunder shall be subject,
in any manner, to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance or charge, whether voluntary or involuntary, by operation of
law or
otherwise, and any attempt at such shall be void. Any benefit right
or interest under this Agreement shall not in any way be subject to the debts,
contract, liabilities, engagements or torts of Employee, nor shall it be
subject
to attachment or legal process for or against
Employee. Notwithstanding the foregoing, in the event of the
Employee’s death prior to the payment of all amounts properly due hereunder,
payment shall be paid to Employee’s estate.
16. Notices. All
notices or communications hereunder shall be in writing, addressed as
follows:
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To
the Company:
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To
the Employee:
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Cleco
Corporation
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Xxxxxx
X. Xxxxxxxx III
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0000
Xxxxxxx Xxxxx Xxxx
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2916
George’s Lane
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P.
O. Box 5000
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Xxxxxxxxxx,
XX 00000
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Xxxxxxxxx,
Xxxxxxxxx 00000-0000
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Attention:
Xxxxxx X. Xxxxxxxxx
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Either
party may change its address for notices by providing a written notice of
such
address change to the other party. All such notices shall be
conclusively deemed to be received and shall be effective, (a) if sent by
hand
delivery, upon receipt, (b) if sent by telecopy or facsimile transmission,
upon
confirmation of receipt by the sender of such transmission, or (c) if sent
by
registered or certified mail, on the fifth day on which such notice is
mailed.
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17. Source
of Payments. Payments hereunder shall be made from the
general funds of the Company. Employee’s status with respect to
amounts owed hereunder shall be that of a general unsecured creditor of the
Company, and Employee shall have no right, title, or interest whatsoever
in or
to any asset of the Company or any investment which the Company may have
acquired to meet its obligations hereunder. Nothing contained
in this Agreement shall be deemed or be construed to create a trust of any
kind
or other fiduciary relationship between the Company and Employee or any other
person. The Company, in its sole discretion, may retain as owner and
for its own benefit insurance on the life of Employee, in such amounts and
in
such forms consistent with the policies on the life of Employee held by the
Company as of the Separation Date. Neither Employee nor his
beneficiaries or estate shall have any right or interest in the proceeds
of any
insurance policy naming the Employee as the insured.
18. Tax
Withholding. The Company may withhold from any amount
payable hereunder all Federal, state, city or other income or employment
taxes
that may be required by law to be withheld.
19. Separate
Advice. Employee acknowledges that neither the Company nor
its directors, officers or employees has provided him with advice about the
terms and conditions of this Agreement, including the taxation of benefits
and
payments hereunder, and that neither the Company nor its directors, officers
or
employees has any ongoing obligation to do so. Employee has been
advised to consult his own counsel prior to the execution of this Agreement
and
he has done so or determined that such counsel is not necessary.
20. General
Provisions.
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a.
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If
any provision of this Agreement is held to be invalid, illegal,
or
unenforceable, in whole or in part, such invalidity shall not affect
any
otherwise valid provision, and all other valid provisions shall
remain in
full force and effect.
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b.
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Titles
and headings used herein are solely for convenience of reference
and do
not constitute a part of this Agreement or affect its meaning,
interpretation or effect.
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c.
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This
Agreement shall be construed and enforced in accordance with the
internal
laws of the State of Louisiana applicable to contracts made to
be
performed wholly within such state.
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d.
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No
term or condition herein shall be deemed to have been waived, nor
shall
there be an estoppel against the enforcement of any provision of
this
agreement, except by written instrument of the party charged with
such
waiver or estoppel.
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e.
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This
Agreement may not be modified or amended, except by an instrument
in
writing signed by the parties
hereto.
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21. Breach
of Covenants. Subject to the limitations set forth in
Exhibit A hereto, Employee agrees that his material breach of this Agreement
shall relieve the Company of any further obligations hereunder and, in addition
to any other legal or equitable remedy available to the Company, entitle
it to
recover any payments or property already paid or transferred to him pursuant
to
Paragraphs 4 and 5 hereof.
22. Nonadmission
of Wrongdoing. Employee agrees that neither this Agreement,
Exhibit A hereto, nor the furnishing of the consideration set forth herein
shall
be deemed or construed at any time for any purpose as an admission by the
Company of any liability or unlawful conduct of any kind.
23. Entire
Agreement. This Agreement sets forth the entire agreement
between the parties hereto related to the subject matter herein, and, except
as
expressly set forth herein, fully supersedes any
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prior
agreements or understandings between the parties, whether orally or in
writing. Employee acknowledges that he has not relied upon any
representations, promises or agreements of any kind made to him in connection
with the execution of this Agreement, including Exhibit A hereto, except
as set
forth herein.
THIS
SEPARATION 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 Separation Date designated above.
CLECO
CORPORATION EMPLOYEE
By: /s/ X.X.
Xxxxxxxxx
By: /s/ Xxxxxx X. Xxxxxxxx III
Xxxxxx
X. Xxxxxxxx
III
Its: SVP,
Corporate
Services Date:
August 1,
2007
Date: 8/1/07
WITNESS
By: /s/ Xxxxxxx
Xxxxxxx
Date:
August 1,
2007
Executed
before me, Xxxxxx
X.
Xxxxx Notary
Public, in and for the State
of Louisiana ,
Parish/County
of Rapides ,
and in my presence, this 1st day
of August ,
2007.
/s/ Xxxxxx
X.
Xxxxx #18352
Notary
Public
6
Separation
Date: July 31,
2007
EXHIBIT
A
WAIVER
AND RELEASE
This
General Waiver and
Release (the “Release”) is made in exchange for the consideration
offered under Paragraph 3 of the Separation Agreement entered into between
me
and Cleco Corporation and each of its subsidiaries and affiliates (collectively,
the “Company”), dated as of July 31, 2007 (the “Agreement”), the sufficiency of
which I hereby acknowledge. I further acknowledge that I have
received all wages due me from the Company for services that I rendered before
my Separation Date, and I acknowledge that the payment described in Paragraph
3
of the Agreement is voluntary on the part of the Company and is not required
by
any legal obligation of the Company, other than under the terms of the Agreement
and this Release.
I
understand that signing this Release
is an important legal act. I acknowledge that I have been advised to
consult an attorney before signing this Release and that I have done so or
I
have determined that such consultation is not necessary. I understand
that I have 21 calendar days after the Separation Date to consider whether
to
sign this Release, without alteration, and return it to the Company by first
class mail or by hand delivery, and that if I execute and return this Release
before the expiration of the 21-day period, I will be deemed to have waived
the
balance of the period.
I
acknowledge and voluntarily waive all
of my claims and release the Company, including each of its directors and
officers, employees and agents, and employee benefit plans and the fiduciaries
and agents of said plans (collectively, the “Corporate Group”), from any and all
claims, demands, actions, liabilities and damages, whether known or unknown,
arising out of or relating in any way to my employment with the Company,
except with respect to a breach under the Agreement or any right or claim
arising after the date on which I execute this Release. I further
waive my right to claim or receive damages as a result of any charge of
discrimination which may be filed by me or anyone acting on my
behalf. I acknowledge that this Release includes any and all claims
and causes of action, including, but not limited to, claims under Title VII
of
the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment
Act of 1967, as amended, the Civil Rights Act of 1966, as amended, the Civil
Rights Act of 1991, as amended, the Americans with Disabilities Act of 1990,
as
amended, the Older Workers Benefit Protection Act of 1990, as amended, the
Employee Retirement Income Security Act of 1974, as amended (“ERISA”), the
Family and Medical Leave Act of 1993, as amended, and any claims of contract,
tort, defamation, slander, wrongful termination or other claims or any other
state or federal statutory or common law, except ordinary claims for
benefits accrued and vested as of the Separation Date under any benefit plan
subject to ERISA.
Should
any of the provisions set forth
in this Release be determined to be invalid by a court or other tribunal
of
competent jurisdiction, it is agreed that such determination shall not affect
the enforceability of other provisions of this Release.
I
acknowledge that this Release and the
Agreement set forth the entire understanding and agreement between me and
the
Company and any other member of the Corporate Group concerning the subject
matter of this Release and supersede my prior or contemporaneous oral and/or
written agreements or representations, if any, between me and the Company
and
any other member of the Corporate Group.
I
acknowledge that I have read this
Release, have had an opportunity to ask questions and have it explained to
me,
and that I understand that this Release will have the effect of knowingly
and
voluntarily waiving any action I might pursue, including breach of contract,
personal injury, retaliation,
discrimination
on the basis of race, age, sex, national origin or disability and any other
claims arising prior to the date hereof.
I
further agree that in the event of my
material breach of this Release, in addition to any other legal or equitable
remedy, the Company shall be entitled to recover any payments made to me
under
the Agreement, subject to any restrictions on such recovery or relief as
may be
imposed under applicable law or as may be required to ensure that this Release
is and remains valid and enforceable.
I
understand that for a period of seven
calendar days following the execution of this Release, I may revoke it by
delivering a written statement to the Company by hand or by registered mail,
addressed to the address for the Company specified in the Agreement, in which
case the Release will not become effective. In such event, the
Company shall have no obligation to provide me the consideration offered
under
Paragraph 3 of the Agreement. Upon the expiration of such seven-day
period, I understand that this Release shall be permanent and
irrevocable.
WITNESS:
/s/ Xxxxxx
X. Xxxxxxxx
III By:
/s/ Xxxxxxx Xxxxxxx
Xxxxxx
X. Xxxxxxxx III
Date: August
1,
2007 Date: August
1, 2007
Executed
before me,
Xxxxxx
X.
Xxxxx Notary
Public, in and for the State
of Louisiana ,
Parish/County of
Rapides ,
and in my presence, this 1st day
of August ,
2007.
/s/ Xxxxxx
X.
Xxxxx #18356
Notary
Public
