RESTRICTED UNIT AGREEMENT
Exhibit
10(a)93
This
RESTRICTED UNIT AGREEMENT, by and between Entergy Corporation and J. Xxxxx
Xxxxxxx (“Grantee”), shall be
effective as of the date approved by the Personnel Committee of the Entergy
Corporation Board of Directors, contingent upon execution by the parties. The
definitions of capitalized terms used in this Agreement are provided in Section
19, unless otherwise noted.
1.
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Grant of Restricted
Units. In consideration of the continued leadership and
System service Grantee will provide over the next 36 months, pursuant to
the Equity Plan the Company hereby grants to Grantee ONE HUNDRED THOUSAND
(100,000) Restricted Share Units (“Restricted
Units”),
subject to the terms and conditions set forth below, including, but not
limited to, Section 4 of this
Agreement.
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2.
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Vesting of Restricted
Units. The Restricted Units (without dividend
equivalents) shall vest in accordance with the following
schedule:
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·
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50,000
Restricted Units shall vest on December 3,
2011.
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·
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50,000
Restricted Units shall vest on December 3,
2012.
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Grantee
must be a full-time employee of a System Company (as defined in the Equity Plan)
continuously from the Effective Date of this Agreement through the applicable
vesting date in order to vest in the Restricted Units that are scheduled to
become vested on such vesting date. Notwithstanding the foregoing,
the following subsections set forth the entitlement of Grantee or his
beneficiary(ies) to accelerated vesting of any then unvested Restricted Units
under specified circumstances described in each subsection, and in no event
shall Grantee and his beneficiary(ies) be entitled to accelerated payments and
benefits under more than one such subsection.
2.1
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The
Restricted Units constitute "Other EOP Awards," as that term is defined in
Grantee's Retention Agreement with the Company, executed on November 21,
2000 and effective as of October 27, 2000 (“Retention Agreement”)
and, therefore, the vesting of such Restricted Units shall accelerate in
the event Grantee experiences a Qualifying Termination or a Merger Related
Termination, as those terms are defined in Grantee's Retention
Agreement.
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2.2
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Nothwithstanding
the vesting criteria set forth in Section 2 or any provision of the Equity
Plan to the contrary (including Equity Plan Section 13.1 in the event of a
Change in Control), if prior to the applicable vesting date, either (i)
Employer terminates Grantee’s employment with Employer for a reason other
than Cause; or (ii) Grantee’s employment is terminated in connection with
a Change in Control, then Grantee shall fully vest in all Restricted Units
on Grantee’s employment termination, unless Grantee becomes employed by an
employer that assumes this Agreement or the obligations to Grantee
hereunder.
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2.3
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Any
portion of Grantee’s Restricted Unit grant that is not already vested in
accordance with the above schedule shall immediately vest upon (a)
Grantee’s termination of employment for Good Reason (as defined in Section
19.9 of this Agreement); (b) Grantee’s death or Disability (as defined in
Section 19.6 of this Agreement); or (c) Company’s termination of Grantee’s
employment for any reason other than Cause (as defined in Section 19.2 of
this Agreement).
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3. Payment or Deferral of
Restricted Units.
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3.1
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Except
as elected by Grantee in accordance with Section 3.2, as soon as
reasonably practicable after each date on which the Restricted Units vest
hereunder but in no event later than the date that is 2 ½ months from the
end of the Company’s taxable year in which such amount is no longer
subject to a substantial risk of forfeiture, the Company shall pay to
Grantee a cash amount equal to the Fair Market Value of a share of Common
Stock on the date of vesting, multiplied by the number of Restricted Units
which vested on such date. Such payment shall be made in
accordance with the short-term deferral exception of Section 409A of the
Internal Revenue Code of 1986, as amended (“Code”) and final regulations
issued thereunder.
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3.2
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In
lieu of receiving payment of any vested Restricted Units at the time set
forth in Section 3.1 above, Grantee may elect, to the extent allowed under
the Equity Plan in accordance with the requirements of Code Section 409A
and final regulations issued thereunder, to defer payment in accordance
with the Equity Plan. Any such election to defer must be made
at least 12 months prior to the vesting date of such amount and must defer
payment by at least five years, provided that to the extent specified in
the Grantee’s deferral election, payment shall be accelerated upon death,
disability, unforeseeable emergency or change in control, as such terms
are defined for purposes of, and to the extent permitted by, Code Section
409A
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4.
