CLECO CORPORATION EXECUTIVE EMPLOYMENT AGREEMENT (Level 2 - Form B with a Principal Employer)
Exhibit
10(a)
CLECO
CORPORATION
(Level
2 - Form B with a Principal Employer)
THIS
AGREEMENT
(the
“Agreement”) is entered into by and between ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ (“Executive”)
Cleco Corporation, a corporation organized and existing under the laws of the
State of Louisiana (the “Company”), and each of its subsidiaries and affiliates.
Cleco Corporation and each of its subsidiaries and affiliates shall act as
Executive’s principal employer (the “Principal Employer”). This agreement is
intended to amend and restate, with the exception of the term defined therein,
that certain Executive Severance Agreement between Cleco
Marketing & Trading LLC
and
Executive, initially effective as of July 28, 2000.
1.
EMPLOYMENT AND TERM
1.1 Position.
The
Principal Employer shall employ and retain Executive as its General
Manager - Contracts & Analysis
or in
such other capacity or capacities as shall be mutually agreed upon, from time
to
time, by Executive and the Principal Employer (or the Company, as the case
may
be), and Executive agrees to be so employed, subject to the terms and conditions
set forth herein. References herein to the Company shall be deemed to include
Executive’s Principal Employer, unless the context clearly indicates to the
contrary.
Executive’s
duties and responsibilities shall be those assigned to him or her, from time
to
time, by the Chief Financial Officer of the Company and shall include such
duties as are the type and nature normally assigned to similar executive or
senior officers of a corporation of the size, type and stature of the Principal
Employer. Executive shall report to the Chief Financial Officer of the Company.
1.2 Full
Time and Attention. During
the term of this Agreement and any extensions or renewals thereof, Executive
shall devote his or her full time, attention and energies to the business of
the
Company and will not, without the prior written consent of the Chief Executive
Officer of the Company, be engaged (whether or not during normal business hours)
in any other business or professional activity, whether or not such activities
are pursued for gain, profit or other pecuniary advantage.
Notwithstanding
the foregoing, Executive shall not be prevented from (a) engaging in any civic
or charitable activity for which Executive receives no compensation or other
pecuniary advantage, (b) investing his or her personal assets in businesses
which do not compete with the Company, provided that such investment will not
require any services on the part of Executive in the operation of the affairs
of
the businesses in which investments are made and provided further that
Executive’s participation in such businesses is solely that of an investor, or
(c) purchasing securities in any corporation whose securities are regularly
traded, provided that such purchases will not result in Executive owning
beneficially at any time 5% or more of the equity securities of any corporation
engaged in a business competitive with that of the Company.
1.3 Term.
Executive’s employment under this Agreement shall commence as of July 28, 2000
(the “Effective Date”), and shall terminate on July 28, 2003 (such date or the
last day of employment specified in any renewal or amendment hereof referred
to
herein as the “Termination Date”) (the period commencing as of the Effective
Date and ending as of the Termination Date referred to herein as the “Employment
Term”).
Commencing
on the second anniversary of the Effective Date and each anniversary thereafter,
Executive’s Employment Term shall automatically be extended for an additional
one-year period; provided, however, that either party may provide written notice
to the other that the Employment Term will not be further extended, such notice
to be provided not later than 30 days prior to the end of the then-current
Employment Term.
2.
COMPENSATION AND BENEFITS
2.1 Base
Compensation.
The
Company shall pay Executive an annual salary equal to his or her annual base
salary in effect as of the Effective Date, such amount shall be prorated and
paid in equal installments in accordance with the Company’s regular payroll
practices and policies and shall be subject to applicable withholding and other
applicable taxes (Executive’s “Base Compensation”). Executive’s Base
Compensation shall be reviewed no less often than annually and may be increased
or reduced by the Chief Executive Officer of the Company, in his sole
discretion; provided, however, that Executive’s Base Compensation may not be
reduced at any time unless such reduction is part of a reduction in pay
uniformly applicable to all similarly situated executives of the Company.
2.2 Annual
Incentive Bonus.
