EXHIBIT 10(a)87
SYSTEM EXECUTIVE RETIREMENT PLAN
OF ENTERGY CORPORATION AND SUBSIDIARIES
(As Amended and Restated Effective January 1, 2000)
Entergy Corporation previously established the System
Executive Retirement Plan of Entergy Corporation and
Subsidiaries, which was restated on March 25, 1998 and then again
on December 4, 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 of the Plan, which is effective January 1, 2000.
PURPOSES
The System Executive Retirement Plan of Entergy Corporation
and Subsidiaries has as its purposes attracting, retaining and
motivating certain highly competent eligible employees; and
encouraging personal growth and improvement of personal
productivity. The Plan is designed primarily to aid eligible
employees in providing supplemental post-retirement income for
themselves and their families and after death benefits for their
beneficiaries. The Plan is also designed to make available to
the Employer, subsequent to the Employee's retirement and subject
to the Employee's post-retirement time constraints, the
Employee's knowledge of, and experience with respect to, the
business and operations of the Employer.
ARTICLE I
DEFINITIONS
The following terms shall have the meaning hereinafter
indicated unless expressly provided herein to the contrary:
1.01 "Actuarial Equivalent" shall mean an equivalent amount that
is determined in accordance with the adjustment factors set forth
in Appendix A to the Entergy Retirement Plan, as in effect at the
time of such determination.
1.02 "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.
1.03 "Beneficiary" shall mean the Surviving Spouse of the
Participant or, if the Participant does not have a Surviving
Spouse, the Beneficiary shall mean any individual or entity so
designated by the Participant, or, if the Participant does not
have a Surviving Spouse and does not designate a beneficiary
hereunder, or if the designated beneficiary predeceases the
Participant, the Beneficiary shall mean the Participant's estate.
1.04 "Benefit Base" shall mean that amount defined in Section
2.01, as modified by Section 2.08 in the case of an inactive
Participant, which is payable at or after a Participant's Normal
Retirement Date.
1.05 "Board of Directors" shall mean the Board of Directors of
Entergy Corporation.
1.06 "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 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.
1.07 "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.
1.08 "Claims Administrator" shall mean the Administrator or its
designee responsible for administering claims for benefits under
the Plan.
1.09 "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.
1.10 "Code" shall mean the Internal Revenue Code of 1986, as
amended.
1.11 "Deferred Retirement Date" shall mean the date on which the
Participant elects to Retire from Service but which occurs after
the Normal Retirement Date for such Participant. Notwithstanding
this definition, such date shall constitute the "Deferred
Retirement Date" for purposes of this Plan only to the extent
that the Employer has given its prior written consent for the
Participant to continue his employment beyond the Normal
Retirement Date of such Participant. Such consent may be freely
withheld. Any continuation of employment by the Employee beyond
his Normal Retirement Date without such prior written consent of
the Employer shall be governed by the terms of Section 6.01.
1.12 "Early Retirement Date" shall mean the date on which the
Participant, who has attained the requisite age and number of
years of service required for early retirement under the Entergy
Retirement Plan (as in effect as of the date of any such
election), elects to Retire from Service with the prior written
consent of the Employer (which consent may be freely withheld)
provided that such date precedes the Normal Retirement Date for
any such Participant. Any election by the Participant to Retire
from Service on or after his Normal Retirement Date shall not be
deemed an Early Retirement Date, but shall be governed, to the
extent applicable, by Sections 1.11 and 1.23, respectively.
1.13 "Early Retirement Reduction Factor" shall mean the factor or
percentage under Section 6.3 of the Entergy Retirement Plan, as
from time to time amended, by which the Benefit Base of a
participant under the Entergy Retirement Plan shall be reduced
for each month the Participant's Early Retirement Income
Commencement Date precedes his Normal Retirement Date.
1.14 "Employee" shall mean an employee of a System Company who is
selected by the Administrator to participate in the Plan as a
member of a System Company employer's select group of management
or highly compensated employees.
1.15 "Employer" shall mean the System Company with which the
Employee is last employed on or before the Employee's Retirement
or Separation from Service.
1.16 "Entergy Retirement Plan" shall mean the Entergy Corporation
Retirement Plan for Non-Bargaining Employees or any successor to
such plan as may from time to time be established by Entergy
Corporation for the benefit of non-bargaining employees of
Entergy Corporation and other System Companies. In the event
that any such Entergy Retirement Plan is terminated as to the non-
bargaining employees of Entergy Corporation and System Companies
and no successor plan is established with respect thereto, the
term "Entergy Retirement Plan" shall mean the qualified defined
benefit plan in the form last sponsored by Entergy Corporation on
or before the date of any such termination.
1.17 "ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended.
1.18 "Final Monthly Compensation" shall mean 1/12th of the amount
equal to the Participant's Final Three-Year Average Annual
Compensation.
1.19 "Final Three-Year Average Annual Compensation" shall mean
one-third (1/3) of the sum of (a) and (b) for the three (3)
separate annual determination dates (which dates shall be the
respective dates on which the annual Incentive Award is payable
to the Participant) within the ten (10) years immediately
preceding the Participant's date of death, Retirement or
Separation from Service in which the sum of (a) and (b) is the
greatest, where (a) is the annual Incentive Award payable to the
Participant on the applicable annual determination date
(regardless of whether the annual Incentive Award is paid to, or
deferred by, the Participant), and (b) is the Participant's
annual base salary in effect on such annual determination date
from the Employer, or from any other System Company, including
the amount of base salary, if any, such Participant defers under
any non-qualified arrangement, a cash or deferred arrangement
qualified under Section 401(k) of the Code, or under any
cafeteria plan under Section 125 of the Code. An inactive
Participant's "Final Three-Year Average Annual Compensation"
shall be determined in accordance with this Section 1.19, as
modified by Section 2.08. If a Participant becomes permanently
disabled and qualifies for monthly benefits under any long-term
disability plan sponsored by a System Company, for any Year
preceding the date on which the Participant elects to Retire
under this Plan and for which the Participant received monthly
disability payments under such long-term disability plan, for
purposes of this Section 1.19 his annual base salary for each
such Year shall be the Participant's annual base salary in effect
on the date immediately preceding the disabling event, and his
annual Incentive Award for each such Year shall be the amount
that would have been payable to Participant for each such Year
based on his Target Award percentage and rate of annual base
salary in effect on the date immediately preceding the disabling
event.
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 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; or
(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.
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 "Income Commencement Date" shall mean the first day of the
first month next following the Participant's date of death,
Normal Retirement Date, Deferred Retirement Date, or Early
Retirement Date in accordance with Sections 2.02, 2.03, and 2.04
respectively. The "Income Commencement Date" of a Participant
who Separates from Service shall mean the applicable date set
forth in Section 2.05.
1.22 "Incentive Award" shall mean the incentive award that a
Participant may become eligible to receive under the terms of the
Executive Annual Incentive Plan of Entergy Corporation and
Subsidiaries or other comparable incentive plan that the
Administrator may from time to time recognize as an "Incentive
Award" for purposes of this Plan.
1.23 "Normal Retirement Date" shall mean the Employee's 65th
birthday, or such earlier date as may be established from time to
time under the Entergy Retirement Plan as the earliest date on
which an unreduced benefit shall become payable under such plan.
1.24 "Other Employer Plans" shall mean all other non-qualified
defined benefit retirement income or pension plans, trusts, or
other arrangements sponsored by any System Company (including,
but not limited to, any benefits under Supplemental Credited
Service Agreements, the Pension Equalization Plan, the
Supplemental Retirement Plan, and the Post-Retirement Plan) under
which the Participant may have an earned or accrued benefit in
effect at the time of his Retirement or Separation from Service.
Such term shall not include: any tax-qualified employee pension
plans; any profit-sharing, stock bonus or other defined
contribution plans; the Gulf States Utilities Company Executive
Income Security Plan; the Gulf States Utilities Company Executive
Continuity Plan; and the Gulf States Utilities Company
Nonqualified Deferred Compensation Plan for Officers, Nonemployee
Directors and Designated Key Employees.
1.25 "Participant" shall mean an Employee who (1) is eligible for
a Target Award at a level at or above 40% of base salary as from
time to time defined in the Executive Annual Incentive Plan of
Entergy Corporation and Subsidiaries; (2) has executed a written
Participant Application that has been accepted by the
Administrator, if the Employee was not a Participant immediately
prior to March 25, 1998; and (3) remains eligible for
participation in accordance with the applicable provisions of the
Plan including, without limitation, Section 6.01. Subject to the
terms and conditions set forth in Section 2.08 and elsewhere in
the Plan, the term "Participant" shall include an inactive
Participant, as described in Section 2.08.
1.26 "Participant Application" shall mean the written application
between an Employee and the Administrator evidencing Employee's
participation in this Plan, and, if applicable, evidencing any
additional Years of Service imputed to Employee under the Plan,
which application shall be part of the Plan. Participant
Applications executed after January 1, 2000 shall be in
substantially the same form as those attached as Appendix B, as
may be amended from time to time by the Administrator.
1.27 "Personnel Committee" shall mean the Personnel Committee of
the Board of Directors.
1.28 "Plan" shall mean this System Executive Retirement Plan of
Entergy Corporation and Subsidiaries and any amendments,
supplements, or modifications from time to time made hereto. Any
Participant Applications entered into pursuant to this Plan shall
be deemed part of the Plan.
1.29 "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).
1.30 "Prior Plan" shall mean the System Executive Retirement Plan
of Entergy Corporation and Subsidiaries, as amended and restated
effective December 4, 1998, and any prior amendments or
amendments and restatements to such Prior Plan, and any
agreements, contracts, or other arrangements with respect to such
Prior Plan.
1.31 "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, as defined in Section 7.01(a); 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.
1.32 "Retirement", "Retires", "Retire," or "Retired from Service"
shall mean the retirement of a Participant from employment with
the Employer in accordance with Article II.
1.33 "Retirement Income" shall mean the monthly benefit payable
to a Participant under the Plan in accordance with Article II.
1.34 "Separation from Service," "Separates from Service," or
"Separated from Service" shall mean the separation of a
Participant from employment with the Employer before attaining
his Normal Retirement Date or Early Retirement Date with the
prior written consent of the Employer.
1.35 "Separation from Service Date" shall mean the date on which
a Participant Separates from Service as defined in Section 1.34.
1.36 "Separation Reduction Factor" shall mean the factor or
percentage under Section 10.1 of the Entergy Retirement Plan, as
from time to time amended, by which the Benefit Base of a
participant under the Entergy Retirement Plan shall be reduced
for each month the Participant's Separation from Service Income
Commencement Date precedes his Normal Retirement Date.
1.37 "Surviving Spouse" shall mean the person to whom the
Participant was legally married as of the date of such
Participant's death.
1.38 "Survivor's Pre-retirement Death Benefit" shall mean that
monthly benefit described under Article IV which is payable to
the Participant's Surviving Spouse in the event the Participant's
death occurs before his Income Commencement Date.
1.39 "System" shall mean Entergy Corporation and all System
Companies, and, except in determining whether a Change in Control
has occurred, shall include any successor thereto as contemplated
in Section 9.03 of this Plan.
1.40 "System Company" shall mean Entergy Corporation and any
corporation 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 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
9.03 of this Plan.
1.41 "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).
1.42 "Target Award" shall mean the target percentage established
by the Personnel Committee under the Executive Annual Incentive
Plan of Entergy Corporation and Subsidiaries with respect to the
Participant.
1.43 "Year" shall mean any period of twelve consecutive months.
1.44 "Year of Service" shall mean each Year of employment within
the System. Except as provided in Section 2.08, if a Participant
becomes permanently disabled and qualifies for monthly benefits
under any long term disability plan sponsored by a System
Company, the term "Year of Service" shall include any Year (but
not beyond the Participant's Normal Retirement Date) preceding
the date on which such Participant elects Retirement under this
Plan and for which the Participant received monthly disability
benefit payments under such long term disability plan.
Additionally, the term "Year of Service" shall include any Years
of imputed service or employment that the Employer may, in its
discretion, grant to a given Participant, as evidenced by the
Participant Application.
ARTICLE II
BENEFITS
2.01 Benefit Base. A Participant's Retirement Income shall be
payable in a form described in Article III below. Except as
otherwise provided in the Plan, such Retirement Income shall be
determined based on a Participant's Benefit Base which shall be
in the form of equal monthly installments payable for the life of
the Participant only, as described in Section 3.01, commencing at
the Participant's Normal Retirement Income Commencement Date.
Except as otherwise provided in Section 2.08, such monthly
Benefit Base shall be equal to:
(a) a percentage of his Final Monthly Compensation, based on the
percentages described in Appendix A attached hereto and made a
part hereof, which percentages, as determined from Appendix A,
shall vary depending on (1) the number of Years of Service the
Participant has completed through the date of Retirement or
Separation from Service, as applicable, and (2) the Target Award
established with respect to the position held by such Participant
as of the date of his Retirement or Separation from Service; less
(b) the amount of any benefit (in the form described below)
which such Participant earned (1) under any other qualified or
non-qualified defined benefit retirement income or pension plan,
trust, or other arrangement sponsored by any System Company
(including, without limitation, the Gulf States Utilities Company
Employees' Trusteed Retirement Plan and the Gulf States Utilities
Company Executive Income Security Plan) or (2) under any
qualified or non-qualified defined benefit retirement income or
pension plans, trusts, or other arrangements sponsored by any
previous employer or any other person, persons or entities for
whom the Participant may have been employed on or before the date
of his Retirement or Separation from Service, regardless of
whether the Participant received a paid up benefit or a cash
payment under such plans in lieu thereof. The benefits
described in this Subsection (b) shall exclude any and all
benefits earned under the following plans: any stock bonus plans,
profit sharing plans, employee stock ownership plans, or other
defined contribution plans; and, except as provided in Section
2.06(b), any Other Employer Plans as to which the Participant has
completely waived all rights. In addition, the benefits
described in Subsection (b) shall exclude any and all benefits
earned under any qualified or non-qualified defined benefit
retirement income or pension plans, trusts, or other arrangements
sponsored by any previous employer or any other person, persons
or entities for whom the Participant may have been employed on or
before he became a Participant under this Plan to the extent the
Participant was not granted service credit under this Plan for
his employment service (with such prior employer) that went into
the computation of the benefits that otherwise would be an
offset amount. For purposes of this Subsection (b), such benefits
shall be expressed as a single life annuity commencing at the
Participant's Normal Retirement Income Commencement Date.
2.02 Normal Retirement Benefit. A Participant who elects to
Retire from the Employer as of his Normal Retirement Date shall
be entitled to a monthly Retirement Income in a form described
under Article III of the Plan, commencing on his Normal
Retirement Income Commencement Date. Except as otherwise
provided in Section 2.08, such Participant's Benefit Base shall
be computed as described in Section 2.01, and, unless the
Participant is eligible and elects an optional form of benefit
under Section 3.02, 3.03, or 3.04, his Retirement Income shall be
equal to that amount. If the Participant is eligible and elects
an optional form of benefit under Section 3.02, 3.03, or 3.04,
such Benefit Base shall be subject to adjustment in accordance
with the terms of the applicable Section.
2.03 Deferred Retirement Benefit. A Participant who elects to
Retire from the Employer as of his Deferred Retirement Date
shall be entitled to a monthly Retirement Income in a form
described under Article III of the Plan, commencing on his
Deferred Retirement Income Commencement Date. Except as
otherwise provided in Section 2.08, such Participant's
Benefit Base shall be computed as described in Section 2.01,
and, unless the Participant is eligible and elects an
optional form of benefit under Section 3.02, 3.03, or 3.04,
his Retirement Income shall be equal to that amount. If the
Participant is eligible and elects an optional form of
benefit under Section 3.02, 3.03, or 3.04, such Benefit Base
shall be subject to adjustment in accordance with the terms
of the applicable Section.
2.04 Early Retirement Benefit. A Participant who elects to
Retire as of his Early Retirement Date shall be entitled to
a monthly Retirement Income in a form described under
Article III of the Plan, commencing on his Early Retirement
Income Commencement Date. Except as otherwise provided in
Section 2.08, such Participant's Benefit Base shall be
computed as described in Section 2.01, but such Benefit Base
shall be reduced by the Early Retirement Reduction Factor
and, unless the Participant is eligible and elects an
optional form of benefit under Section 3.02, 3.03, or 3.04,
his Retirement Income shall be equal to that reduced amount.
If the Participant is eligible and elects an optional form
of benefit under Section 3.02, 3.03, or 3.04, such Benefit
Base shall be subject to further adjustment in accordance
with the terms of the applicable Section.
2.05 Separation Retirement Benefit.
(a) Except as provided in Subsection (b) below,
a Participant who Separates from Service prior
to becoming eligible for an Early
Retirement Benefit under Section 2.04 shall be entitled
to a monthly Retirement Income in a form described under
Article III of the Plan, commencing on the first day of
the first month coincident with or next following his
Normal Retirement Date (which shall be his Income
Commencement Date). Except as otherwise provided in
Section 2.08. such Participant's Benefit Base shall be
computed as described in Section 2.01, and, unless the
Participant is eligible and elects an optional form of
benefit under Section 3.02 or 3.03, his Retirement Income
shall be equal to that amount. If the Participant is
eligible and elects an optional form of benefit under
Section 3.02 or 3.03, such Benefit Base shall be subject
to adjustment in accordance with the terms of the
applicable provision.
(b) Early Commencement. Subject to consent from the Employer,
any Participant who Separates from Service prior to becoming
eligible for an Early Retirement Benefit under Section 2.04 may
elect to commence such monthly Retirement Income on the first day
of any month within the ten (10) years immediately preceding his
Normal Retirement Date (which commencement date shall be his
Income Commencement Date). Any such election must be made in
accordance with rules and regulations as established from time to
time by the Administrator, and shall be made no later than his
Normal Retirement Date; provided that, if such Participant elects
to receive such monthly benefit prior to his Normal Retirement
Date with the consent of his Employer, his Benefit Base shall be
reduced by the Separation Reduction Factor.
2.06 Election of Benefits on Other Employer Sponsored Benefits.
(a) Waiver Required. Notwithstanding any provision stated
herein to the contrary, in
order for a Participant, joint annuitant, or Beneficiary
to receive any benefit under this Plan, such Participant
must expressly waive, revoke, forgive or otherwise
relinquish any and all rights to any benefits under all
Other Employer Plans. As a condition for any benefits
under this Plan, the Participant must further provide the
Administrator with written evidence of any such waiver,
revocation, forgiveness or otherwise relinquishment of
any and all such other rights or benefits under such
Other Employer Plans in such form as the Administrator
may require.
(b) Effect if No Waiver Possible.
Subject to the prior written consent from the
Employer, but only to the extent that any such other
rights or benefits under any such Other Employer Plans
cannot be effectively waived, revoked, forgiven or
relinquished by the Participant, the Employer may, in its
sole and complete discretion, allow any and all benefits
payable hereunder nonetheless to be payable at such times
and in such amounts as described above except that any
such monthly Retirement Income hereunder shall be reduced
or offset by the amount of any such other rights or
benefits that the Participant may otherwise receive on a
monthly basis from such Other Employer Plans.
(c) Actions Inconsistent with Waiver. If, for any
reason, the Participant makes any claim for benefits
under both this Plan and any of such Other Employer Plans
as to which such Participant has executed a waiver,
revocation, forgiveness or relinquishment of rights and
benefits, any and all benefits hereunder shall thereupon
immediately terminate except to the extent agreed to in
writing by the Employer, and the Employer shall
thereafter have the full and complete right to recover
from the Participant any and all benefits paid under the
terms of this Plan through the date of any such
forfeiture together with interest and reasonable
attorneys fees.
2.07 Grandfathered Minimum Benefit. Notwithstanding any Plan
provision to the contrary, a Participant who was participating in
the Plan as of March 25, 1998 (and who thereafter satisfies all
requirements of the Plan necessary for Plan benefits to be
payable to, or on behalf of such Participant), shall be entitled
to have his Plan benefit determined and payable pursuant to the
provisions of the Prior Plan as in effect immediately prior to
March 25, 1998, but based on the Participant's Final Monthly
Compensation and Years of Service determined as of the earlier of
January 1, 2002, or the Participant's date of Retirement or
Separation from Service. Any minimum benefit payable to the
Participant, his joint annuitant, or Beneficiary in accordance
with the immediately preceding sentence shall be in lieu of, and
replace in its entirety, any benefit to which such Participant,
joint annuitant, or Beneficiary otherwise might be entitled under
the terms of the Plan as herein restated.
