Exhibit 10(a)76
CONFIDENTIAL SETTLEMENT AGREEMENT
AND RECEIPT AND RELEASE
STATE OF LOUISIANA
PARISH OF ORLEANS
This is a Confidential Settlement Agreement and Receipt and
Release ("Agreement") between, on the one hand, Edwin A.
Lupberger ("Lupberger") and, on the other hand, Entergy
Corporation, Entergy Services, Inc., and any direct and indirect
subsidiary or affiliated entity of either ("Company").
WHEREAS, prior to May 26, 1998, Lupberger served as Chairman
and Chief Executive Officer of the Company; and
WHEREAS, on May 26, 1998, Lupberger requested to begin
transition to retirement by relinquishing both his duties as the
Chairman and Chief Executive Officer of the Company; and
WHEREAS, at a special meeting of the Board of Directors of
the Company on May 26, 1998, it was resolved that the Company
grant Lupberger's request to begin the transition to retirement
and to accept Lupberger's decision to relinquish his duties as
Chairman and Chief Executive Officer of the Company; and
WHEREAS, a dispute has arisen with respect to the period of
transition to retirement contemplated by each of the parties; and
WHEREAS, the Board of Directors of the Company further
resolved on May 26, 1998, to study and decide upon an appropriate
retirement package for Lupberger taking into account the various
benefit plans in effect at the Company, Lupberger's eligibility
thereunder being in some instances undisputed and in other
instances disputed, and also considering a compromise of disputed
claims,
NOW THEREFORE, for and in consideration of the provisions of
this Agreement and the mutual benefits to be derived thereunder
by the parties, Lupberger and the Company agree as follows:
1.a. For and in consideration of the provisions set forth in
paragraphs 2 and 7 below, the undersigned Lupberger does hereby
fully acquit, release and forever discharge Company, its agents,
employees, directors, officers, attorneys, insurers, benefit
plans and the administrators and fiduciaries thereof, and all of
their predecessors, successors, and assigns ("Released Parties")
from any and all claims, causes of action and demands of any
kind, whether known or unknown, and whether asserted or not,
which he has, ever has had, or ever in the future may have, and
which are based on agreements, rights, benefit plans, acts and/or
omissions, existing or occurring up to and including the date
this Agreement is fully executed. The items of consideration set
forth in paragraph 2 are inclusive of any attorney's fees or
costs Lupberger could claim or recover under any statute, common
law theory, civil law theory and/or any other legal theory of
recovery.
b. Lupberger does not waive or release
indemnification and insurance that Lupberger may have pursuant to
indemnification and insurance arrangements of the Company
provided to directors and officers of the Company generally, nor
does Lupberger agree to indemnify the Company for matters for
which he would be indemnified or insured pursuant to such
arrangements.
2. The consideration for this Agreement is all of the
following:
a. All stock and stock options currently vested in
Lupberger are the property of Lupberger and are
unaffected by this Agreement. In accordance with
the terms and conditions of the Equity Ownership
Plan, all options owned by Lupberger must be
exercised no later than six (6) months from
Lupberger's effective retirement date or by
January 31, 1999. As stated in paragraph 3 below,
nothing herein expands or alters the provisions of
the Equity Ownership Plan.
b. Lupberger retires effective August 1, 1998.
c. Lupberger will receive, in accordance with
incentive plan provisions, and if goals are met,
incentive compensation under the three Plans noted
below prorated to August 1, 1998. By illustration
only, the amount of such incentive compensation
reflecting a proration of the "target" levels of
achievement would equate to the following:
$326,700 1998 Annual Incentive Plan
$872,645 1996-1998 Long Term Incentive Plan
(at $27.625 per share and prorated
two-thirds to reflect 1996-1997
performance)
$254,844 1998-2000 Long Term Incentive Plan
(at $27.625 per share)
93,333 options 1998 grant of stock options under the
Equity Ownership Plan. As stated in
paragraph 3 below, nothing herein
expands or alters the provisions of
the Equity Ownership Plan.
d. Lupberger will receive a severance payment as
follows:
$800,000 One year base salary, plus
$538,462 One week for each year of credited
service (35 years which includes
supplemental credited service per
prior agreement), which equals
$1,338,462 Total severance payable in a lump
sum or at the bi-weekly rate of
$30,769.24 until paid, at
Lupberger's option.
The sum of $15,384.62, representing amounts of
miscellaneous payments unrelated to service
performed through July 31, 1998, and paid to
Lupberger after July 31, 1998, through the date
that this Agreement becomes effective and
irrevocable under the terms of paragraph 14 below
shall be credited against and shall reduce the
total severance benefits thereafter due under this
paragraph. Lupberger acknowledges that it is the
Company's position that he had no rights to the
severance payments provided herein, which is in
part given in exchange for the receipt and release
provided herein.
e. Subject to paragraph 3 below and without limiting
the terms and limitations contained in the
Retirement Plan for Non-Bargaining Employees
("Qualified Plan"), and the System Executive
Retirement Plan and supplemental credited service
agreements entered into previously with Lupberger
including the agreement entered into on
January 31, 1986 (collectively referred to as "Non-
Qualified Plans"), Lupberger will also receive the
payments from both the Qualified and Non-Qualified
Plans in an estimated amount equal to the
following:
$4,455.02 Per month from Qualified Plan
beginning August 1, 1998. This is
based on the assumption that
Lupberger elects a single-life
annuity with a ten-year certain
feature form of benefits.
$64,957.76 Per month from Non-Qualified Plans
beginning August 1, 1998. This
assumes a single life annuity with
a ten year certain feature. Under
the terms of this Agreement, the
Company does hereby consent to
Lupberger's early commencement of
benefits under the Non-Qualified
Plans in accordance with the terms
and conditions of such plans.
f. The Non-Qualified Plans have a lump sum feature
which provide Lupberger with the option of a one-
time payment of $9,553,226 rather than receiving
$64,957.76 per month for Lupberger's lifetime.
Any election by Lupberger to receive such Non-
Qualified Plans benefits in a lump sum must be
made in writing prior to the expiration of the
revocation period described in paragraph 14 and,
if so elected, will be paid in accordance with the
terms and conditions of such plans.
g. Lupberger will, effective August 1, 1998, be
entitled to all other benefits, if any,
specifically provided for in the Qualified Plan,
Executive Deferred Compensation Plan, the Equity
Ownership Plan, the Defined Contribution
Restoration Plan, the Savings Plan of Entergy
Corporation and Subsidiaries, the Benefits Plus
Plans, and the Gulf States Utilities ESOP.
Nothing stated herein shall be construed to limit
or restrict Lupberger's participation or benefits
under the Qualified Plan, Executive Deferred
Compensation Plan, the Equity Ownership Plan, the
Defined Contribution Restoration Plan, the Savings
Plan of Entergy Corporation and Subsidiaries, the
Benefits Plus Plans, and the Gulf States Utilities
ESOP subject to the terms and conditions of such
plans.
h. Lupberger will return all Company property in his
possession except his Company-owned personal
computer which computer shall become his personal
property as of the effective date of the
Agreement.
i. Lupberger shall be paid his accrued,
unused vacation pay.
3. Nothing in this Agreement shall be interpreted or
construed as enlarging or reducing any of Lupberger's existing
rights under any benefit plans in effect at the Company. All
payments or benefits under any and all such benefit plans shall
be made strictly in accordance with the written terms and
conditions of said plans. No payments due under this Agreement
including payments which Lupberger has the right to elect to
receive in a lump sum shall be made until after the expiration of
the seven day post-signing period set forth in paragraph 14
hereof except that the Company may, at its option, waive this
provision as to any particular payment decided upon by the
Company and may make such payment prior to the expiration of the
seven day post-signing period.
4. Lupberger agrees that the items referenced in paragraph
1 and set forth in paragraph 2 above are consideration for and
are in full accord, satisfaction and final compromise and
settlement of any rights and/or claims Lupberger may have for
benefits under, or for damages resulting from the Company's
alleged breach of, any employment provision, contract or
agreement, employee benefit plan, severance agreement, incentive
plan, stock option plan or agreement and/or for any alleged
violation of any provision of the Louisiana Employment
Discrimination Law, La. R.S. 23:301, et seq., the Louisiana Wage
Statute, La. R.S. 23:631, et seq., the Employee Retirement Income
Security Act of 1974, 29 U.S.C., 1001, et seq., the Age
Discrimination in Employment Act of 1967, 29 U.S.C. 621, et
seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C.
2000e, et seq., as amended, the Americans with Disabilities Act,
42 U.S.C. 12101, et seq., the Fair Labor Standards Act of 1938,
29 U.S.C. 201, et seq., as well as any other federal, state or
local civil rights, retaliation, pension or welfare benefit,
employment discrimination, employment or labor laws, and/or
contract or tort laws, and any and all other claims for any and
all other monetary, legal and/or equitable relief which are or
may be related to Lupberger's employment with the Company or the
termination of that employment.
5. Lupberger represents and warrants that no person other
than Lupberger is entitled to assert any claims against the
Released Parties based on or arising out of any rights or claims
of any kind or character alleged to belong to Lupberger in or as
a consequence of his employment with the Company, the termination
thereof, or Lupberger's contacts and relationships with the
Released Parties. These representations and warranties shall
survive the execution of this Agreement. Lupberger does not
waive claims that may arise after the date this Agreement is
fully executed and which are based on acts and/or omission
occurring after the date this Agreement is fully executed.
Lupberger also acknowledges that it is his responsibility to
comply with the provisions of the Judgment dated March 23, 1998,
in the matter of Lupberger v. Lupberger, Case No. 97-16285, Civil
District Court for the Parish of Orleans, to the extent said
Judgment may pertain to any consideration set forth in paragraph
2 above.
6. Lupberger hereby agrees to defend entirely at
Lupberger's own expense and to fully indemnify and forever hold
harmless the Released Parties from any and all such claims,
causes of actions or demands that may be brought against the
Released Parties by anyone in connection with any alleged injury
or damage claimed to result from Lupberger's employment with the
Company, Lupberger's termination therefrom and any relationship
between Lupberger and the Released Parties.
7. Lupberger agrees that any payment or other form of
consideration and other terms and conditions set forth in this
Agreement are in compromise and settlement of any disputed claims
relating to the employment of Lupberger by the Company and the
termination of Lupberger's employment, whether said disputed
claims be in tort, contract, or otherwise and that the Company
expressly denies any and all liability for any and all such
disputed claims.
8. Lupberger agrees that he shall not institute, nor be
represented as a party in, any lawsuit, charge, claim, demand,
complaint or other proceeding against or involving the Company
and/or the Released Parties based on Lupberger's employment with
the Company, whether on an individual basis or class action basis
or otherwise, with or in any administrative agency, regulatory,
judicial or other forum, under any federal, state or local laws,
rules, regulations or upon any other basis, based upon any act
and/or omission occurring up to and including the date this
Agreement is fully executed and Lupberger shall not seek or
accept any award or settlement from any such source or
proceeding. If Lupberger institutes, is a party to, or is a
member of any class that institutes any such action, Lupberger's
claims shall be dismissed or class membership terminated with
prejudice immediately upon the presentation and/or filing of this
Agreement in such action; additionally, in that event, Lupberger
agrees that he will pay the Company and/or the Released Parties
their costs, including reasonable attorney's fees, in obtaining
such dismissal of any claims or termination of any class
membership, other than the situation in which he is a member of
the class involuntarily.
