CLECO CORPORATION EXECUTIVE EMPLOYMENT AGREEMENT (Level 1)
EXHIBIT
10(g)(7)
CLECO
CORPORATION
(Level
1)
THIS
AGREEMENT (the
“Agreement”) is entered into as of this 29th
day of January,
2007, by and between Xxxx X. Xxxxxxxx (“Executive”), and Cleco
Corporation, a Louisiana corporation (the “Company”).
1. EMPLOYMENT
AND TERM
1.1 Position. The
Company shall employ and retain Executive as its Senior Vice President –
General Counsel, Director – Regulatory Compliance, and Assistant Corporate
Secretary or in such other capacity or capacities as shall be mutually
agreed upon, from time to time, by Executive and the Company, and Executive
agrees to be so employed, subject to the terms and conditions set forth
herein. Executive’s duties and responsibilities shall be those
assigned to him hereunder, from time to time, by the Chief Executive Officer
of
the Company and shall include such duties as are the type and nature normally
assigned to similar executive officers of a corporation of the size, type
and
stature of the Company. Executive shall report to the Chief Executive
Officer.
1.2 Concurrent
Employment. During the term of this Agreement, Executive and
the Company acknowledge that Executive may be concurrently employed by
the
Company and a subsidiary or other entity with respect to which the Company
owns
(within the meaning of Section 425(f) of the Internal Revenue Code of 1986,
as
amended (the “Code”)) 50% or more of the total combined voting power of all
classes of stock or other equity interests (an “Affiliate”), and that all of the
terms and conditions of this Agreement shall apply to such concurrent
employment. Reference to the Company hereunder shall be deemed to
include any such concurrent employers.
1.3 Full
Time and Attention. During the term of this Agreement and
any extensions or renewals thereof, Executive shall devote his full time,
attention and energies to the business of the Company and will not, without
the
prior written consent of the Chief Executive Officer of the Company, be
engaged
(whether or not during normal business hours) in any other business or
professional activity, whether or not such activities are pursued for gain,
profit or other pecuniary advantage.
Notwithstanding
the foregoing,
Executive shall not be prevented from (a) engaging in any civic or charitable
activity for which Executive receives no compensation or other pecuniary
advantage, (b) investing his personal assets in businesses which do not
compete
with the Company, provided that such investment will not require any services
on
the part of Executive in the operation of the affairs of the businesses
in which
investments are made and provided further that Executive’s participation in such
businesses is solely that of an investor, or (c) purchasing securities
in any
corporation whose securities are regularly traded, provided that such purchases
will not result in Executive owning beneficially at any time 5% or more
of the
equity securities of any corporation engaged in a business competitive
with that
of the Company.
1.4 Term. Executive’s
employment under this Agreement shall commence as of January 29, 2007 (the
“Effective Date”), and shall terminate on January 29, 2010 (such date or the
last day of employment specified in any renewal or amendment hereof referred
to
herein as the “Termination Date”) (the period commencing as of the Effective
Date and ending as of the Termination Date referred to herein as the “Employment
Term”).
Commencing
on the second anniversary of
the Effective Date and each anniversary thereafter, Executive’s employment shall
automatically be extended for an additional one-year period; provided,
however,
that either party may provide written notice to the other that the Employment
Term will not be further extended, such notice to be provided not later
than 30
days prior to the end of the then current Employment Term.
2. COMPENSATION
AND BENEFITS
2.1 Base
Compensation. The Company shall pay Executive an annual
salary equal to his annual base salary in effect as of the Effective Date,
such
amount shall be prorated and paid in equal installments in accordance with
the
Company’s regular payroll practices and policies and shall be subject to
applicable withholding and other applicable taxes (Executive’s “Base
Compensation”). Executive’s Base Compensation shall be reviewed no
less often than annually and may be increased or reduced by the Board of
Directors of the Company (the “Board”), in its sole discretion; provided,
however, that Executive’s Base Compensation may not be reduced at any time
unless such reduction is part of a reduction in pay uniformly applicable
to all
officers of the Company.
2.2 Annual
Incentive Bonus. In addition to the foregoing, Executive
shall be eligible for participation in the Annual Incentive Compensation
Plan or
similar bonus arrangement maintained by the Company or an Affiliate (as
defined
in Section 6.15) or such other bonus or incentive plans which the Company
or its
Affiliates may adopt, from time to time, for similarly situated executives
(an
“Incentive Bonus”).
