Exhibit 10(a)87
RETENTION AGREEMENT
This Agreement ("Agreement") is entered into between Entergy
Services, Inc. ("Employer"), a Delaware corporation having its
offices in New Orleans, Louisiana, and Richard J. Smith
("Executive"), an individual residing in New Orleans, Louisiana.
The effective date of this Agreement shall be the date upon which
both parties have executed this Agreement, whether in
multiple originals or otherwise ("Effective Date").
WHEREAS, Executive is currently employed by Employer, a System
employer, and serves in the position of President, Retail
Operations;
WHEREAS. Entergy Corporation ("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, Employer 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 service Executive will
provide to Employer and other System Companies, the employment of
Executive by Employer or by any other System Company, the intended
benefits to the System and Executive as a result thereof,
and the mutual promises, covenants and obligations herein
contained, including new promises and additional
consideration. Employer and Executive 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. Employer and Executive covenant as
follows:
2.1 Employer's Covenants. In order to induce Executive to
remain within the System, Employer 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
Employer, 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 Executive's System Company
employer) either in his individual capacity or
together with any other person, corporation,
governmental agency or body, or other entity, that is
(i) with an entity 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
Executive's System Company employer, within 5 business
days of Executive's System Company employer's written
request therefor, any amounts previously paid to him
pursuant to subsections 3.1 and 3.5, 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 Executive's System Company employer, within 5
business days of Executive's System Company employer's
written request therefor, any amounts previously paid
to him pursuant to subsections 3.1 and 3.5, and
Executive shall have no further entitlement to receive
any additional payments or benefits under and of 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
3.2, in no event shall Executive and his beneficiary(ies) be
entitled to payments and benefits under more than one such
subsection.
3.1 Retention Payments. If at the first anniversary of the
Closing, Executive remains employed by the surviving
merged entity, Executive shall receive payment of one-
third of the Retention Bonus at such first anniversary
date. If Executive remains employed by the surviving
merged entity through and including the second
anniversary of the Closing, then Executive shall receive
payment of one-half of the remaining unpaid Retention
Bonus at such second anniversary date. If Executive
remains employed by the surviving merged entity through
and including the third anniversary of the Closing, then
Executive shall receive payment of the remaining unpaid
Retention Bonus at such third anniversary date.
3.2 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
Executive's System employer during such period, until
Executive's employment is terminated by his System
employer for Disability.
3.3 Termination of Employment For Cause at Any Time. If
Executive's employment with the System should be
terminated for Cause at any time, Executive shall be
entitled only to Executive's Accrued Obligations and
Normal Post-Termination Compensation and Benefits.
3.4 Termination of Employment by Executive Without Good
Reason at Any Time. If Executive terminates employment
with the System without Good Reason, Executive shall be
entitled only to Executive's Accrued Obligations and
Normal Post-Termination Compensation and Benefits.
3.5 Qualifying Termination. If Executive's employment is
terminated due to a Qualifying Termination, then
Executive shall receive Executive's Accrued Obligations,
Target LTIP Award, Other BOP Awards, Normal Post-
Termination Compensation and Benefits, and any remaining
unpaid Retention Bonus. Payment of the Retention Bonus
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.
3.6 Termination On Account of Death or Disability. If
Executive's employment should terminate on account of
death or Disability before the earlier of the termination
of the Merger Agreement or the third anniversary of the
Closing, Executive or his personal or legal
representatives, executors, administrators, successors,
heirs, distributees, devisees and legatees (in the event
of Executive's death) shall receive Executive's Accrued
Obligations, Target LTIP Award, Other EOP Awards, Normal
Post-Termination Compensation and Benefits, and any
remaining unpaid Retention Bonus.
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, Executive's System Company employer 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, Executive's
System Company employers independent auditor (the "Auditor"),
such payments or benefits (in whole or in part) do not constitute
parachute payments, including by reason of section 280G(b)(4)(A)
of the Code, (ii) all "excess parachute payments" within the
meaning of section 280G(b)(l) of the Code shall be treated as
subject to the Excise Tax unless, in the opinion of Tax Counsel,
such excess parachute payments (in whole or in part) represent
reasonable compensation for services actually rendered (within
the meaning of section 280G(b)(4)(B) of the Code) in excess of
the Base Amount allocable to such reasonable compensation, or are
otherwise not subject to the Excise Tax, and (iii) the value of
any non-cash benefits or any deferred payment or benefit shall be
determined by the Auditor in accordance with the principles of
sections 280G(d)(3) and (4) of the Code. For purposes of
determining the amount of the Gross-Up Payment, Executive shall
be deemed to pay federal income tax at the highest marginal rate
of federal income taxation in the calendar year in which the
Gross-Up Payment is to be made and state and local income taxes
at the highest marginal rate of taxation in the state and
locality of Executive's residence on the Date of Termination (or
if there is no Date of Termination, then the date on which the
Gross-Up Payment is calculated for purposes of this Section 4),
net of the maximum reduction in federal income taxes which could
be obtained from deduction of such state and local taxes.
