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EXHIBIT 10.4
CLECO CORPORATION
EXECUTIVE EMPLOYMENT
AGREEMENT
Compliance Addendum - Code
Section 409A
Effective
Date of Current Executive Employment Agreement:
Effective
Date of This Addendum: January 1, 2009
Cleco
Corporation, a corporation organized and existing under the laws of
the State of Louisiana (the “Company”), previously
entered into an Executive Employment Agreement with Executive dated
the date set forth above (the “Agreement”), providing
for, among other things, the payment or provision of certain
amounts and benefits now subject to Section 409A of the Internal
Revenue Code of 1986, as amended (the
“Code”). This Addendum is intended to comply
with the provisions of Code Section 409A and is to be interpreted
and construed in a manner consistent with such
intent. To the extent the provisions of this Addendum
are inconsistent with the provisions of the Agreement, the terms of
this Addendum shall govern.
1.
Definitions. Capitalized terms used in this
Addendum shall have the meanings ascribed to them in the Agreement,
except:
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The term
“Disability” shall mean that Executive is actually
receiving long-term income replacement benefits under separate
long-term disability plan or policy maintained by the Company or an
Affiliate.
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The term
“Separation Date” shall mean the later of the date on
which (i) Executive’s employment with the Company and its
Affiliates ceases, or (ii) the Company and Executive reasonably
anticipate that Executive will perform no further services for the
Company and its Affiliates, whether as a common law employee or
independent contractor. Notwithstanding the foregoing,
Executive may be deemed to incur a Separation From Service if he or
she continues to provide services to the Company or an Affiliate,
whether as an employee or an independent contractor, provided such
services are not more than 20% of the average level of services
performed by such Executive during the immediately preceding
36-month period.
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The status of
Executive as a “Specified Employee” shall be determined
in accordance with the provisions of Code Section 409A and shall
mean that as of his or her Separation Date, Executive is a
“key employee” of the Company or an Affiliate within
the meaning of Code Section 416(i), (ii), or (iii), but determined
without regard to paragraph (i)(5) thereof. If Executive
satisfies such requirements as of a December 31st, he or she shall
be considered a Specified Employee hereunder during the 12-month
period commencing on the immediately following April
1st.
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2.
Specified Employee Delay. If Executive is a
Specified Employee as of his or her Separation Date, then,
notwithstanding any provision of this Agreement to the contrary,
the Company shall postpone until the first business day of the
seventh calendar month following such date (the “Delayed
Payment Date”) any payment or benefit
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