Exhibit 10(a)88
RETENTION AGREEMENT
This Agreement ("Agreement") is entered into between Entergy
Services, Inc. ("Employer"), a Delaware corporation having its
offices in New Orleans, Louisiana, and ▇▇▇▇▇▇ ▇. ▇▇▇▇
("Executive"), an individual residing in New Orleans, Louisiana.
The effective date of this Agreement shall be the date upon which
both parties have executed this Agreement, whether in
multiple originals or otherwise ("Effective Date").
WHEREAS, Executive is currently employed by Employer, a
System employer, and serves in the position of Senior Vice
President, External Affairs;
WHEREAS, Entergy Corporation ("Company") has entered into
an Agreement and Plan of Merger, by and among Company, FPL Group,
Inc., WCB Holding Corp. (the "Merged Entity"), Ranger Acquisition
Corp. and Ring Acquisition Corp.. dated as of July 30, 2000 (the
"Ring-Ranger Merger Agreement");
WHEREAS, Employer desires to advance the interests of the
System by encouraging the continued attention and dedication of
Executive to his assigned duties, without distraction, prior to
the consummation of the transactions contemplated by the Ring-
Ranger Merger Agreement;
WHEREAS, Executive and Employer agree that this Agreement
supercedes any other System Company employment offers, agreements
or contracts Executive may have received or entered into prior to
the execution of this Agreement, which prior offers, agreements or
contracts Executive acknowledges are without effect, except as otherwise
explicitly provided in this Agreement;
NOW THEREFORE, in consideration of the premises and the
mutual covenants herein contained, Employer and Executive agree
as follows:
1.Defined Terms. The definitions of capitalized terms used in
this Agreement are provided in the last Section of this
Agreement, except as otherwise set forth in the Agreement or
unless a different meaning is plainly required by the context
in which the term is used.
2.Covenants Summarized. Employer and Executive covenant as
follows:
2.1 Employer's Covenants. In order to induce Executive to
remain within the System, Employer agrees, under the
conditions described herein, to pay Executive the
compensation and benefits described herein upon the
circumstances described in Sections 3 and 4 of this
Agreement. This Agreement shall not be construed as
creating an express or implied contract of employment
and, except as otherwise agreed in writing between
Executive and Employer, Executive shall not have any
right to be retained in the employ of any System Company.
2.2 Executive's Covenants. Executive agrees to the following:
A.For a period of two years following the Date of
Termination, Executive shall not engage in any
employment or other activity (without the prior
written consent of Executive's System Company
employer) either in his individual capacity or
together with any other person. corporation.
governmental agency or body, or other entity, that is
(i) with an entity listed in the Standard & Poor's
Electric Index or the Dow ▇▇▇▇▇ Utilities Index; or
(ii) 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. In the
event of any violation by Executive of this paragraph
A of subsection 2.2, Executive shall repay to
Executive's System Company employer, within 5 business
days of Executive's System Company employer's written
request therefor, any amounts previously paid to him
pursuant to Section 4, and Executive shall have no
further entitlement to receive any additional payments
or benefits under such subsection.
B.For a period of two years following the Date of
Termination, Executive agrees not to take any action
or make any statement, written or oral, to any current
or former employee of any System Company, or to any
other person, which disparages any 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 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 System Company or its clients, suppliers or
employees. In the event of any violation by Executive
of this paragraph B of this subsection 2.2, Executive
shall repay to Executive's System Company employer,
within 5 business days of Executive's System Company
employer's written request therefor, any amounts
previously paid to him pursuant to Section 4, and
Executive shall have no further entitlement to receive
any additional payments or benefits under such
subsections.
3.Termination Other than Because of a Qualifying Event.
3.1 Forfeiture. Upon the occurrence of any one of the
following events, Executive shall not be entitled to
compensation and benefits that might otherwise have
become
payable to Executive under this Agreement, and Executive
shall forfeit any and all future bonuses or other
incentive compensation not yet paid to Executive at the
date of such event:
A. Executive voluntarily resigns his employment (other
than for the purpose of transferring to another System
Company) without Good Reason, in which case Executive
shall be entitled to any monthly base salary that was
earned by Executive prior to his resignation but not yet
paid to Executive; or
B.Executive is terminated by Executive's System Company
employer for Cause. which termination shall be
immediately effective upon the giving of notice
thereof to Executive, or at such later time as the
notice may specify; or
C.Executive's System employment terminates prior to a
Qualifying Termination because of either Executive's
death or because Executive becomes disabled so as to
entitle Executive to benefits under Executive's System
Company employer's long-term disability plan or, if
Executive is not eligible to participate in such plan,
then Executive is permanently and totally unable to
perform Executive's duties for Executive's System
Company employer as a result of any medically
determinable physical or mental impairment as
supported by a written medical opinion to the
foregoing effect by a physician selected by the
employer, in which case Executive or his estate (in
the event of death) shall receive any monthly base
salary that was earned by Executive prior to his death
or disability but not yet paid to Executive.
3.2 Sole Remedy. In the event of a termination event
described in this Section 3, Executive's rights as
outlined in this Section 3 are (i) Executive's sole and
exclusive rights against Executive's System Company
employer or any other System Company under this Agreement
and (ii) the sole and exclusive liability to Executive by
any System Company employer or other employer under this
Agreement, in contract, tort, or otherwise, for any
termination of the employment relationship. Executive
covenants not to lodge against Executive's System Company
employer or any other 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 3.
4.Qualifying Termination. The following provisions shall apply
in the event Executive's System employment ends because of a
Qualifying Termination.
4.1 Compensation and Benefits. If Executive's employment is
terminated due to a Qualifying Termination, then
Executive shall be entitled to the following, provided,
however, that to the extent Executive has received or is
receiving any of the compensation or benefits described
under this Section 4 of this Agreement, such compensation
and benefits shall not be duplicated:
A.Normal Post-Termination Compensation and Benefits; and
B.Executive's Accrued Obligations, Three-Times Severance
Payment, Supplemental Retirement Benefit, Target LTIIP
Award, and Other EOP Awards.
4.2 Gross-Up Payment. If any of the payments or benefits
received or to be received by Executive (whether pursuant
to Section 4 of this Agreement or any other plan,
arrangement or agreement with any System Company) (all
such payments and benefits, excluding the Gross-Up
Payment, being hereinafter referred to as the "Total
Payments") will be subject to the Excise Tax, Executive's
System Company employer shall pay to Executive an
additional amount (the "Gross-Up Payment") such that the
net amount retained by Executive, 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.
A.For purposes of determining whether any of the Total
Payments will be subject to the Excise Tax and the
amount of such Excise Tax, (i) all of the Total
Payments shall be treated as "parachute payments"
(within the meaning of section 280G(b)(2) of the Code)
unless, in the opinion of tax counsel ("Tax Counsel")
reasonably acceptable to Executive and selected by the
accounting firm which was, immediately prior to the
Closing, Executive's System Company employer's
independent auditor (the "Auditor"), 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, (ii) all "excess parachute
payments" within the meaning of section 280G(b)(l) 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 Base Amount allocable to such
reasonable compensation, or are otherwise not subject
to the Excise Tax, and (iii) the value of any non-cash
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, Executive 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 Executive'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,
net of the maximum reduction in federal income taxes
which could be obtained from deduction of such state
and local taxes.
▇.▇▇ the event that the Excise Tax is finally determined
to be less than the amount taken into account
hereunder in calculating the Gross-Up Payment,
Executive shall repay to Executive's System Company
employer, within five (5) business days following the
time that the amount of such reduction in the Excise
Tax is finally determined, the portion of the Gross-Up
Payment attributable to such reduction plus that
portion of the Gross-Up Payment attributable to the
Excise Tax and federal, state and local income and
employment taxes imposed on the Gross-Up Payment being
repaid by Executive, to the extent that such repayment
results in a reduction in the Excise Tax and a dollar-
for-dollar reduction in Executive's taxable income and
wages for purposes of federal, state and local income
and employment taxes, plus interest on the amount of
such repayment at 120% of the rate provided in section
1274(b)(2)(B) of the Code. In the event that the
Excise Tax is 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), Executive's System
Company employer shall make an additional
Gross-Up Payment in respect of such excess (plus any
interest, penalties or additions payable by Executive
with respect to such excess) within five (5)
business days following the time that the amount of
such excess is finally determined. Executive and
Executive's System Company 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.
