exhibit104.htm


     

    


    
      

      

    

     


    EXHIBIT
10.4

    CLECO
CORPORATION

    EXECUTIVE
EMPLOYMENT AGREEMENT

    Compliance
Addendum - Code Section 409A

    


    Executive
(“Executive”):

    


    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:

    


    
      	
               
      

            	
              a.

            	
              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.

            


    

    


    
      	
               
      

            	
              b.

            	
              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.

            


    

    


    
      	
               
      

            	
              c.

            	
              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.

            


    

    


    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 hereunder which is deemed paid or provided on account of Executive’s
separation from service and not otherwise permitted to be paid or furnished
under Code Section 409A.  Any payment made as of Executive’s Delayed
Payment Date shall include the 

     

    
      
        

      

    

     

    principal
amount of all payments suspended between Executive’s Separation Date and such
date, but without liability for interest or other loss of investment
opportunity.

    


    3.           Reimbursements.  Any
reimbursement due to Executive under the Agreement, including business expense
reimbursements under Section 2.6 of the Agreement, relocation expenses under
Section 3.1e or 4.2g of the Agreement, attorneys’ fees under Section 6.2 of the
Agreement or any excise tax, shall be subject to the following special
rules:

    


    
      	
               
      

            	
              a.

            	
              Executive
      shall make a claim for any reimbursement not later than the end of the
      calendar year in which the expense-giving rise to such claim for
      reimbursement is incurred.

            


    

    


    
      	
               
      

            	
              b.

            	
              The
      Company shall promptly pay or reimburse such expenses upon receipt of such
      information and supporting documentation, as it may reasonably request,
      but not later than December 31st of the calendar year following the
      calendar year in which such expenses are
  incurred.

            


    

    


    
      	
               
      

            	
              c.

            	
              Any
      claim for reimbursement provided under the Agreement shall be made no
      later than two years after Executive’s date of death, at which time the
      Company’s obligations to reimburse under the Agreement shall be
      extinguished.

            


    

    


    4.           Continuation of Medical
Benefits.   In lieu of the continuation of Executive’s
coverage under the group medical plan maintained by the Company described in
Sections 3.1f, 4.2 and 4.3 of the Agreement, and provided that Executive timely
elects to continue such coverage in accordance with Code Section 4980B, the
Company shall pay to the Executive an amount equal to the continuation coverage
premium for the same type and level of coverage elected by Executive and/or his
or her spouse or dependents:

    


    
      	
               
      

            	
              a.

            	
              For
      a period of 18 months if Executive is otherwise entitled to receive the
      benefit described in Section 3.1f of the Agreement;
  or

            


    

    


    
      	
               
      

            	
              b.

            	
              For
      a period of 36 months if Executive is otherwise entitled to receive the
      Change in Control benefit described in Section 4.2d of the
      Agreement.

            


    

    


    Nothing
contained herein shall be deemed to offset, reduce or otherwise modify
Executive’s continuation coverage under Code Section 4980B, which shall be at
Executive’s sole expense.

    


    5.           Time of
Payments.  Except as provided below, any cash payment due to
Executive shall be paid in the form of a single sum 30 days after Executive’s
Separation Date or the first business day thereafter:

    


    
      	
               
      

            	
              a.

            	
              Any
      reimbursement shall be paid to Executive in accordance with Paragraph 3 of
      this Addendum; and

            


    

    


    
      	
               
      

            	
              b.

            	
              Any
      amount due to Executive on account of his or her death or Disability shall
      be paid in the form of a single sum at the time Executive would otherwise
      have received such amount had he or she remained an active employee of the
      Company.

            


    

    


    6.           Constructive
Termination.  Notwithstanding any provisions of the Agreement
to the contrary, a “Constructive Termination” shall be deemed to occur under the
Agreement only if Executive provides to the Company written notice of his or her
objection to the event or condition first giving rise to a claim of Constructive
Termination within 60 days thereof, such event or condition is not corrected by


     

    
      
        

      

    

     

    the
Company promptly after receipt of such notice, but in no event more than 30 days
after receipt of notice, and Executive resigns his or her employment with the
Company and all Affiliates not more than 15 days following the expiration of
such 30-day cure period.

    


    7.           Expiration of
Agreement.  Upon expiration of the term of the Agreement,
including any renewal thereof, the obligations of the Company thereunder shall
cease.  Executive shall then be deemed to be an at-will employee of
the Company or an Affiliate, as the case may be, subject to the rights and
limitations attendant to such status.  He or she shall be and remain
bound by the provisions of Section 5 of the Agreement, which shall survive its
expiration.

    


    This Compliance Addendum was
executed in multiple counterparts, each of which has been deemed an original, as
of the dates set forth below, to be effective as provided above.

    


    Executive:                                                                                 Cleco
Corporation:

    


    ______________________________            By:
_____________________________

    


    Date:  December
8,
2008                                                         
Title: ___________________________

                                

                                       Date:  December 8,
2008