4.3 In the event that the Excise Tax is finally determined
to be less than the amount taken into account hereunder
in calculating the Gross-Up Payment, Executive shall
repay to Executive's System Company employer, 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 dollarfor-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), Executive's System Company employer
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 Executive's System Company employer 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, Executive's System Company
employer may 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 the Effective Date of this Agreement. Executive's
System Company employer may 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 not 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, Executive's System
Company employer shall pay to Executive on such day an
estimate, as determined in good faith by Executive's System
Company employer, 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 Executive's System Company employer fails to make
such payments when due) at 120% of the rate provided in
section 1 274(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 Executive's System Company employer to
Executive, payable on the fifth business day after demand by
Executive's System Company employer (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. Executive's System Company employer 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 Executive's System Company employer 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). Notwithstanding any provision of
this Section 5 to the contrary, if Executive is entitled to
receive payment of a portion of the Retention Bonus in
accordance with subsection 3.1, such benefit shall be payable
under the circumstances described in subsection 3.1, without
regard to termination of employment.
6.Legal Fees. Executive's System Company employer 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 Executive's System Company employer
reasonably may require.
7. Superceded Agreements and Benefits. This Agreement does not
supercede the terms and conditions of Executive's
participation in the System Executive Retirement Plan of
Entergy Corporation and Subsidiaries and the Pension
Equalization Plan of Entergy Corporation and Subsidiaries.
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 (a) or (b) of Section 14.6 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 terminating employer's board of directors at a
meeting of such board of directors 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 that board) finding
that, in the good faith opinion of the board, Executive was
guilty of conduct set forth in clause (a) or (b) of the
definition of Cause herein, and specifying the particulars
thereof in detail.
8.2 Date of Termination. "Date of Termination," shall mean (a)
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 (b) 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 Executive's System Company
employer, 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, Executive's System
Company employer 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. Executive's System Company employer agrees
that Executive is not required to seek other employment or to
attempt in any way to reduce any amounts payable to Executive
by Executive's System Company employer 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 Executive's System Company employer,
or otherwise (other than as otherwise provided in subsection
2.2 (a) and (b)).
10. Successors: Binding Agreement.
10.1 In addition to any obligations imposed by law upon any
successor to Executive's System Company employer,
Executive's System Company employer 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
Executive's System Company employer to expressly assume
and agree to perform this Agreement in the same manner
and to the same extent that Executive's System Company
employer would be required to perform it if no such
succession had taken place. Failure of Executive's
System Company employer to obtain such assumption and
agreement prior to the effectiveness of any such
succession shall be a breach of thisAgreement and shall
entitle Executive to compensation from Executive's
System Company employer 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. Settlement of Disputes: Arbitration.
11.1 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.
11.2 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 14.6 and 14.16 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.
12. Protection of Information.
12.1Position of Confidence. Executive acknowledges that his
employment with Employer or any other System Company has
placed him in a position to have access to or develop trade
secrets or confidential information of any one or all of
the System Companies and has placed Executive in a position to
develop business good will on behalf of any one or all of
the System Companies.
12.2Information Obtained During Employment. All information,
ideas, concepts, improvements, discoveries, and
inventions, whether patentable or not, which were or are
conceived, made, developed, or acquired by Executive,
individually or in conjunction with others, during
Executive's employment with any System Company employer,
whether during business hours or otherwise and whether at
the work site or otherwise, which relate to System
Company business, products, or services (including,
without limitation, all such information relating to
corporate opportunities, research, financial and sales
data, pricing and trading terms, evaluations, opinions,
interpretations, acquisition prospects, the identity of
customers or their requirements, the identity of key
contacts within the customer's organizations or within
the organization of acquisition prospects, or marketing
and merchandising techniques, prospective names, and
marks) shall be disclosed to Employer or other System
Company employer and are and shall be such employer's
sole and exclusive property. All documents, drawings,
memoranda, notes, records, files, correspondence,
manuals, models, specifications, computer programs, e-
mail, voice mail, electronic databases, maps and all
other writings or materials of any type embodying any of
such information, ideas, concepts, improvements,
discoveries, and inventions are and shall be the sole and
exclusive property of the Executive's System Company
employer. Upon termination of Executive's employment with
his System Company employer, for any reason, Executive
shall promptly deliver the items referenced in this
Section and all copies thereof, to his last System
Company employer.