4.3 Legal Fees. In the event of a Qualifying Termination,
Executive's System Company employer also shall pay to
Executive all legal fees and expenses incurred by
Executive in disputing in good faith any issue hereunder
relating to the termination of Executive's employment, in
seeking in good faith to obtain or enforce any benefit or
right provided by Section 4 of this Agreement or in
connection with any tax audit or proceeding to the extent
attributable to the application of section 4999 of the
Code to any payment or benefit provided hereunder. Any
such payments shall be made within five (5) business days
after delivery of Executive's written request for payment
accompanied with such evidence of fees and expenses
incurred as Executive's System Company employer
reasonably may require.
5.Rabbi Trust; Timing of Payments. No later than 180 days from
the execution of this Agreement, Executive's System Company
employer may deposit in the Trust for Deferred Payments of
Entergy Corporation and Subsidiaries ("Trust") an amount as
determined by the Auditor to be necessary to pay all amounts
that would be due under Section 4 of this Agreement if
Executive experienced a Qualifying Termination event on the
Effective Date of this Agreement. Executive's System Company
employer may deposit such additional amounts as determined by
the Auditor from time to time to be necessary to pay amounts
due under Section 4 of this Agreement. The payments provided
in Section 4 hereof shall be made no later than the fifth
business day following the Date of Termination; provided,
however, that if the amounts of such payments cannot be
finally determined on or before such day, Executive's System
Company employer shall pay to Executive on such day an esti
mate, as determined in good faith by Executive's System
Company employer or, in the case of payments under Section 4
hereof, in accordance with Section 4 hereof, of the minimum
amount of such payments to which Executive 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 Executive's System Company 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 day after the Date of Termination. In the event that
the amount of the estimated payments exceeds the amount
subsequently determined to have been due, such excess shall
constitute a loan by Executive's System Company employer to
Executive, payable on the fifth business day after demand by
Executive's System Company employer (together with interest at
120% of the rate provided in section 1274(b)(2)(B) of the
Code). At the time that payments are made under Section 4 of
this Agreement, Executive's System Company employer shall
provide Executive with a written statement setting forth the
manner in which such payments were calculated and the basis
for such calculations including, without limitation, any
opinions or other advice Executive's System Company employer
has received from Tax Counsel, the Auditor or other advisors
or consultants (and any such opinions or advice which are in
writing shall be attached to the statement).
6.Forfeiture of Compensation and Benefits. In addition to the
provisions of subsection 2.2 of this Agreement, the benefits
that become payable, or in which Executive vests, solely upon
a Qualifying Termination, shall nonetheless be subject to
forfeiture and repayment under the conditions outlined in this
Section 6, as follows:
A.without Executive's System Company employer's permission,
Executive removes, copies, or fails to return, if he has
already removed, any property belonging to one or all of
the System Companies, including, but not limited to, the
original or any copies of any records, computer flies or
disks, reports, notes, documents, files, audio or video
tapes, papers of any kind, or equipment provided by any one
or all of the System Companies or created using property of
or for the benefit of one or all of the System Companies;
B.during Executive's employment and for 2 years thereafter.
other than as authorized by a System Company or as required
by law or as necessary for Executive to perform his duties
for a System Company employer, Executive shall disclose to
any person or entity any non-public data or information
concerning any System Company, in which case Executive
shall be required to repay any compensation and benefits
previously received by him under Section 4 of this
Agreement. Disclosure of information pursuant to subpoena,
judicial process, or request of a governmental authority
shall not be deemed a violation of this provision, provided
that Executive gives the System Company immediate notice of
any such subpoena or request and fully cooperates with any
action by System Company to object to, quash, or limit such
request; or
C.Executive engages in any employment (without the prior
written consent of Executive's System Company employer)
either individually or with any person, corporation,
governmental agency or body, or other entity in competition
with, or similar in nature to, any business conducted by
any System Company at any time within two (2) years
commencing upon termination of employment, 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 two- (2-)
year period, in which case Executive shall be required to
repay any compensation and benefits previously received by
him under Section 4 of this Agreement.
