Exhibit 10(a)83
RETENTION AGREEMENT
THIS AGREEMENT, executed on October 1,2000, and
effective as of July 29, 2000, by and between Entergy
Corporation, a Delaware corporation (`Company"), and C.
Gary Clary ("Executive').
WHEREAS, Executive is currently employed by Entergy
Services, Inc., a System employer, and serves in the
position of Senior Vice-President, Human Resources and
Administration of Entergy Services, Inc.;
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 3.3 and 3.4, and Executive shall have no
further entitlement to receive any additional
payments or benefits under such subsections.
(B) For a period of two years following the Date of
Termination, Executive agrees not to take any action
or make any statement, written or oral, to any
current or former employee of any System Company, or
to any other person, which disparages any System
Company, its management, directors or shareholders,
or its practices, or which disrupts or impairs their
normal operations, including actions or statements
(i) that would harm the reputation of any System
Company with its clients, suppliers, employees or
the public; or (ii) that would interfere with
existing or prospective contractual or employment
relationships with any System Company or its
clients, suppliers or employees. In the event of any
violation by Executive of this paragraph (B) of this
subsection 2.2, Executive shall repay to Company,
within 5 business days of Company's written request
therefor, any amounts in respect of the Three-Times
Severance Payment or the Four-Times Severance
Payment previously paid to him pursuant to
subsections 3.3 and 3.4, 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 Company For Cause at Any
Time. If Company should terminate Executive's employment
with the System for Cause at any time, Executive shall be
entitled only to Executive's Accrued Obligations and
Normal Post-Termination Compensation and Benefits.
3.3 Qualifying Termination. If Executive's employment is
terminated due to a Qualifying Termination, then
Executive shall he entitled to Normal Post-Termination
Compensation and Benefits, Executive's Accrued
Obligations, EAIP Bonus Award, Four-Times Severance
Payment, Supplemental Retirement Benefit (in accordance
with Executive's election), Maximum LTIP Award and Other
EOP Awards. However, as a condition of receipt of the
Four-Times severance Payment, the Chief Executive Officer
of Company may require Executive to remain employed for a
period of time not to extend beyond the Closing, such
employment to be on substantially the same terms and
conditions as in effect on the date of execution of this
Agreement.
3.4 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, EAIP Bonus Award, Normal
Post-Termination Compensation and Benefits, Four-Times
Severance Payment, Supplemental Retirement Benefit (in
accordance with the election of Executive or his
beneficiary, if applicable), Maximum LTIP Award and Other
EOP Awards.
4.Gross-Up Payment.
4.1 Regardless of whether Executive becomes entitled to any
payments or benefits under this Agreement, if any of the
payments or benefits received or to be received by
Executive (whether pursuant to the terms of this
Agreement or any other plan, arrangement or agreement
with any System Company) (all such payments and benefits,
excluding the Gross-Up Payment, being hereinafter
referred to as the "Total Payments") will be subject to
the Excise Tax, Company shall pay to Executive an
additional amount (the "Gross-Up Payment") such that the
net amount retained by Executive, after deduction of any
Excise Tax on the Total Payments and any federal, state
and local income and employment taxes and Excise Tax upon
the Gross-Up Payment, shall be equal to the Total
Payments.
4.2 For purposes of determining whether any of the Total
Payments will be subject to the Excise Tax and the amount
of such Excise Tax, (i) all of the Total Payments shall be
treated as "parachute payments" (within the meaning of
section 280G(b) (2) of the Code) unless, in the opinion of
tax counsel ("Tax Counsel") reasonably acceptable to Executive
and selected by the accounting firm which was, immediately
prior to the Closing, Company's independent auditor (the
"Auditor"), such payments or benefits (in whole or in
part) do not constitute parachute payments, including by
reason of section 280G(b) (4) (A) of the Code, (ii) all
"excess parachute payments' within the meaning of section
280G(b) (1) of the Code shall be treated as subject to
the Excise Tax unless, in the opinion of Tax Counsel,
such excess parachute payments (in whole or in part)
represent reasonable compensation for services actually
rendered (within the meaning of section 250G(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 or sections 280G(d) (3) and (4) of the Code.