In
addition to the foregoing, Executive shall be eligible for participation in
the
Annual Incentive Compensation Plan or similar bonus arrangement maintained
by
the Company or an Affiliate (as defined in Section 6.17) or such other bonus
or
incentive plans which the Company or its Affiliates may adopt, from time to
time, for similarly situated executives (an “Incentive Bonus”). Such
participation shall be in accordance with the specific terms and conditions
of
such plan.
2.3 Long-Term
Incentives. In
addition to the foregoing, Executive shall be eligible for participation in
the
2000 Long-Term Incentive Compensation Plan maintained by the Company and such
other long-term incentive plans which the Company or its Affiliates may adopt,
from time to time, for similarly situated executives (a “Long-Term Incentive”).
Such participation shall be in accordance with the specific terms and conditions
of such plan.
2.4 Supplemental
Retirement Benefit. In
addition to the foregoing, Executive shall be eligible to participate in the
Supplemental Executive Retirement Plan maintained by Cleco Utility Group Inc.
or
such other supplemental retirement benefit plans which the Company or its
Affiliates may adopt, from time to time, for similarly situated executives
(the
“Supplemental Plan”). Such participation shall be in accordance with the
specific terms and conditions of such plan.
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2.5 Other
Benefits.
During
the term of this Agreement and in addition to the amounts otherwise provided
herein, Executive shall participate in such plans, policies, and programs as
may
be maintained, from time to time, by the Company or its Affiliates for the
benefit of similarly situated executives or employees, including, without
limitation, profit sharing, life insurance, and group medical and other welfare
benefit plans. Any such benefits shall be determined in accordance with the
specific terms and conditions of the documents evidencing any such plans,
policies, and programs.
2.6 Reimbursement
of Expenses.
The
Company shall reimburse Executive for such reasonable and necessary expenses
as
are incurred in carrying out his or her duties hereunder, consistent with the
Company’s standard policies and annual budget. The Company’s obligation to
reimburse Executive hereunder shall be contingent upon the presentment by
Executive of an itemized accounting of such expenditures.
3.
TERMINATION
3.1 Termination
Payments to Executive.
As set
forth more fully in this Section 3 and except as provided in Section 3.3 and
3.8
hereof, Executive shall be paid the greater of the amounts or benefits set
forth
below or the amounts or benefits provided under the terms of the separate plan
or arrangement maintained by the Company (or its Affiliates) on account of
termination of employment hereunder:
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a.
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Executive’s
Base Compensation accrued but not yet paid as of the date of his
or her
termination.
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b.
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An
amount equal to 100% of Executive’s Base Compensation, determined at the
time of termination, but immediately prior to any reduction in such
compensation.
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c.
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An
amount equal to Executive’s Incentive Bonus, determined with respect to
the year of his or her termination and prorated to reflect Executive’s
actual period of service during such
year.
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d.
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An
amount equal to Executive’s Incentive Bonus, determined as the target
amount for the year in which his or her termination of employment
occurs.
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e.
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The
Company shall, at the written request of
Executive:
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i.
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Purchase
his or her principal residence if such residence is located within
60
miles of the business location Executive was assigned to prior to
termination of employment (the “Principal Residence”) for an amount equal
to the greater of (1) the purchase price of such Principal Residence
plus
the documented cost of any capital improvements to the Principal
Residence
made by
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Executive,
or (2) the fair market value of such Principal Residence as determined
by
the Company’s usual relocation practice; and
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ii.
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Pay
or reimburse Executive for the cost of relocating Executive, his
or her
family and their household goods and other personal property, in
accordance with the Company’s usual relocation practice, to any location
in the continental United States.
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Notwithstanding
the foregoing, the Company shall not be obligated hereunder, unless, within
12
months after the termination of his or her employment with the Company (and
its
Affiliates), the Company is requested to purchase such Principal Residence
and
Executive has actually relocated from such geographic area.
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f.
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If
Executive and/or his or her dependents elects to continue group medical
coverage, within the meaning of Code Section 4980B(f)(2), with respect
to
a group health plan sponsored by the Company or an Affiliate (other
than a
health flexible spending account under a self-insured medical
reimbursement plan described in Code Sections 125 and 105(h)), the
Company
shall pay the continuation coverage premium for the same type and
level of
group health plan coverage received by Executive and his or her electing
dependents immediately prior to such termination of Executive’s employment
for the maximum period provided under Code Section 4980B or until
the
Executive secures other employment where group health insurance is
provided, whichever period is shorter.
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Except
as
expressly provided in Section 3.3 hereof, Executive shall also be entitled
to
receive such compensation or benefits as may be provided under the terms of
a
separate plan or agreement maintained by the Company (or its Affiliates) to
the
extent such compensation or benefits are not duplicative of the compensation
or
benefits described above.
3.2 Termination
for Death or Disability.
If
Executive dies or becomes disabled during the Employment Term, this Agreement
and Executive’s employment hereunder shall immediately terminate and the
Company’s obligations hereunder shall automatically cease. In such event, the
Company shall pay to Executive (or his or her estate) the compensation described
in Sections 3.1a and the additional amount described in Section 3.1c hereof.
Payment shall be made in the form of one or more single-sums as soon as
practicable after Executive’s death or disability or as and when such amounts
are ascertainable.
For
purposes of this Section 3.2, Executive shall generally be deemed “disabled” if
he or she is actually receiving benefits or is eligible to receive benefits
under the Company’s (or an Affiliate’s) separate long-term disability plan or he
or she is actually receiving Social Security disability benefits. The Company
shall determine whether Executive is disabled hereunder.
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3.3 Company’s
Termination for Cause. This
Agreement and Executive’s employment hereunder may be terminated by the Company
on account of Cause. In such event, the Company shall pay to Executive the
compensation described in Section 3.1a hereof. Payment shall be made in the
form
of a single-sum not later than three days after such termination.
Notwithstanding any provision of this Agreement or any other plan, policy or
agreement evidencing any other compensation arrangement or benefit payable
to
Executive, no additional amount shall be paid to Executive, except as may be
required by law.
For
purposes of this Agreement, “Cause” means that Executive has:
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a.
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Committed
an intentional act of fraud, embezzlement or theft in the course
of his or
her employment or otherwise engaged in any intentional misconduct
which is
materially injurious to the Company’s (or an Affiliate’s) financial
condition or business reputation;
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b.
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Committed
intentional damage to the property of the Company (or an Affiliate)
or
committed intentional wrongful disclosure of Confidential Information
(as
defined in Section 5.2) which is materially injurious to the Company’s (or
an Affiliate’s) financial condition or business reputation;
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c.
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Intentionally
refused to perform the material duties of his or her position;
or
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d.
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A
material breach of this Agreement by
Executive.
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No
act or
failure to act on the part of Executive will be deemed “intentional” if it was
due primarily to an error in judgment or negligence, but will be deemed
“intentional” only if done or omitted to be done by Executive not in good faith
and without reasonable belief that his or her action or omission was in the
best
interest of the Company (or an Affiliate).
The
Company, acting in good faith, may determine that any termination by the Company
is on account of Cause. The Company shall provide written notice to Executive,
including a description of the specific reasons for the determination of Cause.
Executive shall have the opportunity to present arguments and evidence on his
or
her behalf to the Chief Executive Officer. Following such presentation (or
upon
Executive’s failure to appear) the Chief Executive Officer shall confirm that
the actions or inactions of Executive constitute Cause hereunder.
3.4 Executive’s
Constructive Termination. Executive
may terminate this Agreement and his or her employment hereunder on account
of a
Constructive Termination upon 30 days prior written notice to the Chief
Executive Officer (or such shorter period as may be agreed upon by the parties
hereto). In such event, the Company shall provide to Executive the compensation
described in Section 3.1a hereof, payable not later than three days after his
or
her termination of employment and the following: (a) the additional amounts
determined under Sections 3.1b and 3.1d hereof, payable in not more than two
equal installments, one-half not later than 30 days after termination
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and
the
other one-half six months after such termination, and (b) the benefits described
in Sections 3.1e and 3.1f hereof.
For
purposes of this Agreement, “Constructive Termination” means:
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a.
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A
material reduction (other than a reduction in pay uniformly applicable
to
all similarly situated executives of the Company) in the amount of
Executive’s Base Compensation;
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b.
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A
material reduction in Executive’s authority, duties or responsibilities
from those contemplated in Section 1.1 of this Agreement;
or
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c.
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A
material breach of this Agreement by the Company or its
Affiliates.
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No
event
or condition described in this Section 3.4 shall constitute a Constructive
Termination unless (a) Executive promptly gives the Company notice of his or
her
objection to such event or condition, which notice may be provided orally or
in
writing to the Chief Executive Officer or his designee, (b) such event or
condition is not corrected by the Company promptly after receipt of such notice,
but in no event more than 30 days after receipt of notice, and (c) Executive
resigns his or her employment with the Company (and all Affiliates) not more
than 15 days following the expiration of the 30-day period described in
subparagraph (b) hereof.
3.5 Termination
by the Company, without Cause.
The
Company may terminate this Agreement and Executive’s employment hereunder,
without Cause, upon 30 days prior written notice to Executive (or such shorter
period as may be agreed upon by Executive and the Chief Executive Officer).
In
such event, the Company shall provide to Executive the compensation described
in
Section 3.1a hereof, payable not later than three days after such termination,
and the following additional amounts and/or benefits: (a) the amounts determined
under Sections 3.1b and 3.1d hereof, payable in not more than two equal
installments, one-half not later than 30 days after termination and the other
one-half six months after such termination, and (b) the benefits described
in
Sections 3.1e and 3.1f hereof.
3.6 Termination
by Executive.
Executive may terminate this Agreement and his or her employment hereunder,
other than on account of Constructive Termination, upon 30 days prior written
notice to the Company or such shorter period as may be agreed upon by the Chief
Executive Officer and Executive. In such event, the Company shall pay to
Executive the compensation described in Section 3.1a hereof. Payment shall
be
made in the form of a single-sum not later than three days after such
termination. No additional payments or benefits shall be due hereunder, except
as may be provided under a separate plan, policy or program evidencing such
compensation arrangement or benefit or as may be required by law.
3.7 Return
of Property.
Upon
termination of this Agreement for any reason, Executive shall promptly return
to
the Company all of the property of the Company (and its Affiliates),
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including,
without limitation, automobiles, equipment, computers, fax machines, portable
telephones, printers, software, credit cards, manuals, customer lists, financial
data, letters, notes, notebooks, reports and copies of any of the above and
any
Confidential Information (as defined in Section 5.2 hereof) that is in the
possession or under the control of Executive.
3.8 Consideration
for Other Agreements.
Executive acknowledges that all or a portion of the amount payable under Section
3.1d hereof is in addition to the amount otherwise due or payable under the
Annual Incentive Compensation Plan on account of a separation from service
and
that the payment of such additional amount is intended to and shall constitute
adequate consideration for the execution of such separate waivers or releases
as
the Company (or its Affiliates) may request Executive to execute in connection
with the termination of his or her employment hereunder. Executive agrees that
failure to execute any such waiver or release within the time requested by
the
Company shall result in the forfeiture of the additional amount payable under
Section 3.1d hereof.
4.
CHANGE IN CONTROL AND BUSINESS TRANSACTION
4.1 Definitions.
The
term
“Change in Control” and “Business Transaction” shall have the meanings ascribed
to them in the Cleco Corporation 2000 Long-Term Incentive Compensation Plan,
as
the same may be amended from time to time.
The
term
“Good Reason,” when used herein, shall mean that in connection with a Change in
Control:
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a.
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Executive’s
Base Compensation in effect immediately before such Change in Control
is
reduced or there is a significant reduction or termination of Executive’s
rights to any employee benefit in effect immediately prior to the
Change
in Control;
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b.
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Executive’s
authority, duties or responsibilities are significantly reduced from
those
contemplated in Section 1.1 hereof or Executive has reasonably determined
that, as a result of a change in circumstances that significantly
affects
his or her employment with the Company (or an Affiliate), he or she
is
unable to exercise the authority, power, duties and responsibilities
contemplated in Section 1.1 hereof;
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c.
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Executive
is required to be away from his or her office in the course of discharging
his or her duties and responsibilities under this Agreement significantly
more than was required prior to the Change in Control;
or
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d.
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Executive
is required to transfer to an office or business location located
more
than 60 miles from the location he or she was assigned to prior to
the
Change in Control.
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No
event
or condition described in this Section 4.1 shall constitute Good Reason unless
(a) Executive gives the Company notice of his or her objection to such event
or
condition within a reasonable period after Executive learns of such event,
which
notice may be delivered orally or in
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writing
to the Chief Executive Officer, (b) such event or condition is not promptly
corrected by the Company, but in no event later than 30 days after receipt
of
such notice, and (c) Executive resigns his or her employment with the Company
(and its Affiliates) not more than 60 days following the expiration of the
30-day period described in subparagraph (b) hereof.
4.2 Termination
In Connection With a Change in Control.
If a
Change in Control occurs prior to the expiration of the Employment Term and
at
any time within the 60-day period preceding or 36-month period following such
Change in Control, Executive’s employment described herein is terminated by the
Company, without Cause (as defined in Section 3.3 hereof), or Executive
terminates his or her employment hereunder for Good Reason, then notwithstanding
any provision of this Agreement to the contrary and in lieu of any compensation
or benefits otherwise payable hereunder:
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a.
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The
Company shall pay to Executive the compensation described in Section
3.1a
in the form of a single-sum not later than three days after such
termination.
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b.
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The
Company shall pay an amount equal to three times Executive’s “base
amount,” payable in the form of a single-sum not later than 30 days after
such termination. For purposes of this agreement, “base amount” is defined
as the Executive’s current annual base compensation and target annual
bonus.
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c.
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The
Company shall provide the benefits described in Sections 3.1e and
3.1f.
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d.
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Vesting
shall be accelerated, any restrictions shall lapse, and all performance
objectives shall be deemed satisfied as to any outstanding grants
or
awards made to Executive under the 2000 Long-Term Incentive Compensation
Plan and/or the 1990 Long-Term Incentive Compensation Plan. Executive
shall be entitled to such additional benefits or rights as may be
provided
in the documents evidencing such plans or the terms of any agreement
evidencing such grant or award.
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e.
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Executive
shall be fully vested for purposes of any service or similar requirement
imposed under the Supplemental Plan, regardless of the actual number
of
years of service attained by Executive; Executive shall be credited
with
an additional three years of age for purposes of determining his
or her
benefit percentage under the Supplemental Plan, but in no event shall
such
benefit percentage be less than 50%; and Executive shall be credited
with
an additional three years of age for purposes of determining any
reduction
taken with respect to benefits commencing before Executive’s normal
retirement date (as defined in such
plan).
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4.3 Business
Transaction.
If
Executive’s employment hereunder is terminated (other than on account of Cause
as defined in Section 3.3 hereof) in connection with a Business Transaction,
then notwithstanding any provision of this Agreement to the contrary, the
Company shall pay or provide to Executive benefits as described in Section
4.2.
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4.4 Tax
Payment. If
any
payment to Executive pursuant to this Agreement or any other payment or benefit
from the Company or an Affiliate in connection with a Change in Control or
Business Transaction is subject to the excise tax imposed under Code Section
4999 or any similar excise or penalty tax payable under any United States
federal, state, local or other law, the Company shall pay an amount to Executive
such that, after the payment by Executive of all taxes on such amount, there
remains a balance sufficient to pay such excise or penalty tax. Executive shall
submit to the Company the amount to be paid under this Section 4.4, together
with supporting documentation. If Executive and the Company disagree as to
such
amount, an independent public accounting firm agreed upon by Executive and
the
Company shall make such determination.
5.
LIMITATIONS ON ACTIVITIES
5.1 Consideration
for Limitation on Activities.
Executive acknowledges that the execution of this Agreement and the payments
described herein constitute consideration for the limitations on activities
set
forth in this Section 5, the adequacy of which is hereby expressly acknowledged
by Executive.
5.2 Confidential
Information. Executive
recognizes and acknowledges that during the terms of his or her employment,
he
or she will have access to confidential, proprietary, non-public information
concerning the Company and its Affiliates, which may include, without
limitation, (a) books and records relating to operations, finance, accounting,
personnel and management, (b) price, rate and volume data, future price and
rate
plans, and test data, (c) information related to product design and development,
(d) computer software, customer lists, information obtained on competitors,
and
sales tactics, and (e) various other non-public trade or business information,
including business opportunities, marketing or business diversification plans,
methods and processes, and financial data and the like (collectively, the
“Confidential Information”). Executive agrees that he or she will not at any
time, either while employed by the Company or afterwards, make any independent
use of, or disclose to any other person or organization (except as authorized
by
the Company or pursuant to court order) any of the Confidential
Information.
5.3 Non-Solicitation.
Executive
agrees that during the one-year period commencing as of the date of voluntary
termination by Executive (as described in Section 3.6 hereof) or the involuntary
termination of Executive on account of Cause (as described in Section 3.3
hereof), he or she shall not, directly or indirectly, for his or her own benefit
or on behalf of another or to the Principal Employer’s detriment:
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a.
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Hire
or offer to hire any of the Principal Employer’s officers, employees or
agents;
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b.
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Persuade
or attempt to persuade in any manner any officer, employee or agent
of the
Principal Employer to discontinue any relationship with the Principal
Employer; or
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c.
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Solicit
or divert or attempt to divert any customer or supplier of the Principal
Employer.
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The
provisions of this Section 5.3 shall apply in the locations set forth on Exhibit
A hereto, as the same may be amended from time to time. Executive acknowledges
that the Principal Employer is presently doing business in such locations and
that during the Employment Term Executive will be required to provide services
to or for the benefit of the Principal Employer in such locations.
The
parties agree that each of the foregoing prohibitions is intended to constitute
a separate restriction. Accordingly, should any such prohibition be declared
invalid or unenforceable, such prohibition shall be deemed severable from and
shall not affect the remainder thereof. The parties further agree that each
of
the foregoing restrictions is reasonable in both time and geographic scope.
5.4 Business
Reputation.
Executive agrees that during his or her employment with the Company (and its
Affiliates) and at all times thereafter, he or she shall refrain from performing
any act, engaging in any conduct or course of action or making or publishing
an
adverse, untrue or misleading statement which has or may reasonably have the
effect of demeaning the name or business reputation of the Company or its
Affiliates or which adversely affects (or may reasonably adversely affect)
the
best interests (economic or otherwise) of the Company or an
Affiliate.
5.5 Remedies. In
the event of a breach or threatened breach by Executive of the provisions of
Sections 5.2, 5.3 or 5.4 hereof, Executive agrees that the Company shall be
entitled to a temporary restraining order or a preliminary injunction (without
the necessity of posting bond in connection therewith) and that any additional
payments or benefits due to Executive or his or her dependents under Sections
3
and 4 hereof shall be canceled and forfeited. Nothing herein shall be construed
as prohibiting the Company from pursuing any other remedy available to it for
such breach or threatened breach, including the recovery of damages from
Executive.
6.
MISCELLANEOUS
6.1 Mitigation
Not Required.
As a
condition of any payment hereunder, Executive shall not be required to mitigate
the amount of such payment by seeking other employment or otherwise, nor will
any profits, income, earnings or other benefits from any source whatsoever
create any mitigation, offset, reduction or any other obligation on the part
of
Executive under this Agreement.
6.2 Enforcement
of this Agreement. In
the
event any dispute in connection with this Agreement arises with respect to
obligations of Executive or the Company that were required prior to the
occurrence of a Change in Control or a Business Transaction, all costs, fees
and
expenses, including attorney fees, of any arbitration or other legal action
in
connection with such matters in which Executive substantially prevails, shall
be
borne by, and be the obligation of, the Company.
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After
a
Change in Control or Business Transaction has occurred, Executive shall not
be
required to incur legal fees and the related expenses associated with the
interpretation, enforcement or defense of Executive’s rights under this
Agreement by arbitration or otherwise. Accordingly, if, following a Change
in
Control or Business Transaction, the Company has failed to comply with any
of
its obligations under this Agreement or the Company or any other person takes
or
threatens to take any action to declare this Agreement void or unenforceable
or
in any way reduces the possibility of collecting the amounts due hereunder,
or
institutes any action or proceeding designed to deny or to recover from
Executive the benefits provided or intended to be provided under this Agreement,
Executive shall be entitled to retain counsel of Executive’s choice, at the
expense of the Company, to advise and represent Executive in connection with
any
such interpretation, enforcement or defense, including without limitation the
initiation or defense of any arbitration or other legal action, whether by
or
against the Company or any director, officer, stockholder or other person
affiliated with the Company, in any jurisdiction. The Company shall pay and
be
solely financially responsible for any and all attorneys’ and related fees and
expenses incurred by Executive in connection with any of the foregoing, without
regard to whether Executive prevails, in whole or in part.
In
no
event shall Executive be required to reimburse the Company for any of the costs
and expenses incurred by the Company relating to arbitration or other legal
action in connection with this Agreement.
6.3 Arbitration.
Any
dispute, controversy or claim arising out of or relating to this Agreement
or
Executive’s employment or the termination thereof, including, but not limited
to, any claim of discrimination under state or federal law, shall be resolved
exclusively by binding arbitration in Alexandria, Louisiana (or such other
location as may be agreed to by the parties), in accordance with the rules
of
the American Arbitration Association then in effect; provided, however, that
in
the event of a claimed violation of Section 5 hereof, the Company may seek
injunctive or other relief specified in Section 5.5 hereof. Judgment may be
entered on the arbitrator’s award in any court having competent jurisdiction.
6.4 No
Set-Off. There
shall be no right of set-off or counterclaim in respect of any claim, debt
or
obligation against any payment to Executive provided for in this Agreement.
6.5 Assistance
with Litigation. For
a
period of one year after the end of the last period for which Executive will
have received any compensation under this Agreement, Executive will furnish
such
information and proper assistance as may be reasonably necessary in connection
with any litigation in which the Company (or an Affiliate) is then or may become
involved.
6.6 Headings.
Section
and other headings contained in this Agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation of this
Agreement.
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6.7 Entire
Agreement. This
Agreement constitutes the entire understanding and agreement among the parties
hereto with respect to the subject matter hereof, and there are no other
agreements, understandings, restrictions, representations or warranties among
the parties other than those set forth herein.
6.8 Amendments.
This
Agreement may be amended or modified at any time in any or all respects, but
only by an instrument in writing executed by the parties hereto.
6.9 Choice
of Law. The
validity of this Agreement, the construction of its terms, and the determination
of the rights and duties of the parties hereto shall be governed by and
construed in accordance with the internal laws of the State of Louisiana
applicable to contracts made to be performed wholly within such
state.
6.10 Notices.
All
notices and other communications under this Agreement must be in writing and
will be deemed to have been duly given when (a) delivered by hand, (b) sent
by
telecopier to a telecopier number given below, provided that a copy is sent
by a
nationally recognized overnight delivery service (receipt requested), or (c)
when received by the addressee, if sent by a nationally recognized overnight
delivery service (receipt requested), in each case as follows:
|
If
to Executive:
|
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
| ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ | |
| ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |
|
If
to the Company:
|
Cleco Corporation |
| ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ | |
| ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |
| Telecopier: ▇▇▇ ▇▇▇-▇▇▇▇ | |
| Attention: Chief Executive Officer |
or
to
such other addresses as a party may designate by notice to the other
party.
6.11 Assignment.
This
Agreement will inure to the benefit of and be binding upon the Company, its
Affiliates, successors and assigns, including, without limitation, any person,
partnership, company, corporation or other entity that may acquire substantially
all of the Company’s assets or business or with or into which the Company may be
liquidated, consolidated, merged or otherwise combined, and will inure to the
benefit of and be binding upon Executive, his or her heirs, estate, legatees
and
legal representatives. If payments become payable to Executive’s surviving
spouse or other assigns and such person thereafter dies, such payment will
revert to Executive’s estate.
6.12 Severability.
Each
provision of this Agreement is intended to be severable. In the event that
any
one or more of the provisions contained in this Agreement shall for any reason
be
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held
to
be invalid, illegal or unenforceable, the same shall not affect the validity
or
enforceability of any other provision of this Agreement, but this Agreement
shall be construed as if such invalid, illegal or unenforceable provisions
was
not contained herein. Notwithstanding the foregoing, however, no provision
shall
be severed if it is clearly apparent under the circumstances that the parties
would not have entered into this Agreement without such provision.
6.13 Withholding.
The
Company (or an Affiliate) may withhold from any payment hereunder any federal,
state or local taxes required to be withheld.
6.14 Survival.
Notwithstanding
anything herein to the contrary, to the extent applicable, the obligations
of
the Company (and its Affiliates) under Sections 3 and 4, and the obligations
of
Executive under Sections 3 and 5, shall remain operative and in full force
and
effect regardless of the expiration of this Agreement.
6.15 Waiver.
The
failure of either party to insist in any one or more instances upon performance
of any terms or conditions of this Agreement will not be construed as a waiver
of future performance of any such term, covenant, or condition and the
obligations of either party with respect to such term, covenant or condition
will continue in full force and effect.
6.16 Delegation.
The
Chief Executive Officer, in his discretion, may delegate to one or more
executive officers of the Company or its Affiliates all or a portion of the
power and authority granted to him or the Company hereunder. Such delegation
shall be effective whether made orally or in writing.
6.17 Definition.
For
purposes of this Agreement, “Affiliate” shall mean one or more subsidiaries or
other entities with respect to which the Company owns (within the meaning of
Section 425(f) of the Internal Revenue Code of 1986, as amended (the “Code”))
50% or more of the total combined voting power of all classes of stock or other
equity interests.
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THIS
AGREEMENT is
executed in multiple counterparts as of the dates set forth below, each of
which
shall be deemed an original, to be effective as of the Effective Date designated
above.
| CLECO CORPORATION | EXECUTIVE |
| By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
| ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
| Its: Senior V.P., Employee & Corporate Services | Date: 6/19/03 |
| Date: 12/17/2002 | |
THIS
AGREEMENT was
reviewed and accepted by the Principal Employer, as of the date set forth below,
to be effective as of the Effective Date designated above.
| Cleco Corporation | |
| By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Its: Sr. V.P. - Corporate Services | |
| Date: 6/23/2003 | |
14
CLECO
CORPORATION
EXHIBIT
A
This
Exhibit A is intended to form a part of that certain Executive Employment
Agreement by and between Cleco Corporation, the Principal Employer and
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇,
first
effective as of the Effective Date designated above (the “Agreement”). The
parties agree that the proscriptions set forth in Section 5.3 thereof shall
apply in the State of Louisiana, Parishes of:
Acadia
▇▇▇▇▇
Avoyelles
▇▇▇▇▇▇▇▇▇▇
Calcasieu
Catahoula
DeSoto
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
Iberia
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
Lafayette
Natchitoches
Rapides
Red
River
Sabine
St.
▇▇▇▇▇▇
St.
▇▇▇▇▇▇
St.
▇▇▇▇
St.
Tammany
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Notwithstanding
Section 6.8 of the Agreement, the Principal Employer shall possess the authority
to amend this Exhibit A, from time to time, to eliminate parishes in which
the
Principal Employer is no longer doing business and to add parishes in which
the
Principal Employer is currently doing business, subject to Executive’s consent,
which shall not be unreasonably withheld.
15