EXHIBIT 10(a)79
SYSTEM EXECUTIVE CONTINUITY PLAN
OF ENTERGY CORPORATION AND SUBSIDIARIES
PURPOSES
The System Executive Continuity Plan of Entergy Corporation
and Subsidiaries has as its purposes the advancement of the
interests of the Company and its stockholders by encouraging the
continued attention and dedication of key members of Entergy's
management to their assigned duties, without distraction, in the
event of an attempted or actual change in control of Entergy
Corporation. Plan Benefits shall not become due unless and until
Entergy Corporation experiences a Change in Control.
ARTICLE I
DEFINITIONS
The following terms shall have the meaning hereinafter
indicated unless expressly provided herein to the contrary:
1.01 "Administrator" shall mean the Personnel Committee
established by the Board of Directors, or such other individuals
or committee (not fewer than three in number) as shall from time
to time be designated in writing by the Chairman of the Board of
Directors as the administrator of the Plan. The Administrator
shall be the "plan administrator" for the Plan within the meaning
of ERISA. Notwithstanding the foregoing, from and after the date
immediately preceding the commencement of a Change in Control
Period, the "Administrator" shall mean (a) the individuals (not
fewer than three in number) who, on the date six months before
the commencement of the Change in Control Period, constitute the
Administrator, 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)); provided, however, that the maximum
number of individuals constituting the Administrator shall not
exceed six.
1.02 "Base Salary" shall mean the Participant's annual rate of
base salary as in effect immediately prior to commencement of a
Change in Control Period or, if higher, as in effect at any time
within one year immediately prior to the commencement of the
Change in Control Period, which shall be calculated exclusive of
any bonuses, overtime, or other special payments, but including
the amount, if any, the Participant elects to defer under: (a) a
cash or deferred arrangement qualified under Code Section 401(k);
(b) a cafeteria plan under Code Section 125; (c) the Executive
Deferred Compensation Plan of Entergy Corporation and
Subsidiaries, or any successor or replacement plan; and (d) any
other nonqualified deferred compensation plan, agreement, or
arrangement in which the Participant may hereafter participate or
be a party.
1.03 "Beneficiary" shall mean the Surviving Spouse of Participant
or, if Participant does not have a Surviving Spouse, Beneficiary
shall mean any individual or entity so designated by Participant,
or, if Participant does not have a Surviving Spouse and does not
designate a beneficiary hereunder, or if the designated
beneficiary predeceases Participant, Beneficiary shall mean
Participant's estate.
1.04 "Benefit Pay Continuation Period" shall mean the applicable
Benefit Pay Continuation Period described in Section 4.02 with
respect to the System Management Level of the Participant.
1.05 "Board of Directors" shall mean the Board of Directors of
Entergy Corporation.
1.06 "Cause" shall mean:
(a) willful and continuing failure by Participant to
substantially perform Participant's duties (other than such
failure resulting from the Participant'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 the Participant) that has not been cured within thirty
(30) days after a written demand for substantial performance is
delivered to the Participant by the board of directors of the
Employer, which demand specifically identifies the manner in
which the board believes that the Participant has not
substantially performed the Participant's duties; or
(b) the willful engaging by the Participant in conduct which is
demonstrably and materially injurious to any System Company,
monetarily or otherwise; or
(c) conviction of or entrance of a plea of guilty or nolo
contendere to a felony or other crime which has or may
have a material adverse affect on Participant's ability to carry
out Participant's duties or upon the reputation of any System
Company; or
(d) a material violation by Participant of any agreement
Participant has with a System Company; or
(e) unauthorized disclosure by Participant of the
confidences of any System Company.
For purposes of clauses (a) and (b) of this definition, no
act, or failure to act, on the Participant's part shall be
deemed "willful" unless done, or omitted to be done, by the
Participant not in good faith and without reasonable belief
that the Participant's act, or failure to act, was in the
best interest of the Employer.
1.07 "Change in Control" shall mean:
(a) the purchase or other acquisition by any person, entity or
group of persons, acting in concert within the meaning of
Sections 13(d) or 14(d) of the Securities Exchange Act of 1934
("Act"), or any comparable successor provisions, of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the
Act) of twenty-five percent (25%) or more of either the shares of
common stock outstanding immediately following such acquisition
or the combined voting power of Entergy Corporation's voting
securities entitled to vote generally and outstanding immediately
following such acquisition, other than any such purchase or
acquisition in connection with a Non-CIC Merger (defined in
subsection (b) below);
(b) the consummation of a merger or consolidation of Entergy
Corporation, or any direct or indirect subsidiary of Entergy
Corporation with any other corporation, other than a Non-CIC
Merger, which shall mean a merger or consolidation immediately
following which the individuals who comprise the Board of
Directors immediately prior thereto constitute at least a
majority of the Board of Directors, or the board of directors of
the entity surviving such merger or consolidation, or the board
of directors of any parent thereof (unless the failure of such
individuals to comprise at least such a majority is unrelated to
such merger or consolidation);
(c) the stockholders of Entergy Corporation approve a plan of
complete liquidation or dissolution of Entergy Corporation or
there is consummated an agreement for the sale or disposition by
Entergy Corporation of all or substantially all of Entergy
Corporation's assets; or
(d) any change in the composition of the Board of Directors such
that during any period of two consecutive years, individuals who
at the beginning of such period constitute the Board of Directors
and any new director (other than a director whose initial
assumption of office is in connection with an actual or
threatened election contest, including but not limited to a
consent solicitation, relating to the election of directors of
Entergy Corporation) whose appointment or election by the Board
of Directors or nomination for election by Entergy Corporation's
stockholders was approved or recommended by a vote of at least
two-thirds (2/3) of the directors then still in office who either
were directors on the Effective Date or whose appointment,
election or nomination for election was previously so approved or
recommended, cease for any reason to constitute at least a
majority thereof.