For purposes of determining the amount of the Gross-Up
Payment, Executive shall be deemed to pay federal income
tax at the highest marginal rate of federal income
taxation in the calendar year in which the Gross-Up
Payment is to be made and state and local income taxes at
the highest marginal rate of taxation in the state and
locality of Executive's residence on the Date of
Termination (or if there is no Date of Termination, then
the date on which the Gross-Up Payment is calculated for
purposes of this Section 4), net of the maximum reduction
in federal income taxes which could be obtained from
deduction of such state and local taxes.
4.3 In the event that the Excise Tax is finally determined
to be less than the amount taken into account hereunder
in calculating the Gross-Up Payment, Executive shall
repay to Company, within five (5) business days
following the time that the amount of such reduction in
the Excise Tax is finally determined, the portion of the
Gross-Up Payment attributable to such reduction plus
that portion of the Gross-Up Payment attributable to the
Excise Tax and federal, state and local income and
employment taxes imposed on the Gross-Up Payment being
repaid by Executive, to the extent that such repayment
results in a reduction in the Excise Tax and a dollar-
for-dollar reduction in Executive's taxable income and
wages for purposes of federal, state and local income
and employment taxes, plus interest on the amount of
such repayment at 120% of the rate provided in section
12 74(b) (2) (B) of the Code. In the event that the
Excise Tax is determined to exceed the amount taken into
account hereunder in calculating the Gross-Up Payment
(including by reason of any payment the existence or
amount of which cannot be determined at the time of the
Gross-Up Payment), Company shall make an additional
Gross-Up Payment in respect of such excess (plus any
interest, penalties or additions payable by Executive
with respect to such excess) within five (5) business
days following the time that the amount of such excess
is finally determined. Executive and Company shall each
reasonably cooperate with the other in connection with
any administrative or judicial proceedings concerning
the existence or amount of liability for Excise Tax with
respect to the Total Payments.
5.Rabbi Trust; Timing of Payments. No later than 180 days from
the execution of this Agreement, Company shall deposit in the
Trust for Deferred Payments of Entergy Corporation and
Subsidiaries ("Trust") an amount as determined by the Auditor
(as defined in Section 4.2) to be necessary to pay all amounts
that would be due under this Agreement if Executive
experienced a Qualifying Termination event on December 31,
2000. Company shall deposit such additional amounts as
determined by the Auditor from time to time to be necessary to
pay amounts due under the Agreement. The payments provided in
Sections 3 and 4 hereof shall be made 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 Term Sheet executed by J.
Wayne Leonard on September 29, 2000, and any other term
sheets, offers, or agreements preceding execution of this
Agreement. Notwithstanding any other provision to the
contrary, Executive acknowledges that benefits provided under
this Agreement are in lieu of participation in, and any
payment that might otherwise have been payable under, the
System Executive Continuity Plan of Entergy Corporation and
Subsidiaries and any other System severance or retention
plan, and Executive hereby waives any right to participate in
such plans.
8.Termination Procedures and Compensation During Dispute.
8.1 Notice of Termination. Any purported termination of
Executive's employment (other than by reason of death)
shall be communicated by written Notice of Termination
from one party hereto to the other party hereto in
accordance with this Section 8. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice
which shall indicate the specific termination provision
in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive's employment
under the provision so indicated. Further, a Notice of
Termination for Cause pursuant to clauses (i) or (ii) of
Section 16.6 is required to include a copy of a
resolution duly adopted by the affirmative vote of not
less than three-quarters (3/4) of the entire membership
of the Board at a meeting of the Board which was called
and held for the purpose of considering such termination
(after reasonable notice to Executive and an opportunity
for Executive, together with Executive's counsel, to be
heard before the Board) finding that, in the good faith
opinion of the Board, Executive was guilty of conduct set
forth in clause (i) or (ii) of the definition 01 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 (other than (i)
as otherwise provided in subsection 2.2 (A) and (B) and (ii)
offsets in accordance with the provisions of the System
Executive Retirement Plan of Entergy Corporation and
Subsidiaries, should Executive be entitled to and elect to
receive the Supplemental Retirement Benefit in accordance with
subsection 16.27(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 C. Gary Clary
General Counsel, Entergy Corporation 48 Versailles Boulevard
639 Loyola Avenue New Orleans, LA 70125
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, interpretations 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.
15.1All 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.
