Exhibit 10(a)82
PENSION EQUALIZATION PLAN
OF ENTERGY CORPORATION AND SUBSIDIARIES
(As Amended and Restated Effective January 1, 2000)
Middle South Utilities, Inc. previously established the
Pension Equalization Plan of Middle South Utilities, Inc. to be
effective for active employees who were participants in a
Qualified Plan on or after January 1, 1981. Since that time, the
Board of Directors of Entergy Corporation (formerly Middle South
Utilities, Inc.) has amended the plan from time to time,
including the amendment and restatement effective July 26, 1996,
the amendment effective January 1, 1997, and the amendment
effective March 25, 1998. On October 29, 1999, the Board of
Directors of Entergy Corporation approved, authorized, and
adopted certain changes to the plan that are incorporated into
this amendment and restatement, which is effective as of January
1, 2000.
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 "Beneficiary" shall mean Participant's Beneficiary under the
Qualified Plan.
1.03 "Board of Directors" shall mean the Board of Directors of
Entergy Corporation.
1.04 "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 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 January 1, 2000 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.
1.05 "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.
1.06 "Claims Administrator" shall mean the Administrator or its
designee responsible for administering claims for benefits under
the Plan.
1.07 "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.
1.08 "Code" shall mean the Internal Revenue Code of 1986, as
amended.
1.09 "Combined Benefit" shall mean the combined monthly
retirement income to which a Participant would be entitled under
the Qualified Plan and Section 3.02 of this Plan, computed as
though he elected the Life Annuity Option.
1.10 "Eligible Employee" shall mean an Employee eligible for
participation in this Plan, as set forth in Section 2.01.
1.11 "Employee" shall mean an employee of a System Company
employer.
1.12 "Employer" shall mean the System Company that has adopted
the Plan and with which the Participant is last employed on or
before the Participant's retirement or termination of employment.
1.13 "ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended.
1.14 "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 5% or more in Participant's annual rate of
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 a System Company which would directly or indi
rectly materially reduce any of such benefits or deprive
Participant of any material fringe benefit enjoyed by Participant
immediately prior to the Change in Control, 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
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.
1.15 "Life Annuity Option" shall mean a single life annuity form
of payment for the life of the Participant, regardless of whether
such form of payment is available to Participant.
1.16 "Participant" shall mean an Eligible Employee who satisfies
the requirements for participation in this Plan as set forth in
Section 2.02.
1.17 "Participant Application" shall mean the written
application for Supplemental Credited Service under the Plan
between an eligible Employee and the Administrator, which
application shall be part of the Plan. Participant Applications
executed after January 1, 2000 shall be in substantially the same
form as the attached Appendix A, as may be amended from time to
time by the Administrator.
1.18 "Personnel Committee" shall mean the Personnel Committee of
the Board of Directors.
1.19 "Plan" shall mean this Pension Equalization Plan of Entergy
Corporation and Subsidiaries, as amended from time to time in
accordance with Plan provisions.
1.20 "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 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).
1.21 "Prior Plan" shall mean the Pension Equalization Plan of
Entergy Corporation and Subsidiaries, as amended and
restated effective July 26, 1996 and as amended effective
March 25, 1998, and any prior amendments or amendments and
restatements to such Prior Plan, and any agreements
(including, but not limited to Supplemental Credited Service
Agreements), contracts, or other arrangements with respect
to such Prior Plan.
1.22 "Qualified Plan" shall mean the qualified defined benefit
pension plan maintained by a System Company, as such Qualified
Plan may from time to time be amended, and in which Participant
is a participant.
1.23 "Qualifying Event" shall mean the occurrence of one of the
following within the Change in Control Period:
(a) The Participant's employment is terminated by Employer other
than for Cause (as defined in Section 5.01(a)); or
(b) The 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.
1.24 "Supplemental Credited Service" shall mean additional
service the Administrator, in its sole discretion, may grant to a
Participant in computing his benefit under this Plan after
consideration of Participant's prior service with utilities,
utility service companies, or other employment considered to be
helpful in Participant's work with a System Company as
specifically set forth in and evidenced by the Participant
Application.
1.25 "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 7.03.
1.26 "System Company" shall mean Entergy Corporation and any
corporation whose stock is 80% or more (based on voting power or
value) owned, directly or indirectly, by Entergy Corporation and
any partnership or trade or business which is 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
7.03 of this Plan.
1.27 "System Management Level" shall mean the applicable
management level set forth below:
(a) System Management Level 1 ( Chief Executive Officer and
Chairman of the Board of Entergy Corporation);
(b) System Management Level 2 (Presidents and Executive Vice
Presidents within the System);
(c) System Management Level 3 (Senior Vice Presidents within the
System); and
(d) System Management Level 4 (Vice Presidents within the
System).
1.28 "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
ELIGIBILITY AND PARTICIPATION
2.01 Eligible Employees. An Employee who is a participant in a
Qualified Plan shall be eligible for benefits under this
Plan if his benefits under the Qualified Plan are reduced by
reason of the limitations of Code 415 applicable to the
Qualified Plan. However, only an Employee who is a member
of his System Company employer's select group of management
or highly compensated employees shall be eligible for
benefits under this Plan attributable to (a) the grant of
Supplemental Credited Service; (b) the inclusion of
additional forms of compensation described in Section 3.02
(c); or (c) the maximum limitations imposed on compensation
by Code 401(a)(17).
2.02 Participation. An Eligible Employee shall become a
Participant in the Plan if the Eligible Employee is a
participant in a Qualified Plan. A Participant shall be
eligible to receive Supplemental Credited Service under this
Plan only if he executes a Participant Application and files
it with the Administrator within the time frame established
by the Administrator (as noted on the Participant
Application), and provided that such Participant Application
is approved and accepted in writing by the Administrator.
ARTICLE III
BENEFITS
3.01 General. The benefits under this Plan supercede and replace
entirely any benefits provided under the Prior Plan. No
provision of the Plan shall in any way be construed as any
amendment to any Qualified Plan, and to the extent the
qualified status under federal law of any Qualified Plan is
threatened by any provision of or payment under this Plan,
the Plan shall be automatically reformed to the extent
necessary to ensure the continuation of the qualified status
of the Qualified Plan.
3.02 Plan Benefits (Excluding Supplemental Credited Service
Benefits).
(a) Retirement/Vested Termination Benefit. Subject to the
remaining subsections of this Section 3.02, each Participant,
regardless of whether he has been granted Supplemental Credited
Service, shall receive an additional monthly retirement income
under this Plan in an amount equal to the monthly retirement
income which would have been payable under the Qualified Plan,
without regard to any provisions contained in the Qualified Plan
relating to a maximum limitation on pensions imposed under Code
401 and 415, less the monthly retirement income actually paid
under the Qualified Plan.
(b) Death Benefit. In the event of a Participant's death prior
to the commencement of his monthly retirement income under a
Qualified Plan, the Participant's Beneficiary shall receive an
additional monthly pre-retirement death benefit under this Plan
in an amount equal to the monthly pre-retirement death benefit
that would have been payable under a Qualified Plan, without
regard to any provisions contained in a Qualified Plan, relating
to a maximum limitation on pensions imposed under Code 401 and
415, less the monthly pre-retirement death benefit actually
payable to the Beneficiary under the Qualified Plan.
(c) Earnings. Solely for purposes of determining benefits under
the Plan, the earnings or compensation considered for any year
commencing on or after January 1, 1995, in determining the amount
of monthly retirement income that would have been payable under
any applicable underlying Qualified Plan(s) shall be deemed to
include any and all bonuses or other incentive compensation paid
pursuant to the terms of the Executive Annual Incentive Plan of
Entergy Corporation and Subsidiaries and the Management Incentive
Plan of Entergy Corporation and Subsidiaries, as such plans are
from time to time amended. In addition, the earnings or
compensation considered for any year commencing on or after
January 1, 1997, in determining the amount of monthly retirement
income that would have been payable under any applicable
underlying Qualified Plan(s) shall be deemed to include the
amount of base salary and annual bonuses/incentives, if any, the
Participant elects to defer under the Executive Deferred
Compensation Plan of Entergy Corporation and Subsidiaries, or any
successor or replacement plan and any other nonqualified deferred
compensation plan, agreement, or arrangement in which the
Participant may hereafter participate or be a party thereto.
Nothing stated herein shall be construed as an amendment to the
underlying Qualified Plans.
(d) Qualified Plan Terms Control. Except as otherwise provided
herein, all terms and conditions of the Qualified Plan applicable
to a Qualified Plan retirement benefit or pre-retirement death
benefit shall also be applicable to a supplemental retirement
benefit or pre-retirement death benefit payable under this Plan.
Any benefit provided to a Participant or Beneficiary in
accordance with this Section 3.02 shall be payable under the same
terms as the benefit payable under a Qualified Plan subject,
however, to the approval of the Administrator.