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Termination,
Forfeiture and/or Repayment of Restricted Units. Except
as otherwise provided herein, the Restricted Units for which restrictions
have not yet lifted shall terminate on the date on which the Grantee's
full-time System employment terminates. In addition, Grantee
agrees to the following:
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4.1
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In
the event Grantee vests in all or a portion of the Restricted Units
granted under this Agreement, then for a period of two years following the
Date of Termination, Grantee shall not engage (without the prior written
consent of Company) in any employment or other activity (either in his
individual capacity or together with any other person, corporation,
governmental agency or body, or other entity) with any entity
that is (i) listed in the Standard & Poor’s Electric Index,
Philadelphia Utility 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 Grantee of this
subsection 4.1, or in the event that all or any part or application of
this subsection 4.1 is held or found invalid or unenforceable for any
reason whatsoever by a court of competent jurisdiction, then (i) Grantee
shall repay to Company, within 5 business days of Company's written
request therefor, any Restricted Unit amount previously paid to him
pursuant to this Agreement, (ii) Grantee shall forfeit any amount
previously awarded to him and deferred under the Equity Plan or otherwise
pursuant to this Agreement, and (iii) Grantee shall have no further
entitlement to receive any additional payments or benefits under this
Agreement.
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4.2
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For
a period of two years following the Date of Termination, Grantee 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 could reasonably be expected to
disrupt or impair their normal operations, including actions or statements
(i) that could reasonably be expected to harm the reputation of any System
Company with its clients, suppliers, employees or the public; or (ii) that
could reasonably be expected to 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 Grantee of this subsection 4.2, or in the event that all or any part or
application of this subsection 4.2 is held or found invalid or
unenforceable for any reason whatsoever by a court of competent
jurisdiction , then (i) Grantee shall repay to Company, within 5 business
days of Company's written request therefor, any Restricted Unit amount
previously paid to him pursuant to this Agreement, (ii) Grantee shall
forfeit any amount previously awarded to him and deferred under the Equity
Plan or otherwise pursuant to this Agreement, and (iii) Grantee shall have
no further entitlement to receive any additional payments or benefits
under this Agreement.
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5.
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Compliance with Code
Section 409A Limitations. Notwithstanding any provision
to the contrary, all provisions of this Agreement shall be construed and
interpreted to comply with Code Section 409A and if necessary, any
provision shall be held null and void to the extent such provision (or
part thereof) fails to comply with Code Section 409A or regulations
thereunder. Specifically, the terms “termination” and
termination of employment” shall be applied in a manner consistent with
the definition of “separation from service” within the meaning of Code
Section 409A. A right of the Company, if any, to offset or
otherwise reduce any sums that may be due or become payable by the Company
to Grantee by any overpayment or indebtedness of the Grantee shall be
subject to limitations imposed by Code Section 409A. For
purposes of the limitations on nonqualified deferred compensation under
Code Section 409A, each payment of compensation under this Agreement shall
be treated as a separate payment of compensation for purposes of applying
the Section 409A deferral election rules and the exclusion from Section
409A for certain short-term deferral amounts. Amounts payable under this
Agreement shall be excludible from the requirements of Code Section 409A,
to the maximum possible extent, either as (i) short-term deferral amounts
(e.g., amounts
payable under the schedule prior to March 15 of the calendar year
following the calendar year of substantial vesting), or (ii) under the
exclusion for involuntary separation pay provided in Treasury Regulations
Section 1.409A-1(b)(9)(iii). To the extent that deferred
compensation subject to the requirements of Code Section 409A becomes
payable under this Agreement to Grantee at a time when Grantee is a
“specified employee” (within the meaning of Code Section 409A), any such
payments shall be delayed by six months to the extent necessary to comply
with the requirements of Code Section
409A(a)(2)(B).
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6.
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Restricted Units
Nontransferable. Restricted Units awarded pursuant to
this Agreement may not be sold, exchanged, pledged, transferred, assigned,
or otherwise encumbered, hypothecated or disposed of by Grantee (or any
beneficiary) other than by will or laws of descent and
distribution.
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7.
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Governing
Law. The laws of the State of Louisiana shall govern the
validity, interpretation, and construction of this Agreement, without
regard to its principles of conflict of
laws.
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9.
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Amendments. 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 Grantee and such officer as may be specifically designated by the
Committee. 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. The
Equity Plan may be amended, modified or terminated only in accordance with
its terms.
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10.
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Rights as a
Shareholder. Neither the Grantee nor any of Grantee's
successors in interest shall have any rights as a stockholder of the
Company with respect to any Restricted
Unit.
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11.
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Agreement Not a
Contract of Employment. Neither the Equity Plan, the
granting of the Restricted Units, this Agreement nor any other action
taken pursuant to the Equity Plan shall constitute or be evidence of any
agreement or understanding, express or implied, that the Grantee has a
right to continue as an employee of any System Company for any period of
time or at any specific rate of
compensation.
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12.
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Settlement of
Disputes. The Committee shall have full authority to
interpret and construe the terms of the Equity Plan and this
Agreement. The determination of the Committee as to any such
matter of interpretation or construction shall be final, binding and
conclusive.
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12.1
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All
claims by Grantee for benefits under this Agreement shall be directed to
and determined by the Committee and shall be in writing. The Committee
shall have the sole and exclusive power and discretion to make factual
determinations, construe and interpret the Agreement. Any
denial by the Committee of a claim for benefits under this Agreement shall
be delivered to Grantee 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 Grantee for a review of the decision denying a claim and
shall further allow Grantee to appeal to the Committee a decision of the
Committee within sixty (60) days after notification by the Committee that
Grantee's claim has been denied.
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12.2
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If
Grantee elects to challenge the Committee’s decision in judicial
proceedings, that action must be filed within 180 days following the day
the Committee makes a final determination on the
claim.
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13.
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Successors. 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 Grantee to compensation from
Company upon Grantee’s Date of Termination in the same amount and on the
same terms as Grantee would be entitled to hereunder if Grantee were to be
terminated without Cause.
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14.
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Unfunded
Benefit. Unless specifically provided for in a written
plan document properly adopted pursuant to such plan, none of the benefits
or arrangements described in this Agreement shall be secured or funded in
any way, and each shall instead constitute an unfunded and unsecured
promise to pay money in the future exclusively from the general assets of
Grantee’s System Company employer.
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15.
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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, if to the Grantee, to his
last known address as shown in the personnel records of Company, and if to
Company, 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:
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If to
Company:
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Entergy
Corporation
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Attention: General
Counsel
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000
Xxxxxx Xxxxxx, 00xx
Xxxxx
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Xxx Xxxxxxx,
XX 00000-0000
16.
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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.
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17.
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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.
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18.
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Binding
Agreement. This Agreement shall inure to the benefit of
and be enforceable by Grantee's personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees. If Grantee shall die while any amount would still be
payable to Grantee hereunder (other than amounts which, by their terms,
terminate upon the death of Grantee) if Grantee 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 Grantee's
estate.
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19.
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Definitions. For
purposes of this Agreement, the following terms shall have the meanings
indicated below:
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19.1
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Agreement shall
mean this Restricted Unit
Agreement.
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19.2
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Cause shall
mean:
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(a)
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The
continuing failure by Grantee to substantially perform Grantee’s duties
(other than such failure resulting from the Grantee’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 Grantee) that
has not been cured within thirty (30) days after a written demand for
substantial performance is delivered to Grantee by the Committee, which
demand specifically identifies the manner in which the Committee believes
that Grantee has not substantially performed Grantee’s duties;
or
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(b)
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the willful
engaging by Grantee in conduct which is demonstrably and materially
injurious to any System Company, monetarily or otherwise;
or
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(c)
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conviction
of or entrance of a plea of guilty or nolo contendere to a
felony or other crime which other crime has or may have a material adverse
affect on Grantee’s ability to carry out Grantee’s duties or upon the
reputation of any System Company;
or
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(d)
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a
material violation by Grantee of any agreement Grantee has with a System
Company; or
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(e)
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unauthorized
disclosure by Grantee of the confidences of any System
Company.
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For
purposes of clause (b) of this Section 19.2, no act, or failure to act, on
Grantee's part shall be deemed "willful" unless done, or omitted to be done, by
Grantee not in good faith and without reasonable belief that Grantee's act, or
failure to act, was in the best interests of the System.
19.3
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Committee shall
mean the Personnel Committee of the Entergy Corporation Board of
Directors.
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19.4
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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.
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19.5
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Date of
Termination shall mean (i) if Grantee’s employment is terminated
for Disability, thirty (30) days after Notice of Termination is given
(provided that Grantee shall not have returned to the full-time
performance of Grantee's duties during such thirty (30) day period), and
(ii) if Grantee'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
Grantee, shall not be less than thirty (30) days nor more than sixty (60)
days, respectively, from the date such Notice of Termination is
given).
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19.6
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Disability
shall be deemed the reason for the termination by a System employer of
Grantee's employment, if, as a result of Grantee's incapacity due to
physical or mental illness, Grantee shall have been absent from the
full-time performance of Grantee's duties with the System for a period of
six (6) consecutive months, Company shall have given Grantee a Notice of
Termination for Disability, and, within thirty (30) days after such Notice
of Termination is given, Grantee shall not have returned to the full-time
performance of Grantee's duties.
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19.7 Effective Date shall
mean the date the Agreement is approved by the Committee.
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19.8
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Equity Plan
shall mean the 2007 Equity Ownership and Long Term Cash Incentive Plan of
Entergy Corporation and Subsidiaries, as may be amended from time to
time.
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19.9
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Good Reason for
purposes of this Agreement shall mean the occurrence, without Grantee’s
express written consent, of any of the following events during Grantee’s
employment:
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(a)
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the
substantial reduction in the nature or status of Grantee’s duties or
responsibilities from those in effect on the date immediately preceding
the effective date of this Agreement, other than an insubstantial and
inadvertent act that is remedied by the System Company employer promptly
after receipt of notice thereof given
by Grantee;
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(b)
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a
reduction of five percent (5%) or more in Grantee’s base salary as in
effect immediately prior to the effective date of this Agreement, which
shall be calculated exclusive of any bonuses, overtime, or other special
payments, but including the amount, if any, Grantee elects to defer under:
(1) a cash or deferred arrangement qualified under Code Section 401(k);
(2) a cafeteria plan under Code Section 125; (3) the Executive Deferred
Compensation Plan of Entergy Corporation and Subsidiaries, or any
successor or replacement plan; and (4) any other nonqualified deferred
compensation plan, agreement, or arrangement in which Grantee may
hereafter participate or be a
party;
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(c)
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requiring
Grantee to be based at a location other than the Company's corporate
headquarters (or, alternatively, at any temporary headquarters established
by Company as a result of an emergency or other unforeseen circumstances),
except for required travel on business of any System Company to an extent
substantially consistent with Grantee’s present business
obligations;
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(d)
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failure
by System Company to continue to allow Grantee to participate in programs
or plans providing opportunities for equity awards, stock options,
restricted stock, stock appreciation rights, incentive compensation, bonus
and other plans on a basis not materially less favorable, both in terms of
the amount or timing of payment of benefits provided and the level of
Grantee’s participation relative to other participants, as existed
immediately prior to the effective date of this Agreement, except for
across the board changes similarly affecting all senior
executives of Company;
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(e)
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failure
by System Company employer to continue to allow Grantee to participate in
programs or plans with opportunities for benefits not materially less
favorable than those enjoyed by Grantee under any of the System Company's
pension, savings, life insurance, medical, health and accident, disability
or vacation plans in which Grantee was participating immediately prior to
the effective date of this Agreement, except for across the board changes
similarly affecting all senior executives of Company;
or
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(f)
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any
purported termination of Grantee’s employment which is not effected
pursuant to a Notice of Termination; for purposes of this Agreement, no
such purported termination shall be effective in depriving Grantee of the
right to terminate employment for Good
Reason.
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Grantee’s
right to terminate his employment for Good Reason shall not be affected by
Grantee’s incapacity due to physical or mental illness. Grantee'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.
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19.10
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Notice of
Termination for purposes of this Agreement shall mean the notice of
purported termination of Grantee’s employment (other than by reason of
death), which shall be communicated by written notice indicating 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 Grantee’s employment under the provision so
indicated.
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19.11 System shall
mean Company and all other System Companies.
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19.12
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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.
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IN
WITNESS WHEREOF, the parties have executed and delivered this Agreement, which
is effective on the day and year first above written.
ENTERGY
CORPORATION
By: /s/ Xxxxx
Xxxxxxx
Xxxxx Xxxxxxx
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Senior
Vice-President,
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Human Resources and
Administration
The
undersigned hereby accepts and agrees to all the terms and provisions of the
foregoing Agreement and to all the terms and provisions of the Equity Plan
herein incorporated by reference. The undersigned further acknowledges that the
Equity Plan Prospectus is available to him for review on the Company’s internal
Web page.
/s/
J. Xxxxx
Xxxxxxx
J. Xxxxx
Xxxxxxx, Grantee