Exhibit 10(a)70
SUPPLEMENTAL RETIREMENT PLAN
OF ENTERGY CORPORATION AND SUBSIDIARIES
(As Amended and Restated Effective January 1, 2000)
Entergy Corporation previously established the Supplemental
Retirement Plan of Entergy Corporation and Subsidiaries. Since
that time the Board of Directors of Entergy Corporation has
amended the plan from time to time, including the amendment and
restatement effective July 26, 1996 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 January 1, 2000.
PURPOSES
The Supplemental Retirement Plan of Entergy Corporation and
Subsidiaries has as its purposes attracting, retaining and
motivating 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 designated
beneficiaries. The Plan is also designed to make available to
the Employer, subsequent to the Employee's Retirement from
Service or Separation from Service, as applicable, and subject to
the Employee's 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 meanings 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 "Average Basic Annual Salary" shall mean the Participant's
average Basic Annual Salary for the highest consecutive five
Years of Service during the ten Years immediately preceding
the earlier of his date of death, Retirement from Service or
Separation from Service (or in the event the Participant has
not completed five consecutive Years of Service upon his
death or Normal Retirement Date, "Average Basic Annual
Salary" shall mean the Participant's average Basic Annual
Salary for his actual consecutive Year(s) of Service
immediately prior to his date of death or Normal Retirement
Date; provided, however, that if a Participant shall have
retired on his Deferred Retirement Date, the Participant's
Average Basic Annual Salary shall not be less than the
Participant's Average Basic Annual Salary determined as
though the Employee's Retirement from Service had occurred
on his Normal Retirement Date.
1.03 "Basic Annual Salary" shall mean the Employee's regular
annual cash earnings from all System Companies, exclusive of
any bonus, overtime or other special payments, but including
the amount, if any, the Participant elects to defer under:
(a) a cash or deferred arrangement qualified under Code
Section 401(k); (b) a cafeteria plan under Code Section 125;
(c) the Executive Deferred Compensation Plan of Entergy
Corporation and Subsidiaries, or any successor or
replacement plan; and (d) any other nonqualified deferred
compensation plan, agreement, or arrangement in which the
Participant may participate or to which the Participant may
be a party.
Notwithstanding anything stated in the Plan to the contrary
and solely for purposes of calculating benefits under the
Plan, "Basic Annual Salary" for any year commencing on or
after January 1, 1995, shall mean the Employee's regular
annual cash earnings from all System Companies, exclusive of
overtime or other special payments, but including any and
all bonuses or other incentive compensation paid pursuant to
the terms of the Executive Annual Incentive Plan and
Management Incentive Plan, as such plans are from time to
time amended, and also including the amount, if any, the
Participant elects to defer under: (a) a cash or deferred
arrangement qualified under Code Section 401(k); (b) a
cafeteria plan under Code Section 125; (c) the Executive
Deferred Compensation Plan of Entergy Corporation and
Subsidiaries, or any successor or replacement plan; and (d)
any other nonqualified deferred compensation plan,
agreement, or arrangement in which the Participant may
participate or to which the Participant may be a party.
Nothing stated herein shall be construed as an amendment to
any qualified plan maintained by a System Company.
1.04 "Beneficiary" shall mean any individual or entity so
designated by the Participant, or, if the Participant does
not designate a Beneficiary or if the Beneficiary
predeceases the Participant, the Beneficiary shall mean the
Participant's estate.
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 25 percent 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 determined in
accordance with Section 3.03.
1.12 "Early Retirement Date" shall mean the date determined in
accordance with Section 3.02.
1.13 "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.
1.14 "Employer" shall mean the System Company with which the
Employee is last employed on or before the Employee's Retirement
from Service.
1.15 "ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended.
1.16 "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.
1.17 "Income Commencement Date" shall mean the first day of the
first month next following the Participant's date of death,
Normal Retirement Date, Early Retirement Date, or Deferred
Retirement Date in accordance with Sections 3.01, 3.02, and 3.03,
respectively. The "Income Commencement Date" of a Participant who
Separates from Service shall mean the applicable date set forth
in Section 4.03 or 4.04.
1.18 "Normal Retirement Date" shall be the Employee's 65th
birthday.
1.19 "Participant" shall mean an Employee who (a) has executed a
written Participant Application that has been accepted by the
Administrator, and (b) remains eligible for participation in
accordance with the applicable provisions of the Plan including,
without limitation, Section 6.01.
1.20 "Participant Application" shall mean the written application
between an Employee and the Administrator evidencing Employee's
participation in this Plan, 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.
1.21 "Personnel Committee" shall mean the Personnel Committee of
the Board of Directors.
1.22 "Plan" shall mean this Supplemental 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.
1.23 "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).
1.24 "Prior Plan" shall mean the Supplemental Retirement Plan of
Entergy Corporation and Subsidiaries, as amended and
restated effective July 26, 1996, 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.
1.25 "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; 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.
1.26 "Retirement from Service" shall mean the retirement of the
Participant from employment with the Employer in accordance
with Section 3.01, 3.02, or 3.03.
1.27 "Separation from Service" shall mean the separation of the
Participant from employment with the Employer in accordance
with Section 3.04.
1.28 "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.
1.29 "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.
1.30 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).
1.31 "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.
1.32 "Year" shall mean any period of twelve consecutive months.
1.33 "Year of Service" shall mean each year of employment within
the System.
ARTICLE II
PARTICIPATION
2.01 Each Participant shall continue to be a Participant (a)
unless he forfeits his benefits in accordance with Section
6.01; or (b) until the Plan is terminated in accordance with
Article IX hereof, except to the extent otherwise
specifically set forth in Article IX.
ARTICLE III
RETIREMENT AND SEPARATION FROM SERVICE DATES
3.01 Normal Retirement Date. A Participant who shall have
retired from employment with the Employer on his Normal
Retirement Date shall have a nonforfeitable right to his
accrued benefits under the Plan, except as set forth in
Section 6.01. If a Participant continues in employment with
the Employer after his Normal Retirement Date without the
written consent of the Employer, he shall have a forfeiture
event under Section 6.01(b).
3.02 Early Retirement Date. A Participant who attains a minimum
of age 55 with ten or more Years of Service shall retire
prior to his Normal Retirement Date upon the date designated
in a written notice of the Employer to the Participant
requesting the Participant's early retirement. Such notice
shall be delivered to the Participant at least 30 calendar
days prior to the date of retirement designated therein.
The date upon which the Participant retires in accordance
with such notice shall be his Early Retirement Date;
provided, that if the Participant does not retire on the
date designated in such notice, he shall have a forfeiture
event under Section 6.01(b), and the Employer shall have the
right to terminate the Participant from his employment with
the Employer as of the date designated in such notice.
Alternatively, if, upon the written request of the
Participant after having attained a minimum age of 55 with
ten or more Years of Service and with the written consent of
the Employer, the Participant shall retire prior to his
Normal Retirement Date, the date of such retirement shall be
his Early Retirement Date. The Participant shall have a
nonforfeitable right to all of his accrued benefits under
the Plan upon his retirement on his Early Retirement Date,
except as set forth in Section 6.01.
3.03 Deferred Retirement Date. If, with the written consent of
the Employer, a Participant continues his employment with the
Employer after his Normal Retirement Date, the Participant shall
retire upon the date designated in a written notice of the
Employer to the Participant requesting the Participant's
retirement. Such notice shall be delivered to the Participant at
least 30 calendar days prior to the date of retirement designated
therein. The date upon which the Participant retires in
accordance with such notice shall be his Deferred Retirement
Date; provided, that if the Participant does not retire on the
date designated in such notice, he shall have a forfeiture event
under Section 6.01(b), and the Employer shall have the right to
terminate the Participant from his employment with the Employer
as of the date designated in such notice. If, pursuant to such
written consent, a Participant continues his employment with the
Employer after his Normal Retirement Date and if such Participant
shall die while so employed, the date of his death shall be
deemed his Deferred Retirement Date and the Participant's
Retirement from Service shall be deemed to have occurred as of
this Deferred Retirement Date. Alternatively, if, upon the
written request of the Participant and with the written consent
of the Employer, the Participant shall retire after his Normal
Retirement Date, the date of such retirement shall be his
Deferred Retirement Date. The Participant shall have a
nonforfeitable right to his accrued benefits under the Plan upon
his retirement on his Deferred Retirement Date, except as set
forth in Section 6.01.
3.04 Separation from Service Date. The Participant shall separate
his employment with the Employer prior to his Early
Retirement Date upon the date designated in a written notice
of the Employer to the Participant requesting the
Participant's Separation from Service. Such notice shall be
delivered to the Participant at least 15 calendar days prior
to the date of separation designated therein. The date upon
which the Participant separates his employment in accordance
with such notice shall be his Separation from Service Date;
provided, that if the Participant does not separate his
employment with his Employer on the date designated in such
notice, he shall have a forfeiture event under Section
6.01(b), and the Employer shall have the right to terminate
the Participant from his employment with the Employer as of
the date designated in such notice. Alternatively, if, upon
the written request of the Participant and with the written
consent of the Employer, the Participant shall separate his
employment with the Employer prior to his Early Retirement
Date, the date of such separation shall be his Separation
from Service Date. The Participant shall have a
nonforfeitable right to all of his accrued benefits under
the Plan as of his Separation from Service Date, except as
set forth in Section 6.01.
