Exhibit 10(a)91
EMPLOYEE RETENTION BONUS PLAN
OF ENTERGY CORPORATION AND SUBSIDIARIES
In accordance with the July 29, 2000 authorization of the Board
of Directors of Entergy Corporation and pursuant to Section
4.02(i) of the Entergy Corporation Disclosure Letter in respect
of the Agreement and Plan of Merger by and among FPL Group, Inc.,
Entergy Corporation, WCB Holding Corp., Ranger Acquisition Corp.
and Ring Acquisition Corp. dated as of July 30, 2000, Entergy
Corporation establishes this Employee Retention Bonus Plan of
Entergy Corporation and Subsidiaries (the "Plan"), effective
November 1, 2000.
PURPOSES
The purpose of this Plan is to provide certain employees with
incentive to remain in the employ of a System employer. The Plan
is established and is intended to constitute a bonus program
within the meaning of U.S. Department of Labor Regulation Section
2510.3-2(c) and not an "employee benefit plan" as defined in
Labor Regulation Section 2510.3-2(c).
ARTICLE I
DEFINITIONS
The following terms when capitalized in the Plan shall have
the designated meaning unless a different meaning is plainly
required by the context in which the term is used:
1.01 "Administrator" shall mean (a) as of the Effective Date, the
committee composed of C. Gary Clary and Darrell A. Guidroz; and
(b) any successor Administrator appointed in accordance with this
Section. In the event that either individual designated in (a)
of this Section should cease to be a System employee for any
reason, the remaining individual shall serve as Administrator.
Should such sole Administrator thereafter cease to be a System
employee, he shall designate a successor Administrator of the
Plan; in the absence of such designation, those individuals
comprising the Personnel Committee, as established by the Board
and as constituted on the Effective Date, shall be the successor
Administrator.
1.02 "Agreement" shall mean the agreement each Participant
executes and initials on each page evidencing the offer of a
Retention Bonus to Participant and Participant's acceptance of
the offer under the terms and conditions of such agreement and
this Plan, which agreement shall be substantially in the form
attached hereto as Exhibit A and, to be effective, must be signed
and initialed on each page by Eligible Employee and returned to
the Administrator within the time period established by the
Administrator. The Administrator, in its sole discretion, may
waive any defects in form.
1.03 "Base Pay" shall mean, for any Participant, the total salary
or wage for one year's service, divided by twelve, under the
monthly, semi-monthly, bi-weekly, daily or hourly base rates in
effect on the date Participant executes the Agreement or, if
higher, in effect at any time thereafter through and including
the date of Closing, except as otherwise provided in this Section
1.03. Base Pay shall include any amounts contributed by the
Participant to any retirement plan of the Company which, pursuant
to Section 401(k) of the Internal Revenue Code, are not included
in gross income of the Participant in the taxable year in which
such contributions are made, and shall include any amounts
contributed by the Participant to any welfare benefit plans
maintained by a System Company through a reduction in the
Participant's compensation which pursuant to Section 125 of the
Internal Revenue Code, are not included in the gross income of
the Participant for the taxable year in which such amounts are
contributed, but shall exclude overtime earnings, bonus or other
incentive payments, or any special or extra compensation paid to
a Participant. Notwithstanding the foregoing, for purposes of
determining a Participant's Retention Bonus under Section
3.03(b), Participant's Base Pay shall be determined as in effect
on the date Participant executes the Agreement or, if higher, in
effect at any time thereafter through and including the date of
termination of the Merger Agreement.
1.04 "Beneficiary" shall mean the surviving spouse of Participant
or, if Participant does not have a surviving spouse, Beneficiary
shall mean any individual or entity so designated by Participant,
or, if Participant does not have a surviving spouse and does not
designate a beneficiary hereunder, or if the designated
beneficiary predeceases Participant, Beneficiary shall mean
Participant's estate.
1.05 "Board" shall mean the Board of Directors of Entergy
Corporation.
1.06 "Cause" shall mean (a) willful and continuing failure by
Participant to substantially perform Participant's duties (other
than such failure resulting from Participant's incapacity due to
physical or mental illness or any such actual or anticipated
failure after Participant provides written notification to
Administrator of Good Reason termination by Participant or
notification to Participant's System employer of resignation of
employment for reasons that would constitute Good Reason under
this Plan) that has not been cured within 30 days after a written
demand for substantial performance is delivered to Participant by
his or her System employer, which demand specifically identifies
the manner in which the System employer believes that Participant
has not substantially performed Participant's duties; (b)
Participant's engagement in one or more acts of embezzlement,
theft, larceny, fraud or dishonesty; (c) Participant's violation
of one or more System policies applicable to Participant's System
employment, the violation of which warrants termination under the
terms of such policies; or (d) Participant's conviction or
entrance of a plea of guilty or nolo contendere to a felony or to
a crime involving fraud or dishonesty.
