Exhibit 10(a)86
RENTENTION 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 Michael G. Thompson
(Executive)
WHEREAS, Executive is currently employed by Entergy
Services, Inc., a System employer, and serves in the position of
Senior Vice-President, General Counsel and Secretary 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 contact 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
subsections 3.1 and 3.4, 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 Executives employment is
terminated due to a Qualifying
Termination, then Executive shall be entitled to (a)
either the Service Bridge or Normal Post-Termination
Compensation and Benefits and (b) receive Executive's
Accrued Obligations, Supplemental Retirement Benefit
(in accordance with Executive's election), EAIP Bonus
Award, Four-Times Severance Payment, Maximum LTIP
Award and Other BOP Awards. In the event Executive is
entitled to the Service Bridge, Normal Post-
Termination Compensation and Benefits shall be due at
the conclusion of the Service Bridge.
3.4 Termination On Account of Death or Disability. If
Executive's employment should terminate on account of
death or Disability prior to the termination of the
Merger Agreement, Executive or his personal or legal
representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees
(in the event of death) shall receive Executive's
Accrued Obligations, EAIP Bonus Award, Normal Post-
Termination Compensation and Benefits, Four-Times
Severance Payment, Supplemental Retirement Benefit (in
accordance with the election of Executive or his
beneficiary, if applicable), Maximum LTIP Award and
Other EOP Awards. The benefits provided under this
subsection shall be reduced by the benefits provided
to Executive prior to his death or Disability under
any other subsection of this Agreement, with the
exception of subsection 3.1.
4.Gross-Up Payment.
4.1 Regardless of whether Executive becomes entitled to
any payments or benefits under this Agreement, if any
of the payments or benefits received or to be received
by Executive (whether pursuant to the terms of this
Agreement or any other plan, arrangement or agreement
with any System Company) (all such payments and
benefits, excluding the Gross-Up Payment, being
hereinafter referred to as the "Total Payments") will
be subject to the Excise Tax, Company shall pay to
Executive an additional amount (the "Gross-Up
Payment") such that the net amount retained by
Executive, after deduction of any Excise Tax on the
Total Payments and any federal, state and local income
and employment taxes and Excise Tax upon the Gross-Up
Payment, shall be equal to the Total Payments.
4.2 For purposes of determining whether any of the Total
Payments will be subject to the Excise Tax and the
amount of such Excise Tax, (i) all of the Total
Payments shall be treated as "parachute payments"
(within the meaning of section 280G(b) (2) of the
Code) unless, in the opinion of tax counsel ("Tax
Counsel") reasonably acceptable to Executive and
selected by the accounting firm which was, immediately
prior to the Closing, Company's independent auditor
(the "Auditor"), such payments or benefits (in whole
or in part) do not constitute parachute payments,
including by reason of section 280G(b) (4) (A) of the
Code, (ii) all "excess parachute payments" within the
meaning of section 280G(b) (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
1274(b) (2) (B) of the Code. In the event that the
Excise Tax is determined to exceed the amount taken
into account hereunder in calculating the Gross-Up
Payment (including by reason of any payment the
existence or amount of which cannot be determined at
the time of the Gross-Up Payment), Company shall make
an additional Gross-Up Payment in respect of such
excess (plus any interest, penalties or additions
payable by Executive with respect to such excess)
within five (5) business days following the time that
the amount of such excess is finally determined.
Executive and Company shall each reasonably cooperate
with the other in connection with any administrative
or judicial proceedings concerning the existence or
amount of liability for Excise Tax with respect to the
Total Payments.