ARTICLE IV
BENEFITS
4.01 Subject to Sections 4.05, 4.06 and 4.07 below, upon the
death of the Participant prior to his Normal Retirement Date
and provided such Participant has not retired on an Early
Retirement Date, his Beneficiary will be provided a monthly
benefit equal to one-half of the benefit the Participant
would have received under the Plan had he lived and
continued to work until his Normal Retirement Date, but
based on the Participant's Average Basic Annual Salary as of
his date of death; provided, however, if a Participant shall
die prior to the completion of one Year of Service, then
such Participant's Beneficiary will be provided a monthly
benefit equal to one-half of the benefit the Participant
would have received had he lived and continued to work until
his Normal Retirement Date and had the Participant's Average
Basic Annual Salary been determined as if he had completed
one Year of Service and received his Basic Annual Salary for
such Year of Service. Such monthly payments will commence
on the Income Commencement Date and will be made to the
Beneficiary for a period of 120 months.
4.02 Subject to Sections 4.05, 4.06 and 4.07 below, upon a
Participant's Retirement from Service, after attaining a
minimum of age 55 with ten or more Years of Service, he will
be paid, beginning as of his Income Commencement Date and
subject to Section 6.01, a monthly benefit equal to .0833
times the sum of:
(a) 1.25% of the Participant's Average Basic Annual Salary for
each of the first ten Years of Service; and
(b) 1.00% of the Participant's Average Basic Annual Salary for
each Year of Service after ten and not more than twenty Years of
Service; and
(c) .75% of the Participant's Average Basic Annual Salary for
each Year of Service in excess of twenty Years of Service.
Provided, however, in no event will the monthly benefit
payable under this Section 4.02 exceed .025 times the
Participant's Average Basic Annual Salary nor will such
monthly benefits be payable for more than 120 months; and
provided, further, that in the case of a Participant whose
Retirement from Service shall occur or be deemed to have
occurred as of his Deferred Retirement Date, for the
purposes of the calculation of "Years of Service" under this
Section 4.02, no Years of Service after his Normal
Retirement Date shall be considered.
4.03 Subject to Sections 4.05, 4.06 and 4.07, upon a
Participant's Separation from Service, after attaining ten
or more Years of Service, he, or the Participant's
Beneficiary in the event of his death, will be paid,
beginning on the first day of the first month coincident
with or next following his Normal Retirement Date and
subject to Section 6.01, a monthly benefit equal to .0833
times the sum of:
(a) 1.25% of the Participant's Average Basic Annual Salary for
each of the first ten Years of Service; and
(b) 1.00% of the Participant's Average Basic Annual Salary for
each Year of Service after ten and not more than twenty Years of
Service; and
(c) .75% of the Participant's Average Basic Annual Salary for
each Year of Service in excess of twenty Years of Service.
Alternatively, the Participant or the Participant's
Beneficiary in the event of his death, may elect to receive
a benefit as early as age 55; however, the benefit that
would have been payable as of his Normal Retirement Date,
computed in accordance with this Section 4.03, shall be
reduced by 1/4 of 1% for each month by which his Income
Commencement Date precedes his Normal Retirement Date.
Provided, however, in no event will the monthly benefit
payable as of the Participant's Normal Retirement Date under
this Section 4.03 exceed .025 times the Participant's
Average Basic Annual Salary nor will such monthly benefits
be payable for more than 120 months.
4.04 Subject to Sections 4.05, 4.06 and 4.07 below, upon the
Participant's Separation from Service, with less than ten
Years of Service, he or the Participant's Beneficiary, in
the event of his death, will be paid, beginning on the first
day of the first month coincident with or next following his
Normal Retirement Date and subject to Section 6.01, a
monthly benefit equal to .0833 times 1.25% of the
Participant's Average Basic Annual Salary for each of his
Years of Service.
Provided, however, in no event will the monthly benefit
payable under this Section 4.04 exceed .025 times the
Participant's Average Basic Annual Salary nor will such
monthly benefits be payable for more than 120 months.
4.05 Effect of Officer Status Demotion. Except as provided
below, if a Participant loses his status as an officer of a
System Company employer (otherwise than for the purpose of
assuming an officer position with another System Company)
("Officer Status Demotion"), the period of employment subsequent
to the date of such Officer Status Demotion shall not be included
in determining such Participant's Years of Service for any
purpose under the Plan including, without limitation, the
calculation of benefits under Sections 4.02, 4.03, and 4.04
above. In the event a Participant experiences an Officer Status
Demotion, his System Company employer may, in its sole
discretion, instruct the Administrator to permit such Participant
to continue the accrual of benefits under the Plan based on the
period of his employment subsequent to the date of his Officer
Status Demotion, provided such Participant remains an Employee as
defined in Section 1.13. If his System Company employer
determines that the Participant may continue to accrue benefits
under the Plan for the period of his employment subsequent to his
Officer Status Demotion, the provisions of this Section 4.05
shall be without effect unless and until such Participant changes
his position again at which time his System Company employer, in
its sole discretion, may again determine if such Participant will
be permitted to continue the accrual of benefits under the Plan.
