-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, CWDvRVGaUDy/dU2cq5PcaMUG/di8bh2FLHrimP0/p1dU52Y9y3j32iS1howKYvqH 4BZqiynblAsccPseo42OCA== 0000950129-99-002930.txt : 19990701 0000950129-99-002930.hdr.sgml : 19990701 ACCESSION NUMBER: 0000950129-99-002930 CONFORMED SUBMISSION TYPE: S-8 POS PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19990630 EFFECTIVENESS DATE: 19990630 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CLECO CORP CENTRAL INDEX KEY: 0000018672 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC SERVICES [4911] IRS NUMBER: 720244480 STATE OF INCORPORATION: LA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 POS SEC ACT: SEC FILE NUMBER: 033-38362 FILM NUMBER: 99656816 BUSINESS ADDRESS: STREET 1: 2030 DONAHUE FERRY RD CITY: PINEVILLE STATE: LA ZIP: 71360 BUSINESS PHONE: 3184847400 MAIL ADDRESS: STREET 1: P O BOX 5000 CITY: PINEVILLE STATE: LA ZIP: 71361-5000 FORMER COMPANY: FORMER CONFORMED NAME: CENTRAL LOUISIANA ELECTRIC CO INC DATE OF NAME CHANGE: 19920703 S-8 POS 1 CLECO HOLDING CORPORAITON - P.E. AMENDMENT NO.1 1 As filed with the Securities and Exchange Commission on June 30, 1999 Registration No. 33-38362 ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ------------------------------------ POST-EFFECTIVE AMENDMENT NO. 1 TO FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 (Registration No. 33-38362) ------------------------------------ CLECO HOLDING CORPORATION (Exact Name of Registrant as Specified in Its Charter) LOUISIANA 72-1445282 (State or Other Jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification Number) 2030 DONAHUE FERRY ROAD PINEVILLE, LOUISIANA 71360-5226 (318) 484-7400 (Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant's Principal Executive Offices) ------------------------------------ CLECO CORPORATION 1990 LONG-TERM INCENTIVE COMPENSATION PLAN (AS AMENDED AND RESTATED APRIL 24, 1998) (Full Title of Plan) DAVID M. EPPLER COPY TO: PRESIDENT AND CHIEF OPERATING OFFICER ALAN C. WOLF CLECO CORPORATION PHELPS DUNBAR, L.L.P. 2030 DONAHUE FERRY ROAD 400 POYDRAS STREET PINEVILLE, LOUISIANA 71360 NEW ORLEANS, LOUISIANA 70130-3245 (318) 484-7400 (504) 566-1311 (Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent For Service) ------------------------------------ This Post-Effective Amendment No. 1 to the Registration Statement on Form S-8 (Registration No. 33- 38362) is being filed pursuant to Rule 414(d) under the Securities Act of 1933, as amended, by the Registrant, Cleco Holding Corporation, as successor to Cleco Corporation. The Registrant hereby expressly adopts the Registration Statement as its own registration statement for all purposes of the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended, and hereby sets forth any additional information necessary to reflect any material changes made in connection with or resulting from the succession, or necessary to keep this Registration Statement from being misleading in any material respect. ------------------------------------ 2 ADOPTION OF PREDECESSOR ISSUER'S REGISTRATION STATEMENT Effective July 1, 1999, Cleco Holding Corporation (the "Registrant") will become the successor issuer of Cleco Corporation ("Cleco") pursuant to the Plan of Reorganization and Share Exchange Agreement referenced as Exhibit 2 hereto and, pursuant to Rule 414(d) under the Securities Act of 1933, as amended, the Registrant hereby expressly adopts Cleco's Registration Statement on Form S-8 (Registration No. 33-38362) as Registrant's own registration statement for all purposes of the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended. Subsequent to the reorganization, shares of the Registrant's common stock will be substituted for Cleco's common stock issuable under the Cleco Corporation 1990 Long-Term Incentive Compensation Plan to which this Registration Statement relates. Cleco shall continue to be the sponsor of the Plan, and the Plan shall continue to be known as the Cleco Corporation 1990 Long-Term Incentive Compensation Plan. The applicable registration fees were paid at the time of the original filing of this Registration Statement. PART I INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS *ITEM 1. PLAN INFORMATION. *ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION. *The information required by Part I of Form S-8 to be contained in the Section 10(a) prospectus is omitted from this Post-Effective Amendment No. 1 to Registration Statement in accordance with Rule 428 under the Securities Act of 1933 and the Note to Part I of Form S-8. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents have been filed by Registrant or Cleco with the Securities and Exchange Commission (the "Commission") and are hereby incorporated by reference in this Post-Effective Amendment No. 1 to Registration Statement: (1) Cleco's Annual Report on Form 10-K for the year ended December 31, 1998; II-1 3 (2) All other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 since December 31, 1998; (3) The Annual Report on Form 11-K dated July 13, 1998 for the Cleco Corporation 401(k) Savings and Investment Plan for the fiscal year ended December 31, 1997; and (4) The description of the Registrant's common stock, $2.00 par value, contained in the Registration Statement on Form S-4 filed on February 2, 1999, as amended (Commission File No. 333-71643) by Cleco. In addition, all documents filed with the Commission by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 on or after the date of this Post-Effective Amendment No. 1 to Registration Statement and prior to the post-effective amendment which indicates that all securities offered hereby have been sold, or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Post-Effective Amendment No. 1 to Registration Statement and to be a part hereof from the date of filing such documents. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL. Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 83 of the Business Corporation Law of the State of Louisiana (the "LBCL") provides that a corporation may indemnify any person against whom an action, suit or proceeding is brought or threatened (by reason of the fact that he is or was a director, officer, employee or agent of the corporation or was serving at the request of the corporation as a director, officer, employee or agent of another business, corporation, partnership or other enterprise) against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with any such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. In the case of actions by or in the right of the corporation, the indemnity is limited to expenses (including attorneys' fees and amounts paid in settlement not exceeding, in the judgment of the board of directors, the estimated expense of litigating the action to conclusion) actually and reasonably incurred in connection with a defense or settlement; provided that no indemnity may be made in respect of any matter in which the person shall have been adjudged by a court of competent jurisdiction, after exhaustion of all appeals therefrom, to be liable for willful or intentional misconduct in performance of his duty to the corporation, unless and only to the extent that the court determines II-2 4 upon application that such person is fairly and reasonably entitled to such indemnity. To the extent a person has been successful on the merits or otherwise in defense of any action, suit or proceeding or in defense of any claim, issue or matter therein, the statute provides that he shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith. Section 83 also provides for, among other things, procedures for indemnification, advancement of expenses, non-exclusivity of the provisions of Section 83 with respect to indemnification and advancement of expenses, and insurance (including self-insurance) with respect to liabilities incurred by directors, officers and others. Article IV of the Bylaws of the Registrant (the "Bylaws") provides that the Registrant shall indemnify any person who was or is, or is threatened to be made, a party to or otherwise involved in any pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, administrative hearing or other proceeding, whether civil, criminal, administrative or investigative (any such threatened, pending or completed proceeding being hereinafter called a "Proceeding"), by reason of the fact that he is or was a director, officer, employee or agent of the Registrant or is or was serving at the request of the Registrant as a director, officer, employee or agent of another business, foreign or nonprofit corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, to the fullest extent permitted by applicable law, from and against expenses, including attorneys' fees, judgments, fines, ERISA excise taxes or amounts paid or to be paid in settlement, liability and loss, actually and reasonably incurred by him or on his behalf or suffered in connection with such Proceeding or any claim, issue or matter therein; provided, however, that, subject to certain exceptions set forth therein, the Registrant shall indemnify any such person in connection with a Proceeding initiated by such person only if such Proceeding was authorized by the Registrant's board of directors. Article IV of the Bylaws further provides that (i) the Registrant shall from time to time pay, in advance of final disposition, all expenses (as therein defined) incurred by or on behalf of any person claiming indemnity thereunder in respect of any Proceeding, (ii) the right to indemnification provided therein is a contract right; (iii) any such