2.3 Long-Term
Incentives. In addition to the foregoing, Executive shall be
eligible for participation in the 2000 Long-Term Incentive Compensation
Plan
maintained by the Company and such other long-term incentive plans which
the
Company or its Affiliates may adopt, from time to time, for similarly situated
executives (a “Long-Term Incentive”).
2.4 Supplemental
Retirement Benefit. In addition to the foregoing, Executive
shall be eligible to participate in the Supplemental Executive Retirement
Plan
maintained by Cleco Utility Group Inc. or such other supplemental retirement
benefit plans which the Company or its Affiliates may adopt, from time
to time,
for similarly situated executives (the “Supplemental Plan”).
2.5 Other
Benefits. During the term of this Agreement and in addition to the
amounts otherwise provided herein, Executive shall participate in such
plans,
policies, and programs as may be maintained, from time to time, by the
Company
or its Affiliates for the benefit of senior executives or employees, including,
without limitation, profit sharing, life insurance, and group medical and
other
welfare benefit plans. Any such benefits shall be determined in
accordance with the specific terms and conditions of the documents evidencing
any such plans, policies, and programs.
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2.6 Reimbursement
of Expenses. The Company shall reimburse Executive for
such reasonable and necessary expenses as are incurred in carrying out
his
duties hereunder, consistent with the Company’s standard policies and annual
budget. The Company’s obligation to reimburse Executive hereunder
shall be contingent upon the presentment by Executive of an itemized accounting
of such expenditures.
3. TERMINATION
3.1 Termination
Payments to Executive. As set forth more fully in this
Section 3 and except as provided in Sections 3.3 or 3.8 hereof, Executive
shall
be paid the greater of the amounts or benefits set forth below or the amounts
or
benefits provided under the terms of the separate severance plan or arrangement
maintained by the Company (or its Affiliates) on account of termination
of
employment hereunder, but in no event will Executive be entitled to recover
under both:
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a.
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Executive’s
Base Compensation accrued but not yet paid as of the date of
his
termination.
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b.
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Executive’s
Base Compensation payable until the Termination Date (determined
without
regard to the automatic renewal provisions of Section 1.4 hereof),
but not
less than 100% of such annual Base
Compensation.
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c.
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Executive’s
Incentive Bonus payable with respect to the year of his termination,
prorated to reflect Executive’s actual period of service during such
year.
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d.
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Executive’s
Incentive Bonus payable in the target amount for the year in
which his
termination of employment occurs.
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e.
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If
Executive’s principal office is located in Pineville, Louisiana, the
Company shall, at the written request of
Executive:
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i.
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Purchase
his principal residence if such residence is located within 60
miles of
the Company’s Pineville, Louisiana office (the “Principal Residence”) for
an amount equal to the greater of (1) the purchase price of such
Principal
Residence plus the documented cost of any capital improvements
to the
Principal Residence made by Executive, or (2) the fair market
value of
such Principal Residence as determined by the Company’s usual relocation
practice; and
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ii.
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Pay
or reimburse Executive for the cost of relocating Executive,
his family
and their household goods and other personal property, in accordance
with
the Company’s usual relocation practice, to any location in the
United
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Notwithstanding
the foregoing, the Company shall not be obligated hereunder, unless, within
2½
months after the year in which occurs the termination of his employment
with the Company (and its Affiliates), the Company is requested to purchase
such
Principal Residence or Executive has actually relocated from the Pineville,
Louisiana area. Any payments by the Company pursuant to this Section
3.1e shall be made no later than March 15th of the
calendar
year following the calendar year in which Executive’s employment is
terminated.
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f.
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If
Executive and/or his dependents elects to continue group medical
coverage,
within the meaning of Code Section 4980B(f)(2), with respect
to a group
health plan sponsored by the Company or an Affiliate (other than
a health
flexible spending account under a self-insured medical reimbursement
plan
described in Code Sections 125 and 105(h)), the Company shall
pay the
continuation coverage premium for the same type and level of
group health
plan coverage received by Executive and his electing dependents
immediately prior to such termination of Executive’s employment for the
maximum period provided under Code Section 4980B or until the
Executive
secures other employment where group health insurance is provided,
whichever period is shorter.
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g.
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Executive
shall be fully vested for purposes of any service or similar
requirement
imposed under the Cleco Utility Group Inc. Supplemental Executive
Retirement Plan (the "Supplemental Plan"), regardless of the
actual number
of years of service attained by
Executive.
