Exhibit 10(d)
Form of Notice and Acceptance of Grant of
Nonqualified Stock Options, with variable option price.
[DATE]
[NAME]
[ADDRESS]
Re: Notice and Acceptance of
Grant of Nonqualified Stock Options
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Dear [NAME]:
The Compensation Committee of the Board of Directors (the "Committee") of
Cleco Corporation (the "Company") appointed to administer the Cleco Corporation
2000 Long-Term Incentive Compensation Plan (the "Plan") has granted to you
options to purchase shares of the Company's $2.00 par value voting common stock
(the "Common Stock"). This letter is intended to provide you with notice of the
terms and conditions applicable to your grant. By execution below, you
acknowledge and agree to be bound by the terms and conditions described herein
and the provisions of the Plan. Unless defined below, capitalized terms used
herein shall have the meanings ascribed to them in the Plan.
1. GRANT. Effective as of April 28, 2000 (the "Effective Date"), the
Committee hereby grants to you nonstatutory (or nonqualified) options to
purchase [NUMBER] shares of Common Stock. The fair market value of Common Stock
on the Effective Date is $34.63 (determined in accordance with the terms of the
Plan.)
2. VESTING; OPTION PRICE. No portion of the options shall vest during the
three-year period beginning on the Effective Date and ending as of April 27,
2003; thereafter, the options shall vest and the exercise prices shall be as
follows:
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VESTING AMOUNT FIRST EXERCISE
DATE EXERCISABLE PRICE
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April 28, 2003 1/3rd $41.24
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April 28, 2004 1/3rd $43.72
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April 28, 2005 1/3rd $46.34
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To the extent all or any portion of an installment is not exercised, such
portion shall cumulate and be exercisable, in whole or in part, in any
subsequent period.
Subject to the limitations on the time of exercise set forth in paragraph 3
hereof, if your employment with Cleco Utility Group Inc., Cleco Corporation or a
subsidiary or other entity related to Cleco Utility Group Inc. (collectively
called the "Company") is terminated on account of your death, disability or
normal, early or late retirement under the Cleco Corporation Pension Plan (or
any successor thereto), you shall be deemed vested in the installment of options
that is otherwise scheduled to vest immediately following the date on which your
death, disability or retirement occurs.
3. TIME OF EXERCISE. The options granted hereunder shall generally be
exercisable when vested in accordance with paragraph 2 hereof and shall expire
10 years from the Effective Date. If your employment with the Company and/or its
Affiliates is terminated prior to the expiration of the options granted
hereunder, other than on account of "Cause" (as defined below), then
notwithstanding the foregoing, the following special rules shall govern the time
at which such options shall be exercisable:
a. If your employment with the Company and/or its Affiliates is
terminated on account of your death, your legal representative shall
be entitled to exercise the vested options granted hereunder during
the one-year period following the Vesting Date (determined in
accordance with paragraph 2 hereof) that immediately follows the date
of your death.
b. If your employment with the Company and/or its Affiliates is
terminated on account of your disability or normal, early or late
retirement under the Cleco Corporation Pension Plan (or any successor
thereto), you shall be entitled to exercise the vested options granted
hereunder during the three-year period following the Vesting Date
(determined in accordance with paragraph 2 hereof) that immediately
follows the date of your disability or retirement.
c. If your employment with the Company and/or its Affiliates is
terminated for any reason other than your death, disability or
retirement (as described above), you shall be entitled to exercise the
vested options granted hereunder at any time within 30 days following
your termination of employment.
If the options granted hereunder are not exercised in accordance with
subparagraphs a, b or c of this paragraph 3, such options shall be deemed
canceled and expired, without requirement of further notice.
If your employment with the Company and/or its Affiliates is terminated for
Cause, then notwithstanding any provision of this agreement or the Plan to the
contrary, the options granted hereunder shall be canceled and forfeited as of
the date of such termination, without the requirement of further notice. For
this purpose, the term "Cause" generally means that you commit an intentional
act of fraud, embezzlement or theft during your employment, you engage in
intentional misconduct that is materially injurious to the Company (or an
Affiliate), you wrongfully disclose confidential information, you intentionally
damage the property of the Company or you intentionally refuse to perform your
material job duties. The Committee (or its designee) determines whether any
termination is on account of Cause.
4. CHANGE IN CONTROL. Notwithstanding any provision of the Plan or this
agreement to the contrary, upon the occurrence of a Change in Control, the
options granted hereunder shall vest, be immediately exercisable, and shall
remain exercisable during the six-month period following such change (but in no
event more than 10 years from the Effective Date). If your employment with the
Company is subject to a severance agreement, employment agreement or similar
arrangement defining the term "Change in Control," the definition contained in
such document shall govern; otherwise the term "Change in Control" shall be
determined in accordance with the terms of the Plan.
