Exhibit 10(a)81
RETENTION AGREEMENT
THIS AGREEMENT, executed on November 21, 2000 effective as
of October 27, 2000, by and between Entergy Corporation, a
Delaware corporation ("Company"), and J. Wayne Leonard
("Executive"), which agreement shall govern the terms and
conditions of Executive's employment until such time as the
Employment Agreement between Executive and WCB Holding
Corporation dated as of July 30, 2000 shall become effective,
except as specifically provided herein;
WHEREAS, Executive is currently employed by Entergy
Services, Inc., a System employer, and serves in the position of
Chief Executive 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 and 6 below.
This Agreement shall not be construed as creating an
express or implied contract of employment and, except as
otherwise agreed in writing between Executive and
Company, Executive shall not have any right to be
retained in the employ of any System Company.
2.2 Executive's Covenants. Executive agrees to the following:
(A) For a period of two years following the Date of
Termination, Executive shall not engage in any
employment or other activity (without the prior
written consent of Company) either in his individual
capacity or together with any other person,
corporation, governmental agency or body, or other
entity, that is (i) listed in the Standard & Poor's
Electric Index or the Dow 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 and 3.6, 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 Five-Times Severance Payment
previously paid to him pursuant to subsections 3.4
and 3.6, and Executive shall have no further
entitlement to receive any additional payments or
benefits under 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
subsection 3.1, 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 Executive Without Good
Reason.
(a) On or After Attainment of Age 55. If Executive's
employment with the System is terminated for any
reason, other than termination by Company for Cause,
Executive shall be entitled to the Supplemental
Retirement Benefit without Company permission.
(b) Without Company-Permission - Prior to Attainment
of Age 55. If Executive should terminate his
Employment with the System without Good Reason and
without Company permission at any time prior to his
attainment of age 55, he shall forfeit all rights to a
Supplemental Retirement Benefit. Executive shall be
entitled only to Executive's Accrued Obligations and
Normal Post-Termination Compensation and Benefits.
(c) With Company Permission - Prior to Attainment of
Age 55. If Executive should terminate his Employment
with the System without Good Reason, but with Company
permission, at any time prior to his attainment of age
55, he shall be entitled to the Supplemental
Retirement Benefit, but reduced at the annual rate of
6.5% per year for each year Executive's Date of
Termination precedes the date of his attainment of age
55. Such reduced Supplemental Retirement Benefit
shall become payable upon Executive's attainment of
age 62 (or upon Executive's prior death, to his
surviving spouse, if applicable). In addition,
Executive shall be entitled to Executive's Accrued
Obligations and Normal Post-Termination Compensation
and Benefits.
3.3 Termination of Employment by Company For Cause at Any Time.
If Company should terminate Executive's employment with the
System for Cause at any time, Executive shall be entitled
only to Executive's Accrued Obligations and Normal Post-
Termination Compensation and Benefits. Executive shall
forfeit all rights to the Supplemental Retirement Benefit.
3.4 Qualifying Termination. If Executive's employment is
terminated due to a Qualifying Termination that is not a
Merger-Related Termination, then Executive shall be
entitled to Normal Post-Termination Compensation and
Benefits, Executive's Accrued Obligations, EAIP Bonus
Award, Three-Times Severance Payment, Target LTIP Award and
Other EOP Awards. In addition, Executive shall: (a)
immediately vest in the Supplemental Retirement Benefit
(determined as if Executive had remained employed with the
System until attainment of age 55), subject, however to the
forfeiture and repayment provisions of Section 2.2(A) and
(B) of this Agreement, and (b) be entitled to elect a
benefit commencement date without the consent of the
Company, which shall be on the first day of any month
following Executive's attainment of age 55.
3.5 Termination On Account of Death or Disability. If
Executive's employment should terminate on account of death
or Disability prior to the earlier of the Closing or
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, Normal Post-Termination
Compensation and Benefits, EAIP Bonus Award, Three-Times
Severance Payment, Target LTIP Award and Other EOP Awards.
