Exhibit 10(a)84
RETENTION AGREEMENT
THIS AGREEMENT, executed on October 11, 2000, and effective
as of July 29, 2000, by and between Entergy Corporation, a
Delaware corporation ("Company"), and Jerry D. Jackson
("Executive").
WHEREAS, Executive is currently employed by Entergy
Services, Inc., a System employer, and serves in the position of
Group President, Utility Operations 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 3.3 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 be 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) (I) 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 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 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 12 74(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 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 frill 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 Jerry D. Jackson
General Counsel, Entergy Corporation 1505 Nashville Avenue
639 Loyola Avenue New Orleans, LA 70115
New Orleans, LA 70113-3125
12.Miscellaneous. No provision of this Agreement may be
modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing and
signed by Executive and such officer as may be specifically
designated by the Board. No waiver by either party hereto
at any time of any breach by the other party hereto of, or
of any lack of compliance with, any condition or provision
of this Agreement to be performed by such other party shall
be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time.
This Agreement supersedes any other agreements or
representations, oral or otherwise, express or implied,
with respect to the subject matter hereof which have been
made by either party. The laws of the State of Delaware
shall govern the validity, interpretation construction and
performance of this Agreement. All references to sections
of the Code shall be deemed also to refer to any successor
provisions to such sections. Any payments provided for
hereunder shall be paid net of any applicable withholding
required under federal, state or local law and any
additional withholding to which Executive has agreed.
13.Validity. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity
or enforceability of any other provision of this Agreement,
which shall remain in full force and effect.
14.Counterparts. This Agreement may be executed in
several counterparts, each of which shall be deemed to be
an original but all of which together will constitute one
and the same instrument.
15.Settlement of Disputes; Arbitration.
15.1 All claims by Executive for benefits under this
Agreement shall be directed to and determined by the
Committee and shall be in writing. Any denial by the
Committee of a claim for benefits under this Agreement
shall be delivered to Executive in writing and shall
set forth the specific reasons for the denial and the
specific provisions of this Agreement relied upon. The
Committee shall afford a reasonable opportunity to
Executive for a review of the decision denying a claim
and shall further allow Executive to appeal to the
Committee a decision of the Committee within sixty
(60) days after notification by the Committee that
Executive's claim has been denied.
15.2 Any further dispute or controversy arising under or in
connection with this Agreement shall be settled
exclusively by arbitration in the metropolitan area in
which Executive resides on the Date of Termination (or
the date that the Merger Agreement is terminated, as
applicable) in accordance with the rules of the
American Arbitration Association then in effect;
provided, however, that the evidentiary standards set
forth in subsections 16.6 and 16.19 of this Agreement
shall be applied by the arbitrator(s). Judgment may be
entered on the arbitrator's award in any court having
jurisdiction. Notwithstanding any provision of this
Agreement to the contrary, Executive shall be entitled
to seek specific performance of Executive's right to be
paid until the Date of Termination during the pendency
of any dispute or controversy arising under or in
connection with this Agreement.
16. Definitions. For purposes of this Agreement, the
following terms shall have the meanings indicated below:
16.1 Accrued Obligations shall mean Executive's Annual Base
Salary through the Date of Termination to the extent not
theretofore paid, together with all unpaid compensation
and benefits payable to Executive through the Date of
Termination under the terms of Company's compensation and
benefit plans, programs or arrangements as in effect
immediately prior to the Date of Termination or, if more
favorable to Executive, as in effect immediately prior to
the first occurrence of an event or circumstance
constituting Good Reason.
16.2 Annual Base Salary shall mean the highest rate of annual
base salary payable to Executive by the System at any
time after July 29, 2000, the date on which the Board
authorized the Chief Executive Officer of Company to
enter this Agreement with Executive.
16.3 Auditor shall have the meaning set forth in Section 4.2
hereof.
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, 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.
16.7 Closing shall mean the earlier to occur of (i)
consummation of the transactions contemplated by the Ring-
Ranger Merger Agreement or (ii) the occurrence of a
"Change in Control" (as defined in Company's Executive
Continuity Plan in effect on the date hereof).
16.8 Code shall mean the Internal Revenue Code of 1986, as
amended from time to time.
16.9 Committee shall mean (i) the individuals who, on the date
hereof, constitute the Personnel Committee of the Board,
plus (ii) in the event that fewer than three individuals
are available from the group specified in clause (i)
above for any reason, such individuals as may be
appointed by the individual or individuals so available
(including for this purpose any individual or individuals
previously so appointed under this clause (ii)).
16.10Company shall mean Entergy Corporation and shall include
any successor to its business and/or assets which
assumes and agrees to perform this Agreement by
operation of law, or otherwise.
16.11Date of Termination shall have the meaning set forth in
Section 8.2 hereof.
16.12Disability shall be deemed the reason for the
termination by a System employer of Executive's
employment, if, as a result of Executive's incapacity
due to physical or mental illness, Executive shall have
been absent from the full-time performance of
Executive's duties with the System for a period of six
(6) consecutive months, Company shall have given
Executive a Notice of Termination for Disability, and,
within thirty (30) days after such Notice of Termination
is given, Executive shall not have returned to the full-
time performance of Executive's duties.
16.13EAIP 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 $4,064,236.00. 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.
16.25Other 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.
16.26Qualifying 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 $4,345,354.00, 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 April
7, 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 CORPORATION EXECUTIVE
By: /s/ J. Wayne Leonard /s/ Jerry D. Jackson
J. Wayne Leonard Jerry D. Jackson
Chief Executive Officer Group President, Utility Operations
Entergy Operations, Inc.