12.3Confidentiality. Executive will not, at any time during
or after Executive's employment with any System Company
employer, make any unauthorized disclosure of any
confidential business information or trade secrets of
any System Company, or make any use thereof, except in
the carrying out of Executive's employment
responsibilities under this Agreement. As a result of
Executive's employment under this Agreement, Executive
may, from time to time, have access to, or knowledge of,
confidential business information or trade secrets of
third parties, such as customers, suppliers, partners,
or joint venturers of Employer or other System
Companies, and Executive agrees to preserve and protect
the confidentiality of such third party confidential
information and trade secrets to the same extent, and on
the same basis, as Employer's confidential business
information and trade secrets.
12.4Terms of the Agreement. Executive understands and
acknowledges that the terms and conditions of this
Agreement constitute confidential information. Executive
shall keep confidential the terms of this Agreement and
shall not disclose this confidential information to
anyone other than Executive's attorneys, tax advisors, or
as required by law.
12.5Assignment of Rights. Executive agrees to and hereby does
assign to Executive's System Company employer all rights
in and to all inventions, business plans, work models or
procedures, whether patentable or not, which are made or
conceived solely or jointly by Executive at any time
during Executive's System Company employment or with the
use of any System Company time and materials. Executive
will disclose to such System Company all facts known to
Executive concerning such matters and, at the System
Company's expense, do everything reasonably practicable
to aid it in obtaining and enforcing proper legal
protection for, and vesting System Company in title to,
such matters. Both during Executive's employment and
thereafter, Executive shall assist Employer and its
nominee, at any time. in the protection of Employer's
worldwide right, title, and interest in and to
information, ideas, concepts, improvements, discoveries,
and inventions, and its copyrighted works, including,
without limitation, the execution of all formal
assignment documents requested by Employer or its nominee
and the execution of all lawful oaths and applications
for patents and registration of copyright in the United
States or foreign countries.
12.6Breach. Executive acknowledges and understands that
Executive's breach of any provision of this Section would
constitute a material breach of this Agreement and could
subject Executive to disciplinary action, including,
without limitation, termination of employment for Cause.
Executive acknowledges that money damages would be an
insufficient remedy for any breach of this Section by
Executive, and Employer or any other System Company
employer shall be entitled to enforce the provisions of
this Section by terminating any payments then owing to
Executive under this Agreement and/or to seek specific
performance and injunctive relief as remedies for a
breach or threatened breach of this Section. In the event
of any breach or threatened breach of the confidentiality
provisions of this Agreement, Executive acknowledges that
irreparable injury could result to Employer and agrees
that Employer shall be entitled to a temporary
restraining order or injunction, without bond,
restraining Executive from violating the confidentiality
provisions of this Agreement, in addition to any other
relief to which Company may be entitled. Such remedies
shall not be deemed the exclusive remedies for a breach
of this Section, but shall be in addition to all remedies
available at law or in equity.
13.Additional Provisions.
13.1Representations and Warranties. Executive and Employer
represent and warrant that neither is under a restriction
or obligation inconsistent with the execution of this
Agreement or the performance of either party's
obligations hereunder and neither knows of any reason why
the performance due under this Agreement should be
hindered in any way.
13.2Continuing Obligations. Termination of the employment
relationship shall not terminate those obligations
imposed by this Agreement, which are continuing in
nature, including, without limitation, Executive's
continuing obligations of confidence, Executive's
continuing obligations with respect to business
opportunities that were entrusted to Executive during the
employment relationship, and specifically Executive's
obligations under Section 12 of this Agreement.
13.3Notices. Any notice required under this Agreement shall
be in writing and deemed received (a) on the date
delivered if hand-delivered, or (b) on the fifth business
day after being deposited in the mail, first class,
registered or certified, return receipt requested, with
proper postage prepaid, and shall be addressed as
follows, unless changed otherwise by any party in
accordance with the notice provisions of this
Section:
If to a System Company,
addressed in care of: with copy to:
Michael G. Thompson, Esq. Gary C. Clary
General Counsel Senior Vice-President, Human
639 Loyola Avenue, 26th Floor Resources and Administration
New Orleans, LA 70113 639 Loyola Avenue, 14th Floor
New Orleans, LA 70113
If to Executive, addressed as follows:
Richard J. Smith
199 English Turn Drive
New Orleans, LA 70131
13.4Binding Agreement. Upon its Effective Date, this
Agreement is binding upon Executive (and his or her
heirs) and Employer (and its successors, agents, heirs or
assigns). Executive expressly acknowledges the right of
Employer to assign this Agreement and Executive's
employment to any successor entity.
