**Exhibit10.54**

** **

**EXECUTIONCOPY**

 

EMPLOYMENT AND SEVERANCE AGREEMENT

 

 

THIS AGREEMENTmade February 25, 2000, by and between LG&E Energy Corporation, a Kentuckycorporation (the “Company”), Powergen, plc, a United Kingdom public limitedcompany (“Parent”), and John R. McCall (the “Executive”).

 

WHEREAS, Parent,Company, a Delaware corporation to be formed as an indirect wholly ownedsubsidiary of Parent (“US Subholdco 2”) and a Kentucky corporation to be formedas a direct wholly owned subsidiary of US Subholdco 2 (“Merger Sub”), haveexecuted a merger agreement (the “Merger Agreement”) which will becomeeffective at the Effective Time (as defined in the Merger Agreement);

 

WHEREAS, theMerger will constitute a “Change in Control” for purposes of the Change-in-ControlAgreement between the Company and the Executive dated January 5, 1998 (the“Change-In-Control Agreement”);

 

WHEREAS, Parentand the Company have determined that it is essential and in the best interestof Parent, the Company and their stockholders to retain the services of theExecutive as [ TITLE ] of the Company on and after the Effective Time, andprovide the Executive with compensation and other benefits on the terms andconditions set forth in this Agreement, and to ensure his continued dedicationand efforts in such event without undue concern for his personal financial andemployment security in the event of a Change in Control after the Merger; and

 

WHEREAS, theExecutive is willing to accept such employment and perform services for theCompany on the terms and conditions hereinafter set forth;

 

NOW THEREFORE, inconsideration of the respective agreements of the parties contained herein, itis agreed as follows:

 

1.                                       EFFECTIVENESS;EFFECT ON PRIOR AGREEMENTS; ADDITIONAL PAYMENTS.

 

1.1.                              ThisAgreement shall become effective at the Effective Time, provided the Executiveis employed by the Company on that date. As of the Effective Time, the Change-in-Control Agreement shall, exceptas otherwise provided herein, terminate and become null and void.  In consideration of the services rendered bythe Executive to the Company prior to the Effective Time, the Executive’swillingness to enter into this Agreement, and the satisfaction of all of theCompany’s obligations under the Change-in-Control Agreement, the Company shallpay the Executive in cash 60% of the amount calculated and payable underSections 3.1(b) and 6 of the Change-in-Control Agreement

 

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(the “Initial Change-in-Control Payment”) within 10 days following theEffective Time conditioned  upondelivery by the Executive of an executed form of release of all claims againstthe Company with respect to the Change-in-Control Agreement (other than withrespect to Section 6 of such Agreement) (on a form to be provided by theCompany.)  The balance of the amountcalculated 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 accountunder the Deferred Compensation Plan of the Company (or such other plan orarrangement as may be mutually agreed upon by the parties hereto) and shall bepayable in a lump sum cash payment (including adjustment for any increases ordecreases in Executive’s account under the Deferred Compensation Plan), if theExecutive so elects, within ten (10) days after the earliest to occur of (i) atermination of employment, other than a termination by the Executive withoutGood Reason, which occurs at any time during the eighteen consecutive monthsimmediately following the Effective Time (the “Transition Period”), (ii) aChange in Control that occurs during the Transition Period, so long as theExecutive is still employed by the Company immediately prior to the Change inControl, and (iii) the end of the Transition Period, so long as the Executive isstill employed on such date.  In theevent that Executive elects not to receive the foregoing lump sum payment,Executive may otherwise elect to defer receipt of such payment and have suchpayment continue to be held in his Deferred Compensation Plan account (whichaccount shall continue to be adjusted in accordance with the terms of theDeferred Compensation Plan, or such other plan or arrangement as may bemutually agreed upon by the parties hereto).

 

1.2.                              Parentshall, or shall cause the Company to pay to the Executive a lump sum cashpayment in an amount equal to 25% of the Deferred Change-in-Control Payment(without adjustment for any increases or decreases in Executive’s account underthe Deferred Compensation Plan)(the “Premium Payment”) within ten (10) daysafter the earliest to occur of (i) the date that Executive’s employment isterminated by the Company without Cause, by Executive for Good Reason, or as aresult of Executive’s death or Disability, at any time during the eighteenconsecutive months immediately following the Effective Time (the “TransitionPeriod”), (ii) a Change in Control that occurs during the Transition Period, solong as the Executive is still employed by the Company immediately prior to theChange in Control, and (iii) the end of the Transition Period, so long as theExecutive is still employed on such date. In the event that Executive elects not to receive the foregoing lump sumpayment, Executive may otherwise elect to defer receipt of such payment andhave such payment continue to be held in his Deferred Compensation Plan account(which account shall continue to be adjusted in accordance with the terms ofthe Deferred Compensation Plan, or such other plan or arrangement as may bemutually agreed upon by the parties hereto).

 

1.3.                              Asof the Effective Time, Parent shall grant to the Executive the number ofAmerican Depository Shares of Parent, each of which represents four OrdinaryShares of

 

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the Parent (the “ADS’s”), that are equivalent in value, as of theEffective Time, to the amount of the Premium Payment (the “Premium ADS’s”),which shall be subject to a risk of forfeiture and in which the Executive shallbecome vested upon the earliest to occur of (i) the date that Executive’semployment is terminated by the Company without Cause, by Executive for GoodReason, or as a result of Executive’s death or Disability, at any time duringthe Transition Period, (ii) a Change in Control that occurs during theTransition Period, so long as the Executive is still employed immediately priorto the Change in Control, and (iii) the end of the Transition Period, so longas the Executive is still employed on such date.  In addition, in the event that during the Transition Period,Parent pays dividends in respect of ADS’s (or Ordinary Shares, as applicable)to its holders thereof, the Executive shall have a right, subject to theExecutive’s ultimate vesting in the Premium ADS’s pursuant to the precedingsentence, to receive a payment, in cash or ADS’s (as the Executive shallelect), equal to the amount of any dividends actually paid on the number ofPremium ADS’s (or Ordinary Shares, as applicable) held by the Executive.

 

2.                                       TERMOF AGREEMENT.  This Agreement shallcommence as of the Effective Time, and shall continue in effect until thesecond anniversary of the Effective Time; provided, however, that commencing onthe second anniversary of the Effective Time, and on each anniversary of theEffective Time thereafter, the term of this Agreement shall automatically beextended for one (1) year unless the Company or the Executive shall have givenwritten notice to the other at least ninety days prior thereto (if such noticeis given following the second anniversary of the Effective Time, otherwise suchnotice period shall be one hundred and eighty days) that the term of thisAgreement shall not be so extended; and provided, further, however, thatnotwithstanding any such notice by the Company not to extend, the term of thisAgreement shall not expire prior to the expiration of twenty-four (24) monthsafter any Change in Control which occurs while this Agreement is in effect.