1.07 "Claims Administrator" shall mean the Administrator or its
delegee responsible for administering claims for benefits under
the Plan.
1.08 "Claims Appeal Administrator" shall mean the Administrator
or its delegee responsible for administering appeals from the
denial or partial denial of claims for benefits under the Plan.
1.09 "Closing" shall mean the closing of the transactions
contemplated by the Merger Agreement.
1.10 "Company" shall mean Entergy Corporation and any successor
or assign as contemplated in Section 6.03 of this Plan.
1.11 "Disability" shall mean if, as a result of Participant's
incapacity due to physical or mental illness occurring after
Shareholder Approval, (a) Participant shall have been absent from
the full-time performance of Participant's duties with his System
employer for a period of six (6) consecutive months and
Participant is entitled to benefits under Participant's System
employer's long-term disability plan or (b) if Participant is not
eligible to participate in such plan, then Participant is
permanently and totally unable to perform Participant's duties
for his or her System employer as a result of any medically
determinable physical or mental impairment as supported by a
written medical opinion to the foregoing effect by a physician
selected by the Administrator.
1.12 "Effective Date" shall mean November 1, 2000.
1.13 "Eligible Employee" shall mean those System employees
described in Section 2.01 of the Plan.
1.14 "Favorable Resolution" shall mean final resolution, by the
Administrator or otherwise, of a claim for Plan benefits filed by
Participant or Beneficiary in accordance with Article V of the
Plan and determined in favor of Participant or Beneficiary.
1.15 "First Anniversary" shall mean the first anniversary of the
date of Closing.
1.16 "Good Reason" shall be deemed to exist under the following
circumstances:
(a) A reduction in Participant's Base Pay as of the Effective
Date or, if higher, Participant's Base Pay in effect at any time
after the Effective Date;
(b) As a condition of continued employment, Participant is
required to work at a location which will increase his or her
present commute from his or her residence by more than 50 miles
each way, in which case Good Reason shall not be deemed to exist
until the date the Participant is required to report to the new
location. Required travel on business of any System Company to an
extent substantially consistent with Participant's business
obligations as of the Effective Date shall not constitute Good
Reason under this subsection.
1.17 "Merger Agreement" shall mean the Agreement and Plan of
Merger among the Company, FPL Group, Inc., WCB Holding Corp.,
Ranger Acquisition Corp. and Ring Acquisition Corp., dated as of
July 30, 2000.
1.18 "Participant" shall mean an Eligible Employee selected by
the Administrator to participate in Plan and who fulfills the
requirements for participation in this Plan, including those set
forth in Section 2.03.
1.19 "Payment Event" shall mean an event described in Section
3.03.
1.20 "Plan" shall mean this Employee Retention Bonus Plan of
Entergy Corporation and Subsidiaries.
1.21 "Qualifying Termination" shall mean a termination of
Participant's System employment after Shareholder Approval (a) by
Participant's employer without Cause or (b) by Participant for
Good Reason. A Participant's claim for benefits as the result of
a Qualifying Termination shall be filed with the Administrator in
accordance with Article V of the Plan.
1.22 "Release" shall mean the waiver and release agreement in a
form acceptable to Administrator in its sole discretion. Among
other things, the Release will irrevocably and unconditionally
release Participant's employer, its current, future or former
parent company, associated companies, affiliates, and
subsidiaries, and their respective current, former or future
employees, officers, directors, shareholders, agents and
fiduciaries from all known or unknown claims, causes of action,
liens, demands and obligations that Eligible Employee may have at
the time of execution of the Release, including, without
limitation, claims under the Title VII of the Civil Rights Act of
1964, Section 1981 of the Civil Rights Act of 1866, the Civil
Rights Act of 1991, and any executive orders which prohibit
discrimination based on race, marital status, sexual orientation,
color, national origin, religion, or sex; the Equal Pay Act,
which prohibits paying men and women unequal pay for equal work;
the Americans With Disabilities Act of 1967and the Rehabilitation
Act of 1973; the WARN Act; the Family and Medical Leave Act of
1993; the Age Discrimination in Employment Act, 29 U.S.C. 621
et seq. and Executive Order 11161, which prohibit age
discrimination in employment; the Employee Retirement and Income
Security Act of 1974; and any other federal, state, or local
executive order, statute, regulation, or law of any other type.