13.5Nonassignability. This Agreement or the right to receive
benefits hereunder may not be assigned, encumbered or
alienated by Executive in any manner.
13.6Applicable Law. This Agreement shall be interpreted and
enforced in accordance with the laws of the State of
Louisiana.
13.7Headings. Section headings contained in this Agreement
are for reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
13.8No Waiver. Failure of either party to give notice of any
breach by the other party of, or failure to require
compliance with, any condition or provision of this
Agreement shall not be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any
prior or subsequent time.
13.9No Inducements. Each party to this Agreement acknowledges
that no representation, inducement, promise, or
agreement, oral or written, has been made by either party
with respect to such subject matters, which is not
embodied herein.
13.10 Modifications and Waivers. No provision of this
Agreement may be modified,
amended or waived except in a writing signed by both
parties. The waiver by either party of a breach of any
provision of this Agreement shall not operate to waive
any subsequent breach of the Agreement.
13.11 Severability. Should any part of this Agreement be
found to be invalid or in violation of law, such part
shall be of no force and effect and the rest of this
Agreement shall
survive as valid and enforceable to the fullest extent
permitted by law.
14.Definitions. For purposes of this Agreement, the following
terms shall have the meanings hereinafter indicated, except
as otherwise set forth in the Agreement or unless a different
meaning is plainly required by the context in which the term
is used:
14.1Accrued 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 Employer'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.
14.2Annual Base Salary shall mean the highest rate of annual
base salary payable to Executive by the System at any
time on or after the Effective Date of this Agreement.
14.3Auditor shall have the meaning set forth in Section 4.2
hereof.
14.4Base Amount shall have the meaning set forth in section
280G(b)(3) of the Code.
14.5Board shall mean the Board of Directors of Company.
14.6Cause for termination by Executive's System Company
employer of Executive s employment shall mean:
(a) 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 Executive's System Company employer's board, which
demand specifically identifies the manner in which the
board believes that Executive has not substantially
performed Executive's duties; or
(b) 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
(c) a material violation by Executive of any
agreement Executive has with a System Company,
including, without limitation, violation of Section 12
of this Agreement; or
(d) Executive's willful failure, as determined by J.
Wayne Leonard, the Company's Chief Executive Officer
as of the date hereof, to fully 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 (d) 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 (a) and (b) 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
Executive's System Company employer that Cause exists
shall be given effect unless Executive's System Company
employer 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 (a), (b), (c)
and (d) of this definition, no acts of Executive that
occurred before execution of this Agreement shall be
deemed justification for a Cause claim by Executive's
System Company employer unless said acts were unknown to
Executive's System Company employer's management and
involved the commission of a felony injurious to a System
Company.
14.7Closing shall mean the earlier to occur of (a)
consummation of the transactions contemplated by the Ring-
Ranger Merger Agreement or (b) the occurrence of a
"Change in Control" (as defined in Company's Executive
Continuity Plan in effect on the date hereof).
14.8Code shall mean the Internal Revenue Code of 1986, as
amended from time to time.
14.9 Committee shall mean (a) the individuals who, on the
date hereof, constitute the Personnel Committee of the
Board, plus (b) in the event that fewer than three
individuals are available from the group specified in
clause (a) 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
(b)).
14.10Company 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.
14.11 Date of Termination shall have the meaning set
forth in Section 8.2 hereof.
14.12 Disability shall be deemed the reason for the
termination by a System employer of Executive's
employment, if, as a result of Executive's incapacity due
to physical or mental illness, Executive shall have been
absent from the full-time performance of Executive's
duties with the System for a period of six (6)
consecutive months, Executive's System Company employer
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.
14.13 EOP shall mean the Equity Ownership Plan of Entergy
Corporation and Subsidiaries, or any successor or
replacement plan.
14.14 Excise Tax shall mean any excise tax imposed under
section 4999 of the Code.
14.15 Executive shall mean the individual named in the
first paragraph of this Agreement.