Provided, however, that no Change in Control shall be deemed
to occur solely by virtue of (1) the insolvency or
bankruptcy of Entergy Corporation; or (2) the transfer of
assets of Entergy Corporation to an affiliate of Entergy
Corporation, provided such affiliate assumes the obligations
of the Plan and agrees to continue uninterrupted the rights
of the Participants under the Plan; or (3) the consummation
of any transaction or series of integrated transactions
immediately following which the record holders of the common
stock of Entergy Corporation immediately prior to such
transaction or series of transactions continue to have
substantially the same proportionate ownership in an entity
which owns all or substantially all of the assets of Entergy
Corporation immediately following such transaction or series
of transactions.
1.08 "Change in Control Period" shall mean the period commencing
ninety (90) days prior to and ending twenty-four (24) calendar
months following a Change in Control.
1.09 "Claims Administrator" shall mean the Administrator or its
designee responsible for administering claims for benefits under
the Plan.
1.10 "Claims Appeal Administrator" shall mean the Administrator
or its delegee responsible for administering appeals from the
denial or partial denial of claims for benefits under the Plan.
1.11 "COBRA" shall mean the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended.
1.12 "Code" shall mean the Internal Revenue Code of 1986, as
amended.
1.13 "Date of Termination," with respect to any purported
termination of Participant's employment within a Change in
Control Period shall mean (a) if Participant's employment is
terminated for Disability, thirty (30) days after Notice of
Termination is given (provided that Participant shall not have
returned to the full-time performance of his duties during such
thirty (30) day period), and (b) if Participant's employment is
terminated for any other reason, the date specified in the Notice
of Termination (which, in the case of a termination by 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
Participant, shall not be less than fifteen (15) days nor more
than sixty (60) days, respectively, from the date such Notice of
Termination is given).
1.14 "Disability" shall be deemed the reason for the termination
by Employer of Participant's employment within a Change in
Control Period if, as a result of Participant's incapacity due to
physical or mental illness, Participant shall have been absent
from the full-time performance of Participant's duties with
Employer for a period of six (6) consecutive months, Employer
shall have given Participant a Notice of Termination for
Disability, and, within thirty (30) days after such Notice of
Termination is given, Participant shall not have returned to the
full-time performance of Participant's duties.
1.15 "Effective Date" shall mean January 1, 2000, the effective
date of the Plan.
1.16 "Eligible Employee" shall mean those Employees eligible for
participation in this Plan, as set forth in Section 3.01.
1.17 "Employee" shall mean an employee of a System Company.
1.18 "Employer" shall mean the System Company with which the
Participant is last employed on or before the Participant's
termination from System employment.
1.19 "ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended.
1.20 "Good Reason" shall mean the occurrence, without the
Participant's express written consent, of any of the following
events during the Change in Control Period:
(a) the substantial reduction or alteration in the nature or
status of the Participant's duties or responsibilities from those
in effect on the date immediately preceding the first day of the
Change in Control Period, other than an insubstantial and
inadvertent act that is remedied by the System Company employer
promptly after receipt of notice thereof given by the Participant
and other than any such alteration primarily attributable to the
fact that Entergy Corporation may no longer be a public company;
(b) a reduction of five percent (5%) or more in Participant's
base salary as in effect immediately prior to commencement of a
Change in Control Period, which shall be calculated exclusive of
any bonuses, overtime, or other special payments, but including
the amount, if any, the Participant elects to defer under: (1) a
cash or deferred arrangement qualified under Code Section 401(k);
(2) a cafeteria plan under Code Section 125; (3) the Executive
Deferred Compensation Plan of Entergy Corporation and
Subsidiaries, or any successor or replacement plan; and (4) any
other nonqualified deferred compensation plan, agreement, or
arrangement in which the Participant may hereafter participate or
be a party;
(c) requiring Participant to be based at a location outside of
the continental United States and other than his primary work
location as it existed on the date immediately preceding the
first day of the Change in Control Period, except for required
travel on business of any System Company to an extent
substantially consistent with the Participant's present business
obligations;
(d) failure by System Company employer to continue in effect any
compensation plan in which Participant participates immediately
prior to the commencement of the Change in Control Period which
is material to Participant's total compensation, including but
not limited to compensation plans in effect, including stock
option, restricted stock, stock appreciation right, incentive
compensation, bonus and other plans or any substitute plans
adopted prior to the Change in Control Period, unless an
equitable arrangement (embodied in an ongoing substitute or
alternative plan) has been made with respect to such plan, or the
failure by System Company employer to continue Participant'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
the Participant's participation relative to other participants,
as existed immediately prior to the Change in Control;
(e) failure by System Company employer to continue to provide
Participant with benefits substantially similar to those enjoyed
by Participant under any of the System Company's pension,
savings, life insurance, medical, health and accident, or
disability plans in which Participant was participating
immediately prior to the Change in Control Period, the taking of
any other action by System Company employer which would directly
or indirectly materially reduce any of such benefits or deprive
Participant of any material fringe benefit enjoyed by Participant
immediately prior to commencement of the Change in Control
Period, or the failure by System Company employer to provide
Participant with the number of paid vacation days to which
Participant is entitled on the basis of years of service with the
System in accordance with the System Company's normal vacation
policy in effect at the time of the Change in Control; or
(f) any purported termination of Participant's employment which
is not effected pursuant to a Notice of Termination satisfying
the requirements of Section 1.21 hereof; for purposes of this
Plan, no such purported termination shall be effective in
depriving Participant of the right to terminate employment for
Good Reason.
Participant's right to terminate his employment for Good
Reason shall not be affected by Participant's incapacity due
to physical or mental illness. Participant'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.
1.21 "Notice of Termination" shall mean a notice that shall
indicate the specific termination provision in this Plan relied
upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the
Eligible Employee's employment under the provision so indicated.
Further, a Notice of Termination for Cause 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
Participant and an opportunity for Participant, together with
Participant's counsel, to be heard before that board) finding
that, in the good faith opinion of the board, Participant was
guilty of conduct set forth in the definition of Cause herein,
and specifying the particulars thereof in detail.
