Exhibit 10.46


 


 


LG&E ENERGY LLC


NONQUALIFIED


SAVINGS PLAN


(Effective January 1, 2005)


 

















 


TABLE OF CONTENTS


 


	
  ARTICLE 1: PURPOSE AND
  EFFECTIVE DATE

  	
  1

  
	
  Section 1.1
  – Title

  	
  1

  
	
  Section 1.2
  – Purpose

  	
  1

  
	
  Section 1.3
  – Effective Date

  	
  1

  
	
  ARTICLE 2: DEFINITIONS AND
  CONSTRUCTION OF THE PLAN DOCUMENT

  	
  2

  
	
  Section 2.1
  – Beneficiary

  	
  2

  
	
  Section 2.2
  – Board of Directors

  	
  2

  
	
  Section 2.3
  – Bookkeeping Account

  	
  2

  
	
  Section 2.4
  - Committee

  	
  2

  
	
  Section 2.4
  - Committee

  	
  2

  
	
  Section 2.5
  –  Company

  	
  2

  
	
  Section 2.6
  – Compensation

  	
  2

  
	
  Section 2.7
  – Deferral Agreement

  	
  2

  
	
  Section 2.8
  – Deferred Compensation

  	
  2

  
	
  Section 2.9
  – Election Date

  	
  2

  
	
  Section 2.10
  – Executive

  	
  2

  
	
  Section 2.11
  – Participant

  	
  3

  
	
  Section 2.12
  – Plan

  	
  3

  
	
  Section 2.13
  – Plan Year

  	
  3

  
	
  Section 2.14
  – Qualified Plan

  	
  3

  
	
  Section 2.15
  – Retirement

  	
  3

  
	
  Section 2.16
  – Termination of Service

  	
  3

  
	
  Section 2.17
  – Valuation Date

  	
  3

  
	
  Section 2.18
  – Gender and Number

  	
  3

  
	
  Section 2.19
  – Titles

  	
  3

  
	
  ARTICLE 3: ELIGIBILITY AND
  PARTICIPATION

  	
  4

  
	
  Section 3.1
  – Eligibility

  	
  4

  
	
  Section 3.2
  – Participation

  	
  4

  
	
  ARTICLE 4: DEFERRAL OF
  COMPENSATION

  	
  5

  
	
  Section 4.1
  – Basic Deferral

  	
  5

  
	
  Section 4.2
  – Company Matching Contribution to Basic Deferral

  	
  5

  
	
  Section 4.3
  – Additional Deferrals

  	
  5

  
	
  Section 4.4
  – Company Contribution to Additional Deferrals.

  	
  5

  
	
  Section 4.4
  – Company Contribution to Additional Deferrals

  	
  5

  
	
  Section 4.5
  – Duration of Deferral Agreement

  	
  5

  
	
  ARTICLE 5: DEFERRAL ACCOUNT
  AND CREDITING

  	
  6

  
	
  Section 5.1
  – Bookkeeping Account

  	
  6

  
	
  Section 5.2
  – Crediting of Contributions

  	
  6

  
	
  Section 5.3
  – Crediting of Interest

  	
  6

  
	
  ARTICLE 6: DISTRIBUTION

  	
  7

  
	
  Section 6.1
  – Distribution of Account Balance

  	
  7

  
	
  Section 6.2
  – Permissible Forms of Distribution

  	
  7

  
	
  Section 6.3
  – Nonforfeitable Right to Employee Contributions

  	
  8

  



 


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  Section 6.4
  – Vesting of Company Contributions

  	
  8

  
	
  Section 6.5
  – Form of Distribution.

  	
  8

  
	
  ARTICLE 7:  BENEFICIARY

  	
  9

  
	
  Section 7.1
  – Beneficiary Designation

  	
  9

  
	
  Section 7.2
  – Proper Beneficiary

  	
  9

  
	
  Section 7.3
  – Minor or Incompetent Beneficiary

  	
  9

  
	
  ARTICLE 8:  ADMINISTRATION OF THE PLAN

  	
  10

  
	
  Section 8.1
  – Majority Vote

  	
  10

  
	
  Section 8.2
  – Finality of Determination

  	
  10

  
	
  Section 8.3
  – Certificates and Reports

  	
  10

  
	
  Section 8.4
  – Indemnification and Exculpation

  	
  10

  
	
  Section 8.5
  – Expenses

  	
  10

  
	
  ARTICLE 9: CLAIMS PROCEDURE

  	
  11

  
	
  Section 9.1
  – Written Claim

  	
  11

  
	
  Section 9.2
  – Denied Claim

  	
  11

  
	
  Section 9.3
  – Review Procedure

  	
  11

  
	
  Section 9.4
  – Committee Review

  	
  11

  
	
  ARTICLE 10: NATURE OF
  COMPANY’S OBLIGATION

  	
  12

  
	
  Section 10.1
  – Company’s Obligation

  	
  12

  
	
  Section 10.2
  – Creditor Status

  	
  12

  
	
  ARTICLE 11: MISCELLANEOUS

  	
  13

  
	
  Section 11.1
  – Written Notice

  	
  13

  
	
  Section 11.2
  – Change of Address

  	
  13

  
	
  Section 11.3
  – Merger, Consolidation, or Acquisition

  	
  13

  
	
  Section 11.4
  – Amendment and Termination

  	
  13

  
	
  Section 11.5
  – Nontransferability

  	
  13

  
	
  Section 11.6
  – Legal Fees

  	
  13

  
	
  Section 11.7
  – Tax Withholding

  	
  13

  
	
  Section 11.8
  – Acceleration of Payment

  	
  13

  
	
  Section 11.9
  – Applicable Law

  	
  13

  



 


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ARTICLE 1: PURPOSE AND EFFECTIVE DATE


 


Section 1.1
– Title. This Plan shall be known as the LG&E Energy LLC
Nonqualified Savings Plan (“Plan”).