 

3.                                       EMPLOYMENT.

 

0.1.                              TheCompany agrees to employ Executive, and Executive agrees to serve  during the term hereof as Executive VicePresident, General Counsel, and Corporate Secretary of the Company.  Executive shall report to the ChiefExecutive Officer of the Company (the “CEO”).

 

0.2.                              Executiveagrees to devote his full working time and efforts, to the best of his ability,experience and talent, to the performance of services, duties andresponsibilities in connection with the position named above.  Executive shall perform such duties andexercise such powers, commensurate with his position, as the CEO and the Boardof Directors of the Company (the “Board”) shall from time to time assign to himon such terms and conditions and subject to such

 

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restrictions as the CEO and the Board may reasonably from time to timeimpose.

 

0.3.                              Nothingin this Agreement shall preclude Executive from (a) engaging in charitable andcommunity affairs so long as, in the reasonable determination of the Company,such activities do not interfere with his duties and responsibilitieshereunder, (b) managing any passive investment made by him in publicly tradedequity securities or other property (provided that no such investment mayexceed 5% of the equity of any entity, without the prior approval of theCompany, which approval shall not be unreasonably withheld) or (c) serving,subject to the prior approval of the Company, which approval shall not beunreasonably withheld, as a member of boards of directors or as a trustee ofany other corporation, association or entity.

 

0.4.                              TheExecutive will perform his services at the Company’s headquarters inLouisville, Kentucky, with the understanding that he will be required to travelas reasonably required (including travel to the United Kingdom) for theperformance of his duties under this Agreement .

 

1.                                       COMPENSATION.

 

1.1.                              SALARY.  The Company shall pay Executive a basesalary (“Base Salary”) of not less than the rate in effect immediately prior tothe Effective Time.  The Base Salaryshall be payable in accordance with the ordinary payroll practices of the Company.  The Base Salary shall be reviewed by theBoard as of July 1 of each year during the term of this Agreement and may beincreased in the discretion of the Board and, as so increased, shall constitute“Base Salary” hereunder.  At no timeshall the Board be able to decrease the Base Salary.

 

1.2.                              ANNUALBONUS.  In addition to his Base Salary,Executive shall be eligible to participate in any annual incentive plan orprogram maintained by the Company in which other senior executives of theCompany participate (the “Bonus Plan”). Such participation shall be on terms commensurate with Executive’sposition and level of responsibility. The Executive’s target bonus under the Bonus Plan in respect of eachtwelve-month period of the term of this Agreement (as provided for in Section2)(each, a “Contract Year”) shall be not less than the target bonus opportunityto which the Executive is entitled as of the date hereof  (50% of the Base Salary); provided, however,that with respect to the first and second Contract Years, Executive’s annualbonus amount shall not be less than 75% of the Executive’s target bonus foreach such Contract Year.  Except as setforth in the preceding sentence, nothing in this Section 4.2 will guarantee tothe Executive any specific amount of incentive compensation, or prevent aRemuneration Committee appointed by the Board of Directors of Parent from

 

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establishing reasonable performance goals and compensation targets,after consultation with the Executive, applicable only to the Executive.

 

1.3.                              COMPENSATIONPLANS AND PROGRAMS. Executive shall be eligible to participate in anycompensation plan or program maintained by the Company in which other seniorexecutives of the Company participate on terms commensurate with his positionand level of responsibility, and to receive equity-based incentive awards basedupon achievement of performance goals based partially upon Parent’s andpartially on the Company’s performance in accordance with the general terms ofthe long-term incentive plan contained on Exhibit A.

 

1.4.                              OTHERCOMPENSATION.  Nothing in this Section 4will preclude the Board from authorizing such additional compensation to theExecutive, in cash or in property, as the Board may determine in its solediscretion to be appropriate.

 

4.5                                 EXISTINGSTOCK OPTIONS.  In addition to anyprovision in the Merger Agreement, prior to the Effective Time, Executive mayelect in writing delivered to Parent to convert each Company stock option heholds (each, a “Company Option”), whether vested or unvested, into an option toacquire, on the same terms and conditions as were applicable under such CompanyOption, the number of ADS’s, equal to the result (rounded down to the nearestwhole ADS) of multiplying the number of shares subject to the Company Optionimmediately prior to the Effective Time by the Conversion Ratio (as defined inthe 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 priceof such Company Option immediately prior to the Effective Time by theConversion Ratio (it being understood that the exercise price shall beconverted into dollars at the rate prevailing at the close of business on thebusiness day prior to the Effective Time). If Executive makes such election and holds the Company Option or theADS’s acquired upon the exercise of such Company Option for two years after theEffective Time, then upon the later of (i) the end of the 24th month after theEffective Time, or (ii) the exercise of such Company Option, the Parent shallissue Executive one additional ADS for every 4 ADS’s acquired as a result ofsuch exercise; provided however in the event that either (i) a Change inControl occurs within the two years after the Effective Time and the Executiveis still employed by the Company immediately prior to the Change in Control,immediately prior to such time, the Executive shall receive one additional ADSfor every 4 ADS’s (A) acquired by the Executive as a result of the exercise ofany Company Option during the period prior to such Change in Control and (B)underlying each unexercised Company Option held by the Executive immediatelyprior to such Change in Control or (ii) the Executive’s employment isterminated for any reason (other than by the Company for Cause or by theExecutive 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 anyChange in Control, the Executive shall receive, within 10 days after thetermination of

 

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employment, one additional ADS for every 4 ADS’s (A) acquired by theExecutive as a result of the exercise of any Company Option during the periodprior to such termination of employment and (B) underlying each unexercisedCompany Option held by the Executive immediately prior to such termination ofemployment.

 

2.                                       EMPLOYEEBENEFITS.

 

2.1.                              EMPLOYEEBENEFIT PROGRAMS, PLANS AND PRACTICES. The Company shall provide Executive during the term of his employmenthereunder with coverage under all employee pension and welfare benefitprograms, plans and practices including, but not limited to, those specified inExhibit B attached hereto (commensurate with his positions and level ofresponsibility in the Company and to the extent permitted under any employeebenefit plan) in accordance with the terms thereof, which the Company makesavailable to its senior executives.

