Exhibit 10(a)85
RENTENTION AGREEMENT
THIS AGREEMENT, executed on October 21, 2000, and effective
as of July 29, 2000, by and between Entergy Corporation, a
Delaware corporation ("Company"), and Xxxxxx X. Xxxxx
("Executive").
WHEREAS, Executive is currently employed by Entergy
Services, Inc., a System employer, and serves in the position of
President of Company;
WHEREAS, Company has entered into an Agreement and Plan of
Merger, by and among Company, FPL Group, Inc.. WCB Holding Corp.
(the "Merged Entity"), Ranger Acquisition Corp. and Ring
Acquisition Corp., dated as of July 30, 2000 (the "Ring-Ranger
Merger Agreement");
WHEREAS, Company wishes to encourage Executive to remain
employed by a System employer and provide services to the System;
and
WHEREAS, Executive wishes to remain in the employ of a
System employer and to provide services to the System;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, Company and Executive hereby
agree as follows:
1.Defined Terms. The definitions of capitalized terms used in
this Agreement are provided in the last Section hereof.
2.Covenants Summarized. Company and Executive covenant as
follows:
2.1 Company's Covenants. In order to induce Executive to
remain within the System, Company agrees, under the
conditions described herein, to pay Executive the payments
and benefits described herein upon the circumstances
described in Sections 3, 4 and 6 below. This Agreement
shall not be construed as creating an express or implied
contract of employment and, except as otherwise agreed in
writing between Executive and Company, Executive shall not
have any right to be retained in the employ of any System
Company.
2.2 Executive's Covenants. Executive agrees to the following:
(A) For a period of two years following the Date of
Termination, Executive shall not engage in any
employment or other activity (without the prior
written consent of Company) either in his individual
capacity or together with any other person,
corporation, governmental agency or body, or other
entity, that is (i) listed in the Standard & Poor's
Electric Index or the Dow Xxxxx Utilities Index; or
(ii) in competition with, or similar in nature to,
any business conducted by any System Company at any
time during such period, where such competing
employer is located in, or servicing in any way
customers located in, those parishes and
counties in which any System Company services
customers during such period. In the event of any
violation by Executive of this paragraph (A) of
subsection 2.2, Executive shall repay to Company,
within 5 business days of Company's written request
therefor, any amounts previously paid to him
pursuant to subsections 3.1 and 3.5, and Executive
shall have no further entitlement to receive any
additional payments or benefits under such
subsections.
(B) For a period of two years following the Date of
Termination, Executive agrees not to take any action
or make any statement, written or oral, to any
current or former employee of any System Company, or
to any other person, which disparages any System
Company, its management, directors or shareholders,
or its practices, or which disrupts or impairs their
normal operations, including actions or statements
(i) that would harm the reputation of any System
Company with its clients, suppliers, employees or
the public; or (ii) that would interfere with
existing or prospective contractual or employment
relationships with any System Company or its
clients, suppliers or employees. In the event of any
violation by Executive of this paragraph (B) of this
subsection 2.2, Executive shall repay to Company,
within 5 business days of Company's written request
therefor, any amounts in respect of the First
Retention Bonus or the Second Retention Bonus
previously paid to him pursuant to subsections 3.1
and 3.5, and Executive shall have no further
entitlement to receive any additional payments or
benefits under and of such subsections.
3.Compensation Upon Certain Events. This Section 3 sets forth
the entitlement of Executive or his beneficiary (ies) to
certain payments and benefits under specified circumstances
described in each subsection, and, with the exception of
subsections 3.1 and 3.2, in no event shall Executive and his
beneficiary (ies) be entitled to payments and benefits under
more than one such subsection.
3.1 Retention Payments. If at the date of Closing, Executive
assumes the employment position offered to him by the
surviving merged entity, Executive shall receive the First
Retention Bonus at the date of Closing. If Executive
remains employed in such System employment position or in
any subsequent System employment position offered to him
by the surviving merged entity through and including the
second anniversary of the Closing, then Executive shall
receive the Second Retention Bonus at the second
anniversary date.
3.2 Physical or Mental Illness. During any period that
Executive fails to perform Executive's full-time duties
within the System as a result of incapacity due to
physical or mental illness, his System employer shall pay
Executive's full salary to Executive at the rate in effect
at the commencement of any such period, together with all
compensation and benefits payable to Executive under the
terms of any compensation or benefit plan, program or
arrangement (other than Company's short- or long-term
disability plan, as applicable) maintained by Company
during such period, until Executive's employment is
terminated by his System employer for Disability.
3.3 Termination of Employment by Company For Cause at Any
Time. If Company should terminate Executive's employment
with the System for Cause at any time, Executive shall be
entitled only to Executive's Accrued Obligations and
Normal Post-Termination Compensation and Benefits.