3.03 Supplemental Credited Service Benefits.
(a) Benefit Amount. Subject to the forfeiture provisions of
Section 5.01, a Participant who is granted Supplemental
Credited Service under his Participant Application shall,
in addition to any supplemental retirement benefits
provided under Section 3.02, be entitled to receive,
beginning with the first day of the first month following
Participant's retirement from System employment, either
at Normal Retirement Age (as defined in the Qualified
Plan) or earlier or later than that with the prior
consent of his Employer, an amount equal to the excess of
(1) over the sum of (2) and (3), where (1), (2), and (3)
are as follows:
(1) the Participant's Combined Benefit, but computed as though
he were entitled to have his years of benefit service (as defined
in the Qualified Plan for benefit accrual purposes) increased by
his Supplemental Credited Service;
(2) the Participant's Combined Benefit, computed without regard
to any Supplemental Credited Service; and
(3) if set forth in the Participant Application, the monthly
payment to which the Participant is entitled under the defined
benefit pension plan(s) of Participant's predecessor employer(s),
or their successors or assigns, computed as if the Participant
had elected the Life Annuity Option.
(b) Qualified Plan Terms Control. Except as otherwise
provided herein, all terms and conditions of the
Qualified Plan applicable to a Qualified Plan retirement
benefit or pre-retirement death benefit shall also be
applicable to any Supplemental Credited Service
supplemental retirement benefit or pre-retirement death
benefit payable under this Plan. Any benefit provided to
a Participant or Beneficiary in accordance with this
Section 3.03 shall be payable under the same terms as the
benefit payable under a Qualified Plan subject, however,
to the approval of the Administrator and to Section 5.04.
(c) Death Benefit. In the event a Participant with
Supplemental Credited Service has elected a non-Life
Annuity Option under the Combined Plans and in the event
the Participant predeceases his Beneficiary, the amount
of death benefit payments to the Beneficiary attributable
to the Participant's Supplemental Credited Service shall
be determined by an equivalent actuarial adjustment.
(d) Prior Plan Benefits. The benefits under this Section
3.03 of the Plan supercede and replace entirely any
Supplemental Credited Service benefits provided under the
Prior Plan. If a Participant in the Prior Plan fails to
execute the Participant Application, then such individual
shall be subject to the terms and conditions of the Prior
Plan with respect to any Supplemental Credited Service
benefits, including any forfeiture provisions thereof,
and shall not receive any Supplemental Credited Service
benefits under the terms of this restated Plan.
(e) Forfeiture of Supplemental Credited Service Benefit.
Subject to the provisions of Section 5.02, a Participant
otherwise entitled to a Supplemental Credited Service
benefit under this Plan shall cease to be so entitled,
and Participant shall repay all Supplemental Credited
Service benefits that he may have previously received
hereunder upon the occurrence of one or more of the
following events:
(1) Participant resigns his System employment (other than for
the purpose of transferring to another System Company) prior to
his Normal Retirement Date (as defined in the Qualified Plan); or
(2) Participant is terminated from System employment for cause.
For purposes of this Section 3.03(e), "termination for cause"
shall mean:
(i) a material violation by Participant of any agreement between
Participant and any System Company; or
(ii) a material violation of the employer-employee
relationship existing between Participant and a
System Company employer at the time, including,
without limitation, breach of confidentiality or
moral turpitude; or
(iii) a material failure by Participant to perform the
services required of him pursuant to any agreement
between Participant and any System Company, or, if
there is no such agreement, a material failure by
Participant to perform the reasonable customary
services of an employee holding the type of position
he holds at the time; or
(iv) an act of embezzlement, theft, defalcation,
larceny, material fraud, or other acts of dishonesty
by the Participant; or
(v) a conviction of Participant or Participant's
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 his ability to carry out
his duties or upon the reputation of any System
Company.
3.04 Lump Sum Option. Notwithstanding Sections 3.02(d) and
3.03(b) to the contrary, a Participant who is eligible at
the time of his retirement from service for a Target Award
at a level at or above 40%, and who retires on or after his
Early Retirement Date under the Qualified Plan, may elect,
in lieu of payment of his retirement benefits (as computed
under Sections 3.02(a) and 3.03(a)) in the form of monthly
benefits and subject to the terms and conditions set forth
in this Section 3.04, an optional single-sum payment that is
equal to the present value of the Participant's retirement
benefits determined under Sections 3.02(a) and 3.03(a) as
of the date of his retirement. Present value shall be
computed using the same interest and mortality assumptions
used in the Entergy Corporation Retirement Plan for Non-
Bargaining Employees for computing the present value of
benefits (for purposes of the involuntary cash-out rules) as
of the time such single-sum amount is to be computed. An
eligible Participant's election of the single-sum payment
shall be subject to the following restrictions and
limitations:
(a) such election must be made on or before the earlier of (1)
the date that is ninety (90) days prior to his Normal Retirement
Date under and as defined by the Qualified Plan, or (2) the date
the Participant makes written request to his System Company
employer to retire from service;
(b) any failure by the Participant to make an affirmative
written election hereunder on or before the deadline established
in Subsection (a) above shall constitute a waiver of any right to
elect the single-sum form of benefit, in which case the terms of
Sections 3.02 and 3.03 shall govern to the extent applicable;
(c) Participant may cancel his election for the single-sum form
of benefit at any time prior to the deadline for making such
election as described in Subsection (a), after which date any
such election shall become irrevocable; and
(d) an eligible Participant's election shall be subject to the
written consent of the Administrator.
Under this optional single-sum form of benefit payment, no
further benefit payments of any kind shall be made under the
Plan to the Participant, the Participant's Beneficiary, or
any other person on behalf of the Participant.
ARTICLE IV
SOURCE OF PAYMENTS
4.01 Unfunded Plan. It is a condition of the Plan that
neither a Participant nor any other person or entity shall look
to any other person or entity other than the Employer for the payment
of benefits under the Plan. The Participant or any other person or
entity having or claiming a right to payments hereunder shall rely
solely on the unsecured obligation of the Employer set forth
herein. Nothing in this Plan shall be construed to give the
Participant or any 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 any Employer or in which the Employer may have any
right, title or interest now or in the future. However,
Participant or any such person or entity shall have the
right to enforce his claim against the Employer in the same
manner as any other unsecured creditor of such entity.
Neither a Participant nor his Beneficiary or contingent
annuitant shall have any rights in or against any specific
assets of any System Company.
4.02 Employer Liability. At its own discretion, a System Company
employer 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 employer shall be under no obligation to fund the
benefits provided under this Plan; (b) the investment of
System Company employer 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 employer 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.
4.03 Establishment of Trust. Notwithstanding any provisions of
this Article IV 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 actuarially
equivalent to the total benefits accrued by such System
Company's Plan Participants (including a Participant's
Beneficiary) under the Plan through the date of any such
Change in Control. Actuarial equivalence shall be
determined using the mortality factors set forth in the
Entergy Corporation Retirement Plan for Non-Bargaining
Employees and using the interest rates used by the Pension
Benefit Guaranty Corporation for purposes of determining the
present value of a lump sum distribution on plan termination
(Appendix B to ERISA Regulation Section 2619 or its
successor). If one or more of a System Company's
Participants shall continue to be employed by a System
Company after such a Change in Control, each calendar year
the System Company shall, as soon as possible, but in no
event longer than thirty (30) days following the end of such
calendar year, make an irrevocable contribution to the Trust
in an amount that is necessary in order to maintain a lump
sum amount credited to the System Company's Plan account
under the Trust that is actuarially equivalent to the total
unpaid benefits accrued by the System Company's Participants
as of the end of each applicable calendar year.
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 V
CHANGE IN CONTROL
5.01 Definitions. The following additional definitions shall be
applicable to this Article V:
(a) "Cause" shall mean:
(1) 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 Participant) that has not been cured within thirty (30)
days after a written demand for substantial performance is
delivered to Participant by the board of directors of Employer,
which demand specifically identifies the manner in which the
board believes that Participant has not substantially performed
Participant's duties; or
(2) the willful engaging by the Participant in conduct which is
demonstrably and materially injurious to any System Company,
monetarily or otherwise; or
(3) 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
(4) a material violation by Participant of any agreement
Participant has with a System Company; or
(5) unauthorized disclosure by Participant of the confidences of
any System Company.
For purposes of clauses (1) and (2) 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.
(b) "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
Participant'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.
5.02 Accelerated Vesting. Notwithstanding any Plan provision to
the contrary, if during a Change in Control Period there
should occur a Qualifying Event with respect to a
Participant, Participant shall not cease to be a Participant
and shall, regardless of his vested status under the
Qualified Plan, be fully vested in, and have a non-
forfeitable right to, all benefits accrued under the Plan as
of the date of such Qualifying Event, except that all such
benefits shall be subject to forfeiture upon the occurrence
of any of the following events:
(a) 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; or
(b) during Participant's employment and for two 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, the Participant shall divulge, communicate or
use to the detriment of the Employer or the System, or
use for the benefit of any other person or entity, or
misuse in any way, any confidential or proprietary
information or trade secrets of the Employer or the
System, including without limitation non-public financial
information, know-how, formulas, or other technical data.