14.16 Good Reason for termination by Executive's System
Company employer of Executives employment shall mean the
occurrence (without Executive's express written consent)
of any one of the following acts by Executive's System
Company employer, or failure by Executive's System
Company employer to act, unless, in the case of any act
or failure to act described in paragraph (b) (f), (g),
or (h) 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) for the period through and including the date of
Closing, the substantial reduction or alteration in
the nature or status of Executive's duties or
responsibilities from those in effect on the date of
this Agreement, other than an insubstantial and
inadvertent act that is remedied by Executive's System
Company employer promptly after receipt of notice
thereof given by Executive and other than any such
alteration primarily attributable to the fact that
Executive's System Company employer may no longer be a
public company;
(b) following the date of Closing, the failure of
Executive's System Company employer to provide
Executive with a position in the successor entity at
the level of Senior Vice-President or above and with
compensation comparable to that of other senior
executives at Executive's position, and (i) the
employment location of which shall be, at the
discretion of the Chief Executive Officer of the
surviving merged entity, not more than 20 miles from
(A) Executive's principal place of employment on the
date hereof, or (b) the corporate headquarters of the
Merged Entity (or of any other party (or parent
thereof) to the Merger Agreement), except for required
travel on Executive's System Company employer's
business to an extent substantially consistent with
Executive's present business travel, and (ii) with
relocation and interim living allowances no less than
those available to Executive's System Company
employer's executives (or to FPL Group's executives,
(or the executives of any other party (or parent
thereof) to the Merger Agreement), if higher) as in
effect on the date hereof, in the event relocation is
required consistent with this subsection;
(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 Executive's System Company employer's
requiring Executive to be based anywhere other than
such principal place of employment (or permitted
relocation thereof) except for required travel on
Executive's System Company employer's business to art
extent substantially consistent with Executive's
present business travel obligations, provided,
however, that this paragraph (c) shall not apply in
the event Executive is provided a position in the
successor entity in accordance with (b) above;
(d) a reduction by Executive's System Company
employer in Executive's annual base salary as in
effect on the date hereof or as the same may be
increased from time to time;
(e) the failure by Executive's System Company
employer 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 Executive's System Company employer, within seven
(7) days of the date such compensation is due;
(f) the failure by Executive's System Company
employer 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 Executive's System Company employer 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);
(g) the failure by Executive's System Company
employer to continue to provide Executive with
benefits substantially similar to those enjoyed by
Executive under any of Executive's System Company
employer'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 Executive's System
Company employer 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 Executive's System Company employer to provide
Executive with the number of paid vacation days to
which Executive is entitled on the basis of years of
service with Executive's System Company employer in
accordance with Executive's System Company employer's
normal vacation policy in effect on the date hereof
(or as the same may be improved after the date
hereof); or
(h) 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 Executive's System Company
employer 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.
14.17 Gross-Up Payment shall have the meaning set forth in
Section 4.1 hereof.
14.18 LTIP shall mean the Long Term Incentive Program of
the EOP, or any successor or replacement long-term
incentive program.
14.19 Merger 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.
14.20 Normal 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,
Executive's System Company employer'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.
14.21 Notice of Termination shall have the meaning set
forth in Section 8.1 hereof.
14.22 Other 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
LTTP), 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.
14.23 Qualifying Termination shall mean a termination of
Executive's employment (a) by
Executive for Good Reason at any time prior to the
earlier of termination of the Merger Agreement or the
third anniversary date of the Closing; or (b) by
Executive's System Company employer other than for Cause
at any time prior to the earlier of termination of the
Merger Agreement or the third anniversary date of the
Closing.
14.24 Retention Bonus shall mean a total cash amount of
$1,575,000.00.
14.25 System shall mean Company and all other System
Companies.
14.26 System 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, which term shall include the
Merged Entity after the Closing.
14.27 Target LTIP Award shall mean the number of
performance shares or performance share units, as
applicable, that Executive shall be entitled to receive
under the LTLP 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 target
pay out level under the long term incentive program with
respect to such performance periods.
14.28 Tax Counsel shall have the meaning set forth in
Section 4.2 hereof.
14.29 Total Payments shall mean those payments so
described in Section 4.1 hereof.
IN WITNESS WHEREOF, Employer and Executive have duly executed
this Agreement on the dates indicated below, which Agreement
may be executed in multiple originals, to be
effective on the Effective Date herein provided.
ACCEPTED BY EMPLOYER: ACCEPTED BY EXECUTIVE:
Entergy Services, Inc.
By its Duly Authorized Agent:
/s/ C. Gary Clary /s/ Richard J. Smith
C. Gary Clary Richard J. Smith
Sr. Vice-President, Human Resources
and Administration Executed this ___ day of ___ 2001.
Executed this ___ day of ___ 2001.