Contract
EXHIBIT 10.1
CLECO
CORPORATION
(Level
One)
This Executive Employment Agreement
(the “Agreement”) is made and entered into by and between [Name] (“Executive”), and
Cleco Corporation, a Louisiana corporation (the “Company”), and is intended to
amend, restate, and replace, in its entirety, that certain Executive Employment
Agreement (Level 1) by and between the Company and Executive dated [Date] (the “Prior
Agreement”).
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 or her personal assets in businesses
which do not compete with the Company, provided that such investments will not
require any services on the part of Executive in the operation of the affairs of
the businesses and that Executive’s participation 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.
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a.
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Annual
Incentive Compensation Plan (referred to as the “Incentive Plan”; any
bonus paid thereunder referred to as an “Incentive
Bonus”);
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b. 2000
Long-Term Incentive Compensation Plan (the “Equity Incentive Plan”);
and
c. Supplemental
Executive Retirement Plan (the “SERP”),
each as
may be amended, restated, supplemented or replaced, from time to time, in
accordance with its terms.
Executive
further shall participate in such plans, policies, and programs as may be
maintained, from time to time, by the Company or any affiliate thereof, at least
80% of the common stock or other equity interests of which is owned, directly or
indirectly, by the Company (an “Affiliate”), for the benefit of senior
executives or employees of the Company. Such plans, policies and
programs may include, without limitation, profit sharing, life insurance, and
group medical and other welfare benefit plans. Any payments or
benefits thereunder shall be subject to and determined in accordance with the
specific terms and conditions of the documents evidencing any such separate
plans, policies, and programs.
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a.
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Executive’s
Base Compensation in effect as of his or her Termination Date for the
remainder of his or her Employment Term, such term determined as if the
notice of nonrenewal described in Section 1.2 hereof was furnished to
Executive as of the Termination Date, but in no event less than his or her
annualized Base Compensation.
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b.
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Executive’s
Incentive Bonus for the year in which his or her Termination Date
occurs, prorated to reflect Executive’s actual period of
service during such year.
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c.
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The
Company shall, at the written request of
Executive:
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i.
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Purchase
of the principal residence occupied by Executive as of his or her
Termination Date (Executive’s “Principal Residence”), provided such
Principal Residence is located within 60 miles of Executive’s primary work
location, for an amount equal to the greater of (x) the fair market value
of such residence as determined by the Company’s third party relocation
service, or (y) the purchase price of such residence and the documented
cost of any capital improvements
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made
to the such residence made by Executive, but not more than 120% of such
purchase price; and
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ii.
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Pay
or reimburse Executive for the cost of relocating Executive, his or her
immediate family and their household goods and other personal property, in
accordance with the Company’s usual relocation practice, to any location
in the continental United States.
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Notwithstanding
the foregoing, the Company shall not be obligated hereunder, unless Executive
actually relocates to a new principal residence that is more than 60 miles from his or her
Principal Residence and Executive submits his or her written request to the
Company for the purchase of such residence not later than 12 months after
Executive’s Termination Date. In any event, payment hereunder shall
be made not later than December 31st of the calendar year following the year in
which Executive’s Termination Date occurs.
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d.
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If
Executive timely elects to continue coverage under the Company’s group
medical plan within the meaning of Code Section 4980B(f)(2), the Company
shall pay to the Executive an amount equal to the continuation coverage
premium for the same type and level of coverage elected by Executive
and/or his or her spouse or dependents for a period of 18 months or until
the Executive secures other employment where group health insurance is
provided, whichever period is
shorter.
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e.
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Executive’s
Incentive Bonus in the target amount, determined with respect to the year
in which his or her Termination Date
occurs.
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Any amount or benefit provided
hereunder shall be in lieu of any severance or other cash payment available
under any severance pay plan or similar arrangement maintained by the Company or
an Affiliate. The amount and benefits described herein shall be in
addition to any amount or benefit the Company is required by law to provide,
including, without limitation, Executive’s accrued but unpaid wages, and any
amount or benefit to which Executive may be entitled as of his or her
Termination Date under any separation benefit or retirement plan maintained by
the company or its Affiliates.
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policy or
program evidencing a retirement or other benefit arrangement or as may be
required by law to be provided.
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
employment or otherwise engaged in any intentional misconduct which is
materially injurious to the financial condition or business reputation of
the Company or its Affiliates;
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b.
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Committed
intentional damage to the property of the Company and its Affiliates or
Executive has committed intentional wrongful disclosure of proprietary
information or Confidential Information (as defined in Section 5.2
hereof), which is materially injurious to the financial condition or
business reputation of the Company or its
Affiliates;
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c.
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Been
convicted with no further possibility of appeal, or entered a guilty or
nolo contendere
plea, for a felony or a crime involving moral
turpitude;
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d.
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Willfully
and substantially refused to perform the essential duties of his or her
position after written notice from the
Company;
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e.
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Intentionally,
recklessly or negligently violated any material provision of the Company’s
code of conduct or equivalent code of policy that is applicable to
Executive;
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f.