indemnification may continue as to any person who has ceased to be a director, officer, employee or agent and may inure to the benefit of the heirs, executors and legal representatives of such person; and (iv) the rights of indemnification and to receive advancement of expenses contemplated by Article IV of the Bylaws are not exclusive of any other rights to which any person may at any time be otherwise entitled, provided that such other indemnification may not apply to a person's willful or intentional misconduct. The Bylaws set forth certain procedural and evidentiary standards applicable to the enforcement of a claim thereunder. The Bylaws also provide that the Registrant may procure or maintain insurance or other similar arrangements, at its expense, to protect itself and any director, officer, employee or agent of the Registrant or other corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss asserted against or incurred by such person, whether or not the Registrant would have the power to indemnify such person against such expense or liability. The Registrant has two insurance policies covering liabilities not in excess of an aggregate of $85 million incurred by officers and directors of the Registrant in their capacity as such and not in excess of $25 million II-3 5 incurred by officers, directors and certain other employees of the Registrant in connection with the administration of the Registrant's employee benefit plans. Section 24(C)(4) of the LBCL provides that a corporation may eliminate or limit the liability of a director or officer to the corporation or its shareholders for monetary damages for breach of fiduciary duty, except for liability (i) for any breach of the director's or officer's duty of loyalty to the corporation or its shareholders; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) under Section 92(D) of the LBCL (relating to unlawful dividends and unlawful stock repurchases and redemptions); and (iv) for any transaction from which the director or officer derived an improper personal benefit. Section 7 of Article 7 of the Registrant's Articles of Incorporation (the "Articles") is consistent with the provisions of Section 24(C)(4) of the LBCL. If the LBCL is subsequently amended to authorize further elimination or limitation of a director's or officer's liability, the Articles provide that such liability will be eliminated or limited to the fullest extent permitted by law. The foregoing discussion of the Registrant's Bylaws, Articles and the LBCL is not intended to be exhaustive and is qualified in its entirety by each of such documents and such statute. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. See Exhibit Index. ITEM 9. UNDERTAKINGS. (a) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers of shares are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum II-4 6 aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective Registration Statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (4) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (5) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. II-5 7 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Post-Effective Amendment No. 1 to Registration Statement on Form S-8, Commission File Number 33-38362, to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Eureka, State of California, on June 19, 1999. CLECO HOLDING CORPORATION By: /s/ Gregory L. Nesbitt -------------------------- Gregory L. Nesbitt Chairman and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on June 19, 1999.
SIGNATURE TITLE /s/ Gregory L. Nesbitt Chairman, Chief Executive Officer and Sole - -------------------------- Director Gregory L. Nesbitt /s/ David M. Eppler President and Chief Operating Officer - -------------------------- David M. Eppler /s/ Thomas J. Howlin Senior Vice President - Financial Services and - -------------------------- Officer Thomas J. Howlin
S-1 8 POWER OF ATTORNEY Each person whose signature appears below constitutes and appoints Gregory L. Nesbitt, David M. Eppler and Thomas J. Howlin, and each of them, with full power to act without the others, such person's true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign one or more registration statements and any amendments thereto and one or more amendments to existing registration statements of Cleco Corporation (to be renamed Cleco Utility Group Inc. upon the implementation of the holding company structure) and one or more further amendments thereto to be filed with the Securities and Exchange Commission to register under the Securities Act of 1933, as amended, shares of Cleco Holding Corporation's (to be renamed Cleco Corporation upon the implementation of the holding company structure) common stock ($2.00 par value) and preferred stock ($100 par value) to be offered and sold under the Cleco Corporation 401(k) Savings and Investment Plan, most recently amended and restated effective as of January 1, 1994, and shares of Cleco Holding Corporation's common stock to be offered and sold under the 1990 Long-Term Incentive Compensation Plan, amended and restated effective as of April 24, 1998, each of which Cleco Holding Corporation may assume pursuant to the Plan of Reorganization and Share Exchange Agreement to be executed by Cleco Corporation and Cleco Holding Corporation, and to file the same, with exhibits and schedules thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing necessary or desirable to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned have executed this instrument, this 19th day of June, 1999.
SIGNATURE TITLE - --------- ----- /s/ Gregory L. Nesbitt Chairman, Chief Executive Officer and Sole - ------------------------ Director Gregory L. Nesbitt /s/ David M. Eppler President and Chief Operating Officer - ------------------------ David M. Eppler /s/ Thomas J. Howlin Senior Vice President - Financial Services and - ------------------------ Officer Thomas J. Howlin
S-2 9 INDEX TO EXHIBITS The exhibits designated by an asterisk are filed with this Post-Effective Amendment No. 1 to the Registration Statement. The exhibits not so designated have been previously filed with the Commission and are incorporated herein by reference.
EXHIBIT NUMBER DESCRIPTION 2 Plan of Reorganization and Share Exchange Agreement (filed as Exhibit C to the Proxy Statement and Prospectus included in Cleco's Registration Statement on Form S-4 filed on February 2, 1999, as amended, and incorporated herein by reference, Commission File No. 333-71643). 3.1 Articles of Incorporation of Registrant, effective July 1, 1999 (filed as Exhibit A to the Proxy Statement and Prospectus included in Cleco's Registration Statement on Form S-4 filed on February 2, 1999, as amended, and incorporated herein by reference, Commission File No. 333-71643). 3.2 By-laws of Registrant, effective as of July 1, 1999 (filed as Exhibit 3(d) to Cleco's Registration Statement on Form S-4 filed on February 2, 1999, as amended, and incorporated herein by reference, Commission File No. 333-71643). *4.3 Cleco Corporation 1990 Long-Term Incentive Compensation Plan, as amended and restated effective as of April 24, 1998 (the "Plan"). *5 Opinion of Phelps Dunbar, L.L.P. as to the legality of the securities being registered. 23.1 Consent of PricewaterhouseCoopers LLP, filed as an exhibit to Cleco's Form 10-K for the period ended December 31, 1998, and incorporated herein by reference. *23.2 Consent of Phelps Dunbar, L.L.P. (included in Exhibit 5). *24 Powers of Attorney (included on the Signature Page attached hereto).
EX-4.3 2 1990 LONG-TERM INCENTIVE COMPENSATION PLAN 1 CLECO CORPORATION 1990 LONG-TERM INCENTIVE COMPENSATION PLAN (As Amended and Restated Effective April 24, 1998) ARTICLE I PURPOSE 1.1 Purpose of Plan. The purpose of this Cleco Corporation 1990 Long-Term Incentive Compensation Plan (the "Plan") is to create shareholder value. To do so, the Plan provides incentives to selected key employees of Cleco Corporation (the "Company") and its subsidiaries who contribute, and are expected to contribute, materially to the success of the Company and its subsidiaries; provides a means of rewarding outstanding performance; and enhances the interest of such key employees in the Company's continued success and progress by providing them a proprietary interest in the Company and/or cash payments based on the value of the Company's equity. Further, this Plan is designed to enhance the Company's ability to maintain a competitive position in attracting and retaining qualified members of the Board of Directors and key personnel necessary for the continued success and progress of the Company. 