Contract
EXHIBIT
10.1
CLECO
CORPORATION
(Level
1)
THIS
AGREEMENT
(the
“Agreement”) is entered into as of this 29th day of June, 2006, by and between
Xxxxxx
X. Xxxxxxxx III (“Executive”),
and Cleco Corporation, a Louisiana corporation (the “Company”), and is intended
to supercede that certain Executive Employment Agreement between Cleco
Corporation and Executive, initially effective as of July 28, 2000, and that
certain letter agreement between Cleco Corporation and Executive dated February
21, 2001.
1.
EMPLOYMENT AND TERM
1.1 Position.
The
Company shall employ and retain Executive as its Senior Vice President and
Chief
Operating Officer - Cleco Midstream Resources LLC 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 June 29, 2006
(the “Effective Date”), and shall terminate on June 29, 2009 (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 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”).
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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.
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
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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
2 ½
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 15thof
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
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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.
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;
or
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d.
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A
material breach of this Agreement by
Executive.
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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
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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 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 her 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.
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6
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 for any reason, Executive shall promptly return
to
the Company 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 of the above and
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
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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.
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. 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 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
2 ½
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 benefits as described in Section
4.2.
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 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”).
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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 one-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
B
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.
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
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11
her
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 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.
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12
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:
| If to Executive: | Xxxxxx X. Xxxxxxxx III |
| 2916 George’x Xxxx | |
| Xxxxxxxxxx, XX 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,
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13
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 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.
Page
14
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/ Xxxxxx
X. Xxxxxxxx
III
|
|
Xxxxxx
X. Xxxxxxxx III
|
|
|
Its:
SVP,
Corporate
Services
|
|
|
Date: 6/29/06
|
Date:
June
29,
2006
|
Page
15
CLECO
CORPORATION
EXHIBIT
A
This
Exhibit B is intended to form a part of that certain Executive Employment
Agreement by and between Cleco Corporation and Xxxxxx
X. Xxxxxxxx III, effective
as of June 29, 2006. 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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16