In addition, in the event of Executive's death at any time
prior to termination of his System employment, or after
Executive's retirement but before his Supplemental
Retirement Benefit income commencement date, his surviving
spouse, if any, shall be entitled to a Supplemental
Retirement Benefit death benefit payable monthly for her
lifetime, and commencing as of the first day of the month
next following the later of: (a) the date on which
Executive would have attained age 55 had he lived, or (b)
the date of Executive's death. The amount of each such
monthly benefit shall be in the same amount as the spouse
would have received after Executive's subsequent death if
he had not died on his actual date of death but instead
had: (v) separated from System Company service on his date
of death; (w) survived to age 55; (x) retired at age 55
with the same Final Monthly Earnings as of his date of
death; (y) elected the 50% joint and survivor annuity form
of payment; and (z) then died immediately thereafter.
If Executive becomes Disabled at any time prior to
termination of his System employment, then for
purposes of determining his eligibility for a
Supplemental Retirement Benefit, Executive shall be
treated as if he remained employed by the System for
any year for which Executive receives monthly
disability payments under the Company's sponsored
long-term disability plan then in effect.
3.6 Merger Related Termination. If Executive's employment is
terminated due to a Merger Related Termination prior to the
earlier of the Closing or termination of the Merger
Agreement, then Executive shall be entitled to Normal Post-
Termination Compensation and Benefits, Executive's Accrued
Obligations, EAIP Bonus Award, Five-Times Severance
Payment, Maximum LTIP Award and Other EOP Awards. In
addition, Executive shall: (a) immediately vest in the
Supplemental Retirement Benefit (determined as if Executive
had remained employed with the System until attainment of
age 55), subject, however to the forfeiture and repayment
provisions of Section 2.2(A) and (B) of this Agreement, and
(b) be entitled to elect a benefit commencement date
without the consent of the Company, which shall be on the
first day of any month following Executive's attainment of
age 55.
4. Gross-Up Payment.
4.1 Regardless of whether Executive becomes entitled to
any payments or benefits under this Agreement, if any
of the payments or benefits received or to be received
by Executive (whether pursuant to the terms of this
Agreement or any other plan, arrangement or agreement
with any System Company) (all such payments and
benefits, excluding the Gross-Up Payment, being
hereinafter referred to as the "Total Payments") will
be subject to the Excise Tax, Company shall pay to
Executive an additional amount (the "Gross-Up
Payment") such that the net amount retained by
Executive, after deduction of any Excise Tax on the
Total Payments and any federal, state and local income
and employment taxes and Excise Tax upon the Gross-Up
Payment, shall be equal to the Total Payments.
4.2 For purposes of determining whether any of the Total
Payments will be subject to the Excise Tax and the
amount of such Excise Tax, (i) all of the Total
Payments shall be treated as "parachute payments"
(within the meaning of section 280G(b)(2) of the Code)
unless, in the opinion of tax counsel ("Tax Counsel")
reasonably acceptable to Executive and selected by the
accounting firm which was, immediately prior to the
Closing, Company's independent auditor (the
"Auditor"), such payments or benefits (in whole or in
part) do not constitute parachute payments, including
by reason of section 280G(b)(4)(A) of the Code, (ii)
all "excess parachute payments" within the meaning of
section 280G(b)(l) of the Code shall be treated as
subject to the Excise Tax unless, in the opinion of
Tax Counsel, such excess parachute payments (in whole
or in part) represent reasonable compensation for
services actually rendered (within the meaning of
section 280G(b)(4)(B) of the Code) in excess of the
Base Amount allocable to such reasonable compensation,
or are otherwise not subject to the Excise Tax, and
(iii) the value of any non-cash benefits or any
deferred payment or benefit shall be determined by the
Auditor in accordance with the principles of sections
280G(d)(3) and (4) of the Code. For purposes of
determining the amount of the Gross-Up Payment.