2.08 Inactive Participant . If an individual remains employed
by his Employer, but is demoted to a position whereby he no
longer satisfies the Participant eligibility criteria set forth
in Section 1.25, such individual shall be considered an inactive
Participant for as long as he remains employed by a System
Company and does not reattain the status of an active
Participant. An individual shall not be credited with Years of
Service under the Plan for those years in which he fails to
satisfy the criteria set forth in Section 1.25 to be an active
Participant. Notwithstanding an provision to the contrary, if an
active Participant becomes an inactive Participant and
subsequently Retires or Separates from Service, in accordance
with the terms and conditions of the Plan, and has not otherwise
forfeited his Plan benefits under Section 6.01, his Benefit Base
under Section 2.01 shall be computed based on: (a) only his Years
of Service as an active Participant; (b) his Final Monthly
Compensation using the ten (10) years immediately preceding the
date he became an inactive Participant to determine his "Final
Three-Year Average Annual Compensation"; and (c) the benefit
offset amount described in Section 2.01(b) that the individual
earned (including while an inactive Participant) as of the date
of his Retirement or Separation from Service. With the written
consent of the Employer, an inactive Participant shall be
eligible to commence receiving his Plan benefit, as computed
above, as of his Early Retirement Date or Separation from Service
Date, provided, however, that such benefit shall be further
reduced by the Early Retirement Reduction Factor or the
Separation Reduction Factor, whichever is applicable, for early
commencement of benefit payments.
2.09 Vesting. Notwithstanding the foregoing, and except as
provided in Article VII and in Article IX, a Participant or an
inactive Participant shall not vest in any benefits under the
Plan any earlier than the date immediately preceding the
Participant's Retirement or Separation from Service, subject to
the other terms and conditions of this Plan.
2.10 Prior Plan Benefits. The benefits under this Plan supercede
and replace entirely any 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, including any
forfeiture provisions thereof, and shall not receive any benefits
under the terms of this restated Plan.
ARTICLE III
AMOUNT AND FORM OF BENEFITS
3.01 Normal Form of Retirement Income. Unless the Participant
makes an election under Section 3.02, 3.03, or 3.04 below,
his Retirement Income shall be payable in the form of a life
only annuity benefit (or an Actuarial Equivalent 50% joint
and survivor annuity if the Participant is legally married
as of his Retirement or Separation from Service). Except
as otherwise provided in Section 2.08 and subject to any
reduction required under Section 2.04 (or Section 2.05(b),
as applicable) for early Retirement or Separation, the
amount of such monthly payments payable as a life only
annuity shall be equal to the Participant's Benefit Base as
determined under Section 2.01.
3.02 Optional Joint and Survivor Annuity.
(a) In lieu of the normal 50% joint and survivor annuity form of
benefit described in Section 3.01 above, a Participant who is
legally married as of his Income Commencement Date may elect,
subject to the terms and conditions set forth in this Section
3.02 and Section 3.05, an optional joint and survivor annuity
which, except as otherwise provided in Section 2.08 and subject
to any reduction required under Section 2.04 (or Section 2.05(b),
as applicable) for early Retirement or Separation, is equal to
the Actuarial Equivalent of the Participant's Benefit Base
determined under Section 2.01. The amount of the monthly annuity
payment to a Surviving Spouse shall be a percentage, designated
by the Participant, of the monthly benefit payment to the
Participant. The designated percentage to be paid to the
Surviving Spouse shall not exceed 100% of the monthly benefit
payment to Participant and shall be subject to the following:
(1) under this optional form of benefit, the benefit payable to
the Participant's Surviving Spouse shall be a percentage
designated by the Participant in an amount equal to 66 2/3%, 75%,
90%, or 100% of the amount of the Participant's monthly payment
(as adjusted for early retirement, as applicable);
(2) at the time the Participant elects this optional form of
benefit, he shall furnish to the Administrator satisfactory proof
of the age of the spouse; and
(3) the Surviving Spouse's benefit under any such optional form
of benefit elected under this Section 3.02 shall terminate on the
death of the Surviving Spouse at any time after the Income
Commencement Date and all rights to a survivor's benefit
hereunder shall thereafter cease.
3.03 Optional Life Annuity 10 Years Certain Option.
(a) In lieu of the normal life only form of benefit (or an
Actuarial Equivalent 50% joint and survivor annuity form of
benefit, if the Participant is legally married) described in
Section 3.01 above, a Participant may elect, subject to the terms
and conditions set forth in this Section 3.03 and Section 3.05,
an optional life annuity 10 year certain option which, except as
otherwise provided in Section 2.08 and subject to any reduction
required under Section 2.04 (or Section 2.05(b), as applicable)
for early Retirement or Separation, is equal to the Actuarial
Equivalent of the Participant's Benefit Base determined under
Section 2.01. Under the optional life annuity 10 year certain
option, the Participant's Retirement Income shall be paid in
equal monthly installments in the form of an annuity for the life
of the Participant with a minimum of 120 monthly payments to the
Participant or, in the event of his death, the Participant's
joint annuitant, determined under Section 3.03(b).
(b) In the event a Participant's legal spouse should survive the
Participant, the unpaid guaranteed monthly payments remaining
payable after the Participant's death during the ten year certain
period shall be paid to such Surviving Spouse. If, at the time
of the Participant's death, there is no Surviving Spouse (e.g.,
the Participant was not legally married as of his Retirement or
Separation from Service) or if the Participant's legal spouse
predeceases the Participant, the remaining unpaid guaranteed
monthly payments payable during the ten year certain period shall
be paid to the Participant's Beneficiary. If the Participant's
Surviving Spouse (or the Participant's Beneficiary who is
eligible in the absence of a Surviving Spouse to receive the
remaining unpaid guaranteed monthly payments payable during the
ten year certain period, as applicable) should die before the end
of the ten year certain period, the remaining unpaid guaranteed
monthly payments payable during the ten year certain period shall
be paid to such person or persons as the Participant's Surviving
Spouse (or, if there was no legal spouse or in the instance where
the legal spouse predeceased the Participant, the Beneficiary)
may have designated in writing to the Administrator prior to the
legal spouse's (or, as applicable, the Beneficiary's) death or,
in the absence of any such beneficiary designation, to the legal
spouse's (or, as applicable, the Beneficiary's) estate. No such
beneficiary designation shall be binding or valid unless filed
with and received by the Administrator on or before the legal
spouse's (or, as applicable, Beneficiary's) death.
