Exhibit 10.95
FIRST AMENDMENT TO THE
EMPLOYMENT AND SEVERANCE AGREEMENT
OF
----------------
WHEREAS, ______________ (the "Executive") and LG&E Energy Corp., a Kentucky
corporation (the "Company") and Powergen, plc, a United Kingdom public limited
company (the "Parent") entered into an Employment and Severance Agreement, dated
February 25, 2000 (the "Agreement");
WHEREAS, Parent, Company, a Delaware corporation to be formed as an indirect
wholly owned subsidiary of Parent ("US Subholdco 2") and a Kentucky corporation
to be formed as a direct wholly owned subsidiary of US Subholdco 2 ("Merger
Sub"), have executed a merger agreement (the "Merger Agreement") which will
become effective at the Effective Time (as defined in the Merger Agreement);
WHEREAS, Company and the Parent have determined that it is desirable to amend
the Agreement to provide greater retention incentives to the Executive as a
further inducement for the Executive to remain in the employment of the Company;
WHEREAS, An amendment to the Merger Agreement has necessitated a corresponding
amendment to the Agreement; and
WHEREAS, the parties wish to correct the definition of a Change in Control
contained in the Agreement.
NOW THEREFORE, in consideration of the respective agreements of the parties
contained herein, it is agreed as follows:
1. Section 1.1 shall be deleted and replaced in its entirety to read as follows:
"This Agreement shall become effective at the Effective Time, provided the
Company employs the Executive on that date. As of the Effective Time, the
Change-in-Control Agreement shall, except as otherwise provided herein,
terminate and become null and void. In consideration of the services rendered by
the Executive to the Company prior to the Effective Time, the Executive's
willingness to enter into this Agreement which provides additional retention
value to the Company, and the satisfaction of all of the Company's obligations
under the Change-in-Control Agreement, the Company shall pay the Executive in
cash $__________ on the Effective Date, if said time occurs prior to January 1,
2001. Additionally, if the Effective Time occurs prior to January 1, 2001 the
Company shall pay the Executive in cash the following: $__________ on the six
month anniversary of the Effective Time, $__________ on the twelve month
anniversary of the Effective Time, and $__________ on the eighteen month
anniversary of the Effective
Time, collectively the "Retention Payments", so long as the Executive is still
employed by the Company on such dates. The Retention Payments shall be credited
to Executive's account under the Deferred Compensation Plan of the Company (or
such other plan or arrangement as may be mutually agreed upon by the parties
hereto) at the Effective Time and shall be payable in a lump sum cash payment
(including adjustment for any increases or decreases in Executive's account
under the Deferred Compensation Plan), if the Executive so elects, within ten
(10) days after the earliest to occur of (i) a termination of employment, other
than a termination by the Executive without Good Reason, which occurs at any
time during the eighteen consecutive months immediately following the Effective
Time (the "Transition Period"), (ii) a Change in Control that occurs during the
Transition Period, so long as the Executive is still employed by the Company
immediately prior to the Change in Control, and (iii) the scheduled six, twelve,
and eighteen month anniversaries. In the event that Executive elects not to
receive the foregoing lump sum payments, Executive may otherwise elect to defer
receipt of such payments and have such payments continue to be held in his
Deferred Compensation Plan account (which account shall continue to be adjusted
in accordance with the terms of the Deferred Compensation Plan, or such other
plan or arrangement as may be mutually agreed upon by the parties hereto).
If the Effective Date occurs on or after January 1, 2001, the Company shall pay
the Executive in cash 60% of the amount calculated and payable under Sections
3.1(b) and 6 of the Change-in-Control Agreement (the "Initial Change-in-Control
Payment") within 10 days following the Effective Time conditioned upon delivery
by the Executive of an executed form of release of all claims against the
Company with respect to the Change-in-Control Agreement (other than with respect
to Section 6 of such Agreement) (on a form to be provided by the Company).
Additionally, if the Effective Date Occurs on or after January 1, 2001, the
balance of the amount calculated under Sections 3.1(b) and 6 of the
Change-in-Control Agreement (the "Deferred Change-in-Control Payment") shall be
credited to Executive's account under the Deferred Compensation Plan of the
Company (or such other plan or arrangement as may be mutually agreed upon by the
parties hereto) and shall be payable in a lump sum cash payment (including
adjustment for any increases or decreases in Executive's account under the
Deferred Compensation Plan), if the Executive so elects, within ten (10) days
after the earliest to occur of (i) a termination of employment, other than a
termination by the Executive without Good Reason, which occurs at any time
during the eighteen consecutive months immediately following the Effective Time
(the "Transition Period"), (ii) a Change in Control that occurs during the
Transition Period, so long as the Executive is still employed by the Company
immediately prior to the Change in Control, and (iii) the end of the Transition
Period, so long as the Executive is still employed on such date. In the event
that Executive elects not to receive the foregoing lump sum payment, Executive
may otherwise elect to defer receipt of such payment and have such payment
continue to be held in his Deferred Compensation Plan account (which account
shall continue to be adjusted in accordance with the terms of the Deferred
Compensation Plan, or such other plan or arrangement as may be mutually agreed
upon by the parties hereto).
Parent shall, or shall cause the Company to pay to the Executive a lump sum cash
payment in an amount equal to $__________ if the closing occurs prior to January
1, 2001 or an amount equal to 25% of the Deferred Change-in-Control Payment if
the
closing occurs on or after January 1, 2001 (without adjustment for any increases
or decreases in Executive's account under the Deferred Compensation Plan) in
either event (the "Premium Payment") within ten (10) days after the earliest to
occur of (i) the date that Executive's employment is terminated by the Company
without Cause, by Executive for Good Reason, or as a result of Executive's death
or Disability, at any time during the eighteen consecutive months immediately
following the Effective Time (the "Transition Period"), (ii) a Change in Control
that occurs during the Transition Period, so long as the Executive is still
employed by the Company immediately prior to the Change in Control, and (iii)
the end of the Transition Period, so long as the Executive is still employed on
such date. In the event that Executive elects not to receive the foregoing lump
sum payment, Executive may otherwise elect to defer receipt of such payment and
have such payment continue to be held in his Deferred Compensation Plan account
(which account shall continue to be adjusted in accordance with the terms of the
Deferred Compensation Plan, or such other plan or arrangement as may be mutually
agreed upon by the parties hereto)."
2. Section 4.5 shall be deleted and replaced in its entirety to read as
follows:
"4.5 EXISTING STOCK OPTIONS. In accordance with the Merger Agreement and any
amendments thereto, Executive may elect in writing delivered to Parent to
convert each Company stock option he holds (each, a "Company Option"), whether
vested or unvested, into an option to acquire, on the same terms and conditions
as were applicable under such Company Option, the number of ADS's, equal to the
result (rounded down to the nearest whole ADS) of multiplying the number of
shares subject to the Company Option immediately prior to the Effective Time by
the Conversion Ratio (as defined in the Merger Agreement), at an exercise price
per share equal to the result (rounded up to the nearest whole cent) of dividing
the per share exercise price of such Company Option immediately prior to the
Effective Time by the Conversion Ratio (it being understood that the exercise
price shall be converted into dollars at the rate prevailing at the close of
business on the business day prior to the Effective Time). If Executive makes
such election and holds the Company Option or the ADS's acquired upon the
exercise of such Company Option for two years after the Effective Time, then
upon the later of (i) the end of the 24th month after the Effective Time, or
(ii) the exercise of such Company Option, the Parent shall issue Executive one
additional ADS for every 4 ADS's acquired as a result of such exercise;
PROVIDED, HOWEVER in the event that either (i) a Change in Control occurs within
the two years after the Effective Time and the Executive is still employed by
the Company immediately prior to the Change in Control, immediately prior to
such time, the Executive shall receive one additional ADS for every 4 ADS's (A)
acquired by the Executive as a result of the exercise of any Company Option
during the period prior to such Change in Control and (B) underlying each
unexercised Company Option held by the Executive immediately prior to such
Change in Control or (ii) the Executive's employment is terminated for any
reason (other than by the Company for Cause or by the Executive without Good
Reason (other than as a result of death or Disability)) at any time during the
two years after the Effective Time and prior to any Change in Control, the
Executive shall receive, within 10 days after the termination of employment, one
additional ADS for every 4 ADS's (A) acquired by the Executive as a result of
the
exercise of any Company Option during the period prior to such termination of
employment and (B) underlying each unexercised Company Option held by the
Executive immediately prior to such termination of employment." 3.Section
6.3(c)(5) shall be deleted and replaced in its entirety to read as follows:
(5) Any Person acquires Beneficial Ownership of a greater percentage of the
Voting Securities of the Company than the percentage of such Voting
Securities then held, directly or indirectly, by Parent.
4. A new Section 6.3(d) shall be added to read as follows:
"6.3 (d) Notwithstanding the foregoing clauses (a), (b), and (c), a Change in
Control shall not be deemed to occur solely because any Person (the "Subject
Person") acquired Beneficial Ownership of more than the permitted amount of the
outstanding Voting Securities as a result of the acquisition of Voting
Securities by Parent which, by reducing the number of Voting Securities
outstanding, increases the proportional number of shares Beneficially Owned by
the Subject Person, provided that if a Change in Control would occur (but for
the operation of this sentence) as a result of the acquisition of Voting
Securities by Parent, and after such share acquisition by Parent, the Subject
Person or entity becomes the Beneficial Owner of any additional Voting
Securities which increases the percentage of the then outstanding Voting
Securities Beneficially Owned by the Subject Person, then a Change in Control
shall occur."