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
the 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
(c) 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 5.02(c), 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.
5.03 Benefit Commencement Date. Notwithstanding any Plan
provision to the contrary, if during a Change in Control
Period there should occur a Qualifying Event with respect to
a Participant and if there does not occur a forfeiture event
referenced in Section 5.02, Participant's benefits may
commence, as elected by Participant without the consent of
the Employer, as of the first day of any month after
Participant attains age 55.
5.04 No Benefit Reduction. Notwithstanding any provision of this
Plan to the contrary, an amendment to, or termination of, the
Plan following a Change in Control shall not reduce the level of
benefits accrued under this Plan through the date of any such
amendment or termination.
5.05 Provisions of Referenced Plans. To the extent this Plan
references or incorporates provisions of any other System Company
plan, including, but not limited to, the Entergy Corporation
Retirement Plan for Non-Bargaining Employees, 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 or
successors.
ARTICLE VI
PLAN ADMINISTRATION
6.01 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.
6.02 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.
6.03 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.
6.04 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 6.02, 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.
6.05 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.
6.06 Claim of Good Reason or Cause for Termination. For purposes
of any determination regarding the existence of Good Reason
or Cause (as defined in Section 5.01(a)) for termination
during a Change in Control Period, any position taken by the
Participant shall be presumed correct unless Employer
establishes to the Plan Administrator by clear and
convincing evidence that such position is not correct.
6.07 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 90 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.
6.08 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.
6.09 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.
6.10 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 VII
AMENDMENT AND TERMINATION
7.01 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 7.02 hereof.
The provisions of this Article VII shall survive a
termination of the Plan unless such termination is agreed to
by the Participants.
7.02 Restrictions on Amendment or Termination. Any amendment or
modification to, or the termination of, the Plan shall be
subject to the following restrictions:
(a) Employer shall continue to make payments to any retired
Participant or Beneficiary then entitled to payments as if the
Plan had not been amended, supplemented, modified or terminated;
and
(b) as to any Participant who has not yet begun receiving
monthly benefits under the Plan, the Employer, subject to the
provisions of Section 3.03(e) and 5.02, shall remain obligated to
provide a benefit upon the earlier of the Participant's
retirement or death that is actuarially equivalent to (and
payable for the term of) the accrued benefit earned by the
Participant at the time the Plan is amended, supplemented,
modified or terminated; and
(c) 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
III, 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 or successors;
and
(d) no provision of this Plan may be modified, waived, or
discharged during the two-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 or successors.
7.03 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 7.03 shall succeed to all the
rights, powers and duties of the System employer and the
Board of Directors hereunder, subject to the restrictions on
amendment or termination of the Plan as set forth in this
Article VII. The employment of the Participant who has
continued in the employ of such successor or surviving
entity shall not be deemed to have been terminated or
severed for any purpose hereunder; however, such continued
employment shall not constitute consent to, or a waiver of
rights with respect to, any act or failure to act
constituting Good Reason.
7.04 Dissolution of the Employer. In the event that the Employer
is dissolved or liquidated by reason of bankruptcy,
insolvency or otherwise prior to the Employee's death or
Retirement from Service, without any provision being made
for the continuance of the Plan by a successor to the
business of the Employer or unless another System Company
shall have assumed the obligations of the Employer under the
Plan, the date on which such dissolution or liquidation
occurs shall be deemed to be the non-retired Participant's
Early Retirement Date and the Participant's Retirement from
Service shall be deemed to have occurred on his Early
Retirement Date. At the option of the person entitled
thereto, the actuarial equivalents of such benefits shall be
paid immediately in one lump sum. Upon the date of such
liquidation or dissolution in the case of a retired
Participant or Beneficiary who is receiving benefit payments
under the Plan, the actuarial equivalent of the benefits
then remaining to be paid under the Plan to the Participant
or Beneficiary shall be paid immediately in one lump sum at
the option of the person entitled thereto.
ARTICLE VIII
MISCELLANEOUS
8.01 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.
8.02 Captions. The captions of this Plan are not part of the
provisions of the Plan and shall have no force and effect.
8.03 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.
8.04 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.
8.05 No Right to Employment. This Plan does not confer nor shall
be construed as creating an express or implied contract of
employment.
8.06 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 the 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.
8.07 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.
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 January 1, 2000.
ENTERGY CORPORATION
through the undersigned duly authorized
representative
_____________________________________
C. GARY CLARY
Senior Vice-President,
Human Resources and Administration
for Entergy Services, Inc.