2 ARTICLE II DEFINITIONS 2.1 Definitions. For purposes of the Plan, the following terms shall have the meanings below stated, subject to the provisions of Section 11.1. ATTACHED STOCK APPRECIATION RIGHT: means a Stock Appreciation Right granted with respect to shares of Common Stock covered by an Option, pursuant to the provisions of Section 9.4. BOARD or BOARD OF DIRECTORS: means the Board of Directors of the Company. CODE: means the Internal Revenue Code of 1986, as amended. COMMITTEE: means the Compensation Committee of the Board of Directors as constituted pursuant to Article XI. COMMON STOCK: means, subject to the provisions of Section 13.3, the presently authorized common stock, $2.00 par value, of the Company. COMMON STOCK EQUIVALENT UNIT: means a unit which is valued by reference to the value of one share of Common Stock and which is converted to cash payments to the Key Employee pursuant to the provisions of Section 5.3. COMMON STOCK EQUIVALENT UNITS LEDGER: means the ledger to be established and maintained by the Company pursuant to the provisions of Section 5.3. COMPANY: means Cleco Corporation, a Louisiana corporation. DISABILITY: means a physical or mental impairment of sufficient severity such that an Employee is (or the Eligible Director would be, if such Director were a participant in such plans) both eligible for and in receipt of benefits under the long-term disability provisions of the Company's benefit plans. DIVIDEND EQUIVALENT CREDIT: means an amount to be credited to a Key Employee's account maintained in the Common Stock Equivalent Units Ledger upon the payment of dividends on the Company's Common Stock, as provided in Section 5.3(a). ELIGIBLE DIRECTOR: means a person serving as a member of the Board of Directors of the Company who is not also an Employee of the Company or any Subsidiary. EMPLOYEE: means an officer or employee of the Company or a Subsidiary of the Company. -2- 3 FAIR MARKET VALUE: means the average, rounded to the nearest 1/8th, of the high and low sales price of a share of Common Stock on the New York Stock Exchange Composite Transactions reporting system, as reported in The Wall Street Journal, on the date as of which such value is being determined or, if no sales occurred on such day, then on the next preceding day on which there were such sales. INCENTIVE STOCK OPTION: means an option to purchase Common Stock, granted by the Company to a Key Employee pursuant to Section 9.1, which meets the requirements of Section 422 of the Code. KEY EMPLOYEE: means an Employee selected to participate in this Plan pursuant to the terms hereof. NONSTATUTORY STOCK OPTION: means an option to purchase Common Stock, granted by the Company to a Key Employee pursuant to Section 9.1, which should not and does not meet the requirements of Section 422 of the Code. OPPORTUNITY SHARES: means additional shares of Common Stock which may be granted to a Key Employee receiving a Restricted Stock Award, as provided in Section 5.1(b). OPPORTUNITY UNITS: means additional Common Stock Equivalent Units which may be granted to a Key Employee receiving a Restricted Unit Award, as provided in Section 5.1(b). OPTION: means an Incentive Stock Option or a Nonstatutory Stock Option. PERFORMANCE CYCLE: means the period of time used when measuring the degree to which the Performance Objectives relating to Restricted Stock Awards or Restricted Unit Awards have been met. PERFORMANCE OBJECTIVES: means the criteria established by the Committee for each Performance Cycle as the basis for determining (i) the number of shares of Common Stock or Common Stock Equivalent Units, as the case may be, which shall be released from the restrictions of a Restricted Stock Award or a Restricted Unit Award and (ii) the number of additional Opportunity Shares of Common Stock or Opportunity Units of Common Stock Equivalent Units, as the case may be, related to such Restricted Stock Award or Restricted Unit Award which the Committee may elect to award to a Key Employee. PLAN: means the Cleco Corporation 1990 Long-Term Incentive Compensation Plan, as set forth herein and as from time to time amended. RESTRICTED STOCK AWARD: means an award of restricted shares of Common Stock, granted by the Company to a Key Employee pursuant to Section 5.1 or to an Eligible Director pursuant to Section 5.4. -3- 4 RESTRICTED UNIT AWARD: means an award of Common Stock Equivalent Units granted by the Company to a Key Employee pursuant to Section 5.1. STOCK APPRECIATION RIGHT: means a right, granted by the Company to a Key Employee pursuant to Section 9.4 or 9.5, to earn additional compensation for services rendered based upon the appreciation of the Fair Market Value of the Common Stock. STOCK INCENTIVES: means Options, Stock Appreciation Rights, Restricted Stock Awards, and Restricted Unit Awards granted under this Plan. SUBSIDIARY: means a subsidiary corporation as defined in Section 424(f) of the Code. UNATTACHED STOCK APPRECIATION RIGHT: means a Stock Appreciation Right granted independent of any Option, pursuant to the provisions of Section 9.5. -4- 5 ARTICLE III SHAREHOLDER APPROVAL; RESERVATION OF SHARES 3.1 Approvals. The Plan was originally adopted effective January, 1990 and was approved by shareholders at the 1990 annual meeting of the shareholders. This Plan, as amended and restated effective April 24, 1998, shall become effective only if approved on or before January 1, 1999 by the affirmative vote, in person or by proxy, of the holders of a majority of the shares of Common Stock present and entitled to vote at a meeting held to take action thereon at which a quorum is present; and if such approval has not been obtained by such date, all Restricted Stock Awards to Eligible Directors previously granted shall be void and the Plan shall be reinstated in the form approved by shareholders at the 1990 annual meeting. If any grant pursuant to this Plan or the issuance or transfer pursuant to this Plan of any shares of the Common Stock shall require any prior approval of any governmental body or agency, no grant, issuance, or transfer thereof shall be made until such approval shall have been obtained. 3.2 Shares Reserved Under Plan. The aggregate number of shares of Common Stock which may be granted under this Plan shall not exceed Eight Hundred Thousand (800,000) shares. The shares of Common Stock which may be granted pursuant to Options, Attached Stock Appreciation Rights, and Restricted Stock Awards will consist of either (i) authorized but unissued shares of Common Stock or (ii) shares of Common Stock which have been issued and which shall have been heretofore or hereafter reacquired by or on behalf of or at the direction of the Company (whether directly or indirectly through one or more agents, affiliates, nominees, custodians, trustees, or other representatives or designees). The total number of shares available for grant under this Plan shall be subject to increase or decrease in order to give effect to the adjustment provision of Section 13.3 and to give effect to any amendment adopted as provided in Section 12.1. The total number of shares available for grant under this Plan shall also be decreased by one share for (a) each Common Stock Equivalent Unit (including each such unit granted as an Opportunity Unit) awarded under a Restricted Unit Award and (b) each Unattached Stock Appreciation Right granted pursuant to this Plan; provided, however, that if any Restricted Unit Award or Unattached Stock Appreciation Right granted to a Key Employee under this Plan shall expire, terminate, or be canceled for any reason prior to the lapse of all restrictions relating thereto, then the number of shares of Common Stock previously made unavailable for grant by operation of this provision upon the grant of such Restricted Unit Award or Unattached Stock Appreciation Right shall again be available for purposes of this Plan. If any Option, Attached Stock Appreciation Right, or Restricted Stock Award granted to a Key Employee or Eligible Director under this Plan shall expire, terminate, or be canceled for any reason prior to the lapse of all restrictions relating to all shares covered thereby, any shares of Common Stock that such Key Employee or Eligible Director is not entitled to receive under this Plan and such Stock Incentive upon such expiration, termination, or cancellation shall again be available for purposes of this Plan; provided, however, that the number of shares of Common Stock available for grant under this Plan shall be reduced by the number of shares subject to an Option for which a Key Employee has exercised a related Attached Stock Appreciation Right in accordance with Section 9.4. If the number of shares of Common Stock available for grant under this Plan shall ever decrease to zero, then no further grants of any Stock Incentives shall be made under this Plan until -5- 6 such time, if ever, before the termination of this Plan that shares of Common Stock shall again be available for grant hereunder. -6- 7 ARTICLE IV PARTICIPATION IN THE PLAN 4.1 Eligibility to Receive Stock Incentives. Stock Incentives under this Plan may be granted only to persons who are determined by the Committee to be Key Employees of the Company or a Subsidiary of the Company on the date the Stock Incentive is granted and to Eligible Directors as provided in Section 5.4. A member of the Board of Directors who is not also an Employee of the Company or of a Subsidiary of the Company shall not be eligible to receive a Stock Incentive other than pursuant to Section 5.4. 4.2 Participation Not Guarantee of Employment. Nothing in this Plan or in the instrument evidencing the grant of a Stock Incentive shall in any manner be construed to limit in any way the right of the Company or a Subsidiary to terminate a Key Employee's employment at any time, without regard to the effect of such termination on any rights such Key Employee would otherwise have under this Plan, or give any right to such a Key Employee to remain employed by the Company or a Subsidiary thereof in any particular position or at any particular rate of compensation. -7- 8 ARTICLE V STOCK AWARDS 5.1 Grant of Restricted Stock Awards and Restricted Unit Awards to Key Employees. (a) Selection of Key Employees. Subject to the terms of this Plan, the Committee shall select from among the Employees of the Company and its Subsidiaries those Key Employees to whom Restricted Stock Awards or Restricted Unit Awards shall be awarded for each Performance Cycle. Restricted Stock Awards and Restricted Unit Awards and the allocation of Opportunity Shares or Opportunity Units, if any, related to such awards shall generally be made at the beginning of a Performance Cycle, but may, in the Committee's discretion, be made from time to time during the term of a Performance Cycle. (b) Award of Shares or Units. The Committee shall determine the number of shares of Common Stock covered by each Restricted Stock Award or the number of Common Stock Equivalent Units covered by each Restricted Unit Award and the maximum number of Opportunity Shares or Opportunity Units, if any, related to such award which may be granted to a Key Employee. After the close of, and, if appropriate and in accordance with Section 7.2(b) during the term of each Performance Cycle, the Committee shall determine whether the restrictions provided for in Article VI hereof shall lapse with respect to a portion or all of the shares awarded under a Restricted Stock Award or with respect to a portion or all of the shares awarded under a Restricted Stock Award or with respect to a portion or all of the Common Stock Equivalent Units awarded under a Restricted Unit Award and whether any Opportunity Shares or Opportunity Units, as the case may be, related to such award shall be granted. (c) Form of Instrument. Each Restricted Stock Award and each Restricted Unit Award shall be made to a Key Employee pursuant to an instrument prescribed in form by the Committee. Such instrument shall contain such terms and provisions as the Committee shall determine and shall specify the number of shares of Common Stock or Common Stock Equivalent Units covered thereby, the restrictions provided for in Article VI, and the Performance Objectives, if any, which if not achieved may cause all or part of the shares or units to be forfeited after the close of the Performance Cycle with respect to which they were awarded. (d) Performance Objectives. Each Restricted Stock Award and each Restricted Unit Award to a Key Employee may or may not be subject to the achievement of Performance Objectives by the Company during the Performance Cycle with respect to which the Restricted Stock Award or Restricted Unit Award is made. The Committee shall establish Performance Objectives prior to the beginning of each Performance Cycle. Once established, Performance Objectives may be -8- 9 changed, adjusted, or amended during the term of a Performance Cycle only upon authorization by the Committee. The degree to which the Company achieves such Performance Objectives shall serve as the basis for the Committee's determination of the portion of a Key Employee's Restricted Stock Award or Restricted Unit Award which shall become vested by reason of the lapse of the restrictions provided for in Article VI and the number of Opportunity Shares or Opportunity Units, if any, which shall be awarded. The Committee may waive the attainment of Performance Objectives (in whole or in part) during or after the close of a Performance Cycle if the Committee deems it appropriate in light of a change of circumstances. 5.2 Rights with Respect to Shares. Each Key Employee to whom a Restricted Stock Award consisting of shares of Common Stock represented by a stock certificate has been made shall have absolute ownership of such shares including the right to vote the same and receive dividends thereon, subject, however, to the terms, conditions, and restrictions described in this Plan and in the instrument evidencing the grant of the Restricted Stock Award. Notwithstanding the foregoing, shares of Common Stock transferred pursuant to a Restricted Stock Award shall be held in escrow pursuant to an agreement satisfactory to the Committee until such time as the Committee shall have determined whether the restrictions provided for in Article VI shall have lapsed. No Key Employee to whom a Restricted Stock Award with related Opportunity Shares is granted shall have any rights as a shareholder, including without limitation the right to receive dividends or the right to vote, with respect to such Opportunity Shares, until the issuance thereof pursuant to this Plan. 5.3 Common Stock Equivalent Units. The Company shall establish a Common Stock Equivalent Units Ledger which will reflect the name of each Key Employee, the number of Common Stock Equivalent Units awarded to each Key Employee, and the Fair Market Value of the number of shares of Common Stock equal to the Common Stock Equivalent Units awarded to a Key Employee on the date of grant of each Restricted Unit Award. Each Common Stock Equivalent Unit shall be subject to the following adjustments and provisions: (a) Dividend Equivalents. So long as a Key Employee holds Common Stock Equivalent Units on a record date for the payment of dividends on the Common Stock, the Company shall enter a Dividend Equivalent Credit to the Key Employee's account in the Common Stock Equivalent Units Ledger on the dividend payment date of the Common Stock corresponding to such record date measured by the amount of the dividend paid on a share of Common Stock multiplied by the number of Common Stock Equivalent Units credited to the Key Employee's account on such record date, so that the amount of each Dividend Equivalent Credit shall equal the dividends which the Key Employee would have received had such Key Employee then been the record owner of a number of shares of Common Stock equal to the number of Common Stock Equivalent Units credited to such Key Employee's account on such record date. The Dividend Equivalent Credits shall be converted into additional Common Stock Equivalent Units as of the dividend payment date by reference to the Fair Market Value of the Common Stock on the dividend payment date. -9- 10 (b) Payment. The Fair Market Value of the number of shares of Common Stock equal to the number of Common Stock Equivalent Units held by a Key Employee pursuant to a Restricted Unit Award shall be paid to the Key Employee in cash at the time provided in the applicable Restricted Unit Award instrument or upon the lapse of the restrictions applicable to such Restricted Unit Award (including a lapse of restrictions because of a change of control, as provided in Section 7.3). (c) Nature of Units. The Common Stock Equivalent Units shall be used solely as a device for the measurement and determination of the amount to be paid to Key Employees pursuant to grant of Restricted Unit Awards. The Common Stock Equivalent Units shall not constitute or be treated as property or as a trust fund of any kind. Common Stock Equivalent Units may not be sold, assigned, transferred, pledged, hypothecated, or otherwise disposed of by a Key Employee. All amounts at any time attributable to the Common Stock Equivalent Units shall be and remain the sole property of the Company, and all Key Employees' rights hereunder are limited to the rights to receive cash upon the vesting of the Restricted Unit Awards. 5.4 Grant of Stock to Eligible Directors. (a) Stock Awarded as Compensation. Each Eligible Director may elect, except as provided below in Section 5.4(b)(i), to receive any or all of such Director's annual compensation for his or her service as a Director in Common Stock instead of in cash. The number of shares provided the Eligible Director shall equal the quotient of x divided by y where x equals that amount of compensation that the Eligible Director elects to receive in Common Stock and y equals the Fair Market Value of a share of Common Stock on the first business day after the Board meeting to which such award of Common Stock relates. Prior to the calendar year in which the shares are awarded as compensation, the Eligible Director shall also elect whether to take immediate receipt of the Common Stock or to defer receipt of the Common Stock under the terms of the Deferred Compensation Plan for Directors. (b) Grant of Restricted Stock Awards to Eligible Directors. Each Eligible Director who, on the first business day following the 1998 annual meeting or who, upon the Eligible Director's election to the Board subsequent to such date, owns less than 1,000 shares of Common Stock, shall receive a Restricted Stock Award equal to that number of shares of Common Stock necessary to increase such Eligible Director's ownership of Common Stock to 1,000 shares. (i) Vesting of Shares. Until such time as all of the shares awarded under the Restricted Stock Award have vested, the Eligible Director shall apply $6,000 of such Eligible Director's annual retainer toward acquiring a vested interest in such shares of Common Stock. The shares of Common Stock will vest based on the Fair Market -10- 11 Value of the shares on the date the Restricted Stock Award is granted. (ii) Deferral. Prior to receipt of the shares of Common Stock granted under the Restricted Stock Award, the Eligible Director shall elect whether to take receipt of the Common Stock awarded or to defer receipt of the Common Stock under the terms of the Deferred Compensation Plan for Directors. (iii) Restrictions. Restricted Stock Awards to Eligible Directors shall not be subject to the achievement of Performance Objectives, but shall be subject to the provisions regarding restrictions set forth in Sections 6.1, 7.2 and 7.3. Each Restricted Stock Award made to an Eligible Director shall be evidenced by an instrument prescribed in form by the Committee, but consistent with the terms of this Plan. The Restricted Stock Award to an Eligible Director shall consist of shares of Common Stock represented by a stock certificate. The Eligible Director shall have absolute ownership of