Exhibit 10(a)89
RETENTION AGREEMENT
THIS AGREEMENT, executed on October 30, 2000 and effective
as of July 29, 2000, by and between Entergy Corporation, a
Delaware corporation (`Company"), and Xxxxx X. Xxxxxxxxx
("Executive").
WHEREAS, Executive is currently employed by, and serves in
the position of President and Chief Executive Officer of Entergy
Operations, Inc., a System employer;
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 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 first anniversary of the
Closing, Executive remains employed by the surviving
merged entity, Executive shall receive payment of one-
third of the Retention Bonus at such first anniversary
date. If Executive remains employed by the surviving
merged entity through and including the second
anniversary of the Closing, then Executive shall receive
payment of one-half of the remaining unpaid Retention
Bonus at such second anniversary date. If Executive
remains employed by the surviving merged entity through
and including the third anniversary of the Closing, then
Executive shall receive payment of the remaining unpaid
Retention Bonus at such third 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. In addition,
if Executive's terminates his employment after March 1,
2001, and provided Executive gives Company at least three
months advance notice of such intention to retire,
Executive shall have Company's permission to retire for
purposes of receiving benefits under the Supplemental
Retirement Plan of Entergy Corporation and Subsidiaries
and under the System Executive Retirement Plan of Entergy
Corporation and Subsidiaries, subject, however, to the
forfeiture provisions contained therein.
3.5 Qualifying Termination. If Executive's employment is
terminated due to a Qualifying Termination, then
Executive shall receive Executive's Accrued Obligations,
Target LTIP Award, Other EOP Awards, Normal Post-
Termination Compensation and Benefits, and any remaining
unpaid Retention Bonus. Payment of the 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 before the earlier of the termination
of the Merger Agreement or the third anniversary of 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, Target LTIP Award, Other EOP Awards, Normal
Post-Termination Compensation and Benefits, and any
remaining unpaid Retention Bonus.
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) (I) 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 12
74(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 12 74(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 payment
of a portion of the 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.
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 Retention Agreement dated
July 12, 2000, and any other term sheets or offers preceding
execution of this Agreement. Notwithstanding the foregoing,
this Agreement does not supercede the terms and conditions of
Executive's participation in the System Executive Retirement
Plan of Entergy Corporation and Subsidiaries and the
Supplemental Retirement Plan of Entergy Corporation and
Subsidiaries (except for guaranteed Company permission to
retire under either plan if the conditions set forth in
Section 3.4 of this Agreement are satisfied). 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)).
10. Successors: Binding Agreement.
10.1In 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 Xxxxx X. Xxxxxxxxx
Chief Executive Officer, Entergy Corporation 000 Xxxxxxx Xxxxx
000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxxxxxxxx 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 16.16 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:
16.1Accrued 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.
16.2Annual 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.
16.3Auditor shall have the meaning set forth in Section 4.2
hereof.
16.4Base Amount shall have the meaning set forth in section
280G(b) (3) of the Code.
16.5Board shall mean the Board of Directors of Company.
16.6Cause 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.
16.7Closing 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).
16.8Code shall mean the Internal Revenue Code of 1986, as
amended from time to time.
16.9Committee 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)).
16.10Company 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.
16.11Date of Termination shall have the meaning set forth in
Section 8.2 hereof.
16.12Disability 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.
16.13EOP shall mean the Equity Ownership Plan of Entergy
Corporation and Subsidiaries, or any successor or
replacement plan.
16.14Excise Tax shall mean any excise tax imposed under section
4999 of the Code.
16.15Executive shall mean the individual named in the first
paragraph of this Agreement.
16.16Good 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, the responsibilities of which include,
at a minimum, nuclear operational responsibilities as
of the date of this Agreement for Company's current
nuclear operations, 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.
16.17Gross-Up Payment shall have the meaning set forth in
Section 4.1 hereof.
16.18LTIP shall mean the Long Term Incentive Program of the EOP,
or any successor or replacement long-term incentive
program.
16.19Merger 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.
16.20Normal 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.
16.21Notice of Termination shall have the meaning set forth in
Section 8.1 hereof.
16.22Other EOP 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 the
restricted units granted to Executive under the EOP by
Retention Agreement dated July 12, 2000, 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.
16.23Qualifying Termination shall mean a termination of
Executive's employment (i) by Executive for Good Reason at
any time prior to the earlier of termination of the Merger
Agreement or the third anniversary date of the Closing; or
(ii) by Company other than for Cause at any time prior to
the earlier of termination of the Merger Agreement or the
third anniversary date of the Closing.
16.24Retention Bonus shall mean a total cash amount of
$2,040,000.00.
16.25System shall mean Company and all other System Companies.
16.26System 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.
16.27Target 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.
16.28Tax Counsel shall have the meaning set forth in Section
4.2 hereof.
16.29Total 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/ Xxxxx X. Xxxxxxxxx
J. Xxxxx Xxxxxxx Xxxxx X. Xxxxxxxxx
Chief Executive Officer President and Chief
Executive Officer,
Entergy Operations, Inc.