3.4 Termination of Employment by Executive Without Good Reason
at Any Time. If Executive terminates employment with the
System without Good Reason, Executive shall be entitled to
Executive's Accrued Obligations and Normal Post-
Termination Compensation and Benefits. Executive shall
also receive the Supplemental Retirement Benefit if his
resignation is either after his attainment of age 65 or
with his System employer's permission.
3.5 Qualifying Termination. If Executive's employment is
terminated due to a Qualifying Termination, then Executive
shall be entitled to the following benefits:
(A) If the Qualifying Termination should occur before
the earlier of the termination of the Merger
Agreement or the Closing, then Executive shall
receive Executive's Accrued Obligations,
Supplemental Retirement Benefit, Target LTIP
Award, Other BOP Awards, Normal Post-Termination
Compensation and Benefits, and First Retention
Bonus. Payment of the First Retention Bonus shall
be in lieu of any further salary payments to
Executive for periods subsequent to the Date of
Termination (if any) and in lieu of any retention,
severance, termination or similar benefit
otherwise payable to Executive under any plan,
program, arrangement or agreement of or with any
System Company.
(B) If the Qualifying Termination should occur during
the period beginning the day after the Closing
through and including the second anniversary of
the Closing, then Executive shall receive
Executive's Accrued Obligations, Supplemental
Retirement Benefit, EAIIP Bonus Award, Normal Post-
Termination Compensation and Benefits, Second
Retention Bonus, Maximum LTIP Award and Other EOP
Awards. Payment of the Second Retention Bonus
shall be in lieu of any further salary payments to
Executive for periods subsequent to the Date of
Termination (if any) and in lieu of any retention,
severance, termination or similar benefit
otherwise payable to Executive under any plan,
program, arrangement or agreement of or with any
System Company.
3.6 Termination On Account of Death or Disability. If
Executive's employment should terminate on account of
death or Disability:
(A)before the earlier of the termination of the Merger
Agreement or the Closing, Executive or his personal
or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and
legatees (in the event of Executive's death) shall
receive Executive's Accrued Obligations, Normal Post-
Termination Compensation and Benefits, Target LTIP
Award, Other EOP Awards, First Retention Bonus, and
(in the event of Executive's death) Executive's
surviving spouse shall receive the death benefit
associated with Executive's Supplemental Retirement
Benefit, but only to the extent not already received
by or on behalf of Executive.
(B) on or after the Closing and before the second
anniversary of the Closing, Executive or his
personal or legal representatives, executors,
administrators, successors, heirs, distributees,
devisees and legatees (in the event of death) shall
receive Executive's Accrued Obligations, EAIP Bonus
Award, Normal Post-Termination Compensation and
Benefits, Second Retention Bonus, Maximum LTIP
Award, Other EOP Awards, and (in the event of
Executive's death) Executive's surviving spouse
shall receive the death benefit associated with
Executive's Supplemental Retirement Benefit, but
only to the extent not already received by or on
behalf of Executive.
4.Gross-Up Payment.
4.1 Regardless of whether Executive becomes entitled to any
payments or benefits under this Agreement, if any of the
payments or benefits received or to be received by
Executive (whether pursuant to the terms of this Agreement
or any other plan, arrangement or agreement with any
System Company) (all such payments and benefits, excluding
the Gross-Up Payment, being hereinafter referred to as the
"Total Payments") will be subject to the Excise Tax,
Company shall pay to Executive an additional amount (the
"Gross-Up Payment") such that the net amount retained by
Executive, after deduction of any Excise Tax on the Total
Payments and any federal, state and local income and
employment taxes and Excise Tax upon the Gross-Up Payment,
shall be equal to the Total Payments.
4.2 For purposes of determining whether any of the Total
Payments will be subject to the Excise Tax and the amount
of such Excise Tax, (i) all of the Total Payments shall be
treated as "parachute payments" (within the meaning of
section 280G(b)(2) of the Code) unless, in the opinion of
tax counsel ("Tax Counsel") reasonably acceptable to
Executive and selected by the accounting firm which was,
immediately prior to the Closing, Company's independent
auditor (the "Auditor"), such payments or benefits (in
whole or in part) do not constitute parachute payments,
including by reason of section 280G(b)(4)(A) of the Code,
(ii) all "excess parachute payments" within the meaning of
section 280G(b)(l) of the Code shall be treated as subject
to the Excise Tax unless, in the opinion of Tax Counsel,
such excess parachute payments (in whole or in part)
represent reasonable compensation for services actually
rendered (within the meaning of section 280G(b)(4)(B) of
the Code) in excess of the Base Amount allocable to such
reasonable compensation, or are otherwise not subject to
the Excise Tax, and (iii) the value of any non-cash
benefits or any deferred payment or benefit shall be
determined by the Auditor in accordance with the
principles of sections 280G(d)(3) and (4) of the Code. For
purposes of determining the amount of the Gross-Up
Payment, Executive shall be deemed to pay federal income
tax at the highest marginal rate of federal income
taxation in the calendar year in which the Gross-Up
Payment is to be made and state and local income taxes at
the highest marginal rate of taxation in the state and
locality of Executive's residence on the Date of
Termination (or if there is no Date of Termination, then
the date on which the Gross-Up Payment is calculated for
purposes of this Section 4), net of the maximum reduction
in federal income taxes which could be obtained from
deduction of such state and local taxes.
4.3 In the event that the Excise Tax is finally determined to
be less than the amount taken into account hereunder in
calculating the Gross-Up Payment, Executive shall repay to
Company, within five (5) business days following the time
that the amount of such reduction in the Excise Tax is
finally determined, the portion of the Gross-Up Payment
attributable to such reduction plus that portion of the
Gross-Up Payment attributable to the Excise Tax and
federal, state and local income and employment taxes
imposed on the Gross-Up Payment being repaid by Executive,
to the extent that such repayment results in a reduction
in the Excise Tax and a dollar-for-dollar reduction in
Executive's taxable income and wages for purposes of
federal, state and local income and employment taxes, plus
interest on the amount of such repayment at 120% of the
rate provided in section 1274(b)(2)(B) of the Code. In the
event that the Excise Tax is determined to exceed the
amount taken into account hereunder in calculating the
Gross-Up Payment (including by reason of any payment the
existence or amount of which cannot be determined at the
time of the Gross-Up Payment), Company shall make an
additional Gross-Up Payment in respect of such excess
(plus any interest, penalties or additions payable by
Executive with respect to such excess) within five (5)
business days following the time that the amount of such
excess is finally determined. Executive and Company shall
each reasonably cooperate with the other in connection
with any administrative or judicial proceedings concerning
the existence or amount of liability for Excise Tax with
respect to the Total Payments.
5.Rabbi Trust; Timing of Payments. No later than 180 days from
the execution of this Agreement, Company shall deposit in the
Trust for Deferred Payments of Entergy Corporation and
Subsidiaries ("Trust") an amount as determined by the Auditor
(as defined in Section 4.2) to be necessary to pay all amounts
that would be due under this Agreement if Executive
experienced a Qualifying Termination event on December 31,
2000. Company shall deposit such additional amounts as
determined by the Auditor from time to time to be necessary to
pay amounts due under the Agreement. The payments provided in
Sections 3 and 4 hereof shall be made not later than the fifth
business day following the Date of Termination; provided,
however, that if the amounts of such payments cannot be
finally determined on or before such day, Company shall pay to
Executive on such day an estimate, as determined in good faith
by Executive or, in the case of payments under Section 4
hereof, in accordance with Section 4 hereof, of the minimum
amount of such payments to which Executive is clearly entitled
and shall pay the remainder of such payments (together with
interest on the unpaid remainder (or on all such payments to
the extent Company fails to make such payments when due) at
120% of the rate provided in section I 274(b)(2)(B) of the
Code) as soon as the amount thereof can be determined, but in
no event later than the thirtieth day after the Date of
Termination. In the event that the amount of the estimated
payments exceeds the amount subsequently determined to have
been due, such excess shall constitute a loan by Company to
Executive, payable on the fifth business day after demand
by Company (together with interest at 120% of the rate
provided in section 1274(b)(2)(B) of the Code). At the time
that payments are made under this Agreement, Company shall
provide Executive with a written statement setting forth the
manner in which such payments were calculated and the basis
for such calculations including, without limitation, any
opinions or other advice Company has received from Tax
Counsel, the Auditor or other advisors or consultants (and any
such opinions or advice which are in writing shall be attached
to the statement). Notwithstanding any provision of this
Section 5 to the contrary, if Executive is entitled to receive
the First Retention Bonus or the Second Retention Bonus in
accordance with subsection 3.1, such benefit shall be payable
under the circumstances described in subsection 3.1, without
regard to termination of employment. In addition, if Executive
(or his surviving spouse) is entitled to receive the
Supplemental Retirement Benefit, such benefit shall be payable
in accordance with the form of benefit elected by the
Executive, or payable to the surviving spouse, in accordance
with the terms and conditions of the System Executive
Continuity Plan of Entergy Corporation and Subsidiaries, as
applicable to Executive on the date of this Agreement.
