Exhibit 10(a)90
RETENTION AGREEMENT
THIS AGREEMENT, executed on October 11, 2000, and
effective as of July 29, 2000, by and between Entergy
Corporation, a Delaware corporation ("Company"), and C. John
Wilder ("Executive").
WHEREAS, Executive is currently employed by Entergy
Services, Inc., a System employer, and serves in the
position of Chief Financial Officer 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, 5 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.
Executive's Covenants. Executive agrees to the
following:
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 Jones 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 3.4, 3.5, 3.6 and 3.7, 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 Three-
Times Severance Payment or the Four-Times
Severance Payment previously paid to him
pursuant to subsections 3.4, 3.5, 3.6 and
3.7, 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 3.7, in no event shall
Executive and his beneficiary (ies) be entitled to
payments and benefits under more than one such
subsection.
3.1 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.
3.2 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.
3.3 Termination of Employment by Executive Without
Good Reason Before Shareholder Approval. If
Executive terminates employment with the System
without Good Reason before approval by Company
shareholders of the transactions contemplated by
the Merger Agreement, 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 On or After Shareholder Approval But
Before Closing. If Executive terminates
employment with the System without Good Reason on
or after approval by Company shareholders of the
transactions contemplated by the Merger Agreement
but before the Closing, Executive shall be
entitled only to Executive's Accrued Obligations,
Normal Post-Termination Compensation and Benefits,
and Three-Times Severance Payment.
3.5 Termination of Employment by Executive Without
Good Reason, or Acceptance of Special Project
Coordinator Position, On or After Closing But
Before Second Anniversary of Closing. If Executive
terminates employment with the System without Good
Reason, and other than on account of death or
Disability, on or after the Closing but before the
second anniversary of the Closing, then Executive
shall be entitled to (a) either the Special
Project Coordinator Position or Normal Post-
Termination Compensation and Benefits and (b)
receive Executive's Accrued Obligations,
Supplemental Retirement Benefit (in accordance
with Executive's election), EAIP Bonus Award,
Three-Times Severance Payment, and Target LTIP
Award and Other EOP Awards. Notwithstanding any
provision of this Agreement to the contrary,
should Executive remain in System employ through
the Closing, he shall receive payment of the
Supplemental Retirement Benefit (if Executive
elects to receive such benefit in accordance with
subsection 16.28 (a)) on the date of the Closing,
which payment shall not prejudice Executive's
right to receive the other benefits described in
this Section upon the occurrence of the events
described in each other subsection.
3.6 Qualifying Termination. If Executive's employment
is terminated due to a Qualifying Termination,
then Executive shall be entitled to (a) either the
Special Project Coordinator Position or Normal
Post-Termination Compensation and Benefits and (b)
receive Executive's Accrued Obligations,
Supplemental Retirement Benefit (in accordance
with Executive's election), EAIP Bonus Award, Four
Times Severance Payment, Maximum LTIP Award and
Other EOP Awards. Notwithstanding any provision of
this Agreement to the contrary, should Executive
remain in System employ through the Closing, he
shall receive payment of the Supplemental
Retirement Benefit (if Executive elects to receive
such benefit in accordance with subsection
16.28(a)) on the date of the Closing, which
payment shall not prejudice Executive's right to
receive the other benefits described in this
subsection upon occurrence of a Qualifying
Termination.
3.7 Termination On Account of Death or Disability. If
Executive's employment should terminate on account
of death or Disability prior to the termination of
the Merger Agreement, 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,
Four-Times Severance Payment, Supplemental
Retirement Benefit (in accordance with the
election of Executive or his beneficiary, if
applicable), Maximum LTIP Award and Other EOP
Awards. Benefits provided under this subsection
shall be reduced by the benefits provided to
Executive prior to his death or Disability under
any other subsection of this Agreement, with the
exception of subsection 3.1.
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) (1) 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 1274 (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
elects to receive the Supplemental Retirement Benefit in
accordance with subsection 16.28(a), such benefit shall
be payable at the Closing under the circumstances
described in subsections 3.5 and 3.6, unless paid prior
to the Closing in accordance with Section 3 and this
Section 5.
6.Legal 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
June 4, 1998 letter agreement, as amended March 20, 2000,
the Term Sheet executed by J. Wayne Leonard on September
29, 2000, and any other term sheets or offers preceding
execution of this Agreement. 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). Solely for purposes of
determining Executive's "Date of Termination" for
any reason other than his termination of
employment in the Special Project Coordinator
Position, Executive's employment shall be
considered terminated, even though he accepts the
Special Project Coordinator Position.
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.
9.No 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 in accordance
with the provisions of the System Executive Retirement Plan
of Entergy Corporation and Subsidiaries, should Executive be
entitled to and elect to receive the Supplemental Retirement
Benefit in accordance with subsection 16.28 (b)) .
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 insure 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:
Michael G. Thompson C. John Wilder
General Counsel, Entergy Corporation 221 Evangeline
639 Loyola Avenue Mandeville, LA 70471
New Orleans, LA 70113-3125
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. Base Amount shall have the
meaning set forth in section 280G(b) (3) of the
Code.
16.4 Base amount shall have the meaning set forth in
section 280(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 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. Wayne
Leonard, 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 arbitrators) 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)).
16.10Company 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.
16.13 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 Four-Times Severance Payment shall mean the
payment of a lump sum retention payment, in cash,
equal to four times the sum of (i) Executive's
Annual Base Salary and (ii) Executive's highest
maximum annual bonus opportunity under the EAIP
for any fiscal year ending after the date hereof,
which Four-Times Severance Payment shall in no
event be less than $4,175,380.00. The Four-Times
Severance Payment 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.
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
(A), (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) prior to the Closing, any adverse change in Executive's
titles, authority, duties, responsibilities or reporting
lines as compared with those in effect on the date hereof;
(B) following the Closing, the failure of Company to
provide Executive with the position of Chief Financial
Officer of the Merged Entity, (1) with authority, duties,
and responsibilities typically associated with such position
and, in no event, less than those in effect for the Chief
Financial Officer of FPL Group (or of any other party (or
parent thereof) to the Merger Agreement) prior to the
Closing, and (2) the employment location of which shall be
not more than 20 miles from Executive's principal place of
employment on the date hereof or the principal place of
employment of the CFO of FPL Group (or of any other party
(or parent thereof) to the Merger Agreement) on the date
hereof ("CFO Location"), except for required travel on
Company's business to an extent substantially consistent
with Executive's present business travel, provided that any
relocation to or within 20 miles of the CFO Location shall
not be required of Executive until after June 30, 2004, and
(3) 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 the position of Chief Financial
Officer of the Merged Entity in accordance with (B) (1)-(3)
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 EOP, 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 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 maximum pay
out level under the long term incentive program
with respect to such performance periods.
16.23 Normal Post-Termination Compensation and
Benefits shall mean Executive's normal post-
termination compensation and benefits as such
payments become due, and deter-mined 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.
16.24 Notice of Termination shall have the meaning
set forth in Section 8.1 hereof.
16.25 Other 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 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.
16.26 Qualifying Termination shall mean a
termination of Executive's employment (i) by
Executive for Good Reason at any time prior to the
termination of the Merger Agreement; (ii) by
Company other than for Cause at any time prior to
the termination of the Merger Agreement; and (iii)
for any reason following the second anniversary of
the Closing.
16.27 Special Project Coordinator Position shall
mean active employment of Executive as a Special
Project Coordinator with a System employer at an
annual base salary of $200,000.00 and with
eligibility to participate in all System plans and
programs, in accordance with their terms and
conditions, available to other non-management
System employees, although Executive shall not
accrue additional vacation time in such position.
While in the Special Project Coordinator Position,
Executive will not be required to perform more
than 10 hours of service for the System in any
calendar month.
(A) Executive's employment in the Special Project
Coordinator Position shall terminate upon the
earlier of (1) Executive's attainment of age 55
(such termination immediately effective without
need of Notice of Termination) or (2) Executive
becomes a management employee of any company
listed in the Fortune Global 500 Index; or (3)
Executive becomes a management employee of any
company that has a conflict of interest policy or
practice that would prohibit Executive's System
employment.
(B) Upon termination of Executive's Special
Project Coordinator Position, Executive shall
be entitled to Normal Post-Retirement
Compensation and Benefits. Further, if
Executive serves in the Special Project
Coordinator Position until his attainment of
age 55, Executive shall be eligible for
retiree benefits, if any, under Company's
plans as in effect on such date or from time
to time thereafter.
16.28 Supplemental Retirement Benefit shall mean,
at Executive's election at the earlier of Closing
or Date of Termination, either (a) a lump sum cash
payment equal to $1,934,610, which represents
payment in lieu of non-qualified supplemental
retirement benefits earned prior to the Closing
under the System Executive Retirement Plan of
Entergy Corporation and Subsidiaries, the Pension
Equalization Plan of Entergy Corporation and
Subsidiaries, the Supplemental Retirement Plan of
Entergy Corporation and Subsidiaries, and the Post-
Retirement Plan of Entergy Corporation and
Subsidiaries, and any supplemental credited
service granted Executive under such plans, or (b)
the benefit available to Executive under the
System Executive Retirement Plan of Entergy
Corporation and Subsidiaries, under the terms and
conditions of that plan applicable to individuals
who became participants on or after March 25,
1998, provided, however, that (i) in computing
such benefit Executive shall be entitled to have
his years of Benefit Service (as defined under the
Entergy Corporation Retirement Plan for Non-
Bargaining Employees) commence on July 6, 1983 and
continue for the duration of his employment in the
Special Project Coordinator Position, if
applicable, with such benefit amount (in the form
of a single life annuity) reduced by the benefit
Executive is entitled to receive under the defined
benefit pension plan of Royal Dutch Shell, or its
successors or assigns, (as indicated in
Executive's Participant Application for the
Pension Equalization Plan of Entergy Corporation
and Subsidiaries) and further offset by such other
qualified and non-qualified defined benefit
retirement, income or pension plans sponsored by
Company; and (ii) Executive shall become
immediately vested in such benefit at age 55 and
shall not require permission under the plan or
otherwise to retire at age 55 and commence receipt
of benefit payments. Any future non-qualified
supplemental retirement benefits available under
any System non-qualified supplemental retirement
benefit plans in which Executive may become a
participant after the Closing shall be offset by
this Supplemental Retirement Benefit.
16.29 System shall mean Company and all other
System Companies.
16.30 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.
16.31 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.
16.32 Tax Counsel shall have the meaning set forth
in Section 4.2 hereof.
16.33 Three-Times Severance Payment shall mean the
payment of a lump sum retention payment, in cash,
equal to three times the sum of (i) Executive's
Annual Base Salary and (ii) Executive's target
annual bonus opportunity under the EAIP for any
fiscal year ending after the date hereof, which
Three-Times Severance Payment shall in no event be
less than $2, 277,480.00. The Three-Times
Severance Payment 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.
16.34 Total Payments shall mean those payments so
described in Section 4.1 hereof.
16.35 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.
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. Wayne Leonard /s/ C. John Wilder
J. Wayne Leonard C. John Wilder
Chief Executive Officer Chief Financial Officer,
Entergy Corporation