 


Section 1.2
– Purpose. The purpose of the Plan is to permit officers and
senior managers of the Company to defer current compensation.


 


Section 1.3
–  Effective Date. The
effective date of this Plan shall be January 1, 2005.


 


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ARTICLE 2: DEFINITIONS AND CONSTRUCTION OF
THE PLAN DOCUMENT


 


Section 2.1
–  Beneficiary. “Beneficiary”
means the person or persons or the estate of a Participant designated by the Participant.


 


Section 2.2
–  Board of Directors. The
“Board of Directors” means the Board of Directors of LG&E Energy LLC, or
its successor.


 


Section 2.3
– Bookkeeping Account. A “Bookkeeping Account” will be
established only as a bookkeeping record for each Participant who elects to
defer compensation under this Plan and may, at the discretion of the Committee,
include one or more sub-accounts to reflect amounts credited to a participant
under the various terms of this Plan.


 


Section 2.4
- Committee. “Committee” means the Benefits Committee for the
Qualified Plan which shall manage and administer the Plan.


 


Section 2.5
–  Company. “Company”
means LG&E Energy LLC, and any subsidiary or affiliated companies
authorized by the Committee to participate in this Plan.


 


Section 2.6
– Compensation. “Compensation” means, for any Plan Year, base
compensation paid to an Employee by an Employer increased by (i) amounts
deferred pursuant to Code Sections 125 (flexible benefit plans), 402(g)(8) (salary
redirection), and 402(h)(1)(B) (simplified employee plans), (ii) incentive
awards, (iii) amounts deferred under this plan, (iv) cost-of-living
adjustments, and (v) commissions, and excluding any long term incentive
compensation paid by the Employer. In the Plan Year during which an Employee
becomes a Participant, only remuneration paid in the portion of the Plan Year
in which he was a Participant shall be considered Compensation.


 


Section 2.7
– Deferral Agreement. “Deferral Agreement” means the written form which
is submitted to the Company before the relevant Election Date which indicates
whether the Executive wishes to defer a portion of his Compensation and
indicates the portion of Compensation to be deferred. No Deferral Agreement
shall be effective until acknowledged by the Company. An Executive who receives
Compensation from more than one Company shall enter into a separate Deferral
Agreement applicable to Compensation from each such Company.


 


Section 2.8
– Deferred Compensation. “Deferred Compensation” means the
portion of a Participant’s Compensation for any calendar year, or part thereof,
that has been deferred pursuant to the Plan.


 


Section 2.9
– Election Date. “Election Date” means a date prior to the
calendar year in which the services giving rise to the Compensation are
performed, or any other permissible date established by law or regulation and
adopted by the Committee.


 


Section 2.10
– Executive. “Executive” means any officer or senior manager
of the Company.


 


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Section 2.11
– Participant. “Participant” means an Executive who has
deferred a portion of Compensation pursuant to the terms of this Plan, and
whose account balance has not yet been distributed.


 


Section 2.12
– Plan. “Plan” means the LG&E Energy LLC Nonqualified
Savings Plan as described in this instrument and as amended from time to time.


 


Section 2.13
– Plan Year. The “Plan Year” is the same as the calendar
year.


 


Section 2.14
– Qualified Plan. “Qualified Plan” shall mean the LG&E
Energy LLCSavings Plan, as amended from time to time.


 


Section 2.15
– Retirement. “Retirement” means a Participant’s normal,
early, deferred or disability retirement as provided under the terms of the
Qualified Plan.


 


Section 2.16
– Termination of Service. “Termination of Service,” or
similar expression, means the termination of the Participant’s employment as a
regular employee of the Company and any division, subsidiary or affiliate
thereof, other than Retirement.


 


Section 2.17
– Valuation Date. “Valuation Date” means any date the New
York Stock Exchange is open for business.


 


Section 2.18
– Gender and Number. Whenever the context so requires,
masculine pronouns include the feminine, and singular words shall include the
plural.


 


Section 2.19
– Titles. Titles of the Articles of this Plan are included
for ease of reference only and are not to be used for the purpose of construing
any portion or provision of this plan document.


 


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ARTICLE 3: ELIGIBILITY AND PARTICIPATION


 


Section 3.1
– Eligibility. Any employee of the Company who is newly hired
as an Executive or who is promoted to an executive position shall be eligible
to participate in the Plan as of the first day of each calendar month
coincident with or following the latter of (i) his employment as an
Executive or promotion to an Executive position and (ii) the completion of
six (6) months of continuous employment with the Company as an Executive
or non-Executive.


 


Section 3.2
– Participation. An Executive shall, as a condition to participation,
complete and return to the Company a duly executed Deferral Agreement on or
before the applicable Election Date.


 


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ARTICLE 4: DEFERRAL OF COMPENSATION


 


Section 4.1
– Basic Deferral. Each Participant in the Plan may have
a percentage of his Compensation from each Company deferred in accordance with
the terms and conditions of this Plan up to a maximum of six percent (6%).


 


Section 4.2
–  Company Matching Contribution to Basic
Deferral. With respect to amounts deferