Exhibit 10(a)80
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), effective as of the
29th day of July, 1999, is entered into by and between Entergy
Corporation ("Company"), a Delaware corporation, and Xxxxxx X.
Xxxxx ("Employee"). This Agreement supersedes any prior
agreements between Employee and Company, or any companies
affiliated or related to Company, except as otherwise provided in
this Agreement.
WHEREAS, Company is a "System Company," which for purposes
of this Agreement 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% or more controlled, directly or
indirectly, by Company; and
WHEREAS, Employee is currently employed by Entergy Services,
Inc. and serves in the position of President of Company.
NOW THEREFORE, in consideration of the service Employee
provides to Company, the employment of Employee by Entergy
Services, Inc. or by any other System Company, the intended
benefits to the System Companies and Employee as a result
thereof, and the mutual covenants and agreements herein
contained, Company and Employee agree as follows:
1.Service. Company and Employee agree that the employment
contemplated by this Agreement refers to employment by Entergy
Services, Inc. or by any other System Company. During the term
of employment under this Agreement, Employee will serve in his
current position of President of Company or in any other position
in which he may be required to serve by the Board of Directors of
Company ("Board") and will be responsible for performing all
services associated with such position and performing other
reasonable services assigned by the Board. Employee agrees to
devote substantially all of his full working time, attention, and
energy to the services required under this Agreement. Employee
shall faithfully render his best efforts with respect to his
services under this Agreement and to the promotion, advancement,
and conduct of the business of the System Companies.
2.Term. Subject to Section 6 (Termination) of this Agreement,
the term of Employee's employment under this Agreement begins on
July 29, 1999 and ends on February 1, 2004.
3.Base Salary. Employee shall be paid a base salary of FORTY-
FIVE THOUSAND EIGHT HUNDRED THIRTY-THREE AND NO/100 ($45,833.00)
DOLLARS per calendar month, or such greater monthly base salary
amount as may be approved from time to time by the System Company
then employing Employee, in its sole discretion, while Employee
is employed by such System Company in accordance with and during
the term of this Agreement (subject to all appropriate
withholdings or other deductions required by law or by the System
Company's established policies), such salary to be payable in
accordance with the System Company's established payroll
practices. If Employee should die during the term of this
Agreement, the amount of any monthly base salary that was earned
by Employee prior to his death but not yet paid to Employee shall
be paid to Employee's estate.
4.Supplemental Benefits.
(a) Non-Statutory Stock Options. Subject to the terms and
conditions of this Agreement, including but not limited to the
forfeiture provisions set forth in Sections 6 and 7 of this
Agreement, Employee is granted, under the Equity Ownership Plan
of Entergy Corporation and Subsidiaries ("EOP") and as of the
effective date of this Agreement, the right ("Options") to
purchase TWO HUNDRED THOUSAND (200,000) shares of common stock of
Entergy Corporation, $0.01 par value per share ("Common Stock"),
at an exercise price of $30.4375 per share ("Exercise Price").
Notwithstanding any vesting provisions applicable with respect to
other option grants under the EOP, as may be amended from time to
time, the Options described under this Section 4(a) that are
granted to Employee under the EOP shall vest at the rate of 20%
on each Vesting Anniversary Date set forth below and shall not be
accelerated in the event of Employee's termination of employment
or retirement prior to February 1, 2004, except as the EOP may
otherwise allow on account of Employee's permanent disability
under a Company-sponsored long term disability plan. Except as
otherwise provided in Section 7 (in the event of a Change of
Control), if Employee's employment with all System Companies is
terminated prior to February 1, 2004, for any reason (including,
but not limited to, voluntary or involuntary termination, death,
or retirement) or if for any other reason set forth in Section 6
or 7 of this Agreement a forfeiture of benefits occurs, any
Options in which Employee has not yet vested at the time of such
termination or breach shall be forfeited by Employee.
Number of Options Vested on Vesting Anniversary Date
40,000 February 1, 2000
40,000 February 1, 2001
40,000 February 1, 2002
40,000 February 1, 2003
40,000 February 1, 2004
The Options granted under the EOP and in accordance with
the terms of this Section 4(a) shall have an exercise
period that ends 10 years from the date of grant (i.e.,
July 29, 2009). An Option may not be exercised,
however, before the Vesting Anniversary Date on which the
Option vests. If Employee should die prior to exercising
some or all of the Options in which he became vested
prior to his death, such Options shall be exercisable by
Employee's legatees or heirs in accordance with the terms
and conditions of the EOP.
(b) Supplemental SERP Benefit. If Employee satisfies all of the
provisions of the System Executive Retirement Plan of Entergy
Corporation and Subsidiaries, as amended and restated effective
December 4, 1998 ("SERP") necessary for SERP benefits to be
payable to, or on behalf of Employee, then Employee shall be
entitled to have his SERP benefits supplemented by this Agreement
and this paragraph of this Subsection 4(b) of this Agreement
shall govern the calculation of the Supplemental SERP Benefit.
The supplemental benefits provided for by this Agreement
("Supplemental SERP Benefit") in combination with (i) the
benefits provided under the SERP and (ii) the benefits provided
Employee pursuant to the Retirement Agreement entered into
between Employee and Entergy Operations, Inc. on May 23, 1997,
but effective July 26, 1996, shall provide the benefits (i.e.,
retirement benefits, survivor benefits, or pre-retirement death
benefits) that would have been payable to Employee (or Employee's
Joint Annuitant or Beneficiary in the event of Employee's death)
from (i) and (ii) above if the terms of the System Executive
Retirement Plan of Entergy Corporation and Subsidiaries as in
effect immediately prior to March 25, 1998 ("Prior SERP") had
remained in effect.
Notwithstanding any other Section or Subsection of this
Agreement to the contrary, and unless otherwise
specifically set forth in this paragraph 4(b) of this
Agreement, the terms of the SERP shall govern all other
aspects of the Supplemental SERP Benefit provided under
this Agreement, including the forms of Supplemental SERP
Benefit payments available to Employee and the forfeiture
of such Supplemental SERP Benefits.
The Change of Control provisions set forth in Section 7
of this Agreement, rather than those set forth in the
SERP, shall govern the Supplemental SERP Benefit provided
under this Agreement.
Employee's Beneficiary for purposes of any Supplemental
SERP Benefit payable to a Beneficiary in accordance with
the terms of this Agreement shall be Employee's
"Beneficiary" under the SERP.
Employee expressly agrees that neither he nor any other
person nor entity shall look to any other person nor
entity (including the employee benefit plans of Entergy
Corporation and its subsidiaries) other than the System
Company with which Employee is last employed on or before
his retirement, death, disability, or other termination
of employment ("Employer") for payment of the
Supplemental SERP Benefit. Employee or any other person
or entity having or claiming a right to payments
hereunder shall rely solely on the unsecured obligation
of the Employer set forth herein. Nothing in this
Agreement shall be construed to give Employee or any such
person or entity a right, title, interest, or claim in or
to any specific assets, fund, reserve, account or
property of any kind whatsoever, owned by the Employer or
in which the Employer may have any right, title or
interest now or in the future, or in any contract, asset,
reserve, account, property or fund created or maintained
to support the employee benefit plans of Entergy
Corporation and its subsidiaries. However, Employee or
any such person or entity shall have the right to enforce
his claim against the Employer in the same manner as any
other unsecured creditor of the Employer.
Nothing stated herein shall prohibit Company or the
Employer from adopting or establishing a trust or other
means as a source for paying any obligations created
hereunder provided, however, any and all rights that
Employee shall have with respect to any such trust or
other fund shall be governed by the terms thereof.
Notwithstanding any provisions of this Section 4(b) to
the contrary, within thirty (30) days following the date
of a Change of Control, as defined in Section 7 of this
Agreement, the Employer shall make a single irrevocable
lump sum contribution to the Trust for Deferred Payments
of Entergy Corporation and Subsidiaries ("Trust")
pursuant to the terms and conditions described in such
Trust. Such contribution shall be in an amount equal to
the present value of the Employee's Supplemental SERP
Benefit calculated in accordance with Section 4(b) of
this Agreement as of the date of any such Change of
Control, which calculation shall assume that Employee
satisfied the employment service requirement of such
Section. The present value of Employee's Supplemental
SERP Benefit shall be determined using the interest and
mortality factors set forth in the Entergy Corporation
Retirement Plan for Non-Bargaining Employees.
Notwithstanding the foregoing provisions of this Section
4(b) to the contrary, the Employer may make contributions
to the Trust prior to a Change of Control in such amounts
as it shall determine in its complete discretion. The
Trust is intended as a "grantor" trust under the Internal
Revenue Code and the establishment and funding of such
Trust is not intended to cause Employee to realize
current income on amounts contributed thereto, and the
Trust shall be so interpreted.
(c) Change of Control Benefit. In the event a Change of
Control Period (as described in Section 7) commences
during the term of Employee's employment under this
Agreement, and during such Change of Control Period
Employee either (1) is involuntarily terminated from
employment other than for Cause, (2) voluntarily
terminates from employment for Good Reason, or (3) loses
his status as a full officer of Entergy Corporation or is
demoted from the position he held with a System Company
immediately prior to the Change of Control Period,
Employee shall be entitled to a single-sum payment equal
to the lesser of (i) the product of 2.99 times the sum of
the Employee's final annual base salary from his Employer
plus the Employee's target annual bonus under the
Executive Annual Incentive Plan of Entergy Corporation
and Subsidiaries (including the amount, if any, Employee
defers under any non-qualified deferred compensation
arrangement, cash or deferred arrangement qualified under
Section 401(k) of the Code, and under any cafeteria plan
under Section 125 of the Code) for the year immediately
preceding the year in which the Change in Control occurs,
or (ii) the maximum single-sum payment that may be made
by the Employer to Employee without triggering the
nondeductibility provisions and excise tax provisions of
Sections 280G and 4999, respectively, of the Code (after
taking into account any other amounts in connection with
this Agreement that are required to be considered for
purposes of Section 280G of the Code). Notwithstanding
anything contained in this Agreement to the contrary, to
the extent that any payment pursuant to this Section 4(c)
would be subject to the excise tax imposed by Section
4999 of the Code, the payment shall be reduced (but not
below zero) if and to the extent necessary so that no
payment to be made to Employee under this Agreement shall
be subject to the excise tax.
(d) Remaining Benefits. The benefits provided under
this Agreement shall in no way alter or affect the terms
and conditions of any Company or System Company sponsored
employee benefit plans in which Employee may already
participate (including any supplemental credited service
agreements associated with such plans and to which
Employee may already be a party), and Employee's
eligibility to participate in any such qualified employee
benefit plans, non-qualified employee benefit plans, and
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.
5.Withholding. A System Company shall have the right to
require Employee to remit to it, or to withhold from other
amounts payable to Employee, as compensation or otherwise, an
amount sufficient to satisfy all federal, state and local
withholding tax requirements.
6.Termination. Employee shall forfeit all remaining
compensation and all benefits otherwise payable to Employee
under this Agreement, except for Employee's right to exercise
any Options under Section 4(a) which have already vested and
except as otherwise provided under Section 4(b) with respect
to the Supplemental SERP Benefit, if Employee:
(a) voluntarily resigns his employment with Entergy
Services, Inc. or other current System Company employer
(other than for the purpose of transferring to another
System Company) prior to February 1, 2004;
(b) is terminated by a System Company for Cause, which
termination shall be immediately effective upon the
giving of written notice thereof to Employee, or at
such later time as the notice may specify. Termination
for Cause shall include, but not be limited to:
(1) a material violation by Employee of any agreement between
Employee and any System Company;
(2) a material violation of the employer-employee
relationship existing between Employee and a System
Company, including without limitation, a violation
of Section 8 (Covenant Not to Compete) or Section 9
(Confidentiality), moral turpitude, theft or
defalcation; or
(3) a material failure by Employee to perform the
services required of him by any agreement between
Employee and any System Company, or, if there is no
such agreement, a material failure by Employee to
perform the reasonable, customary services of an
employee holding the type of position he holds prior
to any Change of Control Period as defined in
Section 7 of this Agreement;
7.Change of Control. Notwithstanding any provision in this
Agreement to the contrary, this Section shall apply in the
event of a Change of Control, as defined herein:
(a) For purposes of this Agreement, the term "Change of Control"
shall mean:
(1) the purchase or other acquisition by any person, entity or
group of persons, within the meaning of Sections 13(d) or 14(d)
of the Securities Exchange Act of 1934 ("Act"), or any comparable
successor provisions, of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Act) of 50 percent or more of
either the outstanding shares of common stock or the combined
voting power of Entergy Corporation's then outstanding voting
securities entitled to vote generally;
(2) the approval by the stockholders of Entergy Corporation of a
reorganization, merger, or consolidation, in each case, with
respect to which persons who were stockholders of Entergy
Corporation immediately prior to such reorganization, merger or
consolidation do not, immediately thereafter, own more than 50
percent of the combined voting power entitled to vote generally
in the election of directors of the reorganized, merged or
consolidated company's then outstanding securities;
(3) a liquidation or dissolution of Entergy Corporation or of
the sale of all or substantially all of its assets; or
(4) any change in the composition of the Board of Directors of
Entergy Corporation resulting in a majority of the directors at
any given point in time not constituting a majority two years'
hence provided, that in making such determination, directors who
were elected by or on the recommendation of such present majority
shall be excluded.
(b) If there should occur a Change of Control and if, within
the period commencing ninety (90) days prior to and
ending twenty-four (24) calendar months following such
Change of Control ("Change of Control Period"), Employee
(1) is involuntarily terminated from employment other
than for Cause as defined in Section 6 of this Agreement,
(2) voluntarily terminates from employment for Good
Reason, as defined in Section 7(c) below, or (3) loses
his status as a full officer of Entergy Corporation or is
demoted from the position he held with a System Company
immediately prior to the Change of Control Period
("Demotion"), Employee shall be entitled to immediate
payment of the single-sum amount determined under Section
4(c) of this Agreement, and shall also, subject only to
the risk of forfeiture set forth below, fully vest in the
Options granted under Section 4(a) of this Agreement and
the Supplemental SERP Benefit granted under Section 4(b)
as of the date of any such termination or Demotion, which
calculations shall assume that Employee satisfied the
full employment service requirement of this Agreement,
and no amendment or termination of this Agreement shall
reduce such vested benefit. In the event of any such
termination of employment during the Change of Control
Period or a termination of employment, including
termination as a result of death, after a Demotion during
the Change of Control Period, Employee's benefits under
Section 4 (b) shall commence as of the first day of the
month in which the Employee's SERP benefit commences.
(c) For purposes of this Agreement, the term "Good Reason"
means the occurrence, without Employee's express written
consent, of any of the following events during the Change
of Control Period:
(1) The assignment of Employee to duties materially
inconsistent with Employee's authorities, duties,
responsibilities, and status (including offices,
titles, and reporting requirements) as an officer of
Entergy Corporation, or a reduction or alteration in
the nature or status of Employee's authorities,
duties, or responsibilities from those in effect as
of ninety (90) days prior to a Change of Control,
other than an insubstantial and inadvertent act that
is remedied by Company or any System Company
promptly after receipt of notice thereof
given by Employee and other than any such alteration
primarily attributable to the fact that Entergy
Corporation may no longer be a public company;
(2) Requiring Employee 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 ninety (90) days prior to a Change of Control,
except for required travel on business of Company
or any System Company to an extent substantially
consistent with Employee's present business
obligations;
(3) A reduction in Employee's annual base salary (i.e.,
Employee's regular annual cash earnings from all
System Companies, exclusive of any bonuses,
overtime, or other special payments, but including
the amount, if any, the Employee 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 the Employee may hereafter participate or be a
party thereto) from the Employee's annual base
salary for the calendar year immediately preceding
the calendar year in which occurs the Change of
Control;
(4) The failure of Company or any System Company to
continue in effect any of their short- and/or long-term
incentive compensation plans, or employee benefit or
retirement plans, policies, practices, or arrangements
in which Employee participates, or the failure by
Company or any System Company to continue the Employee's
participation therein on substantially the same
basis, both in terms of the amount of benefits
provided and the level of the Employee's parti
cipation relative to other Employees, as existed
immediately prior to a Change of Control;
(5) The failure of Company or any System Company to obtain a
satisfactory agreement from any successor to Company to assume
and agree to perform this Agreement; and
(6) Any purported involuntary termination of Employee's
employment that is not affected pursuant to a written notice of
termination which acknowledges Employee's rights under this
Agreement and reasonable detail setting forth the facts and
circumstances claimed to provide the basis upon which Employee's
employment is being terminated. Absent such notice, for purposes
of this Agreement, no such purported termination shall be
effective.
Employee's right to terminate employment for Good Reason
shall not be affected by Employee's incapacity due to
physical or mental illness. Employee's continued
employment shall not constitute consent to, or a waiver
of rights with respect to, any circumstance constituting
Good Reason herein.