Executive shall be deemed to pay federal income tax at
the highest marginal rate of federal income taxation
in the calendar year in which the Gross-Up Payment is
to be made and state and local income taxes at the
highest marginal rate of taxation in the state and
locality of Executive's residence on the Date of
Termination (or if there is no Date of Termination,
then the date on which the Gross-Up Payment is
calculated for purposes of this Section 4), net of the
maximum reduction in federal income taxes which could
be obtained from deduction of such state and local
taxes.
4.3 In the event that the Excise Tax is finally determined
to be less than the amount taken into account
hereunder in calculating the Gross-Up Payment,
Executive shall repay to Company, within five (5)
business days following the time that the amount of
such reduction in the Excise Tax is finally
determined, the portion of the Gross-Up Payment
attributable to such reduction plus that portion of
the Gross-Up Payment attributable to the Excise Tax
and federal, state and local income and employment
taxes imposed on the Gross-Up Payment being repaid by
Executive, to the extent that such repayment results
in a reduction in the Excise Tax and a dollar-for-
dollar reduction in Executive's taxable income and
wages for purposes of federal, state and local income
and employment taxes, plus interest on the amount of
such repayment at 120% of the rate provided in section
1274(b)(2)(B) of the Code. In the event that the
Excise Tax is determined to exceed the amount taken
into account hereunder in calculating the Gross-Up
Payment (including by reason of any payment the
existence or amount of which cannot be determined at
the time of the Gross-Up Payment), Company shall make
an additional Gross-Up Payment in respect of such
excess (plus any interest, penalties or additions
payable by Executive with respect to such excess)
within five (5) business days following the time that
the amount of such excess is finally determined.
Executive and Company shall each reasonably cooperate
with the other in connection with any administrative
or judicial proceedings concerning the existence or
amount of liability for Excise Tax with respect to the
Total Payments.
5.Rabbi Trust: Timing of Payments. No later than 180 days from
the execution of this Agreement, Company shall deposit in the
Trust for Deferred Payments of Entergy Corporation and
Subsidiaries (`Trust") an amount as determined by the Auditor
(as defined in Section 4.2) to be necessary to pay all amounts
that would be due under this Agreement if Executive
experienced a Qualifying Termination event 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. Except as otherwise provided under
the terms of this Agreement with respect to Executive's
Supplemental Retirement Benefit, the payments provided in
Sections 3 and 4 hereof shall be made no 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).
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 March 13, 1998 letter
agreement between Executive and Company, as amended through
the Amendment to Employment Agreement execution by Executive
on March 27, 2000 (and by Entergy Corporation on April 26,
2000), and any other offers or agreements preceding execution
of this Agreement, but with the exception of the agreement
dated July 30, 2000 between Executive and the Merged Entity,
which agreement shall supersede and replace this Agreement on
the date of Closing of the Ring-Ranger Merger Agreement, with
the exception of the Supplemental Retirement Benefit in
Section 16.30, which section shall remain in full force and
effect, and with the exception of any compensation, equity or
equity-based benefits that remain unfulfilled at Closing and
are not assumed under the agreement dated July 30, 2000
between Executive and the Merged Entity. Notwithstanding any
other provision to the contrary, Executive acknowledges that
benefits provided under this Agreement are in lieu of
participation in, and any payment that might otherwise have
been payable under, the System Executive Continuity Plan of
Entergy Corporation and Subsidiaries and any other System
severance or retention plan, and Executive hereby waives any
right to participate in such plans.
8.Termination Procedures and Compensation During Dispute.
8.1 Notice of Termination. Any purported termination of
Executive's employment (other than by reason of death)
shall be communicated by written Notice of Termination
from one party hereto to the other party hereto in
accordance with this Section 8. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice
which shall indicate the specific termination provision
in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive's employment
under the provision so indicated. Further, a Notice of
Termination for Cause pursuant to clauses (i) or (ii) of
Section 16.6 is required to include a copy of a
resolution duly adopted by the affirmative vote of not
less than three-quarters (3/4) of the entire membership
of the Board at a meeting of the Board which was called
and held for the purpose of considering such termination
(after reasonable notice to Executive and an opportunity
for Executive, together with Executive's counsel, to be
heard before the Board) finding that, in the good faith
opinion of the Board, Executive was guilty of conduct set
forth in clause (i) or (ii) of the definition of Cause
herein, and specifying the particulars thereof in detail.
8.2 Date of Termination. "Date of Termination," shall mean
(i) if Executive's employment is terminated for
Disability, thirty (30) days after Notice of Termination
is given (provided that Executive shall not have returned
to the full-time performance of Executive's duties during
such thirty (30) day period), and (ii) if Executive's
employment is terminated for any other reason, the date
specified in the Notice of Termination (which, in the
case of a termination by Company, shall not be less than
thirty (30) days (except in the case of a termination for
Cause) and, in the case of a termination by Executive,
shall not be less than fifteen (15) days nor more than
sixty (60) days, respectively, from the date such Notice
of Termination is given).
8.3 Dispute Concerning Termination. If within fifteen (15)
days after any Notice of Termination is given, or, if
later, prior to the Date of Termination (as determined
without regard to this Section 8.3), the party receiving
such Notice of Termination notifies the other party that
a dispute exists concerning the termination, the Date of
Termination shall be extended until the date on which the
dispute is finally resolved, either by mutual written
agreement of the parties or by a final judgment, order or
decree of an arbitrator or a court of competent
jurisdiction (which is not appealable or with respect to
which the time for appeal therefrom has expired and no
appeal has been perfected); provided, however, that the
Date of Termination shall be extended by a notice of
dispute given by Executive only if such notice is given
in good faith and Executive pursues the resolution of
such dispute with reasonable diligence.
8.4 Compensation During Dispute. If a purported termination
occurs and the Date of Termination is extended in
accordance with Section 8.3 hereof, Company shall
continue to pay Executive the full compensation in effect
when the notice giving rise to the dispute was given
(including, but not limited to, salary) and continue
Executive as a participant in all compensation, benefit
and insurance plans in which Executive was participating
when the notice giving rise to the dispute was given,
until the Date of Termination, as determined in
accordance with Section 8.3 hereof. Amounts paid under
this Section 8.4 are in addition to all other amounts due
under this Agreement (other than Executive's Accrued
Obligations) and shall not be offset against or reduce
any other amounts due under this Agreement.
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 (except as
otherwise provided in subsection 16.30 and subsection 2.2 (A)
and (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 inure to the benefit of and be
enforceable by Executive's personal or legal
representatives, executors, administrators, successors,
heirs, distributees, devisees and legatees. If Executive
shall die while any amount would still be payable to
Executive hereunder (other than amounts which, by their
terms, terminate upon the death of Executive) if
Executive had continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance
with the terms of this Agreement to the executors,
personal representatives or administrators of Executive's
estate.
11. Notices. For the purpose of this Agreement, notices and
all other communications provided for in the Agreement shall
be in writing and shall be deemed to have been duly given when
delivered or mailed by United States registered mail, return
receipt requested, postage prepaid, to the following address
shown below or thereafter to such other address as either
party may have furnished to the other in writing in accordance
herewith, except that notice of change of address shall be
effective only upon actual receipt:
If to Company: If to Executive:
Michael G. Thompson J. Wayne Leonard
General Counsel, Entergy Corporation 81 English Turn Drive
639 Loyola Avenue New Orleans, LA 70131
New Orleans, LA 70113-3 125
12. Miscellaneous. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification
or discharge is agreed to in writing and signed by Executive
and such officer as may be specifically designated by the
Board. No waiver by either party hereto at any time of any
breach by the other party hereto of, or of any lack of
compliance with, any condition or provision of this Agreement
to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or
at any prior or subsequent time. This Agreement supersedes any
other agreements or representations, oral or otherwise, express
or implied, with respect to the subject matter hereof which
have been made by either party. The laws of the State of
Delaware shall govern the validity, interpretation,
construction and performance of this Agreement. All references
to sections of the Code shall be deemed also to refer to any
successor provisions to such sections. Any payments provided
for hereunder shall be paid net of any applicable withholding
required under federal, state or local law and any additional
withholding to which Executive has agreed.