0.Xxxxx Fees. Company also shall pay to Executive all legal fees
and expenses incurred by Executive in disputing in good faith
any issue hereunder relating to the termination of Executive's
employment, in seeking in good faith to obtain or enforce any
benefit or right provided by this Agreement or in connection
with any tax audit or proceeding to the extent attributable to
the application of section 4999 of the Code to any payment or
benefit provided hereunder. Any such payments shall be made
within five (5) business days after delivery of Executive's
written request for payment accompanied with such evidence of
fees and expenses incurred as Company reasonably may require.
7.Superceded Agreements and Benefits. This Agreement supercedes
any other agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof
which have been made by Executive or any System Company,
including, but not limited to, the Employment Agreement dated
July 29, 1999, and as amended April 4, 2000, and any other
term sheets or offers preceding execution of this Agreement.
Notwithstanding the foregoing, this Agreement does not
supercede Executive's Deferred Compensation Agreement dated
December 31, 1990, and as amended on May 20, 1997, nor the
terms and conditions of Executive's participation in the
System Executive Retirement Plan of Entergy Corporation and
Subsidiaries, the Pension Equalization Plan of Entergy
Corporation and Subsidiaries, and the Supplemental Retirement
Plan of Entergy Corporation and Subsidiaries. Notwithstanding
any other provision to the contrary, Executive acknowledges
that benefits provided under this Agreement are in lieu of
participation in, and any payment that might otherwise have
been payable under, the System Executive Continuity Plan of
Entergy Corporation and Subsidiaries and any other System
severance or retention plan, and Executive hereby waives any
right to participate in such plans.
8.Termination Procedures and Compensation During Dispute.
8.1 Notice of Termination. Any purported termination of
Executive's employment (other than by reason of death)
shall be communicated by written Notice of Termination
from one party hereto to the other party hereto in
accordance with this Section 8. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice
which shall indicate the specific termination provision
in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive's employment
under the provision so indicated. Further, a Notice of
Termination for Cause pursuant to clauses (i) or (ii) of
Section 16.6 is required to include a copy of a
resolution duly adopted by the affirmative vote of not
less than three-quarters (3/4) of the entire membership
of the Board at a meeting of the Board which was called
and held for the purpose of considering such termination
(after reasonable notice to Executive and an opportunity
for Executive, together with Executive's counsel, to be
heard before the Board) finding that, in the good faith
opinion of the Board, Executive was guilty of conduct set
forth in clause (i) or (ii) of the definition of Cause
herein, and specifying the particulars thereof in detail.
8.2 Date of Termination. "Date of Termination," shall mean
(i) if Executive's employment is terminated for
Disability, thirty (30) days after Notice of Termination
is given (provided that Executive shall not have returned
to the full-time performance of Executive's duties during
such thirty (30) day period), and (ii) if Executive's
employment is terminated for any other reason, the date
specified in the Notice of Termination (which, in the
case of a termination by Company, shall not be less than
thirty (30) days (except in the case of a termination for
Cause) and, in the case of a termination by Executive,
shall not be less than fifteen (15) days nor more than
sixty (60) days, respectively, from the date such Notice
of Termination is given).
8.3 Dispute Concerning Termination. If within fifteen (15)
days after any Notice of Termination is given, or, if
later, prior to the Date of Termination (as determined
without regard to this Section 8.3), the party receiving
such Notice of Termination notifies the other party that
a dispute exists concerning the termination, the Date of
Termination shall be extended until the date on which the
dispute is finally resolved, either by mutual written
agreement of the parties or by a final judgment, order or
decree of an arbitrator or a court of competent
jurisdiction (which is not appealable or with respect to
which the time for appeal therefrom has expired and no
appeal has been perfected); provided, however, that the
Date of Termination shall be extended by a notice of
dispute given by Executive only if such notice is given
in good faith and Executive pursues the resolution of
such dispute with reasonable diligence.
8.4 Compensation During Dispute. If a purported termination
occurs and the Date of Termination is extended in
accordance with Section 8.3 hereof, Company shall
continue to pay Executive the full compensation in effect
when the notice giving rise to the dispute was given
(including, but not limited to, salary) and continue
Executive as a participant in all compensation, benefit
and insurance plans in which Executive was participating
when the notice giving rise to the dispute was given,
until the Date of Termination, as determined in
accordance with Section 8.3 hereof. Amounts paid under
this Section 8.4 are in addition to all other amounts due
under this Agreement (other than Executive's Accrued
Obligations) and shall not be offset against or reduce
any other amounts due under this Agreement.