(d) The benefits that become payable or in which Employee
vest solely upon a Change of Control shall nonetheless be
subject to forfeiture upon the occurrence of any of the
following events:
(1) if Employee engages in any employment (without the
prior written consent of the System Company
employing him) 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 the ten year period
commencing upon termination of employment; or
(2) if Employee shall divulge, communicate or use to
the detriment of any System Company, or use for the
benefit of any other person or entity, or misuse in
any way, any confidential or proprietary information
or trade secrets of any System Company, or engage in
any activities that are contrary to the best
interests of any System Company.
(e) Notwithstanding anything stated above to the contrary,
an amendment to, or termination of, this Agreement
following a Change of Control shall not reduce the level
of benefits accrued under this Agreement through the date
of any such amendment or termination. In no event shall
Employee's benefit accrued under this Agreement following
a Change of Control be less than the benefit accrued by
Employee under this Agreement immediately prior to the
Change of Control Period.
8.Covenant Not to Compete. During the 2-year period following
Employee's retirement or other termination of employment with
his Employer, Employee agrees that, without the specific
written consent of the Chief Executive Officer of Entergy
Corporation, he will not take employment nor engage in any
business with any person, corporation, governmental agency or
body or other entity in competition with, or similar in nature
to, any System Company ("Competing Employer"). This
restriction shall extend to any Competing Employer located in,
or servicing in any way customers located in, those parishes
and counties in which any System Company services customers
during such 2-year period. The Employee recognizes that
irreparable injury will result to the System Companies in the
event of any breach by the Employee of this covenant not to
compete.
9.Confidentiality. During his employment and for 5 years
thereafter, other than as authorized by a System Company or as
required by law or as necessary for him to perform his duties,
Employee shall not disclose to any person or entity any non-
public data or information concerning any System Company.
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 Employee 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.
10.Injunctive Relief. In the event of any breach or threatened
breach of Sections 8 or 9 of this Agreement by Employee,
Employee shall forfeit all benefits otherwise payable to
Employee under this Agreement, and any System Company shall be
entitled to an injunction, without bond, restraining Employee
from violating the provisions of such Sections, in addition to
any other relief to which the System Company may be entitled.
11.Proprietary Rights. Employee agrees to and hereby does
assign to any System Company employing him all his rights in and
to all inventions, business plans, work models or procedures,
whether patentable or not, which are made or conceived solely or
jointly by him at any time during his employment or with the use
of any System Company time and materials. Employee will disclose
to such System Company all facts known to him concerning such
matters and, at the System Company's expense, do everything
reasonably practicable to aid it in obtaining and enforcing
proper legal protection for, and vesting System Company in title
to, such matters.
12.Representations and Warranties. Employee represents and
warrants that he is under no restriction or obligation
inconsistent with the execution of this Agreement or the
performance of his obligations hereunder and knows of no
reason why his performance under this Agreement should be
hindered in any way.
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 third business day after being deposited
in the United States 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:
Xxxxxxx X. Xxxxxxxx, Esq. Xxxx X. Xxxxx
General Counsel Senior Vice-President, Human
000 Xxxxxx Xxxxxx, 00xx Xxxxx Resources and Administration
Xxx Xxxxxxx, XX 00000 000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
If to Employee, addressed as follows:
Xxxxxx X. Xxxxx
000 Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
14.Binding Agreement. This Agreement is binding upon Employee,
Company, and his and its successors, agents, heirs or assigns.
15.Nonassignability. This Agreement or the right to receive
benefits hereunder may not be assigned, encumbered or alienated
by the Employee in any manner. Any attempt to so assign,
encumber or alienate shall constitute a material violation of
this Agreement within the meaning of Section 6 of the Agreement,
and will be immediate grounds for terminating Employee's
employment for Cause.
16.Applicable Law. This Agreement shall be interpreted and
enforced in accordance with the laws of the State of Louisiana
and the United States of America.
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.Modifications and Waivers. This Agreement contains the
entire understanding between Company and Employee relating to
Employee's employment, unless otherwise specifically provided.
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.
19.Severability. Should any part of this Agreement be found to
be invalid or in violation of law, such part shall be of no force
and effect and the rest of this Agreement shall survive as valid
and enforceable to the fullest extent permitted by law.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement in the presence of the undersigned witnesses.
WITNESSES: EMPLOYEE:
_______________________________
XXXXXX X. XXXXX
WITNESSES: ENTERGY CORPORATION,
BY ITS DULY AUTHORIZED AGENT:
___________________________________
J. XXXXX XXXXXXX
Chief Executive Officer,
______________________________ Entergy Corporation