13. Validity. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which
shall remain in full force and effect.
14. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original
but all of which together will constitute one and the same
instrument.
15. Settlement of Disputes; Arbitration.
15.1 All claims by Executive for benefits under this Agreement
shall be directed to and determined by the Committee and
shall be in writing. Any denial by the Committee of a claim
for benefits under this Agreement shall be delivered to
Executive in writing and shall set forth the specific
reasons for the denial and the specific provisions of this
Agreement relied upon. The Committee shall afford a
reasonable opportunity to Executive for a review of the
decision denying a claim and shall further allow Executive
to appeal to the Committee a decision of the Committee
within sixty (60) days after notification by the Committee
that Executive's claim has been denied.
15.2 Any further dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively
by arbitration in the metropolitan area in which Executive
resides on the Date of Termination (or the date that the
Merger Agreement is terminated, as applicable) in
accordance with the rules of the American Arbitration
Association then in effect; provided, however, that the
evidentiary standards set forth in subsections 16.6 and
16.19 of this Agreement shall be applied by the
arbitrator(s). Judgment may be entered on the arbitrator's
award in any court having jurisdiction. Notwithstanding any
provision of this Agreement to the contrary, Executive
shall be entitled to seek specific performance of
Executive's right to be paid until the Date of Termination
during the pendency of any dispute or controversy arising
under or in connection with this Agreement.
16. Definitions. For purposes of this Agreement, the
following terms shall have the meanings indicated below:
16.1 Accrued Obligations shall mean Executive's Annual Base
Salary through the Date of Termination to the extent
not theretofore paid, together with all unpaid
compensation and benefits, payable to Executive through
the later of the Date of Termination or the Service
Bridge under the terms of Company's compensation and
benefit plans, programs or arrangements as in effect
immediately prior to the Date of Termination or, if
more favorable to Executive, as in effect immediately
prior to the first occurrence of an event or
circumstance constituting Good Reason.
16.2 Annual Base Salary shall mean the highest rate of annual
base salary payable to Executive by the System at any
time after July 29, 2000, the date on which the Board
authorized the Chief Executive Officer of Company to
enter this Agreement with Executive.
16.3 Auditor shall have the meaning set forth in Section 4.2
hereof.
16.4 Base Amount shall have the meaning set forth in section
280G(b) (3) of the Code.
16.5 Board shall mean the Board of Directors of Company.
16.6 Cause for termination by Company of Executive's
employment shall mean (i) the willful and continued
failure by Executive to substantially perform
Executive's System duties (other than any such failure
resulting from Executive's incapacity due to physical or
mental illness or any such actual or anticipated failure
after the issuance of a Notice of Termination for Good
Reason by Executive pursuant to Section 8.1 hereof) that
has not been cured within 30 days after a written demand
for substantial performance is delivered to Executive by
the Board, which demand specifically identifies the
manner in which the Board believes that Executive has
not substantially performed Executive's duties; (ii) the
willful engaging by Executive in conduct which is
demonstrably and materially injurious to a System
Company, monetarily or otherwise, and which results in a
conviction of or entrance of a plea of guilty or nolo
contendere to a felony; or (iii) Executive's willful
failure, as determined by J. Wayne Leonard, the
Company's Chief Executive Officer as of the date hereof,
to 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 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), (ii), and (iii) 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;
(y) in the event of a dispute concerning the application
of this provision, no claim by Company that Cause exists
shall be given effect unless Company establishes to the
Committee (and to the arbitrator(s) in the event of
arbitration of a dispute or controversy hereunder) by
clear and convincing evidence that Cause exists; and (z)
no acts of Executive that occurred before execution of
this Agreement shall be deemed justification for a Cause
claim by Company unless said acts were unknown to
Company management and involved the commission of a
felony injurious to a System Company.