 

2.2.                              VACATIONAND FRINGE BENEFITS.  Executive shall beeligible to participate in the Company’s vacation plan; provided, however,that in no event shall Executive receive fewer vacation days than Executive isentitled to receive under the Company’s vacation policy as in effect immediatelyprior to the Effective Time.  Inaddition, Executive shall be entitled to perquisites and other fringe benefitsthat are comparable to those perquisites and fringe benefits to which Executiveis entitled immediately prior to the Effective Time.

 

2.3.                              EXPENSES.  Executive is authorized to incur reasonableexpenses in carrying out his duties and responsibilities under this Agreement,including, without limitation, expenses for travel and similar items related tosuch duties and responsibilities.  TheCompany will reimburse Executive for all such expenses upon presentation byExecutive from time to time of appropriately itemized and approved (consistentwith the Company’s policy) accounts of such expenditures.

 

4.                                       DEFINITIONS.

 

4.1.                              BASEAMOUNT; BONUS AMOUNT.  For purposes ofthis Agreement, “Base Amount” shall mean the greater of the Executive’s annualbase salary from the Company (a) at the rate in effect on the Termination Date(as hereinafter defined) or (b) at the highest rate in effect at any time duringthe ninety (90) day period prior to the Effective Time or the Change inControl, as applicable, and shall include all amounts of base salary that aredeferred under any qualified and non-qualified employee benefits plans of theCompany or any Subsidiary (as hereinafter defined) or under any other agreementor arrangement.  For purposes of thisAgreement; “Bonus Amount” shall mean the greater of (a) the most recent annualbonus paid or payable to the Executive (which may include a bonus amount paidor payable in respect of any Contract Year), (b) the

 

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annual bonus paid or payable to the Executive under the Bonus Plan forthe full fiscal year ended prior to the fiscal year during which the EffectiveTime, or the Change in Control, as applicable, occurred or (c) the Executive’starget award under the Bonus  Plan forthe full fiscal year ended prior to the fiscal year during which the EffectiveTime, or the Change in Control, as applicable, occurred.

 

4.2.                              CAUSE.  For purposes of this Agreement, atermination for “Cause” is a termination evidenced by a resolution adopted ingood faith by at least seventy-five percent (75%) of the Board of Directors ofthe Company that (i) there has been repeated willful misconduct by theExecutive in performing the reasonably assigned duties on behalf of the Companyrequired by and in accordance with his employment by the Company, or (ii) theExecutive has been convicted of a felony in the course of performing thoseduties. Notwithstanding anything contained in this Agreement to the contrary,no failure to perform by the Executive after a Notice of Termination (ashereinafter defined) is given by the Executive shall constitute Cause forpurposes of this Agreement. No act, or failure to act, on Executive’s partshall be deemed to be “repeated” unless the Executive shall have received awritten notice from the Company setting forth in detail the particulars of theact, or the failure to act, which the Company contends would constitute Causewhen repeated and Executive then repeats such act or failure to act and doesnot resolve or otherwise cure such behavior within thirty (30) days of receiptof such notice.

 

2.4.                              CHANGEIN CONTROL.  For purposes of thisAgreement, a “Change in Control” shall mean the occurrence during the term ofthis Agreement of any of the following events:

 

(1)                                  Anacquisition (other than directly from Parent) of any securities of Parententitled generally to vote on the election of directors (the “Voting Securities”)by any “Person” (as the term person is used for purposes of Section 13(d)or 14(d) of the Securities Exchange Act of 1934, as amended (the “1934 Act”))immediately after which such Person has “Beneficial Ownership” (within themeaning of Rule 13d-3 promulgated under the 1934 Act) of fifteen percent(15%) or more of the combined voting power of Parent’s then outstanding VotingSecurities; PROVIDED, HOWEVER, in determining whether a Change in Control hasoccurred, Voting Securities which are acquired in a “Non-Control Acquisition”(as hereinafter defined) shall not constitute an acquisition which would causea Change in Control. A “Non-Control Acquisition” shall mean an acquisition by(1) an employee benefit plan (or a trust forming a part thereof) maintained by(a) Parent or (b) any corporation or other Person of which a majority of itsvoting power or its equity securities or equity interest is owned directly andindirectly by Parent (a “Subsidiary”) or (2) Parent or any Subsidiary.

 

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(2)                                  Theindividuals who, as of the date this Agreement was approved by the Board, aremembers of the Board (the “Incumbent Board”), cease for any reason toconstitute at least two-thirds of the Board; provided, however, that if theelection, or nomination for election by Parent’s stockholders, of any newdirector was approved by a vote of at least two-thirds of the Incumbent Board,such new director shall, for purposes of the Agreement, be considered as amember of the Incumbent Board; or

 

(3)                                  Approvalby stockholders of Parent of:

 

(1)                                  Amerger, consolidation or reorganization involving Parent; unless

 

(1)                                  thestockholders of Parent immediately before such merger, consolidation orreorganization, own, directly or indirectly immediately following such merger,consolidation or reorganization, at least seventy-five percent (75%) of thecombined voting power of the outstanding voting securities of the corporationresulting from such merger or consolidation or reorganization (the “SurvivingCorporation”) in substantially the same proportion to each other as theirownership of the Voting Securities immediately before such merger,consolidation or reorganization, and

 

(2)                                  theindividuals who were members of the Incumbent Board immediately prior to theexecution of the agreement providing for such merger, consolidation orreorganization constitute at least two-thirds of the members of the board ofdirectors of the Surviving Corporation;

 

(2)                                  Acomplete liquidation or dissolution of Parent or the Company ; unless, in thecase of the Company, Parent continues to own directly or indirectly all orsubstantially all of the Company’s assets;

 

(3)                                  Anagreement for the sale or other disposition of all or substantially all of theassets of Parent or the Company to any Person (other than a transfer to aSubsidiary);

 

(1)                                  Amerger or other combination involving the Company as a result of which Parentceases to beneficially own more than 50% of the outstanding Voting Securitiesof the successor to the Company, unless Parent continues to own directly orindirectly all or substantially all of the Company’s assets; or

 

(2)                                  AnyPerson acquires Beneficial Ownership of a greater  percentage of the Voting Securities of the Company than thepercentage of such Voting Securities then held, directly or indirectly, byParent.

 

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Notwithstanding theforegoing clauses (a), (b), and (c), a Change in Control shall not be deemed tooccur solely because any Person Beneficially Owned by the Subject Person (the“Subject Person”) acquired Beneficial Ownership of more than the permittedamount of the outstanding Voting Securities as a result of the acquisition ofVoting Securities by Parent which, by reducing the number of Voting Securitiesoutstanding, increases the proportional number of shares, provided that if aChange in Control would occur (but for the operation of this sentence) as aresult of the acquisition of Voting Securities by Parent, and after such shareacquisition by Parent, the Subject Person or entity becomes the BeneficialOwner of any additional Voting Securities which increases the percentage of thethen outstanding Voting Securities Beneficially Owned by the Subject Person,then a Change in Control shall occur.