15.2Any 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:
16.1Accrued Obligations shall mean Executive's Annual Base
Salary through the Date of Termination to the extent not
theretofore paid, together with all unpaid compensation
and benefits payable to Executive through the Date of
Termination under the terms of Company's compensation and
benefit plans, programs or arrangements as in effect
immediately prior to the Date of Termination or, if more
favorable to Executive, as in effect immediately prior to
the first occurrence of an event or circumstance
constituting Good Reason.
16.2Annual Base Salary shall mean the highest rate of annual
base salary payable to Executive by the System at any time
after July 29, 2000, the date on which the Board authorized
the Chief Executive Officer of Company to enter this
Agreement with Executive.
16.3Auditor shall have the meaning set forth in Section 4.2
hereof.
16.4Base Amount shall have the meaning set forth in section
280G(b) (3) of the Code.
16.5Board shall mean the Board of Directors of Company.
16.6Cause for termination by Company of Executive's employment
shall mean (i) the willful and continued failure by
Executive to substantially perform Executive's System
duties (other than any such failure resulting from
Executive's incapacity due to physical or mental illness or
any such actual or anticipated failure after the issuance
of a Notice of Termination for Good Reason by Executive
pursuant to Section 8.1 hereof) that has not been cured
within 30 days after a written demand for substantial
performance is delivered to Executive by the Board, which
demand specifically identifies the manner in which the
Board believes that Executive has not substantially
performed Executive's duties; (ii) the willful engaging by
Executive in conduct which is demonstrably and materially
injurious to a System Company, monetarily or otherwise, and
which results in a conviction of or entrance of a plea of
guilty or nolo contendere to a felony; or (iii) Executive's
willful failure, as determined by J. 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. the Chief Executive
Officer of Company, or peer senior executives of Company,
Executive's concerns with, suggestions regarding, or
proposed improvements to, the merger implementation
process. For purposes of clauses (i) and (ii) of this
definition, (x) no act, or failure to act, on Executive's
part shall be deemed "willful" unless done, or omitted to
be done, by Executive in bad faith and without reasonable
belief that Executive's act, or failure to act, was in the
best interest of the System; and (y) in the event of a
dispute concerning the application of this provision, no
claim by Company that Cause exists shall be given effect
unless Company establishes to the Committee (and to the
arbitrator(s) in the event of arbitration of a dispute or
controversy hereunder) by clear and convincing evidence
that Cause exists. For purposes of clauses (i), (ii), (iii)
of this definition, no acts of Executive that occurred
before execution of this Agreement shall be deemed
justification for a Cause claim by Company unless said acts
were unknown to Company management and involved the
commission of a felony injurious to a System Company.
16.7Closing shall mean the earlier to occur of (i)
consummation of the transactions contemplated by the Ring-
Ranger Merger Agreement or (ii) the occurrence of a
"Change in Control" (as defined in Company's Executive
Continuity Plan in effect on the date hereof).
16.8Code shall mean the Internal Revenue Code of 1986, as
amended from time to time.
16.9Committee shall mean (i) the individuals who, on the date
hereof, constitute the Personnel Committee of the Board,
plus (ii) in the event that fewer than three individuals
are available from the group specified in clause (i) above
for any reason, such individuals as may be appointed by
the individual or individuals so available (including for
this purpose any individual or individuals previously so
appointed under this clause (ii)).
16.10Company shall mean Entergy Corporation and shall include
any successor to its business and/or assets which assumes
and agrees to perform this Agreement by operation of law,
or otherwise.
16.11Date of Termination shall have the meaning set forth in
Section 8.2 hereof.
16.12Disability shall be deemed the reason for the termination
by a System employer of Executive's employment, if, as a
result of Executive's incapacity due to physical or mental
illness, Executive shall have been absent from the full-
time performance of Executive's duties with the System for
a period of six (6) consecutive months, Company shall have
given Executive a Notice of Termination for Disability,
and, within thirty (30) days after such Notice of
Termination is given, Executive shall not have returned to
the full-time performance of Executive's duties.
16.13EAIP shall mean Executive Annual Incentive Plan of Entergy
Corporation and Subsidiaries, or any successor or
replacement plan.
16.14EAIP 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.
16.15EOP shall mean the Equity Ownership Plan of Entergy
Corporation and Subsidiaries, or any successor or
replacement plan.
16.16Excise Tax shall mean any excise tax imposed under section
4999 of the Code.
16.17Executive shall mean the individual named in the first
paragraph of this Agreement.