16.7 Closing shall mean the earlier to occur of (i)
consummation of the transactions contemplated by the
Ring-Ranger Merger Agreement or (ii) the occurrence of a
"Change in Control' (as defined in Company's Executive
Continuity Plan in effect on the date hereof).
16.8 Code shall mean the Internal Revenue Code of 1986, as
amended from time to time.
16.9 Committee shall mean (i) the individuals who, on the
date hereof, constitute the Personnel Committee of the
Board, plus (ii) in the event that fewer than three
individuals are available from the group specified in
clause (i) above for any reason, such individuals as may
be appointed by the individual or individuals so
available (including for this purpose any individual or
individuals previously so appointed under this clause
(ii)).
16.10 Company shall mean Entergy Corporation and shall
include any successor to its business and/or assets
which assumes and agrees to perform this Agreement by
operation of law, or otherwise.
16.11 Date of Termination shall have the meaning set
forth in Section 8.2 hereof.
16.12 Disability shall be deemed the reason for the
termination by a System employer of Executive's
employment, if, as a result of Executive's incapacity
due to physical or mental illness, Executive shall have
been absent from the full-time performance of
Executive's duties with the System for a period of six
(6) consecutive months, Company shall have given
Executive a Notice of Termination for Disability, and,
within thirty (30) days after such Notice of Termination
is given, Executive shall not have returned to the full-
time performance of Executive's duties.
16.13 EAJP 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 Final Monthly Compensation shall mean "Final
Monthly Compensation" as defined under the System
Executive Retirement Plan of Entergy Corporation and
Subsidiaries, as in effect on the date of this
Agreement and as applicable to individuals who became
participants in such Plan after March 25, 1998.
16.19 Five-Times Severance Payment shall mean the
payment of a lump sum retention payment, in cash, equal
to five times the sum of (i) Executive's Annual Base
Salary and (u) Executive's highest maximum annual bonus
opportunity under the LAIP for any fiscal year ending
after the date hereof, which Five-Times Severance
Payment shall in no event be less than $10,200,000.00.
The Five-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.
16.20 Good Reason for termination by Executive of
Executive's employment shall mean the occurrence
(without Executive's express written consent), prior to
the earlier of the termination of the Merger Agreement
or such time as the Employment Agreement between
Executive and WCB Holding Corporation dated as of July
30,2000 shall become effective, 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 (E), (F), or (G) 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)the substantial reduction or alteration in the
nature or status of Executive's duties or
responsibilities from those in effect on the date of
this Agreement, other than an insubstantial and
inadvertent act that is remedied by Company promptly
after receipt of notice thereof given by Executive
and other than any such alteration primarily
attributable to the fact that Company may no longer
be a public company;
(B) 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;
(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;
(D) 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;
(E) 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);
(F) 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
(G) 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.
16.21Gross-Up Payment shall have the meaning set forth in
Section 4.1 hereof.
16.22LTIP shall mean the Long Term Incentive Program of the
EOP, or any successor or replacement long-term incentive
program.
16.23Maximum 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.
16.24Merger Agreement shall mean the Ring-Ranger Merger
Agreement or any other agreement, the consummation of
the transactions contemplated by which would constitute
a "Change in Control" under the Company's Executive
Continuity Plan, as in effect on the date hereof
16.25Merger-Related Termination shall mean a termination of
Executive's employment by Company prior to the Closing
and prior to the termination of the Merger Agreement
upon determination by the Board of Directors of Company
that for reasons other than Cause and in the best
interests of the shareholders in connection with the
consummation of the Merger, it is necessary that
Executive no longer serve in the position of Chief
Executive Officer of Company.