 

(4)                                  Notwithstandinganything contained in this Agreement to the contrary, if the Executive’semployment is terminated during the term of this Agreement and the Executivereasonably demonstrates that such termination (i) was at the request of a thirdparty who has indicated an intention or taken steps reasonably calculated toeffect a Change in Control and who effectuates a Change in Control (a “ThirdParty”) or (ii) otherwise occurred in connection with, or in anticipation of, aChange in Control which actually occurs, then for all purposes of thisAgreement, the date of a Change in Control with respect to the Executive shallmean the date immediately prior to the date of such termination of theExecutive’s employment.

 

4.3.                              DISABILITY.  For purposes of this Agreement, “Disability”shall mean a physical or mental infirmity which impairs the Executive’s abilityto substantially perform his duties with the Company which continues for aperiod of at least one hundred eighty (180) consecutive days.

 

4.4.                              GOODREASON.

 

(1)                                  Forpurposes of this Agreement, “Good Reason” shall mean the occurrence of any ofthe events or conditions described in subsections (1) through (8) hereof:

 

(1)                                  areduction by the Company in the Executive’s Base Salary or annual target bonusopportunity as in effect prior to such reduction or any failure to pay theExecutive any compensation or benefits to which the Executive is entitledwithin thirty days of the applicable due date, provided that the Company maycorrect such reduction or failure within thirty (30) days of its commission;

 

(2)                                  Parentor the Company require the Executive to be relocated anywhere in excess offifty (50) miles of his present office location, except for required travel onParent or Company business consistent with his business travel

 

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obligations as in effect prior to the Effective Time and as provided inSection 3.4 of this Agreement;

 

(3)                                  afailure by Parent or the Company to maintain plans providing benefits at leastas beneficial in the aggregate as those provided by any benefit or compensationplan, retirement or pension plan, stock option plan, bonus plan, long-termincentive plan, life insurance plan, health and accident plan or disabilityplan in which the Executive is participating prior to the Effective Time, orthe Change in Control, as applicable, or if the Company or Parent has taken anyaction which would adversely affect the Executive’s participation in ormaterially reduce the Executive’s benefits under any of such plans or deprivehim of any material fringe benefit enjoyed by him prior to the Effective Time,or the Change in Control, as applicable, or if the Company or Parent has failedto provide him with the number of paid vacation days to which he would beentitled in accordance with the Company’s normal vacation policy immediatelyprior to the Effective Time, or the Change in Control, as applicable;

 

(3)                                  Parentor the Company materially reduces, individually or in the aggregate, theExecutive’s title, job authorities or responsibilities as in effect prior tosuch reduction;

 

(4)                                  Parentor the Company fails to obtain the assumption of the obligations contained inthis Agreement by any successor as contemplated in Section 11 hereof;

 

(5)                                  anypurported termination of the Executive’s employment by Parent or the Companywhich is not effected pursuant to a Notice of Termination satisfying therequirements of Section 8 below; and, for purposes of this Agreement, nosuch purported termination shall be effective;

 

(6)                                  anymaterial breach by Parent or the Company of any provision of this Agreement;

 

(7)                                  anypurported termination of the Executive’s employment for Cause by Parent or theCompany which does not comply with the terms of Section 6.2 of this Agreement;or

 

(2)                                  Untilthe Executive’s Disability, the Executive’s rights to terminate his employmentpursuant to this Section  6.5 shall not be affected by his incapacity dueto physical or mental illness.

 

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5.                                       TERMINATIONOF EMPLOYMENT.

 

5.1.                              If,during the term of this Agreement, the Executive’s employment with the Companyshall be terminated within twenty-four months after the effective time of anyChange in Control, then the Executive shall be entitled to the followingcompensation and benefits:

 

(1)                                  Ifthe Executive’s employment with the Company shall be terminated (1) by Parentor the Company for Cause or (2) by the Executive (other than for Good Reason oras a result of death or Disability), the Company shall pay the Executive allamounts earned or accrued for or on behalf of the Executive through theTermination Date (as hereinafter defined) but not paid as of the TerminationDate, including (i) Base Salary, (ii) reimbursement for reasonable and necessaryexpenses incurred by the Executive on behalf of the Company during the periodending on the Termination Date and (iii) vacation pay (collectively, “AccruedCompensation”).

 

(2)                                  Ifthe Executive’s employment with the Company shall be terminated (1) as a resultof the Executive’s death or (2) as a result of the Executive’s Disability, theExecutive shall be entitled to the following: (i) The Company shall pay theExecutive all Accrued Compensation; (ii) the Company shall pay, as a severanceamount to the Executive (or his or her personal representative or estate, asapplicable) after the Termination Date, an amount equal to the Executive’sannual target bonus for the year in which such Termination Date occurs; and(iii) the Company shall provide the Executive with a cash lump sum payment ofany long-term incentive award granted to the Executive at the target level,prorated for Executive’s actual period of service.

 

(3)                                  If  the Executive’s employment with the Companyshall be terminated (1) by the Company for any reason (including as a result ofthe Company’s notice not to extend the term of this Agreement) other than asspecified in clause (1) of Section 7.1(a) or (2) by the Executive for GoodReason, the Executive shall be entitled to the following:

 

(1)                                  TheCompany shall pay the Executive all Accrued Compensation;

 

(2)                                  TheCompany shall pay, as a severance amount to the Executive after the TerminationDate, an amount equal to 2.99 times the sum of (a) the Base Amount and (b) theBonus Amount;

 

(3)                                  Fora period of thirty-six months (the “Continuation Period”), the Company shall atits expense continue on behalf of the Executive and his dependents andbeneficiaries (to the same extent provided to the dependents and beneficiariesprior to the Executive’s termination) the life insurance, disability, medical,dental, and hospitalization benefits provided (x) to the Executive by theCompany at any

 

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time within ninety (90) days preceding a Change in Control or at anytime thereafter, or (y) to other similarly situated executives who continue inthe employ of the Company during the Continuation Period. The coverage andbenefits (including deductibles and costs) provided in this Section 7.1(c)(iii) during the Continuation Period shall be no less favorable to theExecutive and his dependents and beneficiaries, than the most favorable of suchcoverages and benefits set forth in clauses (x) and (y) above. The Company’sobligation hereunder with respect to the foregoing benefits shall be limited tothe extent that the Executive obtains any such benefits pursuant to asubsequent employer’s benefit plans, in which case the Company may reduce thecoverage of any benefits it is required to provide the Executive hereunder as longas the aggregate coverages and benefits of the combined benefit plans are noless favorable to the Executive than the coverages and benefits required to beprovided hereunder.  ThisSubsection (c)(iii) shall not be interpreted so as to limit any benefitsto which the Executive or his dependents may be entitled under any of theCompany’s or any Subsidiary’s employee benefit plans, programs or practicesfollowing the Executive’s termination of employment, including withoutlimitation, retiree medical and life insurance benefits; and

 

(4)                                  TheCompany shall provide to the Executive an amount equal to twenty percent (20%)of the Base Amount to be used for outplacement services.

 

5.2.                              If,during the term of this Agreement, but prior to a Change in Control, theExecutive’s employment with the Company shall be terminated, the Executiveshall be entitled to the following:

 

(1)                                  Ifthe Executive’s employment with the Company shall be terminated (1) by Parentor the Company for Cause or (2) by the Executive (other than for Good Reason oras a result of death or Disability), the Company shall pay the Executive allAccrued Compensation.

 

(2)                                  Ifthe Executive’s employment with the Company shall be terminated (1) as a resultof the Executive’s death or (2) as a result of the Executive’s Disability, theExecutive shall be entitled to the following: (i) The Company shall pay theExecutive all Accrued Compensation; (ii) the Company shall pay, as a severanceamount to the Executive (or his or her personal representative or estate, asapplicable) after the Termination Date, an amount equal to the Executive’sannual target bonus for the year in which such Termination Date occurs.; and(iii) the Company shall provide the Executive with a cash lump sum payment ofany long-term incentive award granted to the Executive at the target level,prorated for Executive’s actual period of service.

 

(3)                                  Ifthe Executive’s employment with the Company shall be terminated (1) by theCompany for any reason (including as a result of the Company’s notice not toextend the term of this Agreement) other than as specified in clause (1)of

 

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Section 7.2(a) or (2) by the Executive for Good Reason, theExecutive shall be entitled to the following:

 

(1)                                  TheCompany shall pay the Executive all Accrued Compensation;

 

(2)                                  TheCompany shall pay, as a severance amount to the Executive after the TerminationDate, an amount equal to the sum of (a) the Base Amount and (b) the BonusAmount, divided by twelve, the quotient of which shall be multiplied by thegreater of (x) twelve and (y) the number of months remaining in the term ofthis Agreement;

 

(3)                                  Fora period of twenty-four (24) months (the “Continuation Period”), the Companyshall at its expense continue on behalf of the Executive and his dependents andbeneficiaries (to the same extent provided to the dependents and beneficiariesprior to the Executive’s termination) the life insurance, disability, medical,dental, and hospitalization benefits provided to other similarly situatedexecutives who continue in the employ of the Company during the ContinuationPeriod.  The Company’s obligationhereunder with respect to the foregoing benefits shall be limited to the extentthat the Executive obtains any such benefits pursuant to a subsequentemployer’s benefit plans, in which case the Company may reduce the coverage ofany benefits it is required to provide the Executive hereunder as long as theaggregate coverages and benefits of the combined benefit plans are no lessfavorable to the Executive than the coverages and benefits required to beprovided hereunder. This Subsection (c)(iii) shall not be interpreted soas to limit any benefits to which the Executive or his dependents may beentitled under any of the Company’s or any Subsidiary’s employee benefit plans,programs or practices following the Executive’s termination of employment,including without limitation, retiree medical and life insurance benefits; and

 

(4)                                  TheCompany shall provide to the Executive an amount equal to twenty percent (20%)of the Base Amount to be used for outplacement services.

 

5.3.                              Theamounts provided for in Section 7.1(a), 7.1(b) (i) and (ii), 7.1(c) (i), (ii)and (iv), 7.2(a),  7.2(b)(i) and (ii)and 7.2(c) (i), (ii) and (iv) shall be paid in cash in a lump sum within thirty(30) days after the Executive’s Termination Date.

 

5.4.                              TheExecutive shall not be required to mitigate the amount of any payments providedfor in this Agreement by seeking other employment or otherwise and no such paymentshall be offset or reduced by the amount of any compensation or benefitsprovided to the Executive in any subsequent employment except as provided inSections 7.1(c) (iii) and 7.2(c)(iii).

 

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5.5.                              Theprovisions of this Agreement, and any payment provided for hereunder, shall notreduce any amounts otherwise payable, or in any way diminish the Executive’sexisting rights, or rights which would accrue solely as a result of the passageof time, under any benefit plan, incentive plan, or securities plan, employmentagreement or other contract, plan or arrangement with the Company, anySubsidiary or any other party, including, but not limited to, those specifiedin Exhibit B attached hereto, provided, however, the Company shall not berequired to make duplicative payments of Accrued Compensation, and providedfurther that, upon execution of this Agreement, Executive shall not have anyrights under his prior Change-In-Control Agreement (other than with respect toSection 6 of such Agreement), as previously amended, which agreement (as statedin Sections 1 and 22 hereof) is superseded by this Agreement.

 

6.                                       NOTICEOF TERMINATION. Any purported termination by Parent or the Company or by theExecutive shall be communicated by written Notice of Termination to the other.For purposes of this Agreement, a “Notice of Termination” shall mean a noticewhich indicates the specific termination provision in this Agreement reliedupon and shall set forth in reasonable detail the facts and circumstancesclaimed to provide a basis for termination of the Executive’s employment underthe provision so indicated. For purposes of this Agreement, no such purportedtermination shall be effective without such Notice of Termination.

 

7.                                       TERMINATIONDATE. “Termination Date” shall mean, in the case of the Executive’s death, hisdate of death and, in all other cases, the date specified in the Notice ofTermination subject to the following:

 

(1)                                  Ifthe Executive’s employment is terminated by Parent or the Company for Cause ordue to Disability, the date specified in the Notice of Termination shall be atleast thirty (30) days from the date the Notice of Termination is given to theExecutive, provided that, in the case of Disability, the Executive shall nothave returned to the full-time performance of his duties during such period ofat least (30) days; and

 

(2)                                  Ifthe Executive’s employment is terminated for Good Reason, the date specified inthe Notice of Termination shall not be more than sixty (60) days from the datethe Notice of Termination is given to Parent or the Company.