7. Claim of Good Reason or Cause for Termination. With the
exception of a determination of Cause in accordance with
paragraph F.6. of Section 22 of this Agreement, for purposes of
any determination under Article 4 of this Agreement regarding the
existence of Good Reason or Cause for a Qualifying Termination,
any position taken by Executive shall be presumed correct unless
Executive's System Company employer establishes by clear and
convincing evidence to the Committee that such position is not
correct.
8. Settlement of Disputes; Arbitration.
8.1 All claims by Executive for benefits under Section 4 of
this Agreement shall be directed to and determined by
the Committee and shall be in writing. Any denial by
the Committee of a claim for benefits under Section 4
of this Agreement shall be delivered to Executive in
writing and shall set forth the specific reasons for
the denial and the specific provisions of this
Agreement relied upon. The Committee shall afford a
reasonable opportunity to Executive for a review of the
decision denying a claim and shall further allow
Executive to appeal to the Committee a decision of the
Committee within sixty (60) days after notification by
the Committee that Executive's claim has been denied.
8.2 Any further dispute or controversy arising under or in
connection with Section 4 of this Agreement shall be
settled exclusively by arbitration in the metropolitan
area in which Executive resides on the Date of
Termination (or the date that the Merger Agreement is
terminated, as applicable) in accordance with the rules
of the American Arbitration Association then in effect;
provided, however, that the evidentiary standards set
forth in Section 7 or, if applicable, paragraph F.6. of
Section 22 of this Agreement shall be applied by the
arbitrator(s). Judgment may be entered on the
arbitrator's award in any court having jurisdiction.
Notwithstanding any provision of this Agreement to the
contrary, Executive shall be entitled to seek specific
performance of Executive's right to be paid until the
Date of Termination during the pendency of any dispute
or controversy arising under or in connection with
Section 4 of this Agreement.
8.3 Notwithstanding any other provision to the contrary, as
a condition of receipt of the benefits under this
Section 4, the Chief Executive Officer of Company may
require Executive to remain employed for a period of
time not to extend beyond the Closing, such employment
to be on substantially the same terms and conditions as
in effect on the date of execution of this Agreement.
9. Benefit Plans & Arrangements. Except as otherwise provided in
subsection 9.2 and in Section 10 of this Agreement, the
benefits provided under this Agreement shall in no way alter
or affect the terms and conditions of any Company or other
System Company sponsored employee benefit plans in which
Executive may already participate, and Executive's
eligibility to participate in any such qualified or
non-qualified employee benefit plans and any welfare benefit
plans shall continue to be determined in accordance with the
terms and conditions of such plans, as may be amended from
time to time.
9.1 Unless specifically provided for in a written plan
document properly adopted pursuant to such plan,
none of the benefits or arrangements described in
this Agreement 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
System Company employer.
9.2 Notwithstanding any other provision to the contrary,
Executive acknowledges that benefits provided under this
Agreement are in lieu of participation in, and any
payment that might otherwise have been payable under, the
Continuity Plan and any other System severance or
retention plan, and Executive hereby waives any right to
participate in such plans. Further, the Supplemental
Retirement Benefit represents payment in lieu of all non-
qualified supplemental retirement benefits to which
Executive might otherwise be entitled under the PEP,
other non-qualified plans, and any supplemental credited
service granted Executive under the PEP or such other non-
qualified plans, and by electing to receive the
Supplemental Retirement Benefit, Executive hereby
expressly waives any rights to benefits under the PEP,
other non-qualified plans, and any supplemental credited
service granted Executive under the PEP or such other non-
qualified plans. Executive shall not require permission
to retire and commence receipt of benefit payments.
10. Offset. In addition to the specific offset provisions of
this Agreement and those of the PEP and Continuity Plan, in
all cases, the compensation and cash severance 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 the
terminating employer. Provided, however, that the Supplemental
Retirement Benefit payable in accordance with the terms of
this Agreement shall not be subject to this offset provision,
and shall only be subject to the applicable offset provisions
under the PEP used in calculating Executive's Supplemental
Retirement Benefit.
11. Successors.
11.1 In addition to any obligations imposed by law upon any
successor to Executive's System Company employer,
Executive's System Company employer 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
Executive's System Company employer to expressly assume
and agree to perform this Agreement in the same manner
and to the same extent that Executive's System Company
employer would be required to perform it if no such
succession had taken place. Failure of Executive's System
Company employer to obtain such assumption and agreement
prior to the effectiveness of any such succession shall
be a breach of this Agreement and shall entitle Executive
to compensation from Executive's System Company employer
in the same amount and on the same terms as Executive
would be entitled to hereunder if Executive were to
experience a Qualifying Termination, except that, for
purposes of implementing the foregoing, the date on which
any such succession becomes effective shall be deemed the
Date of Termination.
11.2 This Agreement shall inure to the benefit of and be
enforceable by Executive's personal or legal
representatives, executors, administrators, successors,
heirs, distributees, devisees and legatees. If Executive
shall die after the occurrence of a Qualifying Event and
while any amount would still be payable to Executive
hereunder if Executive had continued to live (other than
amounts which, by their terms, terminate upon the death
of Executive), all such amounts, unless otherwise
provided herein, shall be paid in accordance with the
terms of this Agreement to the executors, personal
representatives or administrators of Executive's estate.
12. Provisions of Referenced Plans. To the extent this
Agreement references or incorporates provisions of any other
System Company plan and (a) such other plan is amended,
supplemented, modified or terminated during the two-year
period commencing on the date of a Potential Change in Control
and (b) such amendment, supplementation, modification or
termination adversely affects any benefit under this Plan,
whether it be in the method of calculation or otherwise, then
for purposes of this Agreement, the parties shall rely upon
the version of such other plan in existence immediately prior
to any such amendment, supplementation. modification or
termination, unless such change is agreed to in writing and
signed by the parties, or by their legal representatives and
successors.
13. 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 a System Company, addressed in care of:with copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq. ▇▇▇▇ ▇. ▇▇▇▇▇
General Counsel Senior Vice-President, Human
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ Resources and Administration
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Executive, addressed as follows:
▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
14. Binding Agreement. Upon its Effective Date, this
Agreement is binding upon Executive (and his or her heirs) and
Employer (and its successors, agents, heirs or assigns).
Executive expressly acknowledges the right of Employer to
assign this Agreement and Executive's employment to any
successor entity.
15. Nonassignability. This Agreement or the right to receive
benefits hereunder may not be assigned, encumbered or
alienated by Executive in any manner.
16. Applicable Law. This Agreement shall be interpreted and
enforced in accordance with the laws of the State of Delaware.
17. 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.
18. No Waiver. Failure of either party to give notice of any
breach by the other party of, or failure to require compliance
with, any condition or provision of this Agreement shall not
be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time.
19. 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 System
Company employment of Executive that is not contained in this
Agreement shall be valid or binding.
20. Modifications and Waivers. This Agreement contains the
entire understanding between Executive and Employer relating
to 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, Company or any other 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.
21. 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.
22. Definitions. For purposes of this Agreement, the
following terms shall have the meanings hereinafter indicated,
except as otherwise set forth in the Agreement or unless a
different meaning is plainly required by the context in which
the term is used.
A."Accrued Obligations" shall mean Executive's Annual Base
Salary through the Date of Termination to the extent not
theretofore paid, together with all unpaid compensation and
benefits payable to Executive through the Date of
Termination under the terms of Employer's compensation and
benefit plans. programs or arrangements as in effect
immediately prior to the Date of Termination or, if more
favorable to Executive, as in effect immediately prior to
the first occurrence of an event or circumstance
constituting Good Reason.
B."Annual Base Salary" shall mean the highest rate of annual
base salary payable to Executive by the System at any time
on or after the Effective Date of this Agreement.
C."Auditor" shall have the meaning set forth in paragraph A
of subsection 4.2 of this Agreement.
D."Base Amount" shall have the meaning set forth in section
280G(b)(3) of the Code.
E."Board" shall mean the Board of Directors of Company.