1.22 "Office of the Chief Executive" shall mean the Office of
Chief Executive, as time to time composed, which shall consist of
such members appointed by, and to serve at the pleasure of, the
Chief Executive Officer of Entergy Corporation.
1.23 "Participant" shall mean an Eligible Employee who fulfills
the requirements for participation in this Plan as set forth in
Section 3.02.
1.24 "Participant Application" shall mean the written application
between Employee and the Administrator evidencing Employee's
participation in this Plan, which application shall be part of
the Plan. Participant Applications shall be in substantially the
same form as that attached to this Plan as Appendix A, as may be
amended from time to time by the Administrator.
1.25 "Personnel Committee" shall mean the Personnel Committee of
the Board of Directors.
1.26 "Plan" shall mean this System Executive Continuity Plan of
Entergy Corporation and Subsidiaries and any amendments,
supplements or modifications from time to time made hereto in
accordance with Sections 8.01 and 8.02.
1.27 "Potential Change in Control" shall be deemed to have
occurred if the event set forth in any one of the following
paragraphs shall have occurred:
(a) Entergy Corporation or any affiliate or subsidiary company
enters into an agreement, the consummation of which would result
in the occurrence of a Change in Control; or
(b) the Board of Directors adopts a resolution to the effect
that, for purposes of this Plan, a Potential Change in Control
has occurred; or
(c) any System Company or any person or entity publicly
announces an intention to take or to consider taking actions
which, if consummated, would constitute a Change in Control; or
(d) any person or entity becomes the beneficial owner (as that
term is defined in Rule 13d-3 under the Securities Exchange Act
of 1934, as amended from time to time), either directly or
indirectly, of securities of Entergy Corporation representing
twenty percent (20%) or more of either the then outstanding
shares of common stock of Entergy Corporation or the combined
voting power of Entergy Corporation's then outstanding securities
(not including in the calculation of the securities beneficially
owned by such person or entity any securities acquired directly
from Entergy Corporation or its affiliates).
1.28 "Qualifying Event" shall mean the occurrence of one of the
following within the Change in Control Period:
(a) Participant's employment is terminated by Employer other
than for Cause; or
(b) Participant terminates his System employment for Good
Reason.
For purposes of this Plan, the following shall not
constitute Qualifying Events:
(1) Participant's death; or (2) Participant becoming
Disabled under the terms of the Entergy Corporation
Companies' Benefits Plus Long Term Disability ("LTD") Plan.
1.29 "Surviving Spouse" shall mean the person to whom the
Participant was legally married as of the date of such
Participant's death.
1.30 "System" shall mean Entergy Corporation and all other System
Companies, and, except in determining whether a Change in Control
has occurred, shall include any successor thereto as contemplated
in Section 8.03 of this Plan.
1.31 "System Company" shall mean Entergy Corporation and any
corporation eighty percent (80%) or more of whose stock (based on
voting power or value) is owned, directly or indirectly, by
Entergy Corporation and any partnership or trade or business
which is eighty percent (80%) or more controlled, directly or
indirectly, by Entergy Corporation, and, except in determining
whether a Change in Control has occurred, shall include any
successor thereto as contemplated in Section 8.03 of this Plan.
1.32 "System Management Level" shall mean the applicable
management level set forth in Section 3.01.
1.33 "Target Award" shall mean the target percentage established
by the Personnel Committee under the Executive Annual Incentive
Plan of Entergy Corporation and Subsidiaries, or any successor
plan, with respect to Participant.
ARTICLE II
CONSTRUCTION
2.01 Gender and Number. The masculine pronoun whenever used in
the Plan shall include the feminine. Similarly, the
feminine pronoun whenever used in the Plan shall include the
masculine as the context or facts may require. Whenever any
words are used herein in the singular, they shall be
construed as if they were also used in the plural in all
cases where the context so applies.
2.02 Captions. The captions of this Plan are not part of the
provisions of the Plan and shall have no force and effect.
2.03 Severability. In the event any provision of the Plan shall
be held illegal or invalid for any reason, the illegality or
invalidity shall not affect the remaining parts of the Plan,
and the Plan shall be construed and enforced as if the
illegal or invalid provision had not been included.
2.04 Controlling Law. The administration of the Plan, and any
Trust established thereunder, shall be governed by applicable
federal law, including ERISA and, to the extent federal law is
inapplicable, the laws of the State of Delaware, without regard
to the conflict of law principles of any state. Any persons or
corporations who now are or shall subsequently become parties to
the Plan shall be deemed to consent to this provision.
2.05 No Right to Employment. This Plan does not confer nor shall
be construed as creating an express or implied contract of
employment.
ARTICLE III
PARTICIPATION
3.01 Eligible Employees. Only active, full-time Employees who
(a) on the day immediately preceding the commencement of a
Change in Control Period are eligible for a Target Award at
a level at or above 40%; and (b) are at one of the following
System Management Levels (which constitute a select group of
management or highly compensated employees) shall be
eligible for benefits under this Plan:
(1) System Management Level 1 ( Chief Executive Officer and
Chairman of the Board of Entergy Corporation);
(2) System Management Level 2 (Presidents and Executive Vice
Presidents within the System);
(3) System Management Level 3 (Senior Vice Presidents within the
System); and
(4) System Management Level 4 (Vice Presidents within the
System), but only with the advance written approval of the Office
of Chief Executive.
3.02 Participation. An Eligible Employee shall become a
Participant in the Plan if Eligible Employee has filed with the
Administrator, pursuant to this Section 3.02 and within the time
frame established by the Administrator (and as noted on the
Participant Application), a Participant Application and all other
agreements presented to him by the Administrator regarding his
employment and non-qualified deferred compensation, provided that
such Participant Application is approved and accepted in writing
by the Administrator. The Participant Application shall specify
the effective date of Eligible Employee's participation in the
Plan. Eligible Employee shall cease to be a Participant under
this Plan only in accordance with the terms of Sections 3.05 and
6.01.
3.03 Notice of Participation. Participation shall be evidenced
by a written notice, signed by the Administrator and delivered to
the Participant.
3.04 Participant Eligibility for Benefits. Participants in the
Plan shall be eligible for Plan benefits under the terms and
conditions of the Plan.
3.05 Termination of Participation.
(a) Prior to Commencement of Change in Control Period. An
individual shall cease to be a Participant in this Plan and
thereafter shall not be eligible for any benefits otherwise
payable under this Plan if, prior to commencement of the Change
in Control Period, for whatever reason (including, but not
limited to, death, other loss of active employment status, loss
of eligible System Management Level, loss of eligibility for
Target Award level at or above 40%), such individual no longer
satisfies the eligibility requirements set forth in Section 3.01.
If such individual thereafter becomes an Eligible Employee, to
again become a Participant in the Plan he shall be required to
submit to the Administrator a new Participant Application and his
participation in the Plan shall be conditioned on the
Administrator's approval and acceptance of such Participation
Application, as set forth in Section 3.02. An individual also
shall cease to be a Participant in the Plan prior to commencement
of a Change in Control Period for those reasons set forth in
Section 6.01(c) and (d).
For purposes of this Plan, an individual who becomes
Disabled under the terms of the Entergy Corporation
Companies' Benefits Plus Long Term Disability ("LTD")
Plan and prior to commencement of a Change in Control
Period shall be deemed to no longer satisfy the
eligibility requirements of Section 3.01 upon the
commencement of LTD Plan benefit payments to the
individual or on his behalf.
(b) On or After Commencement of Change in Control Period. An
individual shall cease to be a Participant in the Plan on and
after the commencement of a Change in Control Period only for
those reasons set forth in Section 6.01 and shall be subject to
the benefit cessation, forfeiture and repayment provisions set
forth therein.
ARTICLE IV
BENEFITS
4.01 Compensation and Benefit Continuation.
(a) If there should occur a Change in Control and if, within the
Change in Control Period, a Participant has a Qualifying Event,
Employer shall pay Participant's full salary to him through the
Date of Termination at the rate in effect immediately prior to
the Date of Termination or, if higher, the rate in effect
immediately prior to the first occurrence of an event or
circumstance constituting Good Reason, together with all
compensation and benefits payable to Participant through the Date
of Termination under the terms and conditions of the Employer's
compensation and benefit plans, programs or arrangements as in
effect immediately prior to the Date of Termination or, if more
favorable to Participant, as in effect immediately prior to the
first occurrence of an event or circumstance constituting Good
Reason.
(b) If there should occur a Change in Control and if, within the
Change in Control Period, a Participant has a Qualifying Event,
Employer shall pay to Participant the Participant's normal
post-termination compensation and benefits as such payments
become due. Such post-termination compensation and benefits
shall be determined under, and paid in accordance with, the
Employer's retirement, insurance and other compensation or
benefit plans, programs and arrangements.
(c) If there should occur a Change in Control and if, within the
Change in Control Period, a Participant has a Qualifying Event,
then such Participant shall be entitled to receive, subject to
the forfeiture provisions of Section 6.01, the Plan benefits set
forth in Sections 4.02 and 4.03 with respect to Participants at
his System Management Level. A Participant's benefits shall be
determined by reference to his System Management Level on the
date immediately preceding the commencement of the Change in
Control Period.
4.02 Periodic Cash Payments. A Participant satisfying all of the
terms and conditions of this Plan shall be entitled to receive,
in lieu of any further salary payments to the Participant for
periods subsequent to the Date of Termination, but subject to the
forfeiture provisions of Section 6.01, periodic cash payments
calculated and payable in accordance with the following:
(a) If Participant is at System Management Level 1 or 2, the
total cash benefit amount payable under this Section 4.02 to the
Participant shall be equal to three (3) times the sum of: (1)
Participant's Base Salary or, if higher, Participant's annual
rate of salary as in effect immediately prior to the first
occurrence of an event or circumstance constituting Good Reason
and (2) Participant's Target Award for the year in which the
Change in Control Period commences or, if higher, the year in
which the Date of Termination occurs. The total cash benefit
amount computed above shall be divided into substantially equal
installments and paid to Participant over a thirty-six (36)
consecutive month period, commencing on the Date of Termination,
which thirty-six (36) consecutive month period shall be the
Benefit Pay Continuation Period for System Management Level 1 and
2 Participants. Payments of such substantially equal
installments over Participant's Benefit Pay Continuation Period
shall be payable in advance at the same frequency as base salary
payments to Participant immediately prior to the Qualifying
Event.
(b) If Participant is at System Management Level 3, the total
cash benefit amount payable under this Section 4.02 to
Participant shall be equal to two (2) times the sum of: (1)
Participant's Base Salary or, if higher, Participant's annual
rate of salary as in effect immediately prior to the first
occurrence of an event or circumstance constituting Good Reason
and (2) Participant's Target Award for the year in which the
Change in Control Period commences or, if higher, the year in
which the Date of Termination occurs. The total cash benefit
amount computed above shall be divided into substantially equal
installments and paid to the Participant over a twenty-four (24)
consecutive month period, commencing on the Date of Termination,
which twenty-four (24) consecutive month period shall be the
Benefit Pay Continuation Period for System Management Level 3
Participants. Payments of such substantially equal installments
over Participant's Benefit Pay Continuation Period shall be
payable in advance at the same frequency as base salary payments
to Participant immediately prior to the Qualifying Event.