 

8.                                       CERTAINADDITIONAL PAYMENTS

 

(1)                                  Notwithstandinganything in the Agreement to the contrary, in the event that it is determined(as hereafter provided) that any payment or distribution by the Company or anyaffiliates to or for the benefit of the Executive, whether paid or payable ordistributed or distributable pursuant to the terms of this Agreement orotherwise pursuant to or by reason of any other agreement, policy, plan,program or arrangement,

 

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including without limitation any stock option, stock appreciation rightor similar right, or the lapse or termination of any restriction on or thevesting or exercisability of any of the foregoing (individually andcollectively a “Payment”), would be subject to the excise tax imposed bySection 4999(or any successor provision thereto) of the Internal Revenue Codeof 1986, as amended (the “Code”) by reason of being considered “contingent on achange in ownership or control” of the Company or Parent, within the meaning ofSection 280G of the Code (or any successor provision thereto), or to anysimilar tax imposed by state or local law, or any interest or penalties with respectto any such taxes (such taxes, together with any such interest and penalties,being hereafter collectively referred to as the “Excise Tax”), then theExecutive shall be entitled to receive an additional payment or payments(individually and collectively, a “Gross-Up Payment”). The Gross-Up Paymentshall be in an amount such that, after payment by the Executive of all taxes(including any interest or penalties imposed with respect to such taxes),including any Excise Tax imposed upon the Gross-Up Payment, the Executiveretains an amount of the Gross-Up Payment equal to the Excise Tax imposed uponthe Payment.

 

(2)                                  Subjectto the provisions of Section 10(f) hereof, all determinations required tobe made under this Section 10, including whether an Excise Tax is payableby the Executive and the amount of such Excise Tax and whether a Gross-UpPayment is required to be paid to the Executive and the amount of such Gross-UpPayment, if any, shall be made by a nationally recognized accounting firm (the“Accounting Firm”) selected by the Executive in his sole discretion. TheExecutive shall direct the Accounting Firm to submit its determination anddetailed supporting calculations to both the Company and the Executive withinthirty (30) calendar days after the Termination Date, if applicable, and anysuch other time or times as may be requested by the Company or the Executive.If the Accounting Firm determines that any Excise Tax is payable by theExecutive, the Company shall pay or cause to be paid the required Gross-UpPayment in cash to the Executive within five (5) business days after receipt ofsuch determination and calculations with respect to any Payment to theExecutive. If the Accounting Firm determines that no Excise Tax is payable bythe Executive, it shall, at the same time as it makes such determination,furnish the Company and the Executive an opinion that the Executive hassubstantial authority not to report any Excise Tax on his federal, state orlocal income or other tax return. As a result of the uncertainty in theapplication of Section 4999 of the Code (or any successor provision thereto) atthe time of any determination by the Accounting Firm hereunder, it is possiblethat Gross-Up Payments which will not have been made by the Company should havebeen made (an “Underpayment”), consistent with the calculations required to bemade hereunder. In the event that the Company exhausts or fails to pursue itsremedies pursuant to Section 10(f) hereof and the Executive thereafter isrequired to make a payment of any Excise Tax, the Executive shall direct theAccounting Firm to determine the amount of the Underpayment that has occurredand to submit its determination and detailed supporting calculations to boththe Company and the Executive as promptly as possible. Any such Underpayment

 

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shall be promptly paid by the Company in cash to, or for the benefitof, the Executive within five (5) business days after receipt of suchdetermination and calculations.

 

(3)                                  TheCompany and the Executive shall each provide the Accounting Firm access to andcopies of any books, records and documents in the possession of the Company orthe Executive, as the case may be, reasonably requested by the Accounting Firm,and otherwise cooperate with the Accounting Firm in connection with thepreparation and issuance of the determinations and calculations contemplated bySection 10(b) hereof. Any determination by the Accounting Firm as to theamount of the Gross-Up Payment will be binding on the Company and theExecutive.

 

(4)                                  Thefederal, state, and local income or other tax returns filed by the Executivewill be prepared and filed on a consistent basis with the determination of theAccounting Firm with respect to the Excise Tax payable by the Executive. TheExecutive will make proper payment of the amount of any Excise Payment and, atthe request of the Company, provide to the Company true and correct copies(with any amendments) of the Executive’s federal income tax return as filedwith the Internal Revenue Service and corresponding state and local taxreturns, if relevant, as filed with the applicable taxing authority, and suchother documents reasonably requested by the Company, evidencing such payment.If prior to the filing of the Executive’s federal income tax return, orcorresponding state or local tax return, if relevant, the Accounting Firmdetermines that the amount of the Gross-Up Payment should be reduced, theExecutive will within five (5) business days pay to the Company the amount ofsuch reduction.

 

(5)                                  Thefees and expenses of the Accounting Firm for its services in connection withthe determinations and calculations contemplated by Section 10(b) hereofshall be borne by the Company. If such fees and expenses are initially paid bythe Executive, the Company shall reimburse the Executive the full amount ofsuch fees and expenses within five (5) business days after receipt from theExecutive of a statement therefor and reasonable evidence of his paymentthereof.

 

(6)                                  TheExecutive shall notify the Company in writing of any claim by the InternalRevenue Service or any other taxing authority that, if successful, wouldrequire the payment by the Company of a Gross-Up Payment. Such notificationshall be given as promptly as practicable but no later than ten (10) businessdays after the Executive actually receives notice of such claim and theExecutive shall further apprise the Company of the nature of such claim and thedate on which such claim is requested to be paid (in each case, to the extentknown by the Executive). The Executive shall not pay such claim prior to theearlier of (i) the expiration of the thirty (30) calendar-day period followingthe date on which he gives such notice to the Company and (ii) the date that anypayment of amount with respect to such claim is due. If the Company notifiesthe

 

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Executive in writing prior to the expiration of such period that itdesires to contest such claim, the Executive shall:

 

(1)                                  providethe Company with any written records or documents in his possession relating tosuch claim reasonably requested by the Company;

 

(2)                                  takesuch action in connection with contesting such claim as the Company shallreasonably request in writing from time to time, including without limitationaccepting legal representation with respect to such claim by an attorneycompetent in respect of the subject matter and reasonably selected by theCompany;

 

(3)                                  cooperatewith the Company in good faith in order effectively to contest such claim; and

 

(4)                                  permitthe Company to participate in any proceedings relating to such claim;