(c) Except as provided in Article IV, no benefits shall be paid
under the Plan if the Participant dies before his Income
Commencement Date
3.04 Optional Single-Sum Payment Election for Certain
Participants.
In lieu of the normal life only form of benefit (or an
Actuarial Equivalent 50% joint and survivor annuity form of
benefit, if the Participant is legally married) described in
Section 3.01 above, a Participant who, at the time of his
Retirement, is a full officer of a System Company and is
eligible for a Target Award at a level at or above 40% of
base salary as from time to time defined in the Executive
Annual Incentive Plan of Entergy Corporation and
Subsidiaries, and who retires on or after his Early
Retirement Date may elect, subject to the terms and
conditions set forth in this Section 3.04 and Section 3.05,
an optional single-sum payment which is equal to the present
value of the Participant's Benefit Base determined under
Section 2.01 (and subject to any reduction required under
Section 2.04 for early retirement) as of the date of his
Retirement. Present value shall be computed using the same
interest and mortality assumptions used in the Entergy
Retirement Plan 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. Under this
optional form of benefit payment, no further benefit
payments of any kind shall be made under the Plan to the
Participant, the Participant's legal spouse, or any other
person on behalf of the Participant.
3.05 Restrictions and Limitations on Forms of Benefit.
(a) In addition to the restrictions and limitations set forth in
the preceding sections of this Article III, a Participant's
election of any optional form of benefit available to the
Participant under the Plan shall be subject to the following:
(1) Such election must be made on or before the earlier of (i)
the date that is ninety (90) days prior to his Normal Retirement
Date, or (ii) the date the Participant makes written request to
the Employer to Retire or Separate from Service;
(2) any failure by the Participant to make an affirmative
written election hereunder on or before the deadline established
in Subsection (1) above shall constitute a waiver of any right to
elect an optional form of benefit, in which case the terms of
Section 3.01 shall govern to the extent applicable;
(3) The Participant may cancel his election for such optional
form of benefit at any time prior to the deadline for making such
elections as described in Subsection (1), after which date any
such election(s) shall become irrevocable; and
(4) An eligible Participant's election shall be subject to the
written consent of the Employer.
(b) Under the 50% joint and survivor annuity form of payment, as
well as any optional joint and survivor annuity form of payment,
if the Participant's spouse should predecease the Participant on
or after the Income Commencement Date, there shall be no
survivor's benefit and the Participant shall not thereafter be
entitled to any readjustment to his Retirement Income.
(c) Any survivor's benefit payable under the 50% joint and
survivor annuity form of payment, as well as any optional joint
and survivor annuity form of payment, shall be a monthly benefit
payable over the life of the joint annuitant commencing as of the
first day of the first month next following the date on which the
Participant dies. Except as provided in Article IV, no benefits
shall be paid under the Plan if the Participant dies before his
Income Commencement Date.
ARTICLE IV
PRE-RETIREMENT DEATH BENEFITS
4.01 Pre-Retirement Spouse's Death Benefit.
(a) Upon the death of a married Participant who has been
credited with at least five (5) Years of Service and who dies
before his Income Commencement Date, his surviving legal spouse,
if any, shall be entitled to monthly payments under the Plan for
her lifetime, commencing as of the first day of the month next
following the date on which the deceased Participant would have
attained age 65 had he lived. The amount of each such monthly
benefit shall be in the same amount as the spouse would have
received after the Participant's subsequent death if he had not
died on his actual date of death but instead had:
(1) separated from service on the earlier of the date of his
death or his actual Retirement or Separation from Service;
(2) survived to his Normal Retirement Date;
(3) Retired on his Normal Retirement Date, with the same Final
Monthly Earnings and Years of Service as of his date of death;
(4) elected the 50% joint and survivor annuity form of payment
under the Plan; and
(5) then died immediately thereafter.
(b) The surviving spouse may elect, subject to the written
consent of the Administrator, to have such payments commence at
an earlier date, provided that payments shall not commence before
the date the surviving spouse would be eligible to commence
receiving a pre-retirement spouse's death benefit under the
Entergy Retirement Plan, based on the Participant's years of
vesting service at the date of his death ("Earliest Retirement
Age"). Such payments shall be in the same amount as the
surviving spouse would have received after the Participant's
subsequent death if he had not died on his actual date of death
but instead had:
(1) separated from service on the earlier of his date of death
or his actual Retirement or Separation from Service;
(2) survived to his Earliest Retirement Age;
(3) Retired at his Earliest Retirement Age, with the same Final
Monthly Earnings and Years of Service as of his date of death;
(4) elected the 50% joint and survivor annuity form of payment
under the Plan; and
(5) then died immediately thereafter.
If the deceased Participant was not credited with
at least 10 years of vesting service under the Entergy
Retirement Plan at the time of his death, the Separation
Reduction Factor for early commencement of Retirement
Income shall apply in determining the amount of the pre-
retirement spouse's death benefit described in this
Section 4.01(b). If the deceased Participant was
credited with at least 10 years of vesting service under
the Entergy Retirement Plan at the time of his death,
then except as otherwise provided in Section 4.01(c), the
Early Retirement Reduction Factor for early commencement
of Retirement Income shall apply in determining the
amount of the pre-retirement spouse's death benefit
described in this Section 4.01(b).
(c) Notwithstanding the foregoing provisions of
Section 4.01(b), if a married Participant dies prior to
his Income Commencement Date, but on or after his Early
Retirement Date under the Entergy Retirement Plan, and
his surviving spouse elects to receive the pre-retirement
spouse's death benefit before the Participant would have
attained age 65, the Early Retirement Reduction Factor
for early commencement of Retirement Income shall not
apply in the case of such surviving spouse.
ARTICLE V
SOURCE OF PAYMENTS
5.01 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.
5.02 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.
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
actuarially equivalent to the total benefits accrued by such
System Company's Plan Participants (including a Participant's
Beneficiary or contingent annuitant) 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 VI
FORFEITURES AND BENEFIT REPAYMENTS
6.01 Forfeitures. Except as otherwise provided in Section 7.02
of this Plan, Participant shall cease to be a Participant
hereunder, no benefits under the Plan shall be payable hereunder,
and Participant shall repay all amounts that he may have
previously received hereunder, on and after any of the following
events:
(a) if the Participant continues his employment with the
Employer after his Normal Retirement Date without the prior
written consent of the Employer, which consent may be freely
withheld;
(b) if the Participant voluntarily terminates his employment
with the Employer prior to
his Normal Retirement Date without the prior written
consent of his Employer, which consent may be freely
withheld;
(c) if the Participant is involuntarily terminated by the
Employer for cause, which for purposes of this Section 6.01 shall
mean:
(1) a material violation by Participant of any agreement between
Participant and any System Company; or
(2) 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
(3) a material failure by Participant to perform the services
required by him pursuant to any agreement between Participant
and any System Company, or, if there is no such agreement, a
material failure by the Participant to perform the reasonable,
customary services of an employee holding the type of position he
holds at the time; or
(4) an act of embezzlement, theft, defalcation, larceny,
material fraud, or other acts of dishonesty by the Participant;
or
(5) 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.
(d) except as otherwise provided in Section 2.06, if the
Participant (i) fails to expressly
waive, revoke, forgive or otherwise relinquish any and
all rights to any benefits under all Other Employer Plans
in such form and in accordance with such procedures as
the Administrator may from time to time establish, or
(ii) files a claim under such Other Employer Plans
inconsistent with the waiver filed with the
Administrator;
(e) if the Participant engages in any employment (without
the prior written consent
of his 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 (or its
successor) at any time within the two-year period
commencing at Retirement, Separation from Service, or
other termination of employment, as applicable, 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 the
two-year period;
(f) if during the 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
(g) if the Participant voluntarily terminates his employment or
his employment is terminated with the Employer prior to his
completion of five (5) actual Years of Service or employment with
the System.
6.02 Advisory Services. As a condition for benefits under this
Plan, the Participant must hold
himself available to render advisory services, with his
consent, if so requested by Employer or any System employer
with which he was employed while a Participant in the Plan,
during the period beginning with his Retirement or
Separation from Service, as applicable, and continuing for a
period of ten years thereafter. If the Participant agrees to
render such advisory services, he will make himself
available to the requesting employer with respect to matters
related to his area or areas of expertise, as considered
appropriate by the requesting employer, and will consult
thereof with the directors and officers of the requesting
employer and with such other person or persons as the chief
executive officer of the requesting employer may designate
and will perform such special assignments within his area of
expertise and capability as may be mutually agreed upon with
the chief executive officer of the requesting employer. The
Participant shall control the manner in which he renders
services hereunder and may, at his discretion, decline to
render any such services requested by the requesting
employer if the Participant's time constraints are such that
the rendering of such services would result in an undue
burden upon the Participant. Rendering such advisory
services shall in no way constitute or be construed as
creating an employer/employee relationship, partnership,
joint venture, or other business group or concerted activity
between any requesting employer and Participant, and a
Participant rendering services pursuant to this Section 6.02
shall not on account thereof be entitled to any of the
fringe or supplemental benefits of the requesting employer
or any other System Company, including employee benefit plan
participation.
ARTICLE VII
CHANGE IN CONTROL
7.01 Definitions. The following additional definitions shall be
applicable to this Article VIII:
(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.
7.02 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, the
Participant shall not cease to be a Participant and shall be
fully vested in and shall have a non-forfeitable right to all
benefits accrued under this Plan as of the date of such
Qualifying Event, except that all such benefits shall be subject
to forfeiture upon the occurrence of any event described in
Section 6.01(d) or as follows:
(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;
(b) 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
(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,
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.
7.03 Benefit Amount and Income 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 7.02, the Participant's
benefit amount and Income Commencement Date shall be determined
pursuant to the provisions of this Plan as modified by the
following:
(a) If such Participant has attained age 55 upon the occurrence
of the Qualifying Event, then his benefit amount shall be
determined according to Section 2.04 (subject to Section 2.08 in
the case of an inactive Participant) without regard to that
Section's eligibility requirements and, notwithstanding Section
2.04 or 2.05 to the contrary, such Participant may elect his
Income Commencement Date without the consent of the Employer
which shall be on the first day of any month following the
Participant's termination.