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Notwithstanding
any provision to the contrary, the amounts set forth in Sections 3.1a,
b, c, d
and e hereof shall be paid no later than March 15th of the
calendar
year following the calendar year in which Executive’s employment is
terminated.
Except
as expressly provided in Section 3.3 hereof, Executive shall also be entitled
to
receive such compensation or benefits as may be provided under the terms
of a
separate plan or amendment maintained by the Company (or its Affiliates)
to the
extent such compensation or benefits are not duplicative of the compensation
or
benefits described above.
3.2 Termination
for Death or Disability. If Executive dies or becomes
disabled during the Employment Term, this Agreement and Executive’s employment
hereunder shall immediately terminate and the Company’s obligations hereunder
shall automatically cease. In such event, the Company shall pay to
Executive (or his estate) the amounts described in Sections 3.1a and 3.1c
hereof. Payment shall be made in the form of one or more single-sums
as soon as practicable after Executive’s death or disability or as and when such
amounts are ascertainable, but in no event later than March 15th of the
calendar
year following the Executive’s termination of employment due to death or
disability.
For
purposes of this Section 3.2,
Executive shall be deemed “disabled” if he is actually receiving benefits or is
eligible to receive benefits under the Company’s (or an Affiliate’s) separate
long-term disability plan. The Board shall determine whether Executive
is
disabled hereunder.
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3.3 Company’s
Termination for Cause. This Agreement and Executive’s
employment hereunder may be terminated by the Company on account of
Cause. In such event, the Company shall pay to Executive the amount
described in Section 3.1a hereof. Payment shall be made in the form
of a single-sum not later than three days after such
termination. Notwithstanding any provision of this Agreement or any
other plan, policy or agreement evidencing any other compensation arrangement
or
benefit payable to Executive, no additional amount shall be paid to Executive,
except as may be required by law.
For
purposes of this Agreement “Cause”
means that Executive has:
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a.
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Committed
an intentional act of fraud, embezzlement or theft in the course
of his
employment or otherwise engaged in any intentional misconduct
which is
materially injurious to the Company’s (or an Affiliate’s) financial
condition or business reputation;
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b.
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Committed
intentional damage to the property of the Company (or an Affiliate)
or
committed intentional wrongful disclosure of Confidential Information
(as
defined in Section 5.2) which is materially injurious to the
Company’s (or
an Affiliate’s) financial condition or business
reputation;
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c.
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Intentionally
refused to perform the material duties of his
position;
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d.
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Failed
to fully cooperate to the extent requested by the Company (or
an
Affiliate) with investigations by government or independent agencies
involving the Company (or an Affiliate);
or
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e.
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Committed
a material breach of this
Agreement.
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No
act or failure to act on the part of Executive will be deemed “intentional” if
it was due primarily to an error in judgment or negligence, but will be
deemed
“intentional” only if done or omitted to be done by Executive not in good faith
and without reasonable belief that his action or omission was in the best
interest of the Company (or an Affiliate).
The
Board, acting in good faith, may
terminate Executive’s employment hereunder on account of Cause (or may determine
that any termination by the Company is on account of Cause). The
Board shall provide written notice to Executive, including a description
of the
specific reasons for the determination of Cause. Executive shall have
the opportunity to appear before the Board, with or without legal
representation, to present arguments and evidence on his
behalf. Following such presentation (or upon Executive’s failure to
appear), the Board, by an affirmative vote of not less than 66% of its
members,
shall confirm whether the actions or inactions of Executive constitute
Cause
hereunder.
3.4 Executive’s
Constructive Termination. Executive may terminate this Agreement and
his employment hereunder on account of a Constructive Termination upon
30 days
prior written notice to the Chief Executive Officer (or such shorter period
as
may be agreed upon by the parties hereto.) In such event, the Company
shall provide to Executive (a) the amount described in Section 3.1a hereof,
payable not later than three days after his termination of employment,
(b) the
amounts determined under Sections 3.1b and 3.1d hereof, payable in not
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more
than two equal installments, one-half not later than 30 days after termination
and the other one-half six months after such termination or, if earlier,
on
March 15th of
the calendar year following the calendar year in which such termination
occurs,
and (c) the benefits described in Sections 3.1e, 3.1f and 3.1g
hereof.
For
purposes of this Agreement,
“Constructive Termination” means:
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a.
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A
material reduction (other than a reduction in pay uniformly applicable
to
all officers of the Company) in the amount of Executive’s Base
Compensation;
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b.
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A
material reduction in Executive’s authority, duties or responsibilities
from those contemplated in Section 1.1 of this Agreement;
or
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c.
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A
material breach of this Agreement by the Company or its
Affiliates.
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No
event or condition described in this Section 3.4 shall constitute a Constructive
Termination unless (a) Executive promptly gives the Company notice of his
objection to such event or condition, which notice may be provided orally
or in
writing to the Chief Executive Officer or his designee, (b) such event
or
condition is not corrected by the Company promptly after receipt of such
notice,
but in no event more than 30 days after receipt of notice, and (c) Executive
resigns his employment with the Company (and all Affiliates) not more than
15
days following the expiration of the 30-day period described in subparagraph
(b)
hereof.
3.5 Termination
by the Company, without Cause. The Company may terminate
this Agreement and Executive’s employment hereunder, without Cause, upon 30 days
prior written notice to Executive (or such shorter period as may be agreed
upon
by Executive and the Chief Executive officer). In such event, the
Company shall provide to Executive (a) the amount described in Section
3.1a
hereof, payable not later than three days after such termination, (b) the
amounts determined under Sections 3.1b and 3.1d hereof, payable in not
more than
two equal installments, one-half not later than 30 days after termination
and
the other one-half six months after such termination, or, if earlier, on
March
15th of the
calendar year following the calendar year in which such termination occurs,
and
(c) the benefits described in Sections 3.1e, 3.1f and 3.1g hereof.
3.6 Termination
by Executive. Executive may terminate this Agreement and his
employment hereunder, other than on account of Constructive Termination,
upon 30
days prior written notice to the Company or such shorter period as may
be agreed
upon by the Chief Executive Officer and Executive. In such event, the
Company shall pay to Executive the amount described in Section 3.1a
hereof. Payment shall be made in the form of a single-sum not later
than three days after such termination. No additional payments or
benefits shall be due hereunder, except as may be provided under a separate
plan, policy or program evidencing such compensation arrangement or benefit
or
as may be required by law.
3.7 Return
of Property. Upon termination of this Agreement or
Executive’s employment for any reason, Executive shall promptly return to the
Company, and not keep any copies, all of the property of the Company (and
its
Affiliates), 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
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of
the above, as well as any Confidential Information (as defined in Section
5.2
hereof) that is in the possession or under the control of
Executive.
3.8 Consideration
for Other Agreements. Executive acknowledges that all or a
portion of the amount payable under Section 3.1d hereof is in excess of
the
amount otherwise due or payable under the Annual Incentive Compensation
Plan and
that the payment of such excess amount shall constitute adequate consideration
for the execution of such separate waivers or releases as the Company (or
Affiliate) may request Executive to execute in connection with the termination
of his employment hereunder. Executive agrees that failure to execute
any such waiver or release within the time request by the Company shall
result
in the forfeiture of the excess amount payable under Section 3.1d
hereof.
4. CHANGE
IN CONTROL AND BUSINESS TRANSACTION
4.1 Definitions.
The terms “Change in Control” and “Business Transaction” shall
have the meanings ascribed to them in the Cleco Corporation 2000 Long-Term
Incentive Compensation Plan, as the same may be amended from time to
time.
The
term “Good Reason,” when used
herein, shall mean that in connection with a Change in Control:
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a.
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Executive’s
Base Compensation in effect immediately before such Change in
Control is
reduced or there is a significant reduction or termination of
Executive’s
rights to any employee benefit in effect immediately prior to
the Change
in Control;
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b.
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Executive’s
authority, duties or responsibilities are significantly reduced
from those
contemplated in Section 1.1 hereof or Executive has reasonably
determined
that, as a result of a change in circumstances that significantly
affects
his employment with the Company (or an Affiliate), he is unable
to
exercise the authority, power, duties and responsibilities contemplated
in
Section 1.1 hereof;
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c.
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Executive
is required to be away from his office in the course of discharging
his
duties and responsibilities under this Agreement significantly
more than
was required prior to the Change in Control;
or
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d.
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Executive
is required to transfer to an office or business location located
more
than 60 miles from the location to which he was assigned prior
to the
Change in Control.
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No
event or condition described in this Section 4.1 shall constitute Good
Reason
unless (a) Executive gives the Company notice of his objection to such
event or
condition within a reasonable period after Executive learns of such event,
which
notice may be delivered orally or in writing to the Chief Executive Officer
(or
his designee), (b) such event or condition is not promptly corrected by
the
Company, but in no event later than 30 days after receipt of such notice,
and
(c) Executive resigns his employment with the Company (and its Affiliates)
not
more than 60 days following the expiration of the 30-day period described
in
subparagraph (b) hereof.
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4.2 Termination
In Connection With a Change in Control. If Executive’s
employment described herein is terminated by the Company, without Cause
(as
defined in Section 3.3 hereof), or Executive terminates his employment
hereunder
for Good Reason at any time within the 60-day period preceding or 36-month
period following such Change in Control, then notwithstanding any provision
of
this Agreement to the contrary and in lieu of any compensation or benefits
otherwise payable hereunder:
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a.
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The
Company shall pay to Executive the amount described in Section
3.1a in the
form of a single-sum not later than three days after such
termination.
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b.
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The
Company shall pay an amount equal to three times Executive’s “base
amount,” payable in the form of a single-sum not later than 30 days after
such termination. For purposes of this agreement, “base amount”
is defined as the Executive’s current annual base compensation and target
annual bonus.
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c.
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The
Company shall provide to Executive and his dependents coverage
under the
Company’s or an Affiliate’s group medical plan for the same type and level
of health benefits received by Executive and his dependents immediately
prior to such termination for a period of three years or until
Executive
and/or his dependents obtain coverage under a reasonably satisfactory
group health plan with no applicable preexisting condition limitation,
whichever comes first; such coverage to be in addition to any
coverage
available to Executive and his dependents under Code Section
4980B.
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d.
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Vesting
shall be accelerated, any restrictions shall lapse, and all performance
objectives shall be deemed satisfied as to any outstanding grants
or
awards made to Executive under the 2000 Long-Term Incentive Compensation
Plan and/or the 1990 Long-Term Incentive Compensation
Plan. Executive shall be entitled to such additional benefits
or rights as may be provided in the documents evidencing such
plans or the
terms of any agreement evidencing such grant or award. All
payments and benefits to be provided by this section 4.2d shall
be paid no
later than March 15th
of the
calendar year following the calendar year in which such termination
occurs.
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e.
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Executive
shall be fully vested for purposes of any service or similar
requirement
imposed under the Supplemental Plan, regardless of the actual
number of
years of service attained by Executive. Executive shall be
credited with an additional three years of age for purposes of
determining
his benefit percentage under the Supplemental Plan, but in no
event shall
such benefit percentage be less than 50%; and Executive shall
be credited
with an additional three years of age for purposes of determining
any
reduction taken with respect to benefits commencing before Executive's
normal retirement date (as defined in such
plan).
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f.
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If
Executive’s principal office is located in Pineville, Louisiana, the
Company shall, at the written request of
Executive:
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i.
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Purchase
his principal residence if such residence is located within 60
miles of
the Company’s Pineville, Louisiana office (the “Principal
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Residence”)
for an amount equal to the greater of (1) the purchase price
of such
Principal Residence plus the documented cost of any capital improvements
to the Principal Residence made by Executive, or (2) the fair
market value
of such Principal Residence as determined by the Company’s usual
relocation practice; and
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ii.
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Pay
or reimburse Executive for the cost of relocating Executive,
his family
and their household goods and other personal property, in accordance
with
the Company’s usual relocation practice, to any location in the United
States.
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Notwithstanding
the foregoing, the Company shall not be obligated hereunder, unless, within
2½
months after the year in which occurs the termination of his employment
with the
Company (and its Affiliates), the Company is requested to purchase such
Principal Residence or Executive has actually relocated from the Pineville,
Louisiana area. Any payments by the Company pursuant to this Section
4.2f shall be made no later than March 15th of the
calendar
year following the calendar year in which Executive’s employment is
terminated.
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g.
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The
Company shall pay to Executive an amount equal to the Company’s (including
all Affiliates) maximum matching contribution obligation under
the Cleco
Corporation 401(k) Savings and Investment Plan, as the same may
be amended
from time to time, for each of the three years immediately following
Executive’s termination of employment, determined as if Executive was
credited with at least 1,000 hours of service in each such plan
year, was
employed as of the last day of each plan year, and contributed
the maximum
permissible amount under Code Section 402(g) in each such year,
but
determined using the amount in effect as of the date of Executive's
termination of employment; such amount shall be paid in the form
of a
single-sum not later than 30 days after Executive’s termination of
employment hereunder.
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4.3 Business
Transaction. If Executive’s employment hereunder is terminated (other
than on account of Cause as defined in Section 3.3 hereof) in connection
with a
Business Transaction, then notwithstanding any provision of this Agreement
to
the contrary, the Company shall pay or provide to Executive (a) the amount
described in Section 3.1a hereof, payable not later than three days after
his
termination of employment, (b) the amounts determined under Sections 3.1b
and
3.1d hereof, payable in not more than two equal installments, one-half
not later
than 30 days after termination and the other one-half six months after
such
termination, or, if earlier, on March 15th of the
calendar
year following the calendar year in which such termination occurs, and (c)
the benefits described in Sections 3.1e and 3.1f and 4.2d and 4.2e
hereof.
4.4 Tax
Payment. If any payment to Executive pursuant to this Agreement or any
other payment or benefit from the Company or an Affiliate in connection
with a
Change in Control or Business Transaction is subject to the excise tax
imposed
under Code Section 4999 or any similar excise or penalty tax payable under
any
United States federal, state, local or other law, the Company shall pay
an
amount to Executive such that, after the payment by Executive of
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all
taxes on such amount, there remains a balance sufficient to pay such excise
or
penalty tax. Executive shall submit to the Company the amount to be
paid under this Section 4.4, together with supporting
documentation. If Executive and the Company disagree as to such
amount, an independent public accounting firm agreed upon by Executive
and the
Company shall make such determination.
5. LIMITATIONS
ON ACTIVITIES
5.1. Consideration
for Limitation on Activities. Executive acknowledges that
the execution of this Agreement and the payments described herein constitute
consideration for the limitations on activities set forth in this Section
5, the
adequacy of which is hereby expressly acknowledged by Executive.
5.2 Confidential
Information. Executive recognizes and acknowledges that
during the terms of his employment, he will have access to confidential,
proprietary, non-public information concerning the Company and its Affiliates,
which may include, without limitation, (a) books and records relating to
operations, finance, accounting, personnel and management, (b) price, rate
and
volume data, future price and rate plans, and test data, (c) information
related
to product design and development, (d) computer software, customer lists,
information obtained on competitors, and sales tactics, and (e) various
other
non-public trade or business information, including business opportunities,
marketing or business diversification plans, methods and processes, and
financial data and the like (collectively, the “Confidential
Information”). Executive agrees that he will not at any time, either
while employed by the Company or afterwards, make any independent use of,
or
disclose to any other person or organization (except as authorized by the
Company or pursuant to court order) any of the Confidential
Information.
5.3 Non-Solicitation. Executive
agrees that during the two-year period commencing as of the date of voluntary
termination by Executive (as described in Section 3.6 hereof) or the involuntary
termination of Executive on account of Cause (as described in Section 3.3
hereof), he shall not, directly or indirectly, for his own benefit or on
behalf
of another or to the Company’s (or an Affiliate’s) detriment:
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a.
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Hire
or offer to hire any of the Company’s (or Affiliate’s) officers, employees
or agents;
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b.
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Persuade
or attempt to persuade in any manner any officer, employee or
agent of the
Company (or an Affiliate) to discontinue any relationship with
the
Company; or
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c.
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Solicit
or divert or attempt to divert any customer or supplier of the
Company or
an Affiliate.
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The
provisions of this Section 5.3 shall apply in the locations set forth on
Exhibit
A hereto, as the same may be amended from time to time. Executive
acknowledges that the Company (or its Affiliates) is presently doing business
in
such locations and that during the Employment Term Executive will be required
to
provide services to or for the benefit of the Company (or its Affiliates)
in
such locations.
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The
parties agree that each of the
foregoing prohibitions is intended to constitute a separate restriction.
Accordingly, should any such prohibition be declared invalid or unenforceable,
such prohibition shall be deemed severable from and shall not affect the
remainder thereof. The parties further agree that each of the
foregoing restrictions is reasonable in both time and geographic
scope.
5.4 Business
Reputation. Executive agrees that during his employment with
the Company (and its Affiliate) and at all times thereafter, he shall refrain
from performing any act, engaging in any conduct or course of action or
making
or publishing an adverse, untrue or misleading statement which has or may
reasonably have the effect of demeaning the name or business reputation
of the
Company or its Affiliates or which adversely affects (or may reasonably
adversely affect) the best interests (economic or otherwise) of the Company
or
an Affiliate.
5.5 Remedies. In
the event of a breach or threatened breach by Executive of the provisions
of
Sections 5.2, 5.3 or 5.4 hereof, Executive agrees that the Company shall
be
entitled to a temporary restraining order or a preliminary injunction (without
the necessity of posting bond in connection therewith) and that any additional
payments or benefits due to Executive or his dependents under Sections
3 and 4
hereof shall be canceled and forfeited. Nothing herein shall be
construed as prohibiting the Company from pursuing any other remedy available
to
it for such breach or threatened breach, including the recovery of damages
from
Executive.
6. MISCELLANEOUS
6.1 Mitigation
Not Required. As a condition of any payment hereunder,
Executive shall not be required to mitigate the amount of such payment
by
seeking other employment or otherwise, nor will any profits, income, earnings
or
other benefits from any source whatsoever create any mitigation, offset,
reduction or any other obligation on the part of Executive under this
Agreement.
6.2 Enforcement
of this Agreement. In the event any dispute in connection
with this Agreement arises with respect to obligations of Executive or
the
Company that were required prior to the occurrence of a Change in Control
or a
Business Transaction, all costs, fees and expenses, including attorney
fees, of
any litigation, arbitration or other legal action in connection with such
matters in which Executive substantially prevails, shall be borne by, and
be the
obligation of, the Company.
After
a Change in Control or Business
Transaction has occurred, Executive shall not be required to incur legal
fees
and the related expenses associated with the interpretation, enforcement
or
defense of Executive’s rights under this Agreement by litigation or
otherwise. Accordingly, if, following a Change in Control or Business
Transaction, the Company has failed to comply with any of its obligations
under
this Agreement or the Company or any other person takes or threatens to
take any
action to declare this Agreement void or unenforceable or in any way reduce
the
possibility of collecting the amounts due hereunder, or institutes any
litigation or other action or proceeding designed to deny or to recover
from
Executive the benefits provided or intended to be provided under this Agreement,
Executive shall be entitled to retain counsel of Executive’s choice, at the
expense of the Company, to advise and represent Executive in connection
with any
such interpretation, enforcement or defense, including without limitation
the
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initiation
or defense of any litigation, arbitration or other legal action, whether
by or
against the Company or any director, officer, stockholder or other person
affiliated with the Company, in any jurisdiction. The Company shall
pay and be solely financially responsible for any and all attorneys’ and related
fees and expenses incurred by Executive in connection with any of the foregoing,
without regard to whether Executive prevails, in whole or in part.
In
no event shall Executive be required
to reimburse the Company for any of the costs and expenses incurred by
the
Company relating to arbitration, litigation or other legal action in connection
with this Agreement.
6.3 No
Set-Off. There shall be no right of set-off or counterclaim
in respect of any claim, debt or obligation against any payment to Executive
provided for in this Agreement.
6.4 Assistance
with Litigation. For a period of one year after the end of
the last period for which Executive will have received any compensation
under
this Agreement, Executive will furnish such information and proper assistance
as
may be reasonably necessary in connection with any litigation in which
the
Company (or an Affiliate) is then or may become involved.
6.5 Headings. Section
and other headings contained in this Agreement are for reference purposes
only
and shall not affect in any way the meaning or interpretation of this
Agreement.
6.6 Entire
Agreement. This Agreement constitutes the entire
understanding and agreement among the parties hereto with respect to the
subject
matter hereof, and there are no other agreements, understandings, restrictions,
representations or warranties among the parties other than those set forth
herein.
6.7 Amendments. This
Agreement may be amended or modified at any time in any or all respects,
but
only by an instrument in writing executed by the parties hereto.
6.8 Choice
of Law. The validity of this Agreement, the construction of
its terms, and the determination of the rights and duties of the parties
hereto
shall be governed by and construed in accordance with the internal laws
of the
State of Louisiana applicable to contracts made to be performed wholly
within
such state.
6.9 Notices. All
notices and other communications under this Agreement must be in writing
and
will be deemed to have been duly given when (a) delivered by hand, (b)
sent by
telecopier to a telecopier number given below, provided that a copy is
sent by a
nationally recognized overnight delivery service (receipt requested), or
(c)
when received by the addressee, if sent by a nationally recognized overnight
delivery service (receipt requested), in each case as follows:
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If
to
Executive: Xxxx
X. Xxxxxxxx
000
Xxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxx
00000
If
to the
Company: Cleco
Corporation
0000
Xxxxxxx Xxxxx Xxxx
|
|
Xxxxxxxxx,
XX 00000
|
Attention:
Chief Executive
Officer
Telecopier: (000)
000-0000
or
to such other addresses as a party may designate by notice to the other
party.
6.10 Assignment. This
Agreement will inure to the benefit of and be binding upon the Company,
its
Affiliates, successors and assigns, including, without limitation, any
person,
partnership, company, corporation or other entity that may acquire substantially
all of the Company’s assets or business or with or into which the Company may be
liquidated, consolidated, merged or otherwise combined, and will inure
to the
benefit of and be binding upon Executive, his heirs, estate, legatees and
legal
representatives. If payments become payable to Executive’s surviving
spouse or other assigns and such person thereafter dies, such payment will
revert to Executive’s estate.
6.11 Severability. Each
provision of this Agreement is intended to be severable. In the event
that any one or more of the provisions contained in this Agreement shall
for any
reason be held to be invalid, illegal or unenforceable, the same shall
not
affect the validity or enforceability of any other provision of this Agreement,
but this Agreement shall be construed as if such invalid, illegal or
unenforceable provisions was not contained herein. Notwithstanding
the foregoing, however, no provision shall be severed if it is clearly
apparent
under the circumstances that the parties would not have entered into this
Agreement without such provision.
6.12 Withholding. The
Company (or an Affiliate) may withhold from any payment hereunder any federal,
state or local taxes required to be withheld.
6.13 Survival.
Notwithstanding anything herein to the contrary, to the extent applicable,
the
obligations of the Company (and its Affiliates) under Sections 3 and 4,
and the
obligations of Executive under Sections 3 and 5, shall remain operative
and in
full force and effect regardless of the expiration of this
Agreement.
6.14 Waiver. The
failure of either party to insist in any one or more instances upon performance
of any terms or conditions of this Agreement will not be construed as a
waiver
of future performance of any such term, covenant, or condition and the
obligations of either party with respect to such term, covenant or condition
will continue in full force and effect.
6.15 Section
409A.The parties intend that this Agreement comply, to the extent
applicable, with the provisions of Section 409A of the Internal Revenue
Code and
related regulations and Treasury pronouncements ("Section 409A"). If
the parties determine in good faith that any provision provided herein
would
result in the imposition of an excise tax under the
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provisions
of Section 409A, Executive and the Company agree that each will use good
faith
efforts to reform any such provision to avoid imposition of any such excise
tax
in the manner that Executive and the Company mutually determine is appropriate
to comply with Section 409A.
6.16 Definition. For
purposes of this Agreement, “Affiliate” shall mean one or more subsidiaries or
other entities with respect to which the Company owns (within the meaning
of
Section 425(f) of the Internal Revenue Code of 1986, as amended (the “Code”))
50% or more of the total combined voting power of all classes of stock
or other
equity interests.
THIS
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 Effective Date designated
above.
CLECO
CORPORATION EXECUTIVE
By: /s/
X. X. Xxxxxxxxx /s/
Xxxx Xxxxxxxx
XXXX
X. XXXXXXXX
Its: SVP,
Corporate
Services
Date:
3/26/2007 Date:
3/27/2007
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CLECO
CORPORATION
EXHIBIT
A
This
Exhibit A is intended to form a
part of that certain Executive Employment Agreement by and between Cleco
Corporation and Xxxx X. Xxxxxxxx, first effective as of January
29, 2007. The parties agree that the proscriptions set forth in
Section 5.3 thereof shall apply in the State of Louisiana, Parishes
of:
Acadia Parish
Xxxxx
Xxxxxx
Avoyelles
Parish
Xxxxxxxxxx
Parish
Calcasieu
Parish
Catahoula
Parish
Desoto
Parish
Xxxxxxxxxx
Xxxxxx
Xxxxx
Xxxxxx
Iberia
Parish
Xxxxxxxxx
Xxxxx Parish
Lafayette
Parish
Lasalle
Parish
Natchitoches
Parish
Rapides
Parish
Red
River Parish
Xxxxxx
Xxxxxx
St.
Xxxxxx Xxxxxx
St.
Xxxxxx Xxxxxx
St.
Xxxx Xxxxxx
St.
Tammany Parish
Xxxxxx
Xxxxxx
Washington
Parish
Executive
and the Company agree that the Company shall amend this Exhibit A, from
time to
time, to eliminate Parishes in which the Company is no longer doing business
and
to add Parishes in which the Company is currently doing business.
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