Administrator shall distribute the Release to Participant for
consideration, and Participant shall have at least 21 days to
consider the Release prior to execution, although Participant may
execute the Release prior to the expiration of such 21-day
period. The effective date of the Release shall be on the eighth
day following execution and only if Participant or Beneficiary
does not revoke the Release within seven days of execution in the
manner specified in the Release.
1.23 "Retention Bonus" shall mean the cash bonus payable to a
Participant pursuant to this Plan, as described in Section 3.01
and as designated in each Participant's Agreement.
1.24 "Shareholder Approval" shall mean approval by Company's
shareholders of the transactions contemplated in the Merger
Agreement.
1.25 "System" shall mean Entergy Corporation, all other System
Companies, and any successors thereto as contemplated in Section
6.03 of this Plan.
1.26 "System Company" shall mean (a) Entergy Corporation and any
corporation eighty percent (80%) or more of whose stock (based on
voting power or value) is owned, directly or indirectly, by
Entergy Corporation; (b) any partnership or trade or business
which is eighty percent (80%) or more controlled, directly or
indirectly, by Entergy Corporation; (c) any entity in which an
entity described in (a) or (b) of this Section has a significant
equity interest as determined by the Administrator; and (d) any
successor to any entity described in (a), (b), or (c) of this
Section as contemplated in Section 6.03 of this Plan.
ARTICLE II
PARTICIPATION
2.01 Eligibility. Only active, full-time System employees are
eligible to become Participants in the Plan.
2.02 Participant Selection. The Administrator shall determine,
in its sole discretion, those Eligible Employees who will be
invited to participate in the Plan and the level of participation
of such individuals based on an assessment of the Eligible
Employee job function, after consultation with the appropriate
business leaders or otherwise, as follows:
(a) An Eligible Employee may be designated a Level I Participant
if the Administrator determines in its sole discretion that the
Eligible Employee's management ability or technical skill,
knowledge, or leadership is critical to System operations and to
the completion of the transactions contemplated by the Merger
Agreement.
(b) An Eligible Employee may be designated a Level II
Participant if the Administrator determines in its sole
discretion that the Eligible Employee performs a function
critical to either the continuation of System operations or to
the completion of the transactions contemplated by the Merger
Agreement.
(c) An Eligible Employee may be designated a Level III
Participant if the Administrator determines the Eligible Employee
is important to the completion of the transactions contemplated
by the Merger Agreement.
The Administrator's selection of Participants and
designation as Level I, Level II, or Level III Participants
shall be final, binding, and conclusive on the date such
selections and designations are made.
2.03 Participation. The Administrator shall invite those Eligible
Employees selected in accordance with Section 2.02 to
participate in the Plan and advise them of the conditions
governing participation and entitlement to Plan benefits by
delivering to them the Agreement, the terms of which are
hereby incorporated by reference. To be eligible for Plan
benefits, those Eligible Employees invited to participate
must file with the Administrator, within the time period
established by the Administrator, an executed Agreement. A
Participant's entitlement to benefits shall be determined in
accordance with Article III of the Plan.
ARTICLE III
BENEFITS AND TERMS OF PAYMENT
3.01 Retention Bonus Amounts. The Administrator shall determine
a Participant's potential Retention Bonus and shall designate
such amount in the Agreement, in accordance with the following:
(a) Level I Participants may receive a Retention Bonus of
up to 24 months of Base Pay.
(b) Level II Participants may receive a Retention Bonus of
up to 18 months of Base Pay.
(c) Level III Participants may receive a Retention Bonus of up
to 12 months of Base Pay.
The Administrator's determination of each Participant's
potential Retention Bonus amount as stated in the Agreement
shall be final, binding, and conclusive. Participant's
entitlement to all or part of the Retention Bonus shall be
determined in accordance with the remainder of Article III
of the Plan.
3.02 Conditions Precedent to Plan Benefits. A Participant's or
Beneficiary's entitlement to Plan benefits shall be
determined in accordance with the terms and conditions of
the Plan and, subject to Section 5.02(i), shall be
conditioned on the following:
(a) Participant's selection by the Administrator;
(b) Participant's execution and return to the Administrator of
the Agreement within the time period established by the
Administrator;
(c) Participant's compliance with the terms of the Agreement;
(d) The occurrence of a Payment Event;
(e) Participant's continued active System employment through and
until the applicable Payment Event;
(f) For Payment Events other than those described in Section
3.03(a) and Section 3.03(b) of the Plan, Participant's or
Beneficiary's timely submission of a claim for Plan benefits in
accordance with Section 5.04 of the Plan and Favorable
Resolution;
(g) Participant's timely execution of, return of, and failure to
revoke the Release;
(h) If benefits are payable because of a Participant's death,
Beneficiary's timely execution of, return of, and failure to
revoke the Release.