5.Rabbi Trust; Timing of Payments. No later than 180 days
from the execution of this Agreement, Company shall deposit
in the Trust for Deferred Payments of Entergy Corporation
and Subsidiaries ("Trust") an amount as determined by the
Auditor (as defined in Section 4.2) to be necessary to pay
all amounts that would be due under this Agreement if
Executive experienced a Qualifying Termination event on
December 31, 2000. Company shall deposit such additional
amounts as determined by the Auditor from time to time to
be necessary to pay amounts due under the Agreement. The
payments provided in Sections 3 and 4 hereof shall be made
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 12 74(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). Solely for purposes
of determining Executive's "Date of Termination" for
any reason other than termination of the Service
Bridge, Executive's employment shall be considered
terminated, even though he receives the Service
Bridge.
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 ff11
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:
J. Wayne Leonard Michael G. Thompson
Chief Executive Officer, Entergy Corporation 830 Brewster Road
639 Loyola Avenue Madisonville, LA 70447
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.
15.1All 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.
15.2 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 Executives Annual Base
Salary through the Date of Termination to the extent not
theretofore paid, together with all unpaid compensation
and benefits, including four (4) weeks of paid vacation
per calendar year, 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, 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)).
16.10Companv 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.
16.15 EOP shall mean the Equity Ownership Plan of Entergy
Corporation and Subsidiaries, or any successor or replacement
plan.
16.16 Excise Tax shall mean any excise tax imposed under section
4999 of the Code.
16.17 Executive shall mean the individual named in the first
paragraph of this Agreement.
16.18 Four-Times Severance Payment shall mean the payment of a
lump sum retention payment, in cash, equal to four times the
sum of (i) Executive's Annual Base Salary and (ii) Executive's
highest maximum annual bonus opportunity under the EAIP for any
fiscal year ending after the date hereof, which Four-Times
Severance Payment shall in no event be less than $
2,826,440.00. The Four-Times Severance Payment shall be in lieu
of any further salary payments to Executive for periods
subsequent to the Date of Termination (if any) and in lieu of
any retention, severance, termination or similar benefit
otherwise payable to Executive under any plan, program,
arrangement or agreement of or with any System Company.
16.19 Good Reason for termination by Executive of Executive's
employment shall mean the occurrence (without Executive's
express written consent) of any one of the following acts by
Company, or failure by Company to act, unless, in the case of
any act or failure to act described in paragraph (A), (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.
16.20 Gross-Up Payment shall have the meaning set forth in
Section 4.1 hereof.
16.21 LTIP shall mean the Long Term Incentive Program of the
EOP, or any successor or replacement long-term incentive
program.
16.22 Maximum LTIP Award shall mean the number of performance
shares or performance share units, as applicable, that
Executive shall be entitled to receive under the LTIP with
respect to any performance period (as defined in the applicable
program or plan) that includes the Date of Termination, such
number to be determined as if Executive satisfied the remaining
performance requirements and was entitled to the maximum pay
out level under the long term incentive program with respect to
such performance periods.
16.23Normal 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.
16.26Qualifying 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.
16.27Service Bridge shall mean, in the event Executive should lose
his General Counsel position prior to December 31, 2001 (other
than for Cause), Executive's continuation of active System
employment at the same compensation and benefit level as prior
to the loss of such position, with continued eligibility to
participate in all executive plans and programs under their
terms and conditions, through December31, 2001. Further, at
the conclusion of the Service Bridge, Executive shall be
eligible for retiree benefits, if any, under Company's plans
as in effect on such date or from time to time thereafter.
16.28Supplemental 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 $2,939,009.00,
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 31, 1981, provided in Executive's Participant
Application for the plan, without reduction of such amount by
the benefit Executive is entitled to receive under any benefit
plan of any prior employer, provided, however, that Executive
shall not require permission under the plan or otherwise to
retire and commence receipt of benefit payments.
16.29System shall mean Company and all other System Companies.
16.30System 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.
16.31Tax Counsel shall have the meaning set forth in Section 4.2
hereof.
16.32Total Payments shall mean those payments so described in
Section 4.1 hereof.
16.33Merger 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/ Michael G. Thompson
J. Wayne Leonard Michael G. Thompson
Chief Executive Officer Senior Vice-President
and General Counsel
Entergy Corporation