EXHIBIT 10(n)(5)
CLECO CORPORATION
DEFERRED COMPENSATION
PLAN
Amendment
(Code Section 409A
Compliance)
Whereas, Cleco Corporation, a corporation organized and
existing under the laws of the State of Louisiana (the
“Company”), maintains the Cleco Corporation Deferred
Compensation Plan, which plan was first effective as of August 1,
2000 (the “Plan”);
Whereas, such Plan constitutes a “deferred
compensation” arrangement within the meaning of Section 409A
of the Internal Revenue Code of 1986, as amended, and must now be
amended to comply with the provisions thereof;
Now, Therefore , the Plan shall be amended effective as of
January 1, 2009 or such other date or dates as may be provided
below.
1.1 Section
2.1 of the Plan shall be amended and restated in its entirety as
follows:
“2.1
Accounts or Account means the aggregate of a
Participant’s Deferred Benefit Account, Directors’
Predecessor Account and/or Nesbitt Deferred Benefit Account, as the
case may be; the term Prior Plan Balance means the balance
of a Participant’s Account determined as of December 31,
2004, as adjusted for earnings, gains or losses thereafter in
accordance with Article VI hereof; the term Current Balance
means the portion of any such Account attributable to deferrals and
other contributions made after December 31, 2004, as adjusted for
earnings, gains or losses thereafter in accordance with Article VI
hereof.
1.2 Section
2.4 of the Plan shall be amended and restated in its entirety as
follows:
“2.4
Benefit Commencement Date means the date on which a
Participant’s Retirement Benefit is first eligible for
distribution hereunder. Such date shall be designated by
each Participant and shall be no earlier than a Participant’s
Separation Date and no later than the last day of the calendar year
in which a Participant attains age 75. Any designation
hereunder shall be made in accordance with the provisions of
Article VII hereof and shall be subject to modification as provided
therein.”
1.3 The
first sentence of Section 2.12 of the Plan shall be restated as
follows:
“2.12
Compensation shall mean base salary paid by the Company or
an Affiliate to a Participant for services rendered during a
calendar year, but only for complete payroll periods ending and
paid within such year, which amount shall be determined before
reduction for compensation deferred pursuant to this Plan or any
other plan of deferred compensation maintained by the Company or an
Affiliate, including any such plan maintained in accordance with
Code Section 401(k) or 125.”
1.4 Section
2.15 of the Plan shall be amended and restated to read in its
entirety as follows:
“2.15 The
term “ Disability ” shall mean that a
Participant, by reason of a medically determinable physical or
mental impairment that can be expected to result in death or last
for a continuous period of not less than 12 months, (a) has been
receiving income replacement benefits
for a period of
not less than three months under a separate long-term disability
plan or policy maintained by the Company or an Affiliate, or (b) is
unable to engage in any substantial gainful
employment.”
1.5 Section
2.19 of the Plan shall be amended and restated to read in its
entirety as follows:
“2.19
Financial Hardship shall mean that a Participant has
suffered a severe financial hardship as a result of (a) an illness
or accident of the Participant, the Participant’s spouse, the
Participant’s beneficiary, or the Participant’s
dependent, (b) the loss of property due to casualty that is not
covered by insurance, or (c) the occurrence of similar,
extraordinary and unforeseeable circumstances arising as a result
of an event beyond the Participant’s
control.”
1.6 Section
2.21 of the Plan shall be amended and restated in its
entirety:
“2.21
Participant means an executive officer, manager, or other
officer or key employee of the Company or an Affiliate or an
Eligible Director for whom an Account is maintained
hereunder. A New Participant is a Participant
first designated as such on or after January 1, 2005. A
Continuing Participant is a Participant who is credited with
a Prior Plan Balance as of January 1, 2005 and is not in pay status
as of such date.”
1.7 Section
2.28 shall be added to the Plan to read in its entirety as
follows:
“2.28
Retirement Benefit shall mean a benefit, other than a Short
Term Deferral, payable in accordance with Article VII
hereof.”
1.8 Section
2.29 shall be added to the Plan to read in its entirety as
follows:
“2.29
Compliance Definitions. The following terms
shall have the meanings ascribed to them herein:
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Specified
Employee shall be
determined in accordance with Code Section 409A and shall generally
mean that a Participant 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, as of his or her Separation Date. A Participant who
satisfies such requirement as of a December 31st shall be
considered a Specified Employee hereunder during the 12-month
period commencing on the immediately following April
1st.
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Separation
Date shall mean the later
of the date on which (a) a Participant’s employment with the
Company and its Affiliates ceases, or (b) the Company and such
Participant reasonably anticipate that the Participant will perform
no further services for the Company and its Affiliates, whether as
a common law employee or independent
contractor. Notwithstanding the foregoing, a Participant
may be deemed to incur a Separation Date if he or she continues to
provide services to the Company or an Affiliate, provided such
services are not more than 20% of the average level of services
performed by such Participant, whether as an employee or
independent contractor, during the immediately preceding 36-month
period.
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Prior
Plan means this Plan as
in effect October 4, 2004.
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2.1 The
following Section 4.1d shall be added to the Plan to read in its
entirety as follows:
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As to any Bonus
that is ‘performance based compensation’ within the
meaning of Code Section 409A, the Committee may permit the deferral
of such amount not later than the last day of the seventh calendar
month preceding the end of the performance cycle with respect to
which such Bonus is payable.”
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2.2 The
text of Section 4.2 of the Plan shall be deleted and such section
marked “Reserved.”
2.3 The
last sentence of Section 4.3a of the Plan shall be amended and
restated as follows:
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Any such
election shall be irrevocable and shall be received and accepted by
the Committee not later than (i) the first day of the service or
performance period during which such designated option shall be
vested, or (ii) if such designated option may be deemed performance
based compensation within the meaning of Code Section 409A, the
last day of the seventh calendar month preceding the end of the
performance cycle applicable to such option.”
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2.4 Section
4.4 of the Plan shall be amended to exclude the Short Term Deferral
of any Bonus thereunder.
3. Distribution
of Retirement Benefits:
3.1 The
text of Section 7.4 of the Plan shall be deleted and the following
shall be substituted:
“7.4
New Participants. Each New Participant shall execute a
Schedule A designating, with respect to any Retirement Benefit
payable hereunder,