5. Section 6.3(d) of the existing Agreement shall be renumbered as Section
6.3(e) to read as follows:
"6.3(e) Notwithstanding anything contained in this Agreement to the contrary, if
the Executive's employment is terminated during the term of this Agreement and
the Executive reasonably demonstrates that such termination (i) was at the
request of a third party who has indicated an intention or taken steps
reasonably calculated to effect a Change in Control and who effectuates a Change
in Control (a "Third Party") or (ii) otherwise occurred in connection with, or
in anticipation of, a Change in Control which actually occurs, then for all
purposes of this Agreement, the date of a Change in Control with respect to the
Executive shall mean the date immediately prior to the date of such termination
of the Executive's employment."
---------------------------
Executive
---------------------------
Date
LG&E Energy Corp.
By:
------------------------
Powergen plc
By:
------------------------
RELEASE
THIS RELEASE ("Release") is made and entered into on this 8th day of
December, 2000, by and among __________ (the "Executive"), and LG&E Energy Corp.
and Powergen plc, by and for itself and their present and former agents,
directors, shareholders, officers, employees, representatives, divisions,
parents, subsidiaries and affiliates, and their predecessors, successors, heirs,
executors, administrators and assigns (collectively, "Released Parties").
RECITALS:
A. The Executive has become eligible for certain change in control
benefits under the pursuant to a Change in Control Agreement between the
Executive and the Company dated ______________ (the "Agreement") as a result of
the proposed merger between LG&E Energy Corp. and Powergen, plc.
B. The Released Parties and the Executive have entered into an
Employment and Severance Agreement dated February 25, 2000, as amended as of the
date hereof (the "Employment Agreement") under terms and conditions agreeable to
the Executive.
C. The Executive and the Released Parties desire to enter into this
Release in order to fully settle and discharge all claims which are or might
have been asserted by the Executive against the Released Parties for benefits
under the Agreement, upon the terms and conditions set forth herein.
AGREEMENT:
The Parties hereby agree as follows:
RELEASE:
In consideration of employment under the terms and conditions outlined
in the Employment Agreement, the Executive hereby completely releases and
forever discharges the Released Parties, and any and all other persons, firms,
insurers and/or corporations whatsoever that might have any liability through
the Released Parties, of and from any and all past, present, or future claims,
actions, causes of action, rights, damages, costs, and all other expenses and
compensation of any nature whatsoever, whether based on contract, or other
theory of recovery and whether for compensation or punitive damages, which
Executive now has, or which may hereafter accrue or otherwise be acquired, on
account of all injuries to him, which have resulted under the terms of the
Agreement, other than those arising pursuant to Section 6 of the Agreement. This
Release, on the part of Executive, shall be a fully binding and a complete
settlement between the Executive, his heirs, assigns and successors and the
Released Parties for all benefits under the Agreement, except those arising
pursuant to Section 6 of the Agreement.
ENTIRE AGREEMENT AND SUCCESSORS IN INTEREST
This Release contains the entire agreement between the Executive and
the Released Parties, with regard to the matters set forth herein and shall be
binding upon and inure to the benefit of the executors, administrators, personal
representatives, heirs, successors and assigns of each.
REPRESENTATION OF COMPREHENSION OF DOCUMENT
In entering into this Release, the Executive represents that he has
relied upon the legal advice of his attorney, who is the attorney of his own
choice and that the terms of this Release have been completely read and
explained to him by his attorney, and that those terms are fully understood and
voluntarily accepted by him.
GOVERNING LAW
This Release shall be construed and interpreted in accordance with the
laws of the Commonwealth of Kentucky, and in no event will the documents be
construed in a manner inconsistent with Kentucky law.
CONFIDENTIALITY
The Executive and the Released Parties hereby agree for themselves and
their representatives, including attorneys, to hold the terms of this Release,
confidential, and the parties further agree not to disclose the terms of this
Release to any person, firm or corporation, including legal industry
publications, who is not a party to this Release.
EFFECTIVENESS
This Release shall become effective upon the closing of the merger of
LG&E Energy Corp. and Powergen, plc or its subsidiary.
------------------------
Executive
------------------------
Date
STATE OF KENTUCKY )
) SS:
COUNTY OF JEFFERSON )
Subscribed and sworn to before me by _______________, this _____ day of
_____________, 2000, in Louisville, Jefferson County, Kentucky.
My Commission expires:
-------------------------------------------------
----------------------------
NOTARY PUBLIC
State at Large, Kentucky
LG&E Energy Corp.
By:
--------------------------------------------------