3.03 Payment Upon Certain Events. Subject to Sections 3.02,
this Section 3.03 sets forth the entitlement of a
Participant to certain payments, subject to applicable tax
and other required withholding, under circumstances
specified in each subsection. In no event shall a
Participant be entitled to receive any Plan benefits if
Shareholder Approval does not occur. In addition, a
Participant shall not be entitled to receive more than the
full amount of Participant's Retention Bonus under this
Plan.
(a) General Payment Events of Closing and the First
Anniversary. Except as otherwise provided in Section
3.03(c) or 3.03(d), a Participant's Retention Bonus
shall be payable as follows:
(1) Participant shall be entitled to receive one-half (1/2) of
Participant's Retention Bonus on the later of (i) the date of
Closing or (ii) within fifteen (15) days following the effective
date of the Release.
(2) Participant shall be entitled to receive the remaining one-
half (1/2) of Participant's Retention Bonus on the later of (i)
the First Anniversary or (ii) within fifteen (15) days following
the effective date of the Release.
(b) Merger Termination. If the Merger Agreement is
terminated for any reason after Shareholder Approval,
each Participant shall receive a single-sum cash
payment equal to 25% of Participant's Retention Bonus,
which amount shall be paid within fifteen (15) days
following the later of (i) the date of termination of
the Merger Agreement or (ii) the effective date of the
Release, except as otherwise provided in Section
3.03(c) or Section 3.03(d). In the event of payment
because of termination of the Merger Agreement, no
further payments shall be due a Participant under the
Plan.
(c) Death or Disability:
(1) In the event of a Participant's Disability or
death after Shareholder Approval but prior to the
date of Closing, Participant (or his Beneficiary in
the event of Participant's death) shall be entitled
to receive one-half (1/2) of Participant's Retention
Bonus on the later of (i) the date of Closing; (ii)
within fifteen (15) days following the effective
date of the Release; or (iii) within fifteen (15)
days following Favorable Resolution; provided,
however, that in the event of a termination of the
Merger Agreement, Plan benefits shall be in the
amount set forth in Section 3.03(b) and payment
shall be on the later of fifteen (15) days following
(iv) the termination of the Merger Agreement; (v)
the effective date of the Release; or (vi) Favorable
Resolution.
(2) In the event of a Participant's Disability or
death on or after the date of Closing, but prior to
the First Anniversary, Participant (or his
Beneficiary in the event of Participant's death)
shall be entitled to receive the remaining one-half
(1/2) of Participant's Retention Bonus within
fifteen (15) days following the later of (i) the
effective date of the Release or (ii) Favorable
Resolution.
(d) Qualifying Termination:
(1) If a Participant should experience a Qualifying Termination
prior to the Closing, Participant shall receive the full amount
of Participant's Retention Bonus on the later of (i) the date of
Closing; (ii) within fifteen (15) days following the effective
date of the Release; or (iii) within fifteen (15) days following
Favorable Resolution; provided, however, that in the event of a
termination of the Merger Agreement, Plan benefits shall be in
the amount as set forth in Section 3.03(b) and payment shall be
on the later of fifteen (15) days following (iv) the termination
of the Merger Agreement; (v) the effective date of the Release;
or (vi) Favorable Resolution.
(2) If Participant should experience a Qualifying Termination on
or after the date of Closing, Participant shall receive the
remainder of his Retention Bonus within fifteen (15) days
following the later of (i) the effective date of the Release or
(ii) Favorable Resolution.
3.04 Payments. Payment of amounts due under the Plan shall be
provided to Participant in the same manner (direct deposit or by
internal mail delivery) as Participant receives his regular
paycheck or by mail at the last known address of Participant in
the possession of his System employer, at the discretion of the
Administrator. In the event payment under the Plan is due to
Beneficiary, Beneficiary shall provide Administrator with the
address to which payment should be directed, failing which
Administrator shall provide payment to Beneficiary at the address
indicated in the claim for benefits filed by Beneficiary.
Federal income taxes shall be withhold from any payments under
this Agreement and the Plan at the rate of 28% (or such other
rate as may be applicable to supplemental wages), in addition to
all other withholdings required by law.