such shares including the right to vote the same and receive dividends thereon, subject, however, to the terms, conditions and restrictions described in this Plan. Notwithstanding the foregoing, shares of Common Stock transferred to an Eligible Director pursuant to a Restricted Stock Award shall be held in escrow pursuant to an agreement satisfactory to the Committee until the restrictions provided for in Section 6.1 shall have lapsed. -11- 12 ARTICLE VI RESTRICTIONS APPLICABLE TO RESTRICTED STOCK AWARDS AND RESTRICTED UNIT AWARDS 6.1 Restrictions on Restricted Stock Awards. Each Restricted Stock Award granted under this Plan shall contain the terms, conditions, and restrictions set forth in this Section 6.1 and Restricted Stock Awards granted to Key Employees shall contain such additional terms, conditions, and restrictions as may be determined by the Committee. Until the restrictions set forth in this Section 6.1 shall lapse pursuant to Article VII, shares of Common Stock awarded to a Key Employee or an Eligible Director pursuant to each Restricted Stock Award: (a) shall not be sold, assigned, transferred, pledged, hypothecated, or otherwise disposed of; and (b) shall be returned to the Company, and all rights of the Key Employee or Eligible Director to such shares shall terminate without any payment of consideration by the Company, if (1) the Committee notifies the Key Employee pursuant to Section 7.1 (as of the end of the Performance Cycle or portion thereof) that it has determined that the Performance Objectives established with respect to all or a portion of the shares of Common Stock granted under such Restricted Stock Award have not been achieved, (2) the Key Employee's continuous employment with the Company or any of its Subsidiaries shall terminate for any reason, except as provided in Section 7.2 or 7.3, or (3) the Eligible Director terminates membership on the Board for any reason prior to full vesting of the shares of Common Stock granted; provided, however, that this subparagraph (b)(3) shall not apply to shares of Common Stock that have vested pursuant to the provisions of Section 5.4. 6.2 Restrictions on Restricted Unit Awards. Each Restricted Unit Award granted under this Plan shall contain such terms, conditions, and restrictions as may be determined by the Committee. Until such restrictions shall lapse pursuant to Article VII, Common Stock Equivalent Units awarded to a Key Employee pursuant to each Restricted Unit Award shall be forfeited, and all rights of the Key Employee relating to such Common Stock Equivalent Units shall terminate without any payment of consideration by the Company, if (a) the Committee notifies the Key Employee pursuant to Section 7.1 (as of the end of the Performance Cycle or portion thereof) that it has determined that the Performance Objectives established with respect to all or a portion of the Common Stock Equivalent Units granted under such Restricted Unit Award have not been achieved, or (b) the Key Employee's continuous employment with the Company or any of its Subsidiaries shall terminate for any reason, except as provided in Section 7.2 or 7.3. -12- 13 ARTICLE VII LAPSE OF RESTRICTIONS 7.1 Lapse of Restrictions Due to Achievement of Performance Objectives. As soon as practicable after the close of each Performance Cycle, the Committee shall determine whether the Company has achieved the Performance Objectives established for such Performance Cycle. The Committee shall notify each Key Employee who has received a Restricted Stock Award or a Restricted Unit Award whether the Performance Objectives established for the Performance Cycle have been achieved, the number of shares, if any, of Common Stock or the number of Common Stock Equivalent Units, if any, with respect to which the restrictions of Article VI have lapsed, the number of shares of Common Stock or the number of Common Stock Equivalent Units, if any, which have been forfeited, and the number of Opportunity Shares or Opportunity Units, if any, related to such awards which such Key Employee shall receive. Any lapse of restrictions or award of Opportunity Shares or Opportunity Units pursuant to this Section 7.1 shall occur on the date the Committee notifies the Key Employee thereof in writing. 7.2 Lapse of Restrictions Due to Certain Terminations of Employment. If a Key Employee who has been in the continuous employment of the Company or of any Subsidiary since the date on which a Restricted Stock Award or a Restricted Unit Award was granted to such Key Employee shall, while in such employment and prior to the close of the Performance Cycle with respect to which such award was granted: (a) terminate employment by reason of retirement on or after such Key Employee's 65th birthday under a Company-sponsored retirement plan, the restrictions set forth in Section 6.1 shall lapse, as to all shares included in the Restricted Stock Award or as to all Common Stock Equivalent Units included in the Restricted Unit Award granted to such Key Employee, on the date of such retirement; or (b) terminate employment by reason of death, Disability, or retirement prior to such Key Employee's 65th birthday but on or after the earliest date on which such Key Employee is eligible to retire under a Company-sponsored retirement plan with an immediate retirement benefit, or if such Key Employee's employment is terminated by the Company without cause, the restrictions provided for in Section 6.1 (b)(2) or Section 6.2(b), as the case may be, shall lapse on the date of such event and all other restrictions provided for in Section 6.1 or Section 6.2, as the case may be, shall lapse on the date of such event as to the same proportion of the shares included in the Restricted Stock Award or Common Stock Equivalent Units included in the Restricted Unit Award granted to such Key Employee (together with the maximum amount of Opportunity Shares or Opportunity Units, if any, related to the Restricted Stock Award or Restricted Unit Award which may be awarded to such Key Employee) as the number of days elapsed in the Performance Cycle as of the date of such event bears to the total number of days in the Performance Cycle. -13- 14 The restrictions set forth in Section 6.1(a) shall lapse as to all vested shares covered by the Restricted Stock Awards made to each Eligible Director during his or her term as a director immediately upon termination of that term. 7.3 Lapse of Restrictions Upon Change in Control. Notwithstanding any provision of Section 6.1, Section 6.2, or any other provision of this Plan or any provision in any grant or award hereunder to the contrary, (i) with respect to Eligible Directors, the restrictions provided for in 6.1(a) on the shares of Common Stock heretofore or hereafter granted pursuant to Restricted Stock Awards and (ii) with respect to Key Employees, all of the restrictions provided for in Article VI on the shares of Common Stock heretofore or hereafter granted pursuant to Restricted Stock Awards and the Common Stock Equivalent Units heretofore or hereafter granted pursuant to Restricted Unit Awards shall lapse and all Opportunity Shares and Opportunity Units related to such awards shall be granted upon and simultaneously with the occurrence of any "change in control" of the Company. Such a "change in control" shall be deemed to have taken place if: (a) an event involving the Company occurs of a nature that the Company would be required to report in response to item 5(f) of schedule 14A of regulation 14A promulgated by the Securities and Exchange Commission (the "SEC") under the Securities Exchange Act of 1934, as amended (the "1934 Act"); (b) any "person" (as such term is used in sections 13(d) and 14(d) of the 1934 Act), other than the Company or any "person" who on the effective date of this Plan is a director or officer of the Company, is or becomes the "beneficial owner" (as determined in Rule 13d-3 under the 1934 Act), directly or indirectly, of securities of the Company representing 20% or more of the combined voting power of the Company's then outstanding securities; (c) during any period of 24 consecutive months after the effective date of this Plan, individuals who at the beginning of such period constitute the Board of Directors cease for any reason to constitute at least a majority thereof, unless the election of each director who was not a director at the beginning of such period shall have been approved in advance by directors representing at least 80% of the directors then in office who were directors at the beginning of such period; (d) the Company shall be party to a merger or consolidation with another corporation and as a result of such transaction less than 80% of the then outstanding voting securities of the surviving or resulting corporation shall be owned in the aggregate by the former shareholders of the Company other than "affiliates" (as such term is defined in Rule 405 promulgated by the SEC under the Securities Act of 1933, as amended (the "1933 Act")) of any party to such transaction, as the same shall have existed immediately before such transaction; (e) the Company sells, leases, or otherwise disposes of, in one transaction or in a series of related transactions, all or substantially all of its assets; or -14- 15 (f) the shareholders of the Company approve a plan of dissolution or liquidation. -15- 16 ARTICLE VIII TAX PAYMENTS 8.1 Tax Payments. A Key Employee who has received shares of Common Stock pursuant to a Restricted Stock Award with respect to which all of the restrictions set forth in Article VI shall have