AMENDMENT TO RETENTION AGREEMENT
Exxhibit
10(a)92
AMENDMENT
TO
THIS INSTRUMENT, effective
January 1, 2010, by and between Entergy Corporation, a Delaware corporation
(“Company”) and J. Xxxxx Xxxxxxx (“Executive”), hereby constitutes an amendment
to the Retention Agreement entered into by and between the Company and Executive
on November 21, 2000 and effective on October 27, 2000
(“Agreement”). Except as otherwise provided herein, the Agreement and
any prior amendments thereto shall remain in full force and effect in accordance
with their original terms and conditions.
WHEREAS, Executive may become
eligible, while he is considered a “covered employee” (as defined in Code
Section 162(m)), for certain severance benefits under this Agreement that are
determined in whole or in part by reference to Executive’s “EAIP Bonus Award,”
“target annual bonus opportunity under the EAIP,” “highest maximum annual bonus
opportunity under the EAIP,” “Maximum LTIP Award,” “Target Award” and/or “Target
LTIP Award”; and
WHEREAS, effective January 1,
2010 and pursuant to Revenue Ruling 2008-13, payments under the EAIP and/or
under the LTIP may not satisfy the Code Section 162(m) exception for
“performance based” compensation if the EAIP and/or LTIP provide directly or
through another plan or agreement that the EAIP or LTIP award is payable to a
“covered employee” upon termination of employment and without regard to whether
the performance goals are satisfied; and
WHEREAS, Company and Executive
now desire to amend the Agreement to ensure compliance with Revenue Ruling
2008-13, to the extent applicable, with respect to severance benefits that may
become payable under this Agreement and that are based in whole or in part on
Executive’s “EAIP Bonus Award,” “target annual bonus opportunity under the
EAIP,” “highest maximum annual bonus opportunity under the EAIP,” “Maximum LTIP
Award,” “Target Award” and/or “Target LTIP Award”; and
WHEREAS, the Board of
Directors of Company, upon recommendation of the Personnel Committee, has
authorized the undersigned Company Officer to execute this Amendment to the
Agreement.
NOW THEREFORE, in
consideration of the promises and mutual covenants herein contained, Company and
Executive hereby agree to amend the Agreement as follows:
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1.
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Section
3.7 of the Agreement is hereby amended in its entirety, effective January
1, 2010, to read as follows:
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3.7
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Notwithstanding
any provision of Section 3 to the contrary, neither the value of the
Three-Times Severance Payment that may become payable to Executive under
the terms of subsection 3.4 nor the value of the Five-Times Severance
Payment that may become payable to Executive under the terms of subsection
3.6 shall exceed 2.99 times the sum of: (a) Executive’s annual base salary
as in effect at any time within one year and ninety (90) days prior to
Closing or, if higher, immediately prior to a circumstance constituting
Good Reason plus (b) the higher of: (i) the Annual Incentive Award
actually awarded to Executive under the EAIP for the fiscal year of
Company immediately preceding the fiscal year in which Executive’s
termination of employment occurs; or (ii) the Executive’s Target
Award. For purposes of this subsection 3.7, the following
definitions shall apply:
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A.
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“Annual
Incentive Award” shall mean the total annual incentive awarded to
Executive for a fiscal year of his System Company employer, determined
without regard to whether such amount is currently payable or is deferred
and without regard to the form of
payment.
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B.
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“Target
Award” shall mean the average annual EAIP award amount derived under the
EAIP for the two (2) calendar years immediately preceding the calendar
year in which Executive’s Date of Termination occurs and through
application of the target percentage established by the Personnel
Committee for each such calendar year with respect to
Executive.
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2.
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Section
16 of the Plan is hereby amended, effective January 1, 2010, by redefining
in their entirey the terms “EAIP Bonus Award,” “Five-Times Severance
Payment,” “Maximum LTIP Award” and “Three-Times Severance Payment,” and by
adding the definition of “Target LTIP Award”, to read as
follows:
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16.14
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EAIP Bonus
Award shall mean the product of (1) the average of the maximum
annual bonus opportunity under the EAIP for the two calendar years
immediately preceding the calendar year in which the Date of Termination
occurs and (2) a fraction, the numerator of which is the number of days in
the fiscal year that includes the Date of Termination and that are prior
to the Date of Termination, and the denominator of which is
365.
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16.19
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Five-Times Severance
Payment shall mean the payment of a lump sum retention payment, in
cash, equal to five times the sum of (i) Executive's Annual Base Salary
and (ii) Executive's highest maximum annual bonus opportunity under
the EAIP for any fiscal year (other than the fiscal year in which the Date
of Termination occurs) ending after the date hereof, which Five-Times
Severance Payment shall in no event be less
than $10,200,000.00. The Five-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.
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16.23
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Maximum LTIP
Award shall mean the average annual number of performance shares or
performance share units, as applicable, that Executive is entitled to
receive under the LTIP with respect to the two most recent performance
periods (as defined in the applicable program or plan) that precede and do
not include the Date of Termination. Such average annual number
of performance shares or performance share units shall be determined by
dividing by two the sum of the annual maximum pay out levels under the
LTIP with respect to such two most recent performance
periods.
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16.34
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Three-Times Severance
Payment shall mean the payment of a lump sum retention payment, in
cash, equal to three times the sum of (i) Executive's Annual Base Salary
and (ii) Executive's highest target annual bonus opportunity under the
EAIP for any fiscal year (other than the fiscal year in which the Date of
Termination occurs) ending after the date hereof, which Three-Times
Severance Payment shall in no event be less than $4,335,000.00. 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.
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16.36
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Target LTIP
Award shall mean the average annual number of performance shares or
performance share units, as applicable, that Executive is entitled to
receive under the LTIP with respect to the two most recent performance
periods (as defined in the applicable program or plan) that precede and do
not include the Date of Termination. Such average annual number
of performance shares or performance share units shall be determined by
dividing by two the sum of the annual target pay out levels under the LTIP
with respect to such two most recent performance
periods.
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IN WITNESS WHEREOF, the
parties have executed this Amendment on this 17th day of December, 2009, but
effective as of the date above written.
ENTERGY
CORPORATION EXECUTIVE
Through
its Duly Authorized Officer
By:
/s/ Xxxxx X.
Seamons_________ By:
/s/ J. Wayne
Leonard_________
Xxxxx X.
Xxxxxxx
J. Xxxxx
Xxxxxxx
Senior Vice-President,
Human Chairman
and
Resources and
Administration Chief
Executive Officer,
Entergy Corporation