(c) If Participant is at System Management Level 4, the total
cash benefit amount payable under this Section 4.02 to
Participant shall be equal to the sum of: (1) Participant's Base
Salary or, if higher, Participant's annual rate of salary as in
effect immediately prior to the first occurrence of an event or
circumstance constituting Good Reason and (2) Participant's
Target Award for the year in which the Change in Control Period
commences or, if higher, the year in which the Date of
Termination occurs. The total cash benefit amount computed above
shall be divided into substantially equal installments and paid
to Participant over a twelve (12) consecutive month period,
commencing on the Date of Termination, which twelve (12)
consecutive month period shall be the Benefit Pay Continuation
Period for System Management Level 4 Participants. Payments of
such substantially equal installments over Participant's Benefit
Pay Continuation Period shall be payable in advance at the same
frequency as base salary payments to Participant immediately
prior to the Qualifying Event.
4.03 Additional Benefits. In addition to the benefits set forth
in section 4.02, a Participant satisfying all of the terms and
conditions of this Plan shall be entitled, subject to the
forfeiture provisions of Section 6.01, to the following benefits
under the Plan:
(a) For the duration of a Participant's Benefit Pay Continuation
Period, the Employer shall arrange to provide the Participant and
his dependents medical and dental benefits substantially similar
to those provided to the Participant and his dependents
immediately prior to the Qualifying Event or, if more favorable
to the Participant, those provided to the Participant and his
dependents immediately prior to the first occurrence of an event
or circumstance constituting Good Reason, at no greater cost to
the Participant than the cost to Employer's regular full-time
active employees immediately prior to such date or occurrence;
provided, however, that unless the Participant consents to a
different arrangement, such medical and dental benefits shall be
provided through a third-party insurer. Benefits otherwise
receivable by the Participant pursuant to this Section 4.03(a)
shall be reduced to the extent benefits of the same type are
received by or made available to the Participant during his
Benefit Pay Continuation Period (and any such benefits received
by or made available to the Participant shall be reported to the
Employer by the Participant); provided, however, that the
Employer shall reimburse the Participant for the excess, if any,
of the cost of such benefits to the Participant over such cost
immediately prior to the Qualifying Event or, if more favorable
to the Participant, the first occurrence of an event or
circumstance constituting Good Reason. The period of coverage
provided in accordance with this Section 4.03(a) shall count
toward the Participant's required period of continuation
coverage, if any, under COBRA.
If the Participant would have become entitled to post-
retirement medical and dental benefits under the
Employer's medical and dental plans, as in effect
immediately prior to the Qualifying Event or, if more
favorable to the Participant, as in effect immediately
prior to the first occurrence of an event or circumstance
constituting Good Reason, had the Participant's
employment terminated at any time during his Benefit Pay
Continuation Period, the Employer shall provide such post-
retirement medical and dental benefits to the Participant
and the Participant's dependents commencing on the later
of (1) the date on which such coverage would have first
become available or (2) the date on which benefits
described in the immediately preceding paragraph
terminate.
(b) Subject to any federal securities law restrictions on sale
and exercise, the number of Performance Shares or Performance
Share units, as applicable, Participant shall be entitled to
receive under the Performance Share Program of the Equity
Ownership Plan of Entergy Corporation and Subsidiaries
with respect to any Performance Period (as defined under
the Performance Share Program) that precedes or includes
the day on which the Change in Control Period commences
shall be determined as if Participant satisfied the
remaining performance requirements at Participant's
target level under the Performance Share Program with
respect to such Performance Period(s).
(c) If any of the payments or benefits received or to be
received by a Participant in connection with a Change in
Control or the Participant's termination of employment (whether
pursuant to the terms of this Plan or any other plan, arrangement
or agreement with a System Company) (all such payments and
benefits, excluding the Gross-Up Payment, being hereinafter
referred to as the "Total Payments") will be subject to
any excise tax imposed under Section 4999 of the Code
("Excise Tax"), the Employer shall pay to the Participant
an additional amount (the "Gross-Up Payment") such that
the net amount retained by the Participant, 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.
For purposes of determining whether any of the Total
Payments will be subject to the Excise Tax and the amount
of such Excise Tax, (1) 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 the
Participant and selected by the accounting firm which
was, immediately prior to the Change in Control Period,
Entergy Corporation'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; (2) all
"excess parachute payments" (within the meaning of
Section 280G(b)(1) of the Code shall be treated as
subject to the Excise Tax unless, in the opinion of Tax
Counsel, such excess parachute payments (in whole or in
part) represent reasonable compensation for services
actually rendered (within the meaning of Section
280G(b)(4)(B) of the Code) in excess of the "Base Amount"
(within the meaning of Section 280G(b)(3) of the Code)
allocable to such reasonable compensation, or are
otherwise not subject to the Excise Tax; and (3) the
value of any noncash 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, the Participant 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 the Participant'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 4.03(c)), net
of the maximum reduction in federal income taxes which
could be obtained from deduction of such state and local
taxes.
In the event that the Excise Tax is finally 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), the
Employer shall make additional Gross-Up Payment in
respect of such excess (plus any interest, penalties or
additions payable by the Participant with respect to such
excess) within five (5) business days following the time
that the amount of such excess is finally determined.
The Participant and the 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.
The payments provided in this subsection 4.03(c) shall be
made not later than the 5th day following the Date of
Termination; provided, however, that if the amounts of
such payments cannot be finally determined on or before
such day, the Employer shall pay to the Participant on
such day an estimate, in accordance with this subsection
4.03(c), of the minimum amount of such payments to which
the Participant 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
the Employer fails to make such payments when due) at
120% of the rate provided in Section 1274(b)(2)(B) of the
Code) as soon as the amount thereof can be determined but
in no event later than the thirtieth (30th) day after the
Date of Termination.
4.04 Written Statement Explaining Benefits. At the time that
payments under Sections 4.02 and 4.03 commence, the Administrator
shall provide the Participant 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 the Employer or the Administrator 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.