9. This Agreement shall not be filed with any Court and
the parties agree that this Agreement may not be introduced in
any proceeding, except (a) to establish conclusively the
settlement and release of all potential claims by Lupberger
against the Company and/or the Released Parties, or a breach of
this Agreement, or (b) as required by applicable laws,
regulations, and rules including, without limitation, any
disclosure requirements promulgated by the Securities and
Exchange Commission, or which exist under securities laws; or
(c) as ordered by any court, judicial, or administrative agency.
10. Lupberger and the Company agree to keep the facts and
particulars of this Agreement confidential and pledge not to
release any information concerning same to any person at any time
before or following the execution of this Agreement, except: (a)
as required by law or lawful process; (b) to secure advice from a
legal or tax advisor; (c) by Lupberger only, to Lupberger's
immediate family or to Lupberger's last divorced wife or her
attorneys; or (d) in a legal action or proceeding by Lupberger or
the Released Parties to enforce the terms of the Agreement. It
is expressly agreed and understood that the provisions of this
paragraph are material terms of this Agreement.
11. Lupberger agrees that Lupberger shall assume all
responsibility for and shall indemnify and hold Company harmless
against any and all claims, losses, damages, liabilities, suits
and actions, judgments, costs, penalties and expenses including,
but not limited to, reasonable attorney's fees and litigation
costs and expenses, resulting from any liability or claim of
liability asserted by any federal, state or local authorities for
improper withholding or failure to pay taxes including, but not
limited to, federal and/or state income taxes and social security
and/or Medicare taxes, with respect to any payment made pursuant
to this Agreement. Lupberger's indemnity shall not extend to the
Company's share, if any, of social security, Medicare, or other
payroll taxes which are normally paid by an employer and not
withheld from an employee's paycheck, to the extent applicable by
law.
12. Lupberger does not now seek, and agrees that Lupberger
will not in the future seek employment or reemployment in any
position or capacity with the Company, except with the expressed
prior written consent of the Company acknowledging the effect of
any such reemployment on the terms of this Agreement. Lupberger
acknowledges and recognizes that Lupberger is not now and will
not in the future be eligible for reemployment by the Company and
that any such application can be rejected pursuant to the terms
of this Agreement. Furthermore, Lupberger shall not, without the
prior written consent of the Company which consent may be freely
withheld, engage in any activity or employment that is contrary
to the interests of the Company or, for a period of two years
after August 1, 1998, which is in direct competition with any
business or business units owned and operated by the Company as
of the date of this Agreement in any place where the Company does
business including, without limitation, any Parish in the State
of Louisiana.
13. The parties agree that neither Lupberger nor the
Company will engage in any communications of any sort, either
internally or with or to third parties, which in any way
disparages or tends to disparage the other, either as statements
of opinion or of fact. Lupberger shall not divulge, communicate
or use to the detriment of the Company, or any of its affiliated
companies, or use for the benefit of any person or entity, or
misuse in any way, any confidential information or proprietary
information or trade secrets of the Company or any of its
affiliated companies, including without limitation non-public
financial information, know-how, formulae or other technical or
operational data. Lupberger agrees that any such information or
data he has acquired was received in confidence and as a
fiduciary of the Company or its affiliated companies.
14. Lupberger acknowledges that Lupberger was given twenty-
one (21) days to review this Agreement from the time Lupberger
received the Agreement, and that Lupberger was advised to review
the Agreement with an attorney of Lupberger's choice. Lupberger
has seven (7) days after signing this Agreement to revoke the
Agreement by notifying the Company in writing and returning any
payments made by the Company pursuant to paragraph 2. Such
notice should be sent to: Daniel Lund, Esq., Montgomery,
Barnett, Brown, Read, Hammond & Mintz, L.L.P., 3200 Energy
Centre, 1100 Poydras Street, New Orleans, Louisiana 70163-3200.
15. This Agreement represents the complete understanding
between the parties to the Agreement. No other promises or
agreements shall be binding or shall nullify this Agreement
unless reduced to writing and signed by the parties hereto, or by
counsel for and on behalf of the parties. Lupberger affirms that
the only consideration for his signing this Agreement is as
stated herein, that no other promise or agreement of any kind has
been made to or with him by any person or entity whatsoever to
cause Lupberger to execute this Agreement, and that Lupberger
fully understands the meaning and intent of this Agreement
including, but no limited to, its final and binding effect.
Lupberger warrants that any attorney's fees or costs due or owing
any attorneys for representation of Lupberger will be paid in
full by Lupberger, and that Lupberger will defend entirely at
Lupberger's own expense and fully indemnify and forever hold
harmless the Released Parties from any actions, claims or demands
against them by any attorney seeking attorney's fees or costs in
connection with legal representation of Lupberger.
16. Lupberger further affirms that he has carefully read
the foregoing "Confidential Settlement Agreement and Receipt and
Release," knows and understands the contents thereof, that
Lupberger executes same as his own free act and deed and it is
his intention that he be legally bound thereby. Lupberger
further affirms that his attorneys have carefully explained the
terms, conditions and final and binding effect of this Agreement
to him, answered his questions fully, and that Lupberger
indicated to his attorneys that he understood the Agreement and
its effect.
17. This Confidential Settlement Agreement and Receipt and
Release may be executed by the parties hereto in several
counterparts, each of which when so executed shall be deemed to
be an original, but all such counterparts shall together
constitute but one and the same instrument, provided, however,
that this act shall not be effective as to any party until
executed by all parties.
18. In the event that any provision of this Agreement
is deemed to be invalid by reason of the operation of any
law, or by reason of the interpretation placed thereon by
any court, this Agreement shall be construed as not
containing such provision and any and all other provisions
hereof which otherwise are lawful and valid shall remain in
full force and effect.
IN WITNESS WHEREOF, the undersigned have hereunto set
their hands this day of , 1998.
WITNESSES:
EDWIN A. LUPBERGER
ENTERGY CORPORATION AND
ENTERGY SERVICES, INC.
BY:
DULY AUTHORIZED
STATE OF LOUISIANA
PARISH OF ORLEANS
VERIFICATION
BEFORE ME, the undersigned Notary, personally came and
appeared,
EDWIN A. LUPBERGER
who, after being duly sworn, did depose and say:
I have read the foregoing Confidential Settlement
Agreement and Receipt and Release and understand the terms
thereof. I have consulted my attorney with regard to this
Agreement. By my signature below, I affirm that I have
signed the foregoing Agreement as my free act and deed for
the purposes stated therein.
EDWIN A. LUPBERGER
SWORN TO AND SUBSCRIBED
BEFORE ME, NOTARY PUBLIC,
THIS DAY OF
, 1998.
NOTARY PUBLIC
STATE OF LOUISIANA
PARISH OF ORLEANS
VERIFICATION
BEFORE ME, the undersigned Notary, personally came and
appeared,
ANTHONY J. CORRERO, III
who, after being duly sworn, did depose and say:
As counsel for Edwin A. Lupberger, I hereby certify
that I have explained the foregoing Confidential Settlement
Agreement and Receipt and Release to my client and that he
understands and voluntarily agrees to its provisions. By
signature below, I affirm that the items of consideration
set forth in paragraph 3 of the Agreement represent
consideration for a full and final settlement of any and all
claims Lupberger may have against the Released Parties
including, but not limited to, claims for attorney's fees
and costs. By signature below, I hereby waive any and all
claims against the above-described Released Parties for any
attorney's fees or costs due or owing myself or my firm as a
result of legal representation in this matter. By signature
below, I agree that I will not disclose to any person or
entity the fact or contents of this Agreement or the
considerations therefor except as specifically provided for
in the Agreement.
ATTORNEY FOR LUPBERGER
SWORN TO AND SUBSCRIBED
BEFORE ME, NOTARY PUBLIC,
THIS DAY OF
, 1998.
NOTARY PUBLIC