Unless his System Company employer determines that such
Participant is eligible to continue the accrual of benefits
subsequent to his Officer Status Demotion within sixty days from
the date of such Officer Status Demotion, the calculation of such
Participant's benefits under the Plan shall be subject to the
limitations described under this Section 4.05. If a Participant
whose benefits are limited in accordance with the terms of this
Section 4.05 is subsequently reinstated as an officer of a System
Company, the period of employment subsequent to such
reinstatement shall be included in determining his Years of
Service under the Plan. The provisions of this Section 4.05
shall be effective as of November 1, 1991; provided, however,
that the date of Officer Status Demotion for Participants who
experienced an Officer Status Demotion prior to November 1, 1991,
shall be deemed to be November 1, 1991, for purposes of this
Section 4.05.
4.06 The amount of monthly benefit payable to a Participant or
his Beneficiary under Sections 4.01, 4.02, 4.03 or 4.04 hereof
shall be offset by the lifetime monthly benefit, without regard
to any actuarial reductions, payable to the Participant or
Beneficiary by any System Company as the result of granting
additional years of service credit to such Participant pursuant
to any other non-qualified supplemental or deferred compensation
plan, arrangement or agreement, where applicable.
4.07 Upon the death of a retired separated Participant who had
not received 120 monthly payments under Sections 4.02, 4.03 or
4.04 hereof prior to his death, the Beneficiary will continue to
be paid the same monthly benefit until a total of 120 such
monthly payments have been made on behalf of the Participant.
4.08 In lieu of the monthly benefits payable under Sections 4.02
and 4.07, a Participant who, at the time of his Retirement from
Service, 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 4.08, an optional single-
sum payment that is equal to the present value of the
Participant's benefit determined under Section 4.02 as of the
date of his Retirement from Service. 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, or (2) the date the Participant makes written request to
the 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 4.02 and 4.07 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 Employer.
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.
4.09 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 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) 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 Separates from Service prior to
completing five Years of Service;
(b) if the Participant resigns his employment with the Employer
(otherwise than for the
purpose of transferring to another System Company) prior
to his Separation from Service or Retirement from
Service, or does not Separate or Retire from Service on
the applicable date set forth in Sections 3.01, 3.02,
3.03, and 3.04;
(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 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
(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) 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 or 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; or
(e) 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.
Section 6.01(a) and (b) above shall not apply and shall
not cause a forfeiture if a Participant shall become vested
in his Plan benefits pursuant to Section 7.02.
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 the
Employer, during the period beginning with his Retirement 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
Employer with respect to matters related to his area or areas
of expertise, as considered appropriate by the Employer, and will
consult thereof with the directors and officers of the Employer
and with such other person or persons as the chief executive
officer of the 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 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 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 VII of the Plan:
(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 the Participant) that has not been cured within 30 days
after a written demand for substantial performance is delivered
to the Participant by the board of directors of the Employer,
which demand specifically identifies the manner in which the
board believes that the Participant has not substantially
performed the Participant's duties; or
(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 Participant's part shall be
deemed "willful" unless done, or omitted to be done, by
Participant not in good faith and without reasonable
belief that Participant's act, or failure to act, was in
the best interest of 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 anything stated herein
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 continue to
be subject to forfeiture upon the occurrence of any of the
following:
(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 anything stated herein 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 termination,
then he shall be deemed to have retired on an Early Retirement
Date, his benefit amount shall be determined according to Section
4.02 without regard to that Section's eligibility requirements
and such Participant, or his Beneficiary in the event of his
death, 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; and
(b) if such Participant has not attained age 55 upon
termination, then he shall be deemed to have a Separation from
Service, his benefit amount shall be determined according to
Section 4.03 without regard to that Section's eligibility
requirements and such Participant, or his Beneficiary in the
event of his death, may elect his Income Commencement Date
without the consent of the Employer, which shall be on the first
day of any month coincident with or next following the
Participant's attainment of age 55.
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 under this Plan following a Change in Control be less
than such Participant's benefit 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 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 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 (i) the Plan, (ii) the intent of the Plan,
and (iii) 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 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 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, 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 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
Section 6.01, 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 Sections 6.01 and 7.02, 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 IV
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
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 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 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.