F."Cause" for termination by Executive's System Company
employer of Executive's employment shall mean:
1.willful and continuing failure by Executive to
substantially perform Executive's duties (other than
such failure resulting from the Executive's incapacity
due to physical or mental illness or any such actual or
anticipated failure after the issuance of a Notice of
Termination for Good Reason by the Executive) that has
not been cured within thirty (30) days after a written
demand for substantial performance is delivered to the
Executive by the Executive's System Company employer's
board, which demand specifically identifies the manner
in which the board believes that the Executive has not
substantially performed Executive's duties; or
2.the willful engaging by the Executive in conduct which
is demonstrably and materially injurious to any System
Company, monetarily or otherwise; or
3.conviction of or entrance of a plea of guilty or nolo
contendere to a felony or other crime which has or may
have a material adverse affect on Executive's ability
to carry out Executive's duties or upon the reputation of
any System Company; or
4.a material violation by Executive of any agreement
Executive has with a System Company, including, without
limitation, violation of Section 6 this Agreement; or
5.unauthorized disclosure by Executive of the confidences
of any System Company; or
6.Executive's willful failure, as determined by J. ▇▇▇▇▇
▇▇▇▇▇▇▇, the Company's Chief Executive Officer as of
the date hereof, to support and use Executive's best
efforts to facilitate the consummation of the
transactions contemplated by the Merger Agreement
(until the Merger Agreement may be terminated) in
accordance with Company directives; provided, however,
that it shall not be Cause for termination under this
clause for Executive, in good faith, to discuss with
members of the Board, the Chief Executive Officer of
Company, or peer senior executives of Company,
Executive's concerns with, suggestions regarding, or
proposed improvements to, the merger implementation
process.
For purposes of clauses 1 and 2 of this definition, no
act, or failure to act, on the Executive's part shall be
deemed "willful" unless done, or omitted to be done, by the
Executive not in good faith and without reasonable belief
that the Executive's act, or failure to act, was in the
best interest of the Company.
G."Closing" shall mean the earlier to occur of (1)
consummation of the transactions contemplated by the Ring-
Ranger Merger Agreement or (2) the occurrence of a "Change
in Control" (as defined in the Continuity Plan in effect on
the date hereof).
H."Code" shall mean the Internal Revenue Code of 1986. as
amended from time to time.
I."Committee" shall mean (1) the individuals who, on the date
hereof, constitute the Personnel Committee of the Board,
plus (2) in the event that fewer than three individuals are
available from the group specified in clause (1) above for
any reason, such individuals as may be appointed by the
individual or individuals so available (including for this
purpose any individual or individuals previously so
appointed under this clause
(2)).
J."Company" shall mean Entergy Corporation and shall include
any successor to its business and/or assets which assumes
and agrees to perform this Agreement by operation of law,
or otherwise.
K."Continuity Plan" shall mean the System Executive
Continuity Plan of Entergy Corporation and Subsidiaries.
L."Date of Termination" shall mean the date specified in the
Notice of Termination (which in the case of termination by
the System Company employer, shall not be less than thirty
(30) days (except in the case of a termination for Cause)
and, in the case of a termination by Executive, shall not
be less than fifteen (15) days nor more than sixty (60)
days, respectively, from the date such Notice of
Termination is given).
M."EAIP" shall mean Executive Annual Incentive Plan of
Entergy Corporation and Subsidiaries, or any successor or
replacement plan.
N."Effective Date" shall mean the date upon which both
parties have executed this Agreement.
O."EOP" shall mean the Equity Ownership Plan of Entergy
Corporation and Subsidiaries, or any successor or
replacement plan.
P."Excise Tax" shall mean any excise tax imposed under
section 4999 of the Code.
Q."Good Reason" shall mean the occurrence, without the
Executive's express written consent, of any of the
following events:
1.the substantial reduction or alteration in the nature or
status of Executive's duties or responsibilities from
those in effect on the date immediately preceding the
Effective Date of this Agreement, other than an
insubstantial and inadvertent act that is remedied by
Executive's System Company employer promptly after receipt
of notice thereof given by Executive and other than any
such alteration primarily attributable to the fact that
Entergy Corporation may no longer be a public company;
2.a reduction of five percent (5%) or more in Executive's
base salary as in effect on the date immediately
preceding the Effective Date of this Agreement, which
shall be calculated exclusive of any bonuses, overtime,
or other special payments, but including the amount, if
any, Executive elects to defer under: (i) a cash or
deferred arrangement qualified under Code Section 401(k);
(ii) a cafeteria plan under Code Section 125; (iii) the
Executive Deferred Compensation Plan of Entergy Corporation
and Subsidiaries, or any successor or replacement plan; and
(iv) any other nonqualified deferred compensation plan,
agreement, or arrangement in which Executive may hereafter
participate or be a party;
3.requiring Executive to be based at a location outside of the
continental United States and other than his primary work
location as it existed on the date immediately preceding the
Effective Date of this Agreement, except for required travel
on business of any System Company to an extent substantially
consistent with Executive's present business obligations;
4.failure by Executive's System Company employer to continue in
effect any compensation plan in which Executive participates
immediately prior to the Effective Date of this Agreement
which is material to Executive's total compensation, including
but not limited to compensation plans in effect, including
stock option, restricted stock, stock appreciation right,
incentive compensation, bonus and other plans or any
substitute plans adopted prior to the Effective Date of this
Agreement, unless an equitable arrangement (embodied in an
ongoing substitute or alternative plan) has been made with
respect to such plan, or the failure by Executive's System
Company employer to continue Executive's participation therein
(or in such substitute or alternative plan) on a basis not
materially less favorable, both in terms of the amount or
timing of payment of benefits provided and the level of the
Executive's participation relative to other participants, as
existed immediately prior to the Effective Date of this
Agreement;
5.failure by Executive's System Company employer to continue to
provide Executive with benefits substantially similar to those
enjoyed by Executive under any of Executive's System Company
employer's pension, savings, life insurance, medical, health
and accident, or disability plans in which Executive was
participating immediately prior to the Effective Date of this
Agreement, the taking of any other action by Executive's
System Company employer which would directly or indirectly
materially reduce any of such benefits or deprive Executive of
any material fringe benefit enjoyed by Executive immediately
prior to the Effective Date of this Agreement. or the failure
by Executive's System Company employer to provide Executive
with the number of paid vacation days to which Executive is
entitled on the basis of years of service with the System in
accordance with Executive's System Company employer's normal
vacation policy in effect immediately prior to the Effective
Date of this Agreement; or
6.any purported termination of Executive's employment which is
not effected pursuant to a Notice of Termination satisfying
the requirements of this Agreement; for purposes of this
Agreement, no such purported termination shall be effective in
depriving Executive of the right to terminate employment for
Good Reason.
Executive' s right to terminate his employment for Good Reason
shall not be affected by Executive's incapacity due to physical
or mental illness. Executive's continued employment shall not
constitute consent to, or a waiver of rights with respect to, any
act or failure to act constituting Good Reason.
R."Gross-Up Payment" shall have the meaning set forth in
subsection 4.2 of this Agreement.
S."LTIP" shall mean the Long Term Incentive Program of the
EOP, or any successor or replacement long-term incentive
program.
T."Merger Agreement" shall mean the Ring-Ranger Merger
Agreement or any other agreement, the consummation of the
transactions contemplated by which would constitute a
"Change in Control" under the Continuity Plan as in effect
on the date hereof.
U."Merger Termination Date" shall mean the date on which the
Ring-Ranger Merger Agreement is terminated in accordance
with its terms.
V."Normal Post-Termination Compensation and Benefits" shall
mean Executive's normal post-termination compensation and
benefits as such payments become due, and determined
under, and paid in accordance with, Executive's System
Company employer's retirement, insurance and other
compensation or benefit plans, programs and arrangements
as in effect immediately prior to the Date of Termination
or, if more favorable to Executive, as in effect
immediately prior to the occurrence of the first event or
circumstance constituting Good Reason.
W."Notice of Termination" shall mean a notice that shall
indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable
detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under
the provision so indicated. Further, a Notice of
Termination for Cause is required to include a copy of a
resolution duly adopted by the affirmative vote of not
less than three-quarters (3/4) of the entire membership of
the terminating employer's board of directors at a meeting
of such board of directors which was called and held for
the purpose of considering such termination (after
reasonable notice to Executive and an opportunity for
Executive, together with Executive's counsel, to be heard
before that board) finding that, in the good faith opinion
of the board, Executive was guilty of conduct set forth in
the definition of Cause herein, and specifying the
particulars thereof in detail.