(b) If such Participant has not attained age 55 upon the
occurrence of the Qualifying Event, then his benefit amount shall
be determined according to Section 2.04 (subject to Section 2.08
in the case of an inactive Participant) without regard to the
eligibility requirements of Section 2.04 and, notwithstanding
Section 2.05 to the contrary, such Participant may elect his
Income Commencement Date without the consent of the Employer
which shall be on the first day of any month following the
Participant's attainment of age 55.
(c) In determining the death benefit provided under Article IV,
the Participant will be deemed to have met the ten (10) Years of
Service requirement regardless of his actual Years of Service.
7.04 No Benefit Reduction. Notwithstanding anything stated above
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. In no event shall a Participant's
Benefit Base accrued under this Plan following a Change in
Control be less than such Participant's Benefit Base accrued
under this Plan immediately prior to the Change in Control
Period, subject, however, to the forfeiture provisions referenced
in Section 7.02 as in existence on the date immediately preceding
the commencement date of the Change in Control Period.
7.05 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 Retirement 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 or successors.
ARTICLE VIII
PLAN ADMINISTRATION
8.01 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.
8.02 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.
8.03 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.
8.04 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 8.02, 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.
8.05 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.
8.06 Claims of Good Reason/Cause During Change in Control Period.
Solely for purposes of any determination regarding the existence
of Good Reason or Cause (as defined in Section 7.01(a)) during a
Change in Control Period, any position taken by the Participant
shall be presumed to be correct unless Employer establishes to
the Plan Administrator by clear and convincing evidence that such
position is not correct.
8.07 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 claim has been
received by the Claims Administrator. 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.
8.08 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.
8.09 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, the
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 sixty-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.
8.10 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 IX
AMENDMENT AND TERMINATION
9.01 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 9.02 hereof. The provisions
of this Article IX shall survive a termination of the Plan unless
such termination is agreed to by the Participants.
9.02 Restrictions on Amendment or Termination. Any amendment,
supplement or modification to, or the termination of, the Plan
shall be subject to the following restrictions:
(a) Employer shall continue, subject to the provisions of
Article II and Section 6.01, to make payments to any retired or
separated Participant or Beneficiary then entitled to payments as
if the Plan had not been amended, supplemented, modified or
terminated;
(b) as to any Participant who has not yet begun receiving
monthly benefits under the Plan, the Employer, subject to any
provisions of Article II and Section 6.01 to the contrary, shall
remain obligated to provide a benefit upon the earlier of the
Participant's Early Retirement Date or death that is Actuarially
Equivalent to (and payable for the term of) the accrued benefit
under Article II 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 or 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 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.
9.03 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
Plan benefits from the System Company employer in the same amount
and on the same terms as he 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
9.03 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 Section 9.02. 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.
9.04 Dissolution of the Employer. In the event that a System
employer with which Participant was employed while a Participant
in the Plan is dissolved or liquidated by reason of
bankruptcy, insolvency or otherwise prior to 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 such System employer or unless another
System Company shall have assumed the obligations of such
System 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 Equivalent of
such benefits shall be paid immediately in one lump sum.
Upon the date of such liquidation or dissolution, in the
case of a Beneficiary or retired Participant 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, joint annuitant, or
Beneficiary, as applicable, shall be paid immediately in one
lump sum at the option of the person entitled thereto.
ARTICLE X
MISCELLANEOUS
10.01 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.
10.02 Captions. The captions of this Plan are not part of
the provisions of the Plan and shall have no force and effect.
10.03 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.
10.04 Controlling Law. The administration of the Plan, and
any Trust established thereunder, shall be governed by applicable
federal law, including the 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.
10.05 No Right to Employment. The Plan confers no right upon
any Employee to continue his employment with any employer,
whether or not a System Company.
10.06 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.
10.07 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 amendment
and restatement 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.
APPENDIX A
TARGET AWARD REPLACEMENT RATIOS
All Other Executives with
Years Executives with Target Award
Of Chairman Target Award of Between
Service* and/or CEO 50% or Above 40% & 49%
1 3.3% 3.0% 2.7%
2 6.6% 6.0% 5.4%
3 9.9% 9.0% 8.1%
4 13.2% 12.0% 10.8%
5 16.5% 15.0% 13.5%
6 19.8% 18.0% 16.2%
7 23.1% 21.0% 18.9%
8 26.4% 24.0% 21.6%
9 29.7% 27.0% 24.3%
10 33.0% 30.0% 27.0%
11 36.3% 33.0% 29.7%
12 39.6% 36.0% 32.4%
13 42.9% 39.0% 35.1%
14 46.2% 42.0% 37.8%
15 49.5% 45.0% 40.5%
16 50.6% 46.0% 41.4%
17 51.7% 47.0% 42.3%
18 52.8% 48.0% 43.2%
19 53.9% 49.0% 44.1%
20 55.0% 50.0% 45.0%
21 56.0% 51.0% 46.0%
22 57.0% 52.0% 47.0%
23 58.0% 53.0% 48.0%
24 59.0% 54.0% 49.0%
25 60.0% 55.0% 50.0%
26 61.0% 56.0% 51.0%
27 62.0% 57.0% 52.0%
28 63.0% 58.0% 53.0%
29 64.0% 59.0% 54.0%
30 65.0% 60.0% 55.0%
*Replacement Ratio for fractional years will be determined by
interpolating the difference between the ratio corresponding to
completed years of service and the ratio corresponding to the
next higher year of service.
APPENDIX B
PROTOTYPE PARTICIPANT APPLICATIONS