Unless you are or become a party to a separate written agreement with the
Company that provides to the contrary, no portion of the payments you receive
from the Company or an Affiliate on account of a Change in Control, including
the acceleration of the options provided under this paragraph 4, can be
characterized as an "excess parachute payment" within the meaning of Section
280G of the Internal Revenue Code of 1986, as amended. If an excess parachute
payment is otherwise payable to you on account of a Change in Control, you may
be required to forfeit some or all of the options accelerated hereunder to
comply with this limitation.
5. BUSINESS TRANSACTION. If your employment with the Company or an
Affiliate is involuntarily terminated on account of a Business Transaction and
not on account of Cause (as defined above), the options granted hereunder shall
vest, be immediately exercisable, and shall remain exercisable during the
six-month period following such transaction (but in no event more than 10 years
from the Effective Date). For this purpose, the term "Business Transaction" is
defined in the Plan as the sale, lease or other disposition of all or a
substantial portion of the assets of an Affiliate or the sale or other
disposition of all or substantially all of the issued and outstanding stock or
other equity interests of an Affiliate. The Committee determines whether any
sale, lease or disposition is a Business Transaction.
6. METHOD OF EXERCISE. The options granted hereunder, to the extent
exercisable, shall be exercised, in whole or in part, by providing written
notice to the Committee, which notice shall designate the number of shares of
Common Stock to be purchased and shall be accompanied by the full purchase price
for the shares. The purchase price for shares may be paid in cash or cash
equivalents or by delivery to the Committee shares of Common Stock to be
credited (in whole or in part) against such price (valued at fair market value
on the date the option is exercised). A form of notice acceptable to the
Committee is attached as Exhibit A hereto.
Delivery of certificates representing shares of Common Stock shall be made
by the Company promptly after receipt of notice of exercise and payment in full;
provided, however, that the Company's obligation to deliver certificates may be
postponed, in the sole discretion of the Committee or the Company, for any
period necessary to list, register or otherwise qualify the shares under
applicable Federal or state securities laws.
7. TAXES. The options granted herein are nonqualified or nonstatutory
options. As such, you acknowledge that taxes are due on the exercise of the
options described herein, and you agree that the Company and its Affiliates
shall have the right to collect, as a condition of the delivery of shares of
Common Stock hereunder, any taxes required by law to be withheld.
You may elect to have Common Stock otherwise issuable to you on the
exercise of the options withheld for the payment of Federal and state income and
employment taxes due by notifying the Committee, in writing, at the time of
exercise. Such income tax withholding shall be made at a rate not in excess of
the highest rate applicable to supplemental wage payments under Section 3402 of
the Internal Revenue Code of 1986, as amended. Common stock withheld shall be
valued at fair market value, determined as of the date of exercise. A
withholding election form for this purpose is attached as Exhibit B hereto. Once
delivered to the Committee, an election shall be irrevocable.
8. NO ASSIGNMENT. This grant shall not be subject in any manner to sale,
transfer, pledge, assignment or other encumbrance or disposition, whether by
operation of law or otherwise and whether voluntarily or involuntarily, except
by will or the laws of descent and distribution.
9. ADDITIONAL REQUIREMENTS. You acknowledge that Common Stock acquired
hereunder may bear such legends as the Committee or the Company deems
appropriate to comply with applicable Federal or state securities laws or under
the terms of the Plan. In connection therewith and prior to the issuance of such
shares, you may be required to deliver to the Company such other documents as
may be reasonably required to ensure compliance with applicable Federal or state
securities laws.
10. EMPLOYMENT RIGHTS. Neither this agreement, the grant of the options
hereunder, nor the exercise of such options shall be deemed to confer upon you
any right to continue in the employ of the Company or interfere, in any manner,
with the right of the Company to terminate your employment, whether with or
without cause, in its sole discretion.
11. AMENDMENT. The terms and conditions set forth herein may be amended by
the written consent of the parties hereto.
12. PLAN AND AVAILABLE INFORMATION. The options granted hereunder shall be
subject to such additional terms and conditions as may be imposed under the
terms of the Plan. Once the Plan is registered with the Securities and Exchange
Commission, a Prospectus containing additional information about the Plan and
its administration will be sent to you. If you need an additional copy or if you
want to review the Plan, contact [NAME]
Very truly yours,
CLECO CORPORATION
ACKNOWLEDGMENT AND AGREEMENT
I acknowledge that the options to acquire shares of Common Stock granted
hereunder shall be subject to such additional terms and conditions as may be
imposed under the terms of the Plan, in addition to the terms and conditions of
this agreement. By execution of this agreement, I acknowledge that I have been
given an opportunity to review the Plan and understand that I will receive a
copy of the Prospectus once the Plan is registered with the Securities and
Exchange Commission. I further acknowledge that no member of the Committee shall
be liable for any action or determination taken in good faith with respect to
the Plan or any grant or award hereunder.
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Social Security Number [NAME]
Date: