EXHIBIT 10.75
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."
[_______________________]
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Date
LG&E Energy Corp.
By:
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Powergen,plc
By:
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