16.26Normal Post-Termination Compensation and Benefits shall
mean Executive's normal post-termination compensation
and benefits as such payments become due, and determined
under, and paid in accordance with, Company's
retirement, insurance and other compensation or benefit
plans, programs and arrangements as in effect
immediately prior to the Date of Termination or, if more
favorable to Executive, as in effect immediately prior
to the occurrence of the first event or circumstance
constituting Good Reason.
16.27Notice of Termination shall have the meaning set forth
in Section 8.1 hereof.
16.28Other 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. "Other EOP Awards" shall include,
without limitation, those restricted shares (since
converted to restricted units) granted to Executive by
Company pursuant to letter agreement dated March 13,
1998, to the extent such restrictions have not yet
lifted.
16.29Qualifying Termination shall mean a termination of
Executive's employment prior to the earlier of the
termination of the Merger Agreement or such time as the
Employment Agreement between Executive and WCB Holding
Corporation dated as of July 30, 2000 shall become
effective (i) by Executive for Good Reason, or (ii) by
Company other than for Cause.
16.30Supplemental Retirement Benefit, in the event Executive
remains employed with the System through his attainment
of age 55, shall mean a supplemental retirement benefit
calculated as a single life annuity for the life of
Executive only, commencing at Executive's attainment of
age 55 and equal to:
(A) sixty percent (60%) of his Final Monthly
Compensation; less
(B) the amount of any benefit (expressed in the form of a
single life annuity) which Executive earned (i) under any
other qualified or non-qualified defined benefit retirement
income or pension plan, trust, or other arrangement sponsored
by any System Company, or (ii) under any the qualified
defined benefit pension plan sponsored by Cinergy, or their
successor or assigns, regardless of whether Executive
receives a paid up benefit or a cash payment under such plans
in lieu thereof. For purposes of this paragraph 16.30(B), the
Cinergy offset shall be as follows:
Executive's Age Monthly Lifetime
At Retirement Cinergy Offset
55 $7,717.64
56 $8,147.26
57 $8,575.59
58 $9,432.25
59 $10,290.19
60 $11,148.14
61 $12,004.80
62 or later $12,862.74
The monthly benefit calculated above shall be paid
for the life of Executive and thereafter 50% of such
monthly benefit amount shall be paid to Executive's
surviving spouse, if any, for her remaining
lifetime.
Executive may choose among an actuarial equivalent
single-sum distribution or the optional forms of
payment set forth in the System Executive Retirement
Plan of Entergy Corporation and Subsidiaries as in
effect prior to March 25, 1998, subject, however, to
the terms and conditions set forth in such Plan for
electing an optional form of payment.
The Supp1ementaLRetirement Benefit under this Agreement
supercedes and replaces any non-qualified supplemental
retirement benefits that might otherwise be provided to
Executive 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 as a result of any supplemental credited service
previously granted Executive under such plans, and as a
result of any subsidized supplemental retirement
benefits previously granted Executive by agreement dated
March 13, 1998.
16.31 System shall mean Company and all other System Companies.
16.32 System Companv(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.
16.33 Tax Counsel shall have the meaning set forth in Section
4.2 hereof.
16.34 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 $4,335,000.00. 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.
16.35 Total Payments shall mean those payments so described in
Section 4.1 hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written and effective as of October
27, 2000 in accordance with the Resolution of the Board of
Directors of Entergy Corporation of that same date.
ENTERGY CORPORATION EXECUTIVE
By:/s/ Michael G. Thompson /s/ J. Wayne Leonard
Michael G. Thompson J. Wayne Leonard
General Counsel and Secretary Chief Executive Officer,
Entergy Corporation