0.Xx Mitigation. Company agrees that Executive is not required
to seek other employment or to attempt in any way to reduce
any amounts payable to Executive by Company pursuant to
Sections 3, 4, or 6 hereof or Section 8.4 hereof. Further, the
amount of any payment or benefit provided for in this
Agreement shall not be reduced by any compensation earned by
Executive as the result of employment by another employer, by
retirement benefits, by offset against any amount claimed to
be owed by Executive to Company, or otherwise (other than (i)
as otherwise provided in subsection 2.2 (A) and (B)) and (ii)
offsets to the Supplemental Retirement Benefit in accordance
with the provisions of the System Executive Retirement Plan of
Entergy Corporation and Subsidiaries.
10. Successors: Binding Agreement.
10.1 In addition to any obligations imposed by law upon any
successor to Company, Company will require any successor
(whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all
of the business and/or assets of Company to expressly
assume and agree to perform this Agreement in the same
manner and to the same extent that Company would be
required to perform it if no such succession had taken
place. Failure of Company to obtain such assumption and
agreement prior to the effectiveness of any such
succession shall be a breach of this Agreement and shall
entitle Executive to compensation from Company in the
same amount and on the same terms as Executive would be
entitled to hereunder if Executive were to experience a
Qualifying Termination, except that, for purposes of
implementing the foregoing, the date on which any such
succession becomes effective shall be deemed the Date of
Termination.
10.2 This Agreement shall inure to the benefit of and be
enforceable by Executive's personal or legal
representatives, executors, administrators, successors,
heirs, distributees, devisees and legatees. if Executive
shall die while any amount would still be payable to
Executive hereunder (other than amounts which, by their
terms, terminate upon the death of Executive) if
Executive had continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance
with the terms of this Agreement to the executors,
personal representatives or administrators of Executive's
estate.
11. Notices. For the purpose of this Agreement, notices and all
other communications provided for in the Agreement shall be in
writing and shall be deemed to have been duly given when
delivered or mailed by United States registered mail, return
receipt requested, postage prepaid, to the following address
shown below or thereafter to such other address as either party
may have furnished to the other in writing in accordance
herewith, except that notice of change of address shall be
effective only upon actual receipt:
If to Company: If to Executive:
J. Xxxxx Xxxxxxx Xxxxxx X. Xxxxx
Chief Executive Officer, Entergy Corporation 37 English Turn Drive
000 Xxxxxx Xxxxxx Xxx Xxxxxxx Xxxxxxxxx, 00000
Xxx Xxxxxxx, XX 00000-0 125
12. Miscellaneous. No provision of this Agreement may be
modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing and signed
by Executive and such officer as may be specifically
designated by the Board. No waiver by either party hereto at
any time of any breach by the other party hereto of, or of any
lack of compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. This Agreement
supersedes any other agreements or representations, oral or
otherwise, express or implied, with respect to the subject
matter hereof which have been made by either party. The laws
of the State of Delaware shall govern the validity,
interpretation, construction and performance of this
Agreement. All references to sections of the Code shall be
deemed also to refer to any successor provisions to such
sections. Any payments provided for hereunder shall be paid
net of any applicable withholding required under federal,
state or local law and any additional withholding to which
Executive has agreed.
13. Validity. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which
shall remain in full force and effect.
14. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original
but all of which together will constitute one and the same
instrument.
15. Settlement of Disputes: Arbitration.
15.1 All claims by Executive for benefits under this Agreement
shall be directed to and determined by the Committee and
shall be in writing. Any denial by the Committee of a
claim for benefits under this Agreement shall be delivered
to Executive in writing and shall set forth the specific
reasons for the denial and the specific provisions of this
Agreement relied upon. The Committee shall afford a
reasonable opportunity to Executive for a review of the
decision denying a claim and shall further allow Executive
to appeal to the Committee a decision of the Committee
within sixty (60) days after notification by the Committee
that Executive's claim has been denied.
15.2 Any further dispute or controversy arising under or in
connection with this Agreement shall be settled
exclusively by arbitration in the metropolitan area in
which Executive resides on the Date of Termination (or the
date that the Merger Agreement is terminated, as
applicable) in accordance with the rules of the American
Arbitration Association then in effect; provided, however,
that the evidentiary standards set forth in subsections
16.6 and 16.19 of this Agreement shall be applied by the
arbitrator(s). Judgment may be entered on the arbitrator's
award in any court having jurisdiction. Notwithstanding
any provision of this Agreement to the contrary, Executive
shall be entitled to seek specific performance of
Executive's right to be paid until the Date of Termination
during the pendency of any dispute or controversy arising
under or in connection with this Agreement.