3.05 Requirement of Waiver and Release. As a condition to each
payment under the Plan or the Agreement, Participant (or
Beneficiary, as applicable) shall execute, return to
Administrator, and fail to revoke a Release, prior to such
payment. Prior to execution of the Release, Participants will
have at least 21 days within which to consider the Release,
although the Release may be executed prior to expiration of the
21-day period of consideration. Any changes in the offer to
participate in the Plan, whether material or immaterial,
including any changes in the Release, shall not restart the 21-
day period of consideration of the Release, but in no event shall
Participant be given less than 7 days to revoke the Release after
execution and submission. In the event the Release is determined
to be invalid or unenforceable for any reason, Participant (or
Beneficiary) shall not be entitled to payment under the Agreement
or the Plan and must return any sums received under the Plan or
the Agreement unless Participant (or Beneficiary) executes,
returns and fails to revoke an enforceable Release.
3.06 Other Benefits. Nothing contained in the Plan shall
preclude a Participant from receiving, in addition to any
benefits provided under this Plan, any payments under any
agreement between a Participant and any System Company or under
any employee benefit plan or program established by Company or
any other System Company, including, without limitation, any
early retirement or voluntary severance program implemented by a
Participant's System employer. However nothing provided in this
Plan or the Agreement shall entitle a Participant to any benefits
under any other employee benefit plan or program of a System
Company other than in accordance with the terms and provisions of
such employee benefit plans or programs. Any Retention Bonus
payable in accordance with the terms and conditions of this Plan
shall be in addition to, and not in lieu of, any severance
payments due to a Participant pursuant to any severance plan or
agreement applicable to such Participant. Any Retention Bonus
payable under this Plan shall not be considered compensation for
purposes of any other benefit plan; provided, however, that the
Retention Bonus shall be considered compensation for purposes of
the Executive Deferred Compensation Plan of Entergy Corporation
and Subsidiaries.
3.07 Other Retention Arrangements. The terms of the Plan shall
supercede any and all prior oral or written communications,
negotiations, commitments, and understandings with respect to
retention benefits offered in connection with the transactions
contemplated by the Merger Agreement and render such agreements,
negotiations, commitments, and understandings null and void. In
the event of payment under the Plan, Participant shall not be
entitled to further or additional payments in conjunction with
any retention benefits and shall waive all claims associated with
any entitlement to additional retention payments.
Notwithstanding anything to the contrary in this Section, this
provision shall not apply to any benefits to which a Participant
is entitled under any other System Company employee benefit or
retention plan or program in effect prior to the public
announcement of the Merger Agreement or under any written
retention agreement between Eligible Employee and a System
Company, offered to and accepted by Eligible Employee prior to
the public announcement of the Merger Agreement.
3.08 Incompetent. If a Participant shall be or become physically
or mentally incompetent to receive benefits under this Plan, the
Administrator, in its sole and absolute discretion, may direct
payment of such benefits in one or more of the following ways:
(a) directly to such Participant in the case of physical
incompetence; (b) to Participant's legal guardian or conservator;
(c) to Participant's spouse or to any person charged with his
support, to be expended for his benefit. The decision of the
Administrator shall be final and binding upon all parties in
interest. Any such payment shall completely discharge all
obligations under the Plan and the Agreement.
3.09 Confidentiality. A Participant shall be required to
acknowledge that the terms and conditions of the Plan and his
Agreement are confidential. A Participant shall not disclose,
publicize, or discuss any of the terms or conditions of this Plan
or his Agreement (and related agreements) with anyone, except his
or her spouse, attorney, accountant, supervisor, or as required
by law. In the event a Participant discloses this Plan or his
Agreement (or related agreements) or any of their terms or
conditions to his or her spouse, attorney, accountant, or
supervisor, it shall be Participant's duty to advise said
individual(s) of the confidential nature of this Plan and his
Agreement (and related agreements) and to direct them not to
disclose, publicize, or discuss any of the terms or conditions of
this Plan (or related agreements) with any other person. If
Participant discloses, publicizes, or discusses any of the terms
or conditions of this Plan or his Agreement (or related
agreements) with any other person, except his spouse, attorney,
accountant, or supervisor, Participant will forfeit the right to
Participant's Retention Bonus.
ARTICLE IV
SOURCE OF PAYMENTS
4.01 Unfunded Plan. All rights of a Participant, Beneficiary or
any other person or entity having or claiming a right to payments
under this Plan shall be entirely unfunded, and nothing in this
Plan shall be construed to give such person or entity any right,
title, interest, or claim in or to any specific asset, fund,
reserve, account or property of any kind whatsoever, owned by a
System Company, or in which a System Company may have any right,
title or interest now or in the future.