16.18Four-Times Severance Payment shall mean the payment of
a lump sum retention payment, in cash, equal to four times
the sum of (i) Executive's Annual Base Salary and (ii)
Executive's highest maximum annual bonus opportunity under
the EAIP for any fiscal year ending after the date hereof,
which Four-Times Severance Payment shall in no event be
less than $ 2,166,344.00. The Four-Times Severance Payment
shall be in lieu of any further salary payments to
Executive for periods subsequent to the Date of Termination
(if any) and in lieu of any retention, severance,
termination or similar benefit otherwise payable to
Executive under any plan, program, arrangement or agreement
of or with any System Company.
16.19Good Reason for termination by Executive of Executive's
employment shall mean the occurrence (without Executive's
express written consent) of any one of the following acts by
Company, or failure by Company to act, unless, in the case
of any act or failure to act described in paragraph (A),
(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) any adverse change in Executive's titles, authority,
duties, responsibilities or reporting lines as compared
with those in effect on the date hereof;
(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.
16.20Gross-Up Payment shall have the meaning set forth in
Section 4.1 hereof.
16.21LTIP shall mean the Long Term Incentive Program of the
EOP, or any successor or replacement long-term incentive
program.
16.22Maximum 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.
16.23Normal 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.
16.24Notice of Termination shall have the meaning set forth in
Section 8.1 hereof.
16.25Other EOP Awards shall mean (a) the vesting of, and lapse
of restrictions on, all restricted shares, stock options,
and other awards (excluding awards under the LTIP), as
applicable, granted to Executive prior to the Date of
Termination, to the extent such shares, options or other
awards have not already vested or restrictions thereon
have not yet lifted and (b) the extension of the period
during which stock options shall be exercisable for the
remainder of the ten-year term extending from the grant
date.
16.26Oualifvin2 Termination shall mean a termination of
Executive's employment (i) by Executive for Good Reason
prior to the Closing and prior to the termination of the
Merger Agreement, (ii) by Company other than for Cause
prior to the Closing and prior to the termination of the
Merger Agreement, and (iii) for any reason on or after the
Closing.
16.27Supplemental Retirement Benefit shall mean, at Executive's
election at the earlier of Closing or Date of Termination,
either (a) a lump sum cash payment equal to $2,242,583.00,
which represents payment in lieu of non-qualified
supplemental retirement benefits earned prior to the
Closing under the System Executive Retirement Plan of
Entergy Corporation and Subsidiaries, the Pension
Equalization Plan of Entergy Corporation and Subsidiaries,
the Supplemental Retirement Plan of Entergy Corporation and
Subsidiaries, and the Post-Retirement Plan of Entergy
Corporation and Subsidiaries, and any supplemental credited
service granted Executive under such plans, or (b) the
benefit available to Executive under the System Executive
Retirement Plan of Entergy Corporation and Subsidiaries,
under the terms and conditions of that plan applicable to
individuals who became participants on or after March 25,
1998, including the adjusted System employment date of
December 27, 1973 provided in Executive's Participant
Application for the plan, provided, however, that Executive
shall not require permission under the plan or otherwise to
retire and commence receipt of benefit payments.
16.28System shall mean Company and all other System Companies.
16.29System Company(ies) shall mean Company and any other
corporation 80% or more of whose stock (based on voting
power or value) is owned directly or indirectly by Company
and any partnership or trade or business which is 80% of
more controlled, directly or indirectly, by Company, and
any successor to the business and/or assets of any such
entity.
16.30Tax Counsel shall have the meaning set forth in Section 4.2
hereof.
16.31Total Payments shall mean those payments so described in
Section 4.1 hereof.
16.32Merger Agreement shall mean the Ring-Ranger Merger
Agreement or any other agreement, the consummation of the
transactions contemplated by which would constitute a
"Change in Control" under the Company's Executive
Continuity Plan, as in effect on the date hereof.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first above written and effective as of
July 29, 2000 in accordance with the July 29, 2000 Resolution of
the Board of Directors of Entergy Corporation.
ENTERGY COPORATION EXECUTIVE
By: /s/ J. Wayne Leonard /s/ C. Gary Clary
J. Wayne Leonard C. Gary Clary
Chief Executive Officer Senior Vice-President,
Human Resources and
Administration for
Entergy Services, Inc.