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Intentionally,
recklessly or negligently violated any material provision of the
Xxxxxxxx-Xxxxx Act of 2002 or any of the rules adopted by the Securities
and Exchange Commission implementing any such provision;
or
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g.
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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.
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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 or her action or omission was in the best
interest of the Company or an Affiliate.
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a.
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The
amounts determined under Sections 3.1a, 3.1d and 3.1e hereof, which shall
be payable in the form of a single-sum 45 days after Executive’s
Termination Date, provided that Executive has then satisfied all
applicable conditions; and
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b.
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The
benefit described in Section 3.1c hereof, subject to the terms and
conditions set forth therein.
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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. A
material breach of this Agreement by the Company.
No event
or condition described in this Section 3.5 shall constitute a Constructive
Termination unless (a) Executive provides to the Company written notice of his
or her objection to such event or condition not later than 60 days after
Executive first learns of such event or condition, (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
or her 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.
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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;
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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 or her employment with the Company or an Affiliate, he or she is
unable to exercise the authority, power, duties and responsibilities
contemplated in such section;
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c.
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Executive
is required to be away from his or her office in the course of discharging
his or her 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 primary location to which he or she was assigned
prior to the Change in Control.
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No event
or condition described in this Section 4.2 shall constitute Good Reason unless
(a) Executive gives the Company written notice of his or her objection to such
event or condition within 60 days after Executive first learns of it, (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
or her 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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a.
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The
Company shall pay to Executive an amount equal to three times the sum of
Executive’s annualized Base Compensation and target bonus, each determined
immediately before the consummation of the Change in Control, which amount
shall be payable in the form of a single-sum 30 days after Executive’s
Termination Date or the first business day
thereafter;
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b.
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The
Company shall provide to Executive the benefit described in Section 3.1c
hereof, subject to the terms and conditions set forth
therein;
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c.
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The
Company shall pay to Executive the amount described in Section 3.1d
hereof, subject to the terms and conditions set forth therein, but for a
period of 36 months, which amount shall be payable in the form of a
single-sum 30 days after Executive’s Termination Date or the first
business day thereafter;
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d.
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The
Company shall pay to Executive an amount equal to three times the maximum
matching contribution determined under the Cleco Corporation 401(k)
Savings and Investment Plan, as the same may be amended or restated from
time to time, determined as if Executive deferred thereunder the maximum
amount permitted under Code Section 402(g); such amount shall be paid in
the form of a single-sum payment 30 days after Executive’s Termination
Date or the first business day
thereafter;
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e.
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Vesting
shall be accelerated, any restrictions shall lapse, and all target and
opportunity performance objectives shall be deemed satisfied at the
maximum level as to any then outstanding grant or award made under the
Equity Incentive Plan and/or the 2000 Long-Term Incentive
Compensation Plan; Executive shall further 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;
and
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f.
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Executive
shall be fully vested for purposes of any service or similar requirement
imposed under the SERP, regardless of the actual number of his or her
years of service; Executive shall be credited with an additional three
years of age for purposes of determining his or her benefit percentage
under the SERP, 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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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 by the Company from time to
time. Executive acknowledges that the Company and its Affiliates are
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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Section
6.16 hereof, and (b) any additional payments or benefits due to Executive or his
or her spouse or dependents under Sections 3 and 4 hereof shall be canceled and
forfeited, except any amount tendered to Executive as consideration for his or
her waiver and release. 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.
After a
Change in Control 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. Accordingly, if,
following a Change in Control, the Company fails 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,
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, except as to any action brought to
enforce the provisions of Section 5 hereof. In such event, 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.
If
Executive claims the reimbursement of fees, costs or expenses hereunder,
Executive’s claim shall be made not later than the last day of the calendar year
following the year in which the expense was incurred. The Company
shall pay such amount promptly, but not later than the last day of the calendar
year following the year in which Executive claims reimbursement
hereunder.
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6.9 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.
If to
Executive: Last
address on file with the Company
If to the
Company: Cleco
Corporation
0000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Telecopier: 000- 000-0000
Attention: Chief Executive Officer
or to
such other addresses as a party may designate by notice to the other
party.
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The
existence of any claim or cause of action by Executive, whether predicated on
this Agreement or otherwise, shall not constitute a defense to the enforcement
by the Company or any of its Affiliates of any provision hereof. The
Company’s remedies for breach of this Agreement shall be cumulative and the
pursuit of one remedy shall not be deemed to exclude any other
remedies.
This Executive Employment 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:
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Executive:
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By:
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Its:
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Date:
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Date:
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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 [Name] effective as of [Date]. The parties
agree that the proscriptions set forth in Section 5.3 thereof shall apply in the
State of Louisiana, Parishes of:
Acadia
Xxxxx
Avoyelles
Xxxxxxxxxx
Calcasieu
Catahoula
DeSoto
Xxxxxxxxxx
Xxxxx
Iberia
Xxxxxxxxx Xxxxx
Lafayette
Natchitoches
Rapides
Red River
Sabine
St. Xxxxxx
St. Xxxxxx
St. Xxxx
St. Tammany
Xxxxxx
Xxxxxxxxxx
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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