lapsed or pursuant to an award of Opportunity Shares related to such Restricted Stock Award may also receive from the Company a cash payment in the year following the close of the Performance Cycle in an amount determined by the Committee, if any, which amount will be sufficient to pay such Key Employee's tax liability (assuming the highest rates of tax applicable to any individual taxpayer in the year in which such payment is made) with respect to (i) such shares and (ii) such cash payment. -16- 17 ARTICLE IX OPTIONS AND STOCK APPRECIATION RIGHTS 9.1 Grant of Options. (a) Grant to Key Employees. The Committee may grant Incentive Stock Options and/or Nonstatutory Stock Options to Key Employees. All Options under this Plan shall be granted within ten years of the date this Plan is originally adopted or the date this Plan is originally approved by shareholders of the Company, whichever is earlier. (b) Grant to Eligible Directors. Each Eligible Director, upon such Eligible Director's election to the Board, shall be granted an award of an immediately exercisable Nonstatutory Stock Option to purchase 2,500 shares of Common Stock. Each Eligible Director who is, on the date of the 1998 annual meeting, serving on the Board and whose term on the Board expires in 1999 or 2000 shall receive an immediately exercisable Nonstatutory Stock Option on the first business day following the 1998 annual meeting to acquire a number of shares of Common Stock equal to the product of 2,500 multiplied by a fraction, which fraction has a numerator equal to the years remaining in the Eligible Director's term of office and a denominator equal to three. Except as provided in Section 10.2, such options granted under this Section 9.1(b) shall expire and be of no further effect ten years after the date on which such option is granted. (c) Option Price. The purchase price per share of Common Stock under each Option shall be not less than 100% of the Fair Market Value per share of such Common Stock on the date the Option is granted and, in any event, shall not be less than the par value per share of the Common Stock. The Option price may be subject to adjustment in accordance with the provisions of Section 13.3 hereof. (d) Option Agreements. Options and any Stock Appreciation Rights attached to such Options shall be evidenced by Option Agreements in such form as the Committee shall approve and containing such terms and conditions, including the period of their exercise and whether in installments or otherwise, as shall be specified therein, which need not be the same for all Options. (e) Options Nontransferable. An Option granted under this Plan shall by its terms be nontransferable by the Key Employee or the Eligible Director (collectively, the Grantee) other than by will or the laws of descent and distribution, and, during the lifetime of the Grantee, shall be exercisable only by such Grantee. No transfer of an Option by a Grantee by will or by the laws of descent and distribution shall be effective to bind the Company unless the Company shall have been furnished -17- 18 with written notice thereof and a copy of the will and/or such other evidence as the Committee may determine necessary to establish the validity of the transfer. 9.2 Exercise of Options. (a) Term of Options. Except as provided in Section 9.1(b), no Option granted under this Plan may be exercised until one year after the date of grant thereof. Options may be exercised over such period, ending not later than ten years from the date such Options shall have been granted, as the Committee shall determine at the time each Option is granted. The restrictions contained in the preceding sentences shall cease to apply to the exercise of any Option heretofore or hereafter granted under this Plan and any such Option and its attached Stock Appreciation Rights, if any, shall become exercisable in full upon and simultaneously with the occurrence of any "change in control" (as defined in Section 7.3) of the Company. (b) Payment on Exercise. No shares of Common Stock shall be issued on the exercise of an Option unless paid for in full at the time of purchase. Payment for shares of Common Stock purchased upon the exercise of an Option shall be made in cash or, with the consent of the Committee, in Common Stock valued at the then Fair Market Value thereof, or by a combination of cash and Common Stock. No Grantee shall have any rights as a shareholder with respect to any share of Common Stock covered by an Option unless and until the Grantee shall have become the holder of record of such share, and, except as otherwise permitted by Section 13.3 hereof, no adjustment shall be made for dividends (ordinary or extraordinary, whether in cash, securities, or other property or distributions or other rights) in respect of such share for which the record date is prior to the date on which such Grantee shall have become the holder of record thereof. 9.3 Incentive Stock Options. (a) Annual Limitation. Any other provision of this Plan notwithstanding, but subject to the limitation of Section 3.2 relating to the aggregate number of shares subject to this Plan, Incentive Stock Options may be granted with respect to any number of shares, subject to the limitation that the aggregate Fair Market Value of such shares (determined as of the time such Option is granted) with respect to which such Options are exercisable for the first time by a Key Employee during any one calendar year (under this Plan and any other plans of the Company and its Subsidiaries) shall not exceed $100,000. To the extent that the aggregate Fair Market Value of shares with respect to which Incentive Stock Options (determined without regard to this subsection) are exercisable for the first time by any Key Employee during any calendar year (under this Plan and any other plan of the Company and its Subsidiaries) exceeds $100,000, such Options shall be treated as Nonstatutory Options. -18- 19 (b) Incentive Stock Options Granted to Ten Percent Shareholders. No Incentive Stock Options shall be granted to any Key Employee who owns, directly or indirectly pursuant to Section 424(d) of the Code, stock possessing more than 10% of the total combined voting power of all classes of stock of the Company or any Subsidiary, unless at the time such Incentive Stock Option, by its terms, is not exercisable after the expiration of five years from the date such Incentive Stock Option is granted. (c) Notice. Each Key Employee shall give prompt notice to the Company of any disposition of shares acquired upon exercise of an Incentive Stock Option if such disposition occurs within either two years after the date of grant or one year after the date of transfer of such shares to the Key Employee upon the exercise of such Incentive Stock Option. 9.4 Stock Appreciation Rights Attached to Options. (a) Award. The Committee may award an Attached Stock Appreciation Right with respect to any shares of Common Stock covered by any Option granted under this Plan, and such Attached Stock Appreciation Right shall be granted only at the time of the grant of the related Option. (b) Terms and Conditions. Each Attached Stock Appreciation Right shall be subject to the same terms and conditions as the related Option with respect to date of expiration, limitations on transferability, and eligibility to exercise. No Attached Stock Appreciation Right may be exercised after the related Option becomes nonexercisable. Attached Stock Appreciation Rights shall be payable in the form of cash or, at the election of the Committee, Common Stock or a combination thereof. (c) Amount of Compensation. The amount of compensation which shall be payable to a Key Employee pursuant to the exercise of an Attached Stock Appreciation Right shall be equal to the excess of the Fair Market Value of one share of Common Stock on the date of exercise of the Attached Stock Appreciation Right over Fair Market Value of such share on the date the Attached Stock Appreciation Right was granted multiplied by the number of Option shares with respect to which the Attached Stock Appreciation Right is exercised. (d) Termination of Option. Upon the exercise of an Attached Stock Appreciation Right, the related Option shall cease to be exercisable as to the number of shares of Common Stock with respect to which such Attached Stock Appreciation Right was exercised, and the related Option shall be considered to have been exercised to that extent. -19- 20 9.5 Stock Appreciation Rights Not Attached to Options. (a) Award. The Committee may grant Unattached Stock Appreciation Rights which are not attached to any Option granted under this Plan. Unattached Stock Appreciation Rights shall expire five years after the date of the grant thereof. Unattached Stock Appreciation Rights granted to a Key Employee who is an officer or director of the Company may not be exercised within six months after the Unattached Stock Appreciation Rights are granted, except that this limitation shall not be applicable in the event of death or disability of the Key Employee occurring before the expiration of the six-month period. (b) Exercise. Unattached Stock Appreciation Rights may be exercised, to the extent exercisable by their terms, in whole or from time to time in part, at any time before their expiration date. Any exercise of Unattached Stock Appreciation Rights shall be accompanied by a written notice to the Company specifying the number of Unattached Stock Appreciation Rights being exercised. Upon the Key Employee's exercise of Unattached Stock Appreciation Rights, such Key Employee shall be entitled to receive a cash payment equal to the economic value of those Unattached Stock Appreciation Rights. The economic value of a single Unattached Stock Appreciation Right shall be equal to the excess of (i) the Fair Market Value of one share of Common Stock on the date the Unattached Stock Appreciation Right is exercised over (ii) the Fair Market Value of one share of Common Stock on the date the Unattached Stock Appreciation Right was granted to the Key Employee. The economic value of all Unattached Stock Appreciation Rights exercised by a Key Employee shall be the economic value of each Unattached Stock Appreciation Right as provided in the preceding sentence multiplied by the number of Unattached Stock Appreciation Rights exercised. (c) Nature of Unattached Stock Appreciation Rights. The Unattached Stock Appreciation Rights shall be used solely as a device for the measurement and determination of the amount to be paid to Key Employees pursuant to grant of Unattached Stock Appreciation Rights. The Unattached Stock Appreciation Rights shall not constitute or be treated as property or as a trust fund of any kind. All amounts at any time attributable to the Unattached Stock Appreciation Rights shall be and remain the sole property of the Company, and all Key Employees' rights hereunder are limited to the rights to receive cash upon the exercise of the Unattached Stock Appreciation Rights. (d) Unattached Stock Appreciation Rights Nontransferable. Any rights arising under a grant of Unattached Stock Appreciation Rights shall not be transferable otherwise than by will or the laws of descent and distribution. -20- 21 ARTICLE X TERMINATION OF EMPLOYMENT AND DEATH 10.1 Incentive Stock Options. Unless earlier terminated in accordance with its terms, an Incentive Stock Option or Attached Stock Appreciation Right related to such Incentive Stock Option shall terminate and no longer be exercisable ninety days after the retirement or other termination of employment of the Key Employee to whom the Option has been granted. 10.2 Nonstatutory Stock Options and Certain Stock Appreciation Rights. Unless earlier terminated in accordance with its terms, a Nonstatutory Stock Option and any Attached Stock Appreciation Right related to such Nonstatutory Stock Option and an Unattached Stock Appreciation Right shall terminate and no longer be exercisable after: (a) the expiration of three years following the termination of employment because of Disability or retirement under a retirement plan maintained by the Company of the Key Employee to whom the Nonstatutory Stock Option or Unattached Stock Appreciation Right has been granted, or (b) the expiration of three years following the termination of service on the Board because of Disability by the Eligible Director to whom the Nonstatutory Stock Option has been granted, or (c) the expiration of thirty days following the termination of employment by the Key Employee for any reason other than death, Disability, or retirement as described in (a) above, or (d) the expiration of thirty days following the termination of service on the Board by the Eligible Director for any reason other than death or Disability. 10.3 Death of Optionee. If a Key Employee or Eligible Director ("Optionee") shall die during the term of an Option or Stock Appreciation Right, such Optionee's legal representatives shall be entitled to exercise the Option or Stock Appreciation Right, in whole or in part, at any time within one year following the death of such Optionee, to the extent such Option or Stock Appreciation Right was exercisable by such Optionee on the date of such Optionee's death. -21- 22 ARTICLE XI ADMINISTRATION OF PLAN 11.1 The Committee. This Plan shall be administered solely by the Compensation Committee of the Board of Directors; provided, however, that the Compensation Committee shall administer the Plan only at such time as the Committee shall consist of two or more nonemployee members of the Board of Directors. The Committee shall have full and final authority to interpret this Plan and the agreements evidencing Stock Incentives granted hereunder, to prescribe, amend, and rescind rules and regulations, if any, relating to this Plan, and to make all determinations necessary or advisable for the administration of this Plan. The Committee's determination in all matters referred to herein shall be conclusive and binding for all purposes and upon all persons including, but without limitation, the Company, the shareholders of the Company, the Committee, and each of the members thereof, Eligible Directors, Employees of the Company, and their respective successors in interest. 11.2 Certain Powers. The Committee shall have authority to engage outside consultants, auditors, or other professionals, and agents, trustees, custodians, nominees, and other representatives and designees, to assist in the fulfillment of the Committee's powers and duties under this Plan at the Company's expense. In addition, the Committee shall have the authority, in its sole discretion, to direct the establishment of a trust or other arrangement pursuant to which the trustee or other contracting party would assume such obligations of the Company as the Committee may prescribe which relate to the payment of cash benefits or transfer of Common Stock to Key Employees in satisfaction of Key Employees' rights under Stock Incentives. Any trust or other arrangement established hereunder shall have such terms as the Committee shall deem necessary or desirable, including such terms as the Committee shall prescribe with respect to funding the trust or other arrangement and the revocability and termination thereof. 11.3 Determinations of the Committee. In making its determinations concerning the Key Employees who shall receive Stock Incentives, as well as the number of shares to be covered thereby and/or cash awards payable thereunder and the time or times at which they shall be granted, the Committee shall take into account the nature of the services rendered by the respective Key Employees, their past, present, and potential contribution to the Company's success, and such other factors as the Committee may deem relevant. The Committee shall also determine the form of Stock Incentives to be issued under this Plan and the terms and conditions to be included therein, provided such terms and conditions are not inconsistent with the terms of this Plan. The Committee may, in its sole discretion, waive the vesting provisions and any other provisions of any Stock Incentive granted to a Key Employee, provided such waiver is not inconsistent with the terms of this Plan as then in effect. -22- 23 ARTICLE XII AMENDMENT AND TERMINATION OF PLAN 12.1 Amendment of Plan. (a) General Provisions. The Plan may be amended at any time and from time to time by the Board of Directors of the Company, but no amendment which (1) increases the aggregate number of shares of Common Stock and/or amounts of cash payments which may be granted pursuant to this Plan (other than increases due to adjustments pursuant to Section 13.3), (2) extends the period during which Stock Incentives may be granted under this Plan, (3) changes the class of Key Employees eligible to receive Stock Incentives, or (4) would otherwise be required to be approved by the holders of Common Stock pursuant to Rule 16b-3 under the 1934 Act shall be effective unless and until the same is approved by the affirmative vote, in person or by proxy, of the holders of a majority of the shares of Common Stock present and entitled to vote at a meeting held to take such action at which a quorum is present. (b) Amendments Relating to Incentive Stock Options. To the extent applicable, this Plan is intended to permit the issuance of Incentive Stock Options in accordance with the provisions of Section 422 of the Code. The Plan may be modified or amended at any time, both prospectively and retroactively, and in such manner as to affect Incentive Stock Options previously granted, if such amendment or modification is necessary for this Plan and the Incentive Stock Options granted hereunder to qualify under said provisions of the Code. (c) Special Power to Amend. Notwithstanding any other provision of the Plan, the Board of Directors may amend the Plan at any time and from time to time so as to (i) remove any provision from the Plan that is no longer required to enable the Plan to comply with Rule 16b-3 under the 1934 Act (or any similar substitute rule under Section 16 of the 1934 Act) as in effect from time to time, (ii) add any provision to the Plan that shall be required to enable the Plan to comply in such respect, and (iii) modify the Plan to comply in such respect in any instance in which the Plan as theretofore in effect shall impose restrictions, limitations, or obligations more rigorous or burdensome on the Company or Key Employees than those required by such rule (or such substitute therefor) as from time to time in effect. (d) Amendments Relating to Restricted Stock Awards to Eligible Directors. Notwithstanding any other provision of the Plan, the provisions of the Plan which constitute a formula award to Eligible Directors for purposes of Rule 16b-3 under the 1934 Act may not be amended more than once every six months, other than to comport with changes in the Code or the rules thereunder. -23- 24 12.2 Termination. The Board of Directors of the Company may at any time terminate this Plan as of any date specified in a resolution adopted by the Board. If not earlier terminated, this Plan shall terminate on