4.02 Employer Liability. At its own discretion, a System Company
may purchase such insurance or annuity contracts or other types
of investments as it deems desirable in order to accumulate the
necessary funds to provide for the future benefit payments under
the Plan. However, (a) a System Company shall be under no
obligation to fund the benefits provided under this Plan; (b) the
investment of System Company funds credited to a special account
established hereunder shall not be restricted in any way; and (c)
such funds may be available for any purpose the System Company
may choose. Nothing stated herein shall prohibit a System
Company from adopting or establishing a trust or other means as a
source for paying any obligations created hereunder provided,
however, any and all rights that any such Participants shall have
with respect to any such trust or other fund shall be governed by
the terms thereof.
4.03 Establishment of Trust. Notwithstanding any provisions of
this Article IV to the contrary, the Company or any other
System Company may make contributions to a trust intended to
qualify as a "grantor trust" under the Internal Revenue
Code, in such amounts and at such times as it or they shall
determine in its or their complete discretion. The trust
contemplated by this Section is not intended to cause
Participants to realize current income on amounts
contributed thereto, and the trust shall be so interpreted.
ARTICLE V
PLAN ADMINISTRATION
5.01 Administration of Plan. The Administrator shall operate and
administer the Plan and, as such, shall have the authority as
Administrator to exercise the powers and discretion conferred on
it by the Plan, including the right to delegate any function to a
specified person or persons. The Administrator shall discharge
its duties for the exclusive benefit of the Participants and
their Beneficiaries.
5.02 Powers of the Administrator. The Administrator and any of
its delegees shall administer the Plan in accordance with its
terms and shall have all powers, authority, and discretion
necessary or proper for such purpose. In furtherance of this
duty, the Administrator shall have the sole and exclusive power
and discretion to make factual determinations, construe and
interpret the Plan, including the intent of the Plan and any
ambiguous, disputed or doubtful provisions of the Plan. Further,
any individual serving in the capacity as Administrator shall be
authorized to take any actions authorized under this Plan and the
Agreement, including, without limitation, execution of the
Agreement. All findings, decisions, or determinations of any
type made by the Administrator, including factual determinations
and any interpretation or construction of the Plan or Agreement,
shall be final and binding on all parties and shall not be
disturbed unless the Administrator's decisions are arbitrary and
capricious. The Administrator shall be the sole judge of the
standard of proof required in any claim for benefits and/or in
any question of eligibility for a benefit. By way of example,
the Administrator shall have the sole and exclusive power and
discretion:
(a) to adopt such rules and regulations as it shall deem
desirable or necessary for the administration of the Plan on a
consistent and uniform basis;
(b) to interpret the Plan including, without limitation, the
power to use Administrator's sole and exclusive discretion to
construe and interpret (1) the Plan, (2) the intent of the Plan,
and (3) any ambiguous, disputed or doubtful provisions of the
Plan;
(c) to determine all questions arising in the administration of
the Plan including, but not limited to, the power and discretion
to determine the rights or eligibility of any employee,
Participant, Beneficiary or other claimant to receive under the
Plan;
(d) to require such information as the Administrator may
reasonably request from any employee, Participant, Beneficiary or
other claimant as a condition for receiving any benefit under the
Plan;
(e) to grant and/or deny any and all claims for benefits, and
construe any and all issues of Plan interpretation and/or fact
issues relating to eligibility for benefits;
(f) to compute the amount and determine the manner and timing of
any benefits payable under the Plan;
(g) to execute or deliver any instrument or make any payment on
behalf of the Plan;
(h) to employ one or more persons to render advice with respect
to any of the Administrator's responsibilities under the Plan;
(i) to accelerate payments to Participants under the Plan;
(j) to direct the System employer concerning all payments that
shall be made pursuant to the terms of the Plan; and
(k) to make findings of fact, to resolve disputed fact issues,
and to make determinations based on the facts and evidence
contained in the administrative record developed during the
claims review procedure.
For any acts not specifically enumerated above, when
applying, construing, or interpreting any and all Plan
provisions and/or fact questions presented in claims for
benefits, the Administrator shall have the same
discretionary powers as enumerated above.
5.03 Claims Administration. The Administrator may appoint and,
in its sole discretion, remove a Claims Administrator and/or
Claims Appeal Administrator to administer claims for benefits
under the Plan in accordance with its terms, and, pursuant to
section 5.02, such delegees shall have all powers, authority, and
discretion necessary or proper for such purpose. In the absence
of such appointment, the Administrator shall be the Claims
Administrator and Claims Appeal Administrator.
5.04 Filing Benefit Claims. Any claim asserting entitlement to a
benefit under the Plan must be asserted within ninety (90) days
after the event giving rise to the claim by sending written
notice of the claim to the Claims Administrator, in accordance
with Section 7.01. The written notice of the claim must be
accompanied by any and all documents, materials, or other
evidence allegedly supporting the claim for benefits. If the
claim is granted, the claimant will be so notified in writing by
the Claims Administrator.