 

provided, however, thatthe Company shall bear and pay directly all costs and expenses (includinginterest and penalties) incurred in connection with such contest and shallindemnify and hold harmless the Executive, on an after-tax. basis, for andagainst any Excise Tax or income tax, including interest and penalties withrespect thereto, imposed as a result of such representation and payment ofcosts and expenses. Without limiting the foregoing provisions of thisSection 10(f), the Company shall control all proceedings taken inconnection with the contest of any claim contemplated by thisSection 10(f) and, at its sole option, may pursue or forego any and alladministrative appeals, proceedings, hearings and conferences with the taxingauthority in respect of such claim (provided, however, that the Executive mayparticipate therein at his own cost and expense) and may, at its option, eitherdirect the Executive to pay the tax claimed and sue for a refund or contest theclaim in any permissible manner, and the Executive agrees to prosecute suchcontest to a determination before any administrative tribunal, in a court ofinitial jurisdiction and in one or more appellate courts, as the Company shalldetermine; provided, however, that if the Company directs the Executive to paythe tax claimed and sue for a refund, the Company shall advance the amount ofsuch payment to the Executive on an interest-free basis and shall indemnify andhold the Executive harmless, on an after-tax basis, from any Excise Tax orincome tax, including interest or penalties with respect thereto, imposed withrespect to such advance; and provided further, however, that any extension ofthe statute of limitations relating to payment of taxes for the taxable year ofthe Executive with respect to which the contested amount is claimed to be dueis limited solely to such contested amount. Furthermore, the Company’s control ofany such contested claim shall be limited to issues with respect to which aGross-Up Payment would be payable hereunder and the Executive shall be entitledto settle or

 

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contest, as the case may be, any other issue raised by the InternalRevenue Service or any other taxing authority.

 

(7)                                  If,after the receipt by the Executive of an amount advanced by the Companypursuant to Section 10(f) hereof, the Executive receives any refund withrespect to such claim, the Executive shall (subject to the Company’s complyingwith the requirements of Section 10(f) hereof) promptly pay the Companythe amount of such refund (together with any interest paid or credited thereonafter any taxes applicable thereto). If, after the receipt by the Executive ofan amount advanced by the Company pursuant to Section 10(f) hereof, adetermination is made that the Executive shall not be entitled to any refundwith respect to such claim and the Company does not notify the Executive inwriting of its intent to contest such denial or refund prior to the expirationof thirty (30) calendar days after such determination, then such advance shallbe forgiven and shall not be required to be repaid and the amount of any suchadvance shall offset, to the extent thereof, the amount of Gross-Up Paymentrequired to be paid by the Company to the Executive pursuant to thisSection 10.

 

9.                                       SUCCESSORS;BINDING AGREEMENT.

 

(1)                                  ThisAgreement shall be binding upon and shall inure to the benefit of Parent, theCompany, their successors and assigns and, at the time of any such successionor assignment, Parent or the Company (as applicable) shall require anysuccessor or assign to expressly assume and agree to perform this Agreement inthe same manner and to the same extent that Parent or the Company would berequired to perform it if no such succession or assignment had taken place. Theterms “Parent”, “the Company” as used herein shall include such successors andassigns. The term “successors and assigns” as used herein shall mean acorporation or other entity acquiring ownership, directly or indirectly, of allor substantially all the assets and business of the Company (including thisAgreement) whether by operation of law or otherwise.

 

(b)                               Neitherthis Agreement nor any right or interest hereunder shall be assignable ortransferable by the Executive, his beneficiaries or legal representatives,except by will or by the laws of descent and distribution. This Agreement shallinure to the benefit of and be enforceable by the Executive’s legal personalrepresentative.

 

10.                                 FEESAND EXPENSES.  The Company shall pay all legal fees and related expenses(including the cost of experts, evidence and counsel) incurred by the Executiveinvolving (a) the Executive’s termination of employment (including all suchfees and expenses, if any, incurred in contesting or disputing any suchtermination of employment), or (b) the Executive seeking to obtain or enforceany right or benefit provided by this Agreement.

 

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11.                                 NOTICE.  For the purpose of this Agreement, noticesand all other communications provided for in the Agreement (including theNotice of Termination) shall be in writing and shall be deemed to have beenduly given when personally delivered or sent by certified mail, return receiptrequested, postage prepaid, addressed to the respective addresses last given byeach party to the other, provided that all notices to Parent or the Companyshall be directed to the attention of the Board with a copy to the Secretary ofParent or the Company. All notices and communications shall be deemed to havebeen received on the date of delivery thereof or on the third business dayafter the mailing thereof, except that notice of change of address shall beeffective only upon receipt.

 

12.                                 NON-EXCLUSIVITYOF RIGHTS.  Nothing in this Agreementshall prevent or limit the Executive’s continuing or future participation inany benefit, bonus, incentive or other plan or program provided by the Companyand for which the Executive may qualify, nor shall anything herein limit orreduce such rights as the Executive may have under any other agreements withthe Company.  Amounts which are vestedbenefits or which the Executive is otherwise entitled to receive under any planor program of the Company shall be payable in accordance with such plan orprogram.

 

13.                                 SETTLEMENTOF CLAIMS.  The Company’s obligation tomake the payments provided for in this Agreement and otherwise to perform itsobligations hereunder shall not be affected by any circumstances, including,without limitation, any set-off, counterclaim, recoupment, defense or otherright which the Company may have against the Executive or others.

 

14.                                 MISCELLANEOUS.  No provision of this Agreement may bemodified, waived or discharged unless such waiver, modification or discharge isagreed to in writing and signed by the Executive, Parent and the Company. Nowaiver by either party hereto at any time of any breach by the other partyhereto of, or compliance with, any condition or provision of this Agreement tobe performed by such other party shall be deemed a waiver of similar ordissimilar provisions or conditions at the same or at any prior or subsequenttime. No agreement or representations, oral or otherwise, express or implied,with respect to the subject matter hereof have been made by either party whichare not expressly set forth in this Agreement. No additional compensationprovided under any benefit or compensation plans to the Executive shall bedeemed to modify or otherwise affect the terms of this Agreement or any of theExecutive’s entitlements hereunder.

 

15.                                 GOVERNINGLAW.  This Agreement shall be governedby and construed and enforced in accordance with the laws of the Commonwealthof Kentucky, without reference to principles of conflicts of laws.

 

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16.                                 SEVERABILITY.  The provisions of this Agreement shall bedeemed severable and the invalidity or unenforceability of any provision shallnot affect the validity or enforceability of the other provisions hereof.

 

30                                    NONSOLICITATION.

 

(0)                                  TheExecutive hereby covenants and agrees that, at all times during the period ofhis employment and during the Restricted Period (as hereinafter defined)immediately following termination for any reason (unless such terminationoccurs after a  Change in Control), theExecutive shall not, without the prior written consent of the Board, (i)solicit or take any action to willfully and intentionally cause thesolicitation of any person who as of that date is a client, customer,(“Client”) of the Parent or the Company or any of their subsidiaries totransact any business with a Competitive Enterprise (as hereinafter defined) ordiscontinue business, in whole or in part with the Parent or the Company; or(ii) willfully or intentionally interfere with or damage any relationshipbetween a Client and the Parent or the Company.