January 1, 2000. No Stock Incentives may be granted after this Plan has terminated. After this Plan has terminated, the function of the Committee with respect to this Plan will be limited to supervising the administration of Stock Incentives previously granted. -24- 25 ARTICLE XIII MISCELLANEOUS PROVISIONS 13.1 Restrictions Upon Grant of Stock Incentives. The listing upon the New York Stock Exchange and the Pacific Exchange Inc. or the registration or qualification under any federal or state law of any shares of Common Stock to be granted pursuant to this Plan (whether to permit the grant of Stock Incentives or the resale or other disposition of any shares of Common Stock by or on behalf of the Key Employees receiving such shares) may be necessary or desirable and, in any such event, if the Committee in its sole discretion so determines, delivery of the certificates for such shares of Common Stock shall not be made until such listing, registration, or qualification shall have been completed. In such connection, the Company agrees that it will use its best efforts to effect any such listing, registration, or qualification, provided, however, that the Company shall not be required to use its best efforts to effect such registration under the 1933 Act other than on Form S-8, as presently in effect, or other such forms as may be in effect from time to time calling for information comparable to that presently required to be furnished under Form S-8. 13.2 Registrations Upon Resale of Unregistered Stock. If the shares of Common Stock that have been transferred to a Key Employee pursuant to the terms of this Plan are not registered under the 1933 Act pursuant to an effective registration statement, such Key Employee, if the Committee deems it advisable, may be required to represent and agree in writing (i) that any shares of Common Stock acquired by such Key Employee pursuant to this Plan will not be sold except pursuant to an effective registration statement under the 1933 Act or pursuant to an exemption from registration under said Act and (ii) that such Key Employee is acquiring such shares of Common Stock for such Key Employee's own account and not with a view to the distribution thereof. 13.3 Adjustments. The number of shares of Common Stock, Common Stock Equivalent Units, or Stock Appreciation Rights authorized under this Plan, the value of such shares, units, or rights, the number of shares of Common Stock subject to Restricted Stock Awards to Eligible Directors, and the price to be paid for any shares issuable pursuant to the exercise of Options shall be subject to adjustment by the Committee, in its sole discretion, to reflect any stock split, stock dividend, recapitalization, merger, consolidation, reorganization, combination, or exchange of shares or other similar event. 13.4 Restrictive Legends. (a) Any certificates for shares of Common Stock delivered pursuant to Stock Incentives shall bear an appropriate legend conforming to the requirements of applicable law referring to the terms, conditions, and restrictions described in this Plan and in the instruments evidencing the grant of the Restricted Stock Awards. Any attempt to dispose of any shares of Common Stock in contravention of the terms, conditions, and restrictions described in this Plan or in the instruments evidencing the grant of the Restricted Stock Awards shall be ineffective. The Company may also -25- 26 place appropriate "stop transfer" instructions in the stock transfer books of the Company with respect to any shares of Common Stock covered by a Stock Incentive. (b) Any shares of Common Stock received by a Key Employee as a stock dividend on, or as a result of stock splits, combinations, exchanges of shares, reorganizations, mergers, consolidations, or otherwise with respect to shares of Common Stock received pursuant to a Restricted Stock Award, shall have the same status and bear the same legend as the shares received pursuant to the Restricted Stock Award. 13.5 Withholding of Taxes. (a) Each Key Employee granted a Restricted Stock Award shall agree that no later than the date of the lapse of all the restrictions mentioned in Article VI hereof and in the instrument evidencing the grant of the Restricted Stock Award and on the date of receipt of any Opportunity Shares related to such Restricted Stock Award, such Key Employee will pay to the Company, or make arrangements satisfactory to the Committee regarding payments of, any taxes of any kind required by law to be withheld with respect to such shares of Common Stock. (b) Each Key Employee who exercises a Nonstatutory Stock Option to purchase Common Stock shall agree that no later than the date of such exercise or receipt the Key Employee will pay to the Company, or make arrangements satisfactory to the Committee regarding payment of, any taxes of any kind required by law to be withheld with respect to the transfer to such Key Employee of such shares of Common Stock. (c) Each Key Employee who receives payment in cash under this Plan shall receive such payments net of an amount sufficient to satisfy any taxes of any kind required to be withheld from such payments. 13.6 Restrictions on Benefit. Notwithstanding the provisions of Sections 7.3 and 9.2(a) of this Plan, the aggregate present value of all parachute payments payable to or for the benefit of a participant in the Plan, whether payable pursuant to the Plan or otherwise, shall be limited to three times the participant's base amount less one dollar and, to the extent necessary, the acceleration of unmatured Option installments and Stock Appreciation Rights installments and the termination of restrictions on Restricted Stock Awards and Restricted Unit Awards shall be reduced by the Company in order that this limitation not be exceeded. For purposes of this Section 13.6, the terms -26- 27 "parachute payment," "base amount," and "present value" shall have the meanings assigned thereto under Section 280G of the Code. It is the intention of this Section 13.6 to avoid excise taxes on the participant under Section 4999 of the Code or the disallowance of a deduction to the Company pursuant to Section 280G of the Code. CLECO CORPORATION -27- 28 CLECO CORPORATION 1990 LONG-TERM INCENTIVE COMPENSATION PLAN (As Amended and Restated, Effective April 24, 1998) EX-5 3 OPINION OF PHELPS DUNBAR, L.L.P. 1 June 28, 1999 Cleco Corporation Cleco Holding Corporation 2030 Donahue Ferry Road Pineville, Louisiana 71360-5226 Re: Cleco Corporation Post-Effective Amendment No. 1 to Registration Statement on Form S-8, SEC File No. 33-38362 Ladies and Gentlemen: We have acted as counsel to Cleco Corporation ("Cleco") and its subsidiary, Cleco Holding Corporation (the "Company"), in connection with the preparation of the above referenced Post-Effective Amendment No. 1 to Registration Statement on Form S-8 filed by the Company with the Securities and Exchange Commission (the "Commission") with respect to the issuance by the Company of up to 800,000 shares of $2.00 par value common stock (the "Company Shares") in connection with the assumption of such Registration Statement by the Company, as a successor issuer, in accordance with Rule 414 promulgated under the Securities Act of 1933, as amended. In so acting, we have examined and relied upon the original, or a photostatic or certified copy, of such records of the Company, certificates of officers of the Company and of public officials, and such other documents as we have deemed relevant and necessary as the basis for the opinion set forth below. In such examination, we have assumed the genuineness of all signatures appearing on all documents, the legal capacity of all persons signing such documents, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed or photostatic copies, the accuracy and completeness of all corporate records made available to us by the Company, and the truth and accuracy of all facts set forth in all certificates provided to or examined by us. Based upon the foregoing and subject to the limitations, qualifications, exceptions and assumptions set forth herein, we are of the opinion that the Company Shares have been duly authorized, and, when issued in accordance with the terms described in the Post-Effective Amendment, will be validly issued, fully paid and nonassessable. 2 Cleco Corporation Cleco Holding Corporation June 28, 1999 Page 2 The foregoing opinions are limited to the laws of the State of Louisiana and the federal laws of the United States of America. We express no opinion as to matters governed by the laws of any other state. Furthermore, no opinion is expressed herein as to the effect of any future acts of the parties or changes in existing law. We undertake no responsibility to advise you of any changes after the date hereof in the law or the facts presently in effect that would alter the scope or substance of the opinions herein expressed. This letter expresses our legal opinion as to the foregoing matters based on our professional judgment at this time; it is not, however, to be construed as a guaranty, nor is it a warranty that a court considering such matters would not rule in a manner contrary to the opinion set forth above. We consent to the filing of this opinion as an exhibit to the Post-Effective Amendment and to the reference to us in the prospectus under the caption "Legal Matters." In giving this consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, and the General Rules and Regulations of the Commission thereunder. Very truly yours, PHELPS DUNBAR, L.L.P. -----END PRIVACY-ENHANCED MESSAGE-----