5.05 Denial or Partial Denial of Benefit Claims. If the Claims
Administrator denies a claim for benefits in whole or part, the
Claims Administrator shall notify the claimant in writing of the
decision within ninety (90) days after the Claims Administrator
has received the claim. In the Claim Administrator's sole
discretion, the Claims Administrator may extend the time to
decide the claim for an additional ninety (90) days, by giving
written notice of the need for such an extension any time prior
to the expiration of the initial ninety-day period. The Claims
Administrator, in its sole discretion, reserves the right to
request specific information from the claimant, and reserves the
right to have the claimant examined or tested by person(s)
employed or compensated by the Plan. If the claim is denied or
partially denied, the Claims Administrator shall provide the
claimant with written notice stating:
(a) the specific reasons for the denial of the claim and
reference to any pertinent plan provisions on which the denial is
based;
(b) if applicable, a description of any additional material or
information necessary for claimant to perfect the claim and an
explanation of why such material or information is necessary; and
(c) an explanation of the claims review appeal procedure
including the name and address of the person or committee to whom
any appeal should be directed.
5.06 Appeal of Claims That Are Denied or Partially Denied. The
claimant may request review of the Claims Administrator's denial
or partial denial of a claim for Plan benefits. Such request
must be made in writing within sixty (60) days after claimant has
received notice of the Claims Administrator's decision and shall
include with the written request for an appeal any and all
documents, materials, or other evidence which claimant believes
supports his or her claim for benefits. The written request for
an appeal, together with all documents, materials, or other
evidence which claimant believes supports his or her claim for
benefits should be addressed to the Claims Administrator, who
will be responsible for submitting the appeal for review to the
Claims Appeal Administrator.
5.07 The Appeal Process. The Claims Administrator will submit
the appeal to the Claims Appeal Administrator for review of the
denial or partial denial of the claim. Within sixty (60) days
after the receipt of claimant's appeal, claimant will be notified
of the final decision of the Claims Appeal Administrator, unless,
in the Claims Appeal Administrator's sole discretion,
circumstances require an extension of this period for up to an
additional sixty (60) days. If such an extension is required,
the Claims Appeal Administrator shall notify claimant of this
extension in writing before the expiration of the initial 60-day
period. During the appeal, the Claims Appeal Administrator, in
its sole discretion, reserves the right to request specific
information from the claimant, and reserves the right to have the
claimant examined or tested by person(s) employed or compensated
by the Plan. The final decision of the Claims Appeal
Administrator shall set forth in writing the facts and plan
provisions upon which the decision is based. All decisions of
the Claims Appeal Administrator are final and binding on all
employees, Participants, their Beneficiaries, or other claimants.
5.10 Judicial Proceedings for Benefits. No claimant may file
suit in court to obtain benefits under the Plan without first
completely exhausting all stages of the claims review process set
forth in this Article V of the Plan. In any event, no legal
action seeking Plan benefits may be commenced or maintained
against the Plan more than ninety (90) days after the Claims
Appeal Administrator's decision on appeal.
ARTICLE VI
AMENDMENT AND TERMINATION
6.01 General. This Plan document and Exhibits A and B set forth
all of the provisions of the Plan, and shall supersede any
and all prior oral or written negotiations, commitments,
understandings and writing with respect to retention
benefits for Participants. The Board shall have the right,
in its absolute discretion, at any time and from time to
time, to modify or amend, in whole or in part, any or all of
the provisions of this Plan, or suspend or terminate it
entirely, subject to the provisions of Section 6.02 hereof.
The provisions of this Article VI shall survive a
termination of the Plan unless such termination is agreed to
by the Participants.
6.02 Restrictions on Amendment or Termination. Any amendment or
modification to, or the termination of, the Plan shall be subject
to the following restrictions:
(a) No amendment, modification, suspension or termination of the
Plan (1) will be effective after the Closing; (2) may reduce the
amount of benefits or adversely affect the manner of payment of
benefits of any Participant or Beneficiary then receiving
benefits in accordance with the terms of Article III; or (3) may
adversely affect the rights of any Participant or Beneficiary
with respect to any Retention Bonus already awarded; provided,
however, that any amendment, modification, suspension or
termination shall be effective if such is agreed to in writing
and signed by the affected Participant or Beneficiary and by the
Plan Administrator, or by their legal representatives and
successors; and
(b) No provision of this Plan may be modified, waived, or
discharged unless such modification, waiver, or discharge is
agreed to in writing and signed by the affected Participant and
by the Plan Administrator, or by their legal representatives and
successors.