X."Other EOP Awards" shall mean the vesting of, and lapse of
restrictions on, all restricted shares, stock options, and
other awards (excluding awards under the LTIP) granted
under the EOP, as applicable, granted to Executive prior to
the Date of Termination, to the extent such shares, options
or other awards have not already vested or restrictions
thereon have not yet lifted.
Y."PEP" shall mean the Pension Equalization Plan of Entergy
Corporation and Subsidiaries.
Z."Potential Change in Control" shall have the meaning of
such term as defined in the Continuity Plan, which
definition is hereby incorporated into this Agreement by
reference.
AA."Qualifying Termination" shall mean a termination of
Executive's employment (i) by Executive for Good Reason at
any time prior to the earlier of termination of the Merger
Agreement or the second anniversary date of the Closing;
or (ii) by Executive's System Company employer other than
for Cause at any time prior to the earlier of termination
of the Merger Agreement or the second anniversary date of
the Closing.
BB."Ring-Ranger Closing Date" shall mean the date of closing
of the Ring-Ranger Merger Agreement.
CC."Ring-Ranger Merger Agreement" shall mean the Agreement
and Plan of Merger by and among FPL Group, Inc., Entergy
Corporation, WCB Holding Corp., Ranger Acquisition Corp.
and Ring Acquisition Corp. dated as of July 30, 2000.
DD."Supplemental Retirement Benefit" shall mean a benefit
equal to the PEP benefit payable to Executive, as
calculated under the terms of the PEP and Executive's PEP
Participant Application, which terms and provisions are
hereby incorporated by reference, but with the following
adjustments to the calculation of the benefit otherwise
payable under the PEP: (i) Executive shall be entitled to
a terminated vested benefit; (ii) Executive shall be
entitled to the present value of the terminated vested
benefit, payable in a lump sum in accordance with Section
5 of this Agreement; (iii) the benefit shall be calculated
by applying the 1983 General Accounting Mortality Table
and a 6.15% discount rate; and (iv) the value of the
benefit shall in no event be less than ONE MILLION ONE
HUNDRED TEN THOUSAND SEVEN HUNDRED THIRTY-FOUR DOLLARS AND
NO CENTS ($1,110,734.00).
EE."System" shall mean Company and all other System Companies.
FF."System Company(ies)" shall mean Company and any other
corporation 80% or more of whose stock (based on voting
power or value) is owned directly or indirectly by Company
and any partnership or trade or business which is 80% of
more controlled, directly or indirectly, by Company, and
any successor to the business and/or assets of any such
entity.
GG."Target LTIP Award" shall mean the number of performance
shares or performance share units, as applicable, that
Executive shall be entitled to receive under the LTIP with
respect to any performance period (as defined in the
applicable program or plan) that includes the Date of
Termination, such number to be determined as if Executive
satisfied the remaining performance requirements and was
entitled to the target pay out level under the LTIP with
respect to such performance periods.
HH."Tax Counsel" shall have the meaning set forth in paragraph
A of subsection 4.2 of this Agreement.
II."Three-Times Severance Payment" shall mean a lump sum cash
payment equal to three times the sum of (1) Executive's
Annual Base Salary and (2) Executive's highest maximum
annual bonus opportunity under the EAIP for any fiscal year
ending after the Effective Date. The Three-Times Severance
Payment shall in no event be less than TWO
MILLION ONE HUNDRED EIGHTY-FOUR THOUSAND DOLLARS and NO
CENTS ($2,184,000.00). The Three-Times Severance Payment
shall be in lieu of any further salary payments to
Executive for periods subsequent to the Date of Termination
(if any) and in lieu of any retention, severance,
termination or similar benefit otherwise payable to
Executive under any plan, program, arrangement or agreement
of or with any System Company.
JJ."Total Payments" shall mean those payments described in
subsection 4.2 of this Agreement.
IN WITNESS WHEREOF, Employer and Executive have duly executed
this Agreement on the dates indicated below, which Agreement
may be executed in multiple originals, to be
effective on the Effective Date.
ACCEPTED BY EMPLOYER: ACCEPTED BY EXECUTIVE:
Entergy Services, Inc.
by its Duly Authorized Agent:
/s/ C. ▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
C. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇
Senior Vice-President, Human Social Security No. ________________
Resources and Administration Executed this ___day of ____, 2001.
Executed this ___ day of ____, 2001.