4.05 Legal Fees and Expenses. On or after the commencement of a
Change in Control Period, the Employer shall also pay to the
Participant all legal fees and expenses incurred by the
Participant in disputing in good faith any issue hereunder
relating to the termination of the Participant's employment, in
seeking in good faith to obtain or enforce any benefit or right
provided by this Plan 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. Such payments shall be made within five (5) business
days after delivery of the Participant's written requests for
payment accompanied with such evidence of fees and expenses
incurred as the Employer reasonably may require.
4.06 Forfeiture and Repayment of Benefits. The benefits that
become payable or in which Participant vests solely upon a Change
in Control shall nonetheless be subject to forfeiture and
repayment under the conditions outlined in Section 6.01 of this
Plan.
4.07 Death of Participant. If Participant should die after the
occurrence of Participant's Qualifying Event, but prior to
receiving all amounts to which he became entitled to receive
under Sections 4.02 and 4.03, then all remaining amounts owed to
Participant shall be paid in accordance with the terms of this
Plan to his Beneficiary.
4.08 Provisions of Referenced Plans. To the extent this Plan
references or incorporates provisions of any other System Company
plan and (a) such other plan is amended, supplemented, modified
or terminated during the two-year period commencing on the date
of a Potential Change in Control and (b) such amendment,
supplementation, modification or termination adversely affects
any benefit under this Plan, whether it be in the method of
calculation or otherwise, then for purposes of determining
benefits under this Plan, the Administrator shall rely upon the
version of such other plan in existence immediately prior to any
such amendment, supplementation, modification or termination,
unless such change is agreed to in writing and signed by the
affected Participant and by the Administrator, or by their legal
representatives and successors.
ARTICLE V
SOURCE OF PAYMENTS
5.01 Unfunded Plan. All rights of a Participant, Beneficiary or
any other person or entity having or claiming a right to
payments under this Plan shall be entirely unfunded, and
nothing in this Plan shall be construed to give such person
or entity any right, title, interest, or claim in or to any
specific asset, fund, reserve, account or property of any
kind whatsoever, owned by a System Company, or in which a
System Company may have any right, title or interest now or
in the future. However, the Participant, Beneficiary or any
other such person or entity shall have the right to enforce
his claim against the Employer or any other System Company
in the same manner as any other unsecured creditor of such
System Company. Neither a Participant, his Beneficiary nor
any other person or entity shall have any rights in or
against any specific assets of any System Company.
5.02 Employer Liability. At its own discretion, a System Company
may purchase such insurance or annuity contracts or other types
of investments as it deems desirable in order to accumulate the
necessary funds to provide for the future benefit payments under
the Plan. However, (a) a System Company shall be under no
obligation to fund the benefits provided under this Plan; (b) the
investment of System Company funds credited to a special account
established hereunder shall not be restricted in any way; and (c)
such funds may be available for any purpose the System Company
may choose. Nothing stated herein shall prohibit a System
Company from adopting or establishing a trust or other means as a
source for paying any obligations created hereunder provided,
however, any and all rights that any such Participants shall have
with respect to any such trust or other fund shall be governed by
the terms thereof.
5.03 Establishment of Trust. Notwithstanding any provisions of
this Article V to the contrary, within thirty (30) days following
the date of a Change in Control, each System Company shall make a
single irrevocable lump sum contribution to the Trust for
Deferred Payments of Entergy Corporation and Subsidiaries
("Trust") pursuant to the terms and conditions described in such
Trust. Each System Company's contribution shall be in an amount
equal to the total amount of additional benefits payable to such
System Company's Plan Participants in accordance with the
provisions of Section 4.02 of the Plan for the duration of the
applicable Benefit Pay Continuation Period. Notwithstanding the
foregoing in this Section to the contrary, a System Company may
make contributions to the Trust prior to a Change in Control in
such amounts as it shall determine in its complete discretion.
The Trust is intended as a "grantor" trust under the Internal
Revenue Code and the establishment and funding of such Trust is
not intended to cause Participants to realize current income on
amounts contributed thereto, and the Trust shall be so
interpreted.
ARTICLE VI
TERMINATION OF BENEFITS
6.01 Termination of Benefits. Notwithstanding any provision
under this Plan to the contrary, upon the occurrence of one or
more of the following events, an individual shall immediately
cease to be a Participant hereunder and no Plan benefits shall be
payable to him, and, where indicated below, such individual shall
immediately repay any Plan benefits previously received by him:
(a) during the applicable Benefit Continuation Period,
Participant accepts employment with a System Company;
(b) Participant elects to receive the benefits of any other
voluntary or involuntary severance or separation program
(excluding any qualified or non-qualified retirement or deferred
compensation plans) maintained by any System Company, provided,
however, that receipt of any benefits under the terms of any
retention plan or agreement shall not be deemed to be the receipt
of severance or separation benefits for purposes of this section;
(c) without Employer permission, Employee removes, copies, or
fails to return if he or she has already removed, any property
belonging to one or all of the System Companies, including, but
not limited to, the original or any copies of any records,
computer files or disks, reports, notes, documents, files, audio
or video tapes, papers of any kind, or equipment provided by any
one or all of the System Companies or created using property of
or for the benefit of one or all of the System Companies;
(d) during Participant's employment and for 2 years thereafter,
other than as authorized by a System Company or as required by
law or as necessary for the Participant to perform his duties for
a System Company employer, Participant shall disclose to any
person or entity any non-public data or information concerning
any System Company, in which case Participant shall be required
to repay any Plan benefits previously received by him.
Disclosure of information pursuant to subpoena, judicial process,
or request of a governmental authority shall not be deemed a
violation of this provision, provided that Participant gives the
System Company immediate notice of any such subpoena or request
and fully cooperates with any action by System Company to object
to, quash, or limit such request; or
(e) Participant engages in any employment (without the prior
written consent of his last System Company employer) either
individually or with any person, corporation, governmental agency
or body, or other entity in competition with, or similar in
nature to, any business conducted by any System Company at any
time within the Applicable Period (defined below) and commencing
upon termination of employment, 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 Applicable Period, in which case
Participant shall be required to repay any Plan benefits
previously received by him. For purposes of this section 6.01
(e), Applicable Period shall mean:
(1) two (2) years for Participants at System Management Levels 1
and 2 at the commencement of the Change in Control Period,
provided, however, that the two-year Applicable Period shall be
extended to three (3) years if otherwise permissible
under applicable law;
(2) two (2) years for Participants at System Management Level 3
at the commencement of the Change in Control Period; and
(3) one (1) year for Participants at System Management
Level 4 at the commencement of the Change in Control
Period.
However, if the stated Applicable Periods described
herein shall be impermissible under applicable law, then
the Applicable Period for purposes of this Plan shall be
the maximum time period allowed under applicable law for
a covenant not to compete.
ARTICLE VII
PLAN ADMINISTRATION
7.01 Administration of Plan. The Administrator shall operate
and administer the Plan and, as such, shall have the authority as
Administrator to exercise the powers and discretion conferred on
it by the Plan, including the right to delegate any function to a
specified person or persons. The Administrator shall discharge
its duties for the exclusive benefit of the Participants and
their Beneficiaries.
7.02 Powers of the Administrator. The Administrator and any of
its delegees shall administer the Plan in accordance with its
terms and shall have all powers, authority, and discretion
necessary or proper for such purpose. In furtherance of this
duty, the Administrator shall have the sole and exclusive power
and discretion to make factual determinations, construe and
interpret the Plan, including the intent of the Plan and any
ambiguous, disputed or doubtful provisions of the Plan. All
findings, decisions, or determinations of any type made by the
Administrator, including factual determinations and any
interpretation or construction of the Plan, shall be final and
binding on all parties and shall not be disturbed unless the
Administrator's decisions are arbitrary and capricious. The
Administrator shall be the sole judge of the standard of proof
required in any claim for benefits and/or in any question of
eligibility for a benefit. By way of example, the Administrator
shall have the sole and exclusive power and discretion:
(a) to adopt such rules and regulations as it shall deem
desirable or necessary for the administration of the Plan on a
consistent and uniform basis;
(b) to interpret the Plan including, without limitation, the
power to use Administrator's sole and exclusive discretion to
construe and interpret (1) the Plan, (2) the intent of the Plan,
and (3) any ambiguous, disputed or doubtful provisions of the
Plan;
(c) to determine all questions arising in the administration of
the Plan including, but not limited to, the power and discretion
to determine the rights or eligibility of any Employee,
Participant, Beneficiary or other claimant to receive under the
Plan;
(d) to require such information as the Administrator may
reasonably request from any Employee, Participant, Beneficiary or
other claimant as a condition for receiving any benefit under the
Plan;
(e) to grant and/or deny any and all claims for benefits, and
construe any and all issues of Plan interpretation and/or fact
issues relating to eligibility for benefits;
(f) to compute the amount and determine the manner and timing of
any benefits payable under the Plan;
(g) to execute or deliver any instrument or make any payment on
behalf of the Plan;
(h) to employ one or more persons to render advice with respect
to any of the Administrator's responsibilities under the Plan;
(i) to direct the Employer concerning all payments that shall be
made pursuant to the terms of the Plan; and
(j) to make findings of fact, to resolve disputed fact issues,
and to make determinations based on the facts and evidence
contained in the administrative record developed during the
claims review procedure.
For any acts not specifically enumerated above, when
applying, construing, or interpreting any and all Plan
provisions and/or fact questions presented in claims for
benefits, the Administrator shall have the same
discretionary powers as enumerated above.
7.03 Reliance on Reports and Certificates. The Administrator
may rely conclusively upon all tables, valuations, certificates,
opinions and reports furnished by an actuary, accountant, counsel
or other person who may from time to time be employed or engaged
for such purposes.
7.04 Claims Administration. The Administrator may appoint and,
in its sole discretion, remove a Claims Administrator and/or
Claims Appeal Administrator to administer claims for benefits
under the Plan in accordance with its terms, and, pursuant to
section 7.02, such delegees shall have all powers, authority, and
discretion necessary or proper for such purpose. In the absence
of such appointment, the Administrator shall be the Claims
Administrator and Claims Appeal Administrator.
7.05 Filing Benefit Claims. Any claim asserting entitlement to a
benefit under the Plan must be asserted within ninety (90) days
after the event giving rise to the claim by sending written
notice of the claim to the Claims Administrator. The written
notice of the claim must be accompanied by any and all documents,
materials, or other evidence allegedly supporting the claim for
benefits. If the claim is granted, the claimant will be so
notified in writing by the Claims Administrator.
7.06 Claim of Good Reason or Cause for Termination. For purposes
of any determination regarding the existence of Good Reason or
Cause for termination during a Change in Control Period, any
position taken by the Participant shall be presumed correct
unless Employer establishes to the Administrator by clear and
convincing evidence that such position is not correct.
7.07 Denial or Partial Denial of Benefit Claims. If the Claims
Administrator denies a claim for benefits in whole or part, the
Claims Administrator shall notify the claimant in writing of the
decision within ninety (90) days after the Claims Administrator
has received the claim. In the Claim Administrator's sole
discretion, the Claims Administrator may extend the time to
decide the claim for an additional ninety (90) days, by giving
written notice of the need for such an extension any time prior
to the expiration of the initial ninety-day period. The Claims
Administrator, in its sole discretion, reserves the right to
request specific information from the claimant, and reserves the
right to have the claimant examined or tested by person(s)
employed or compensated by the Plan. If the claim is denied or
partially denied, the Claims Administrator shall provide the
claimant with written notice stating:
(a) the specific reasons for the denial of the claim (including
the facts upon which the denial was based) and reference to any
pertinent plan provisions on which the denial is based;
(b) if applicable, a description of any additional material or
information necessary for claimant to perfect the claim and an
explanation of why such material or information is necessary; and
(c) an explanation of the claims review appeal procedure
including the name and address of the person or committee to whom
any appeal should be directed.
7.08 Appeal of Claims That Are Denied or Partially Denied. The
claimant may request review of the Claims Administrator's
denial or partial denial of a claim for Plan benefits. Such
request must be made in writing within sixty (60) days after
claimant has received notice of the Claims Administrator's
decision and shall include with the written request for an
appeal any and all documents, materials, or other evidence
which claimant believes supports his or her claim for
benefits. The written request for an appeal, together with
all documents, materials, or other evidence which claimant
believes supports his or her claim for benefits should be
addressed to the Claims Administrator, who will be
responsible for submitting the appeal for review to the
Claims Appeal Administrator.
7.09 The Appeal Process. The Claims Administrator will submit
the appeal to the Claims Appeal Administrator for review of
the denial or partial denial of the claim. Within sixty
(60) days after the receipt of claimant's appeal, claimant
will be notified of the final decision of the Claims Appeal
Administrator, unless, in the Claims Appeal Administrator's
sole discretion, circumstances require an extension of this
period for up to an additional sixty (60) days. If such an
extension is required, the Claims Appeal Administrator shall
notify claimant of this extension in writing before the
expiration of the initial 60-day period. During the appeal,
the Claims Appeal Administrator, in its sole discretion,
reserves the right to request specific information from the
claimant, and reserves the right to have the claimant
examined or tested by person(s) employed or compensated by
the Plan. The final decision of the Claims Appeal
Administrator shall set forth in writing the facts and plan
provisions upon which the decision is based. All decisions
of the Claims Appeal Administrator are final and binding on
all employees, Participants, their Beneficiaries, or other
claimants.
7.10 Judicial Proceedings for Benefits. No claimant may file
suit in court to obtain benefits under the Plan without
first completely exhausting all stages of this claims review
process. In any event, no legal action seeking Plan
benefits may be commenced or maintained against the Plan
more than ninety (90) days after the Claims Appeal
Administrator's decision on appeal.
ARTICLE VIII
AMENDMENT AND TERMINATION
8.01 General. The Board of Directors shall have the right, in
its absolute discretion, at any time and from time to time, to
modify or amend, in whole or in part, any or all of the
provisions of this Plan, or suspend or terminate it entirely,
subject to the provisions of Section 8.02 hereof. The provisions
of this Article VIII shall survive a termination of the Plan
unless such termination is agreed to by the Participants.
8.02 Restrictions on Amendment or Termination. Any amendment or
modification to, or the termination of, the Plan shall be subject
to the following restrictions:
(a) No amendment, modification, suspension or termination of the
Plan may reduce the amount of benefits or adversely affect the
manner of payment of benefits of any Participant or Beneficiary
then receiving benefits in accordance with the terms of Article
IV, unless such modification is agreed to in writing and signed
by the affected Participant or Beneficiary and by the Plan
Administrator, or by their legal representatives and successors;
and
(b) No provision of this Plan may be modified, waived, or
discharged during the 2-year period commencing on the date of a
Potential Change in Control unless such modification, waiver, or
discharge is agreed to in writing and signed by the affected
Participant and by the Plan Administrator, or by their legal
representatives and successors.
8.03 Successors. A System employer shall require any successor
(whether direct or indirect, by purchase, merger, consolidation,
or otherwise) of all or substantially all of its business and/or
assets to expressly assume and agree to perform this Plan in the
same manner and to the same extent that the System employer would
be required to perform it if no such succession had taken place.
Failure of the System employer to obtain such assumption and
agreement prior to the effectiveness of any such succession shall
be a breach of this Plan and shall entitle each Participant to
compensation from the System employer in the same amount and on
the same terms as they would be entitled hereunder if terminated
voluntarily for Good Reason, except for the purposes of
implementing the foregoing, the date on which any such succession
becomes effective shall be deemed the effective date of
termination. Any successor or surviving entity that assumes or
otherwise adopts this Plan as contemplated in this Section 8.03
shall succeed to all the rights, powers and duties of the
Employer and the Board of Directors hereunder, subject to the
restrictions on amendment or termination of the Plan as set forth
in Section 8.02.
ARTICLE IX
MISCELLANEOUS
9.01 No Alienation. The benefits provided hereunder shall not be
subject to alienation, assignment, pledge, anticipation, attachment,
garnishment, receivership, execution or levy of any kind, including
liability for alimony or support payments, and any attempt
to cause such benefits to be so subjected shall not be
recognized, except to the extent as may be required by law.
9.02 No Mitigation. If the Participant's employment with his
Employer terminates during a Change in Control Period, the
Participant is not required to seek other employment or to
attempt in any way to reduce any amounts payable to the
Participant by the Employer pursuant to Article IV hereof.
Further, the amount of any payment or benefit provided for under
this Plan shall not be reduced by any compensation earned by the
Participant as the result of employment by another employer, by
retirement benefits, by offset against any amount claimed to be
owed by the Participant to the System, or otherwise.
9.03 Indemnification. To the extent not covered by insurance, or
if there is a failure to provide full insurance coverage for any
reason, and to the extent permissible under applicable laws and
regulations, the System employers agree to hold harmless and
indemnify Administrator and its members against any and all
claims and causes of action by or on behalf of any and all
parties whomsoever, and all losses therefrom, including, without
limitation, costs of defense and attorneys' fees, based upon or
arising out of any act or omission relating to or in connection
with the Plan and Trust other than losses resulting from any such
person's fraud or willful misconduct.
IN WITNESS WHEREOF, Entergy Corporation has caused this Plan to
be executed by its duly authorized officer on this __ day of
________, 2000, but effective as of the Effective Date set forth
herein.
ENTERGY CORPORATION
through the undersigned duly authorized
representative
_____________________________________
C. GARY CLARY
Senior Vice-President,
Human Resources and Administration
for Entergy Services, Inc.
APPENDIX A
PROTOTYPE PARTICIPANT APPLICATION