16. Definitions. For purposes of this Agreement, the following
terms shall have the meanings indicated below:
16.1 Accrued Obligations shall mean Executive's Annual Base
Salary through the Date of Termination to the extent not
theretofore paid, together with all unpaid compensation
and benefits payable to Executive through the Date of
Termination under the terms of Company's compensation and
benefit plans, programs or arrangements as in effect
immediately prior to the Date of Termination or, if more
favorable to Executive, as in effect immediately prior to
the first occurrence of an event or circumstance
constituting Good Reason.
16.2 Annual Base Salary shall mean the highest rate of annual
base salary payable to Executive by the System at any time
after July 29, 2000, the date on which the Board
authorized the Chief Executive Officer of Company to enter
this Agreement with Executive.
16.3 Auditor shall have the meaning set forth in Section 4.2
hereof.
16.4 Base Amount shall have the meaning set forth in section
280G(b)(3) of the Code.
16.5 Board shall mean the Board of Directors of Company.
16.6 Cause for termination by Company of Executive's employment
shall mean (i) the willful and continued failure by
Executive to substantially perform Executive's System
duties (other than any such failure resulting from
Executive's incapacity due to physical or mental illness
or any such actual or anticipated failure after the
issuance of a Notice of Termination for Good Reason by
Executive pursuant to Section 8.1 hereof) that has not
been cured within 30 days after a written demand for
substantial performance is delivered to Executive by the
Board, which demand specifically identifies the manner in
which the Board believes that Executive has not
substantially performed Executive's duties; (ii) the
willful engaging by Executive in conduct which is
demonstrably and materially injurious to a System Company,
monetarily or otherwise, and which results in a conviction
of or entrance of a plea of guilty or nolo contendere to a
felony; or (iii) Executive's willful failure, as
determined by J. Xxxxx Xxxxxxx, the Company's Chief
Executive Officer as of the date hereof, to fully support
and use Executive's best efforts to facilitate the
consummation of the transactions contemplated by the
Merger Agreement (until the Merger Agreement may be
terminated) in accordance with Company directives;
provided, however, that it shall not be Cause for
termination under this clause (iii) for Executive, in good
faith, to discuss with members of the Board of Directors,
the Chief Executive Officer of Company, or peer senior
executives of Company, Executive's concerns with,
suggestions regarding, or proposed improvements to, the
merger implementation process. For purposes of clauses (i)
and (ii) of this definition, (x) no act, or failure to
act, on Executive's part shall be deemed "willful" unless
done, or omitted to be done, by Executive in bad faith and
without reasonable belief that Executive's act, or failure
to act, was in the best interest of the System; and (y) in
the event of a dispute concerning the application of this
provision, no claim by Company that Cause exists shall be
given effect unless Company establishes to the Committee
(and to the arbitrator(s) in the event of arbitration of a
dispute or controversy hereunder) by clear and convincing
evidence that Cause exists. For purposes of clauses
(i),(ii), (iii) of this definition, no acts of Executive
that occurred before execution of this Agreement shall be
deemed justification for a Cause claim by Company unless
said acts were unknown to Company management and involved
the commission of a felony injurious to a System Company.
16.7 Closing shall mean the earlier to occur of (i)
consummation of the transactions contemplated by the Ring-
Ranger Merger Agreement or (ii) the occurrence of a
"Change in Control" (as defined in Company's Executive
Continuity Plan in effect on the date hereof).
16.8 Code shall mean the Internal Revenue Code of 1986, as
amended from time to time.
16.9 Committee shall mean (i) the individuals who, on the date
hereof, constitute the Personnel Committee of the Board,
plus (ii) in the event that fewer than three individuals
are available from the group specified in clause (i) above
for any reason, such individuals as may be appointed by
the individual or individuals so available (including for
this purpose any individual or individuals previously so
appointed under this clause (ii)).
16.10 Company shall mean Entergy Corporation and shall
include any successor to its business and/or assets which
assumes and agrees to perform this Agreement by operation
of law, or otherwise.
16.11 Date of Termination shall have the meaning set forth in
Section 8.2 hereof.
16.12 Disability shall be deemed the reason for the
termination by a System employer of Executive's
employment, if, as a result of Executive's incapacity due
to physical or mental illness, Executive shall have been
absent from the full-time performance of Executive's
duties with the System for a period of six (6) consecutive
months, Company shall have given Executive a Notice of
Termination for Disability, and, within thirty (30) days
after such Notice of Termination is given, Executive shall
not have returned to the full-time performance of
Executive's duties.
16.13 EAIP shall mean Executive Annual Incentive Plan of
Entergy Corporation and Subsidiaries, or any successor or
replacement plan.