 

(1)                                  TheExecutive hereby covenants and agrees that, at all times during the period of hisemployment and during the Restricted Period immediately following thetermination thereof for any reason (unless such termination occurs after asubsequent Change in Control), the Executive shall not, without the priorwritten consent of the Board, solicit any person employed at that time by theParent, the Company or any of their subsidiaries to apply for or acceptemployment with a Competitive Enterprise or otherwise encourage or entice suchperson to leave his position with the Parent, the Company or any of theirsubsidiaries.

 

(2)                                  Forpurposes of this Agreement, (i) the term “Restricted Period” shall equal oneyear, provided that if  Executive’semployment is terminated within eighteen months of the Effective Time for anyreason other than a termination for Cause, the Restricted Period shall equalsix months and (ii) the term “Competitive Enterprise” shall mean any businesswhich is in competition with a business engaged in by the Parent, the Companyor any of its subsidiaries or affiliates in any state of the United States orin any foreign country in which any of them are engaged in business at the timeof such termination of employment for as long as they carry on a businesstherein.  Notwithstanding the precedingsentence, the Executive shall not be prohibited from owning less than five (5%)percent of any publicly traded corpor­ation, and if Executive’s termination ofemployment shall occur within eighteen months of the Effective Time for anyreason other than a termination for Cause, “Competitive Enterprise” shall meanany business which is in competition with a business engaged in by the Parent,the Company or any of its subsidiaries or affiliates in any state in which anyof them are engaged in business at the time of such termination of employmentfor as long as they carry on a business therein or in any state contiguous tosuch state.

 

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(3)                                  Itis the intention of the parties hereto that the restrictions contained in thisSection be enforceable to the fullest extent permitted by applicable law.  Therefore, to the extent any court ofcompetent jurisdiction shall determine that any portion of the foregoingrestrictions is excessive, such provision shall not be entirely void, butrather shall be limited or revised only to the extent necessary to make itenforceable.  Specifically, if any courtof competent jurisdiction should hold that any portion of the foregoingdescription is overly broad as to one or more states of the United States orone or more foreign jurisdictions, then that state or states or foreignjurisdiction or jurisdictions shall be eliminated from the territory to whichthe restrictions of paragraph (a) of this Section applies and the restrictionsshall remain applicable in all other states of the United States and foreignjurisdictions.

 

17.                                 CONFIDENTIALINFORMATION

 

The Executiveagrees to keep secret and retain in the strictest confidence all confidentialmatters which relate to the Parent, the Company, its subsidiaries and affiliates,including, without limitation, customer lists, client lists, trade secrets,pricing policies and other business affairs of the Parent, the Company, itssubsidiaries and affiliates learned by him from the Parent, the Company or anysuch subsidiary or affiliate or otherwise before or after the date of thisAgreement, and not to disclose any such confidential matter to anyone outsidethe Parent, the Company or any of its subsidiaries or affiliates, whetherduring or after his period of service with the Company, except (i) as suchdisclosure may be required or appropriate in connection with his work as anemployee of the Company or (ii) when required to do so by a court of law,by any governmental agency having supervisory authority over the business ofthe Parent or the Company or by any administrative or legislative body(including a committee thereof) with apparent jurisdiction to order him todivulge, disclose or make accessible such information.  The Executive agrees to give the Parent andthe Company advance written notice of any disclosure pursuant toclause (ii) of the preceding sentence and to cooperate with any efforts bythe Parent or the Company to limit the extent of such disclosure.  Upon request by the Parent or the Company,the Executive agrees to deliver promptly to the Parent or the Company upontermination of his services for the Company, or at any time thereafter as theParent, the Company may request, all Parent, Company, subsidiary or affiliatememoranda, notes, records, reports, manuals, drawings, designs, computer filesin any media and other documents (and all copies thereof) relating to theParent or the Company’s or any subsidiary’s or affiliate’s business and allproperty of the Parent or the Company or any subsidiary or affiliate associatedtherewith, which he may then possess or have under his direct control, otherthan personal notes, diaries, rolodexes and correspondence.

 

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18.                                 REMEDY

 

Should theExecutive engage in or perform, either directly or indirectly, any of the actsprohibited by Sections 19 or 20 hereof, it is agreed that the Parent andthe Company shall be entitled to full injunctive relief, to be issued by anycompetent court of equity, enjoining and restraining the Executive and each andevery other person, firm, organi­zation, association, or corporation concernedtherein, from the continuance of such violative acts.  The foregoing remedy available to the Parent and the Companyshall not be deemed to limit or prevent the exercise by the Parent or theCompany of any or all further rights and remedies which may be available to theParent or the Company hereunder or at law or in equity.

 

19.                                 ENTIREAGREEMENT.  This Agreement constitutesthe entire agreement between the parties hereto and supersedes all prioragreements, if any, understandings and arrangements, oral or written, betweenthe parties hereto with respect to the subject matter hereof, including,without limiting the foregoing, his prior Change-In-Control Agreement, aspreviously amended, which shall cease to be of any further effect.

 

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IN WITNESS WHEREOF, the Company has caused thisAgreement to be executed by its duly authorized representative and theExecutive has executed this Agreement as of the day and year first abovewritten.

 
|   | POWERGEN PLC          |
|--------|-----------------------|
|   |                  |
|   |                  |
|   | By:                   | /signed/ |
|   |                  | Name: |
|   |                  | Title: |
|   |                  |
|   |                  |
|   | LG&E ENERGY CORP. |
|   |                  |
|   |                  |
|   | By:                   | /s/ R. W. Hale |
|   |                  | Name: |
|   |                  | Title: |
|   |                  |
|   | /s/ John R. McCall    |   |
|   | John R. McCall        |
|        |                       |  |  |

 

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EXHIBIT B

 

TO

 

CHANGE-IN-CONTROLAGREEMENT

 

 

1.                                       OmnibusLong-Term Incentive Plan

 

2.                                       Short-TermIncentive Plan

 

3.                                       QualifiedThrift Plan

 

4.                                       NonqualifiedThrift Plan

 

5.                                       LG&EEnergy Corporation Retirement Income Plan for Employees Who Are Not Members ofa Bargaining Unit

 

6.                                       LG&EEnergy Corporation Supplemental Executive Retirement Plan

 

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