6.03 Successors. Company shall require any successor (whether
direct or indirect, by purchase, merger, consolidation, or
otherwise) of all or substantially all of its business and/or
assets to expressly assume and agree to perform this Plan in the
same manner the Plan would be performed if no such succession had
taken place. Failure of the Company to obtain such assumption
and agreement prior to the effectiveness of any such succession
shall be a breach of this Plan and shall entitle each Participant
to compensation from the Company in the same amount and on the
same terms as they would be entitled hereunder if terminated for
Good Reason, except, for the purposes of implementing the
foregoing, the date on which any such succession becomes
effective shall be deemed the effective date of termination. Any
successor or surviving entity that assumes or otherwise adopts
this Plan as contemplated in this Section 6.03 shall succeed to
all the rights, powers and duties of the Company and the Board
hereunder, subject to the restrictions on amendment or
termination of the Plan as set forth in Section 6.02.
ARTICLE VII
MISCELLANEOUS
7.01 Notices. Any notices or claims for benefits to
Administrator under the Plan or the Agreement shall be in
writing; shall be deposited in the mail, first class, registered
or certified, return receipt requested, with proper postage
prepaid; and shall be addressed as follows, unless changed
otherwise by the Administrator in a writing addressed to
Participant at the last known address in the possession of
Participant's System employer:
Plan Administrator
Messrs. C. Gary Clary & Darrell A. Guidroz
Human Resources and
Administration
639 Loyola Avenue, 14th Floor
New Orleans, LA 70113
Any notices or claims decisions Administrator is required to
provide under the Plan or the Agreement shall be in writing;
shall be deposited in the mail, first class, registered or
certified, return receipt requested, with proper postage
prepaid; and shall be addressed to Participant at the last
known address in the possession of Participant's System
employer. However, payments shall be made in the manner
provided in Section 3.04.
7.02 Plan Provisions Control. The terms and conditions of the
Plan shall be incorporated into the Agreement. In the event of a
conflict between the provisions of the Plan and the Agreement,
the provisions of the Plan shall control.
7.03 No Alienation. No Participant shall have any right to
assign, pledge, hypothecate, anticipate or in any way create a
lien upon any amounts payable hereunder. No amounts payable
hereunder shall be subject to assignment or transfer or otherwise
be alienable, either by voluntary or involuntary act or by
operation of law, except as may be otherwise required by law in
connection with marital dissolution or child support obligations,
or be subject to attachment, execution, garnishment,
sequestration or other seizure under any legal, equitable or
other process.
7.04 No Mitigation. If Participant's employment with his System
employer terminates, Participant is not required to seek other
employment or to attempt in any way to reduce any amounts payable
to Participant pursuant to Article III of the Plan. Further, the
amount of any payment or benefit provided for under this Plan
shall not be reduced by any compensation earned by Participant as
the result of employment by another employer, by retirement
benefits, by offset against any amount claimed to be owed by the
Participant to the System, or otherwise.
7.05 Indemnification. To the extent not covered by insurance, or
if there is a failure to provide full insurance coverage for any
reason, and to the extent permissible under applicable laws and
regulations, the System employers agree to hold harmless and
indemnify Administrator and its members against any and all
claims and causes of action by or on behalf of any and all
parties whomsoever, and all losses therefrom, including, without
limitation, costs of defense and attorneys' fees, based upon or
arising out of any act or omission relating to or in connection
with the Plan and Trust other than losses resulting from any such
person's fraud or willful misconduct.
7.06 No Right to Employment. Nothing in this Plan or the
Agreement shall be deemed to give any person the right to be
retained in the service of the System, be deemed to interfere
with the right of a System employer to discharge any person, or
in any other way to constitute a contract of employment.
7.07 Gender and Number. The masculine pronoun whenever used in
the Plan shall include the feminine. Similarly, the feminine
pronoun whenever used in the Plan shall include the masculine as
the context or facts may require. Whenever any words are used
herein in the singular, they shall be construed as if they were
also used in the plural in all cases where the context so
applies.
7.08 Captions. The captions of this Plan are not part of the
provisions of the Plan and shall have no force and effect.
7.09 Severability. In the event any provision of the Plan shall
be held illegal or invalid for any reason, the illegality or
invalidity shall not affect the remaining parts of the Plan, and
the Plan shall be construed and enforced as if the illegal or
invalid provision had not been included.
7.10 Controlling Law. The administration of the Plan shall be
governed by the laws of the State of Delaware, without regard to
the conflict of law principles of any state. Any persons or
corporations who now are or shall subsequently become parties to
the Plan shall be deemed to consent to this provision.