16.14 EAIP Bonus Award shall mean the product of (1) the
maximum annual bonus opportunity under the EAIP for the
year in which the Date of Termination occurs and (2) a
fraction, the numerator of which is the number of days in
the fiscal year that includes the Date of Termination and
that are prior to the Date of Termination, and the
denominator of which is 365.
16.15 EOP shall mean the Equity Ownership Plan of Entergy
Corporation and Subsidiaries, or any successor or
replacement plan.
16.16 Excise Tax shall mean any excise tax imposed under
section 4999 of the Code.
16.17 Executive shall mean the individual named in the
first paragraph of this Agreement.
16.18 First Retention Bonus shall mean a lump sum cash
retention payment of $2,772,000.00.
16.19 Good Reason for termination by Executive of
Executive's employment shall mean the occurrence (without
Executive's express written consent) of any one of the
following acts by Company, or failure by Company to act,
unless, in the case of any act or failure to act described
in paragraph (B) (F), (G), or (H) below, such act or
failure to act is corrected prior to the Date of
Termination specified in the Notice of Termination given
in respect thereof:
(A) for the period through and including the date of
Closing, the substantial reduction or alteration in the
nature or status of Executive's duties or
responsibilities from those in effect on the date of
this Agreement, other than an insubstantial and
inadvertent act that is remedied by Company promptly
after receipt of notice thereof given by Executive and
other than any such alteration primarily attributable to
the fact that Company may no longer be a public company;
(B) following the date of Closing, the failure of Company to
provide Executive with a position in the surviving
merged entity of Group President, Nuclear Operations, or
such other position the responsibilities of which
include, at a minimum, the oversight of generation
operations, including fossil and nuclear, of the
surviving merged entity, and (1) the employment location
of which shall be, at the discretion of the Chief
Executive Officer of the surviving merged entity, not
more than 20 miles from (a) Executive's principal place
of employment on the date hereof or (b) Company's
nuclear operations headquarters in Jackson, Mississippi,
or (c) the corporate headquarters of the Merged Entity
(or of any other party (or parent thereof) to the Merger
Agreement), except for required travel on Company's
business to an extent substantially consistent with
Executive's present business travel, and (2) with
relocation and interim living allowances no less than
those available to Company's executives (or to FPL
Group's executives, (or the executives of any other
party (or parent thereof) to the Merger Agreement), if
higher) as in effect on the date hereof, in the event
relocation is required consistent with this subsection;
(C) the relocation of Executive's principal place of
employment to a location more than 20 miles from
Executive's principal place of employment on the date
hereof or Company's requiring Executive to be based
anywhere other than such principal place of employment
(or permitted relocation thereof) except for required
travel on Company's business to an extent substantially
consistent with Executive's present business travel
obligations, provided, however, that this paragraph (C)
shall not apply in the event Executive is provided a
position in the surviving merged entity in accordance
with (B) above;
(D) a reduction by Company in Executive's annual base salary
as in effect on the date hereof or as the same may be
increased from time to time;
(E) the failure by Company to pay to Executive any portion
of Executive's current compensation, or to pay to
Executive any portion of an installment of deferred
compensation under any deferred compensation program of
Company, within seven (7) days of the date such
compensation is due;
(F) the failure by Company to continue in effect any
compensation plan in which Executive participates on or
after the date hereof which is material to Executive's
total compensation, unless an equitable arrangement
(embodied in an ongoing substitute or alternative plan)
has been made with respect to such plan, or the failure
by Company to continue Executive's participation therein
(or in such substitute or alternative plan) on a basis
not materially less favorable, both in terms of the
amount or timing of payment of benefits provided and the
level of Executive's participation relative to other
participants, as existed on the date hereof (or as the
same may be improved after the date hereof);
(G) the failure by Company to continue to provide Executive
with benefits substantially similar to those enjoyed by
Executive under any of Company's pension, savings, life
insurance, medical, health and accident, or disability
plans in which Executive participates on or after the
date hereof, the taking of any other action by Company
which would directly or indirectly materially reduce any
of such benefits or deprive Executive of any material
fringe benefit enjoyed by Executive on or after the date
hereof, or the failure by Company to provide Executive
with the number of paid vacation days to which Executive
is entitled on the basis of years of service with
Company in accordance with Company's normal vacation
policy in effect on the date hereof (or as the same may
be improved after the date hereof); or
(H) any purported termination of Executive's employment that
is not effected pursuant to a Notice of Termination
satisfying the requirements of Section 8.1 hereof; for
purposes of this Agreement, no such purported
termination shall be effective.
Executive's right to terminate Executive's employment for Good
Reason shall not be affected by Executive's incapacity due to
physical or mental illness. Executive's continued employment
shall not constitute consent to, or a waiver of rights with
respect to, any act or failure to act constituting Good Reason
hereunder. For purposes of any determination regarding the
existence of Good Reason, any claim by Executive that Good Reason
exists shall be presumed to be correct unless Company establishes
to the Committee (and to the arbitrator(s) in the event of
arbitration of a dispute or controversy hereunder) by clear and
convincing evidence that Good Reason does not exist.
16.20 Gross-Up Payment shall have the meaning set forth in
Section 4.1 hereof.
16.21 LTIP shall mean the Long Term Incentive Program of
the BOP, or any successor or replacement long-term
incentive program.
16.22 Maximum LTIP Award shall mean the number of
performance shares or performance share units, as
applicable, that Executive shall be entitled to receive
under the LTIIP with respect to any performance period (as
defined in the applicable program or plan) that includes
the Date of Termination, such number to be determined as
if Executive satisfied the remaining performance
requirements and was entitled to the maximum pay out level
under the long term incentive program with respect to such
performance periods.
16.23 Merger Agreement shall mean the Ring-Ranger Merger
Agreement or any other agreement, the consummation of the
transactions contemplated by which would constitute a
"Change in Control" under the Company's Executive
Continuity Plan, as in effect on the date hereof.
16.24 Normal Post-Termination Compensation and Benefits
shall mean Executive's normal post-termination
compensation and benefits as such payments become due, and
determined under, and paid in accordance with, Company's
retirement, insurance and other compensation or benefit
plans, programs and arrangements as in effect immediately
prior to the Date of Termination or, if more favorable to
Executive, as in effect immediately prior to the
occurrence of the first event or circumstance constituting
Good Reason.
16.25 Notice of Termination shall have the meaning set forth
in Section 8.1 hereof.
16.26 Other BOP Awards shall mean (a) the vesting of, and
lapse of restrictions on, all restricted shares, stock
options, and other awards (excluding awards under the
LTIP), as applicable, granted to Executive prior to the
Date of Termination, to the extent such shares, options or
other awards have not already vested or restrictions
thereon have not yet lifted, including, but not limited to
any non-vested stock options granted to Executive under
the EOP by Employment Agreement dated July 29, 1999 and
(b) the extension of the period during which stock options
shall be exercisable for the remainder of the ten-year
term extending from the grant date.
16.27 Qualifying Termination shall mean a termination of
Executive's employment (i) by Executive for Good Reason;
or (ii) by Company other than for Cause.
16.28 Second Retention Bonus shall mean a lump sum cash
retention payment of $2,310,000.00
16.29 Supplemental Retirement Benefit shall mean a
supplemental benefit provided under this Agreement that,
in combination with the benefits provided under the System
Executive Retirement Plan of Entergy Corporation and
Subsidiaries, as amended and restated effective January 1,
2000 ("SERP") in accordance with Executive's SERP
Participant Application, shall provide the benefits (i.e.,
retirement benefits, survivor benefits, or pre-retirement
death benefits) that would have been payable to Executive
(or Executive's Joint Annuitant or Beneficiary in the
event of Executive's death) under the SERP 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. Subject to the terms and conditions of this
Agreement, if Executive satisfies all of the provisions of
the SERP necessary for SERP benefits to be payable to, or
on behalf of Executive, then Executive shall be entitled
to have his SERP benefits supplemented by this Agreement.
If Executive is terminated for Cause or otherwise causes a
forfeiture of benefits to occur for one or more of the
reasons set forth in the SERP, the Supplemental Retirement
Benefit shall be forfeited by Executive.
16.30 System shall mean Company and all other System
Companies.
16.31 System Company(ies) 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% of
more controlled, directly or indirectly, by Company, and
any successor to the business and/or assets of any such
entity, which term shall include the Merged Entity after
the Closing.
16.32 Target LTIP Award shall mean the number of performance
shares or performance share units, as applicable, that
Executive shall be entitled to receive under the LTIP
with respect to any performance period (as defined in the
applicable program or plan) that includes the Date of
Termination, such number to be determined as if Executive
satisfied the remaining performance requirements and was
entitled to the target pay out level under the long term
incentive program with respect to such performance
periods.
16.33 Tax Counsel shall have the meaning set forth in Section
4.2 hereof.
16.34 Total Payments shall mean those payments so described in
Section 4.1 hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written and effective as of July 29,
2000 in accordance with the July 29, 2000 Resolution of the Board
of Directors of Entergy Corporation.
ENTERGY CORPORATION EXECUTIVE
By: /s/ J. Xxxxx Xxxxxxx /s/ Xxxxxx X. Xxxxx
J. Xxxxx Xxxxxxx Xxxxxx X. Xxxxx
Chief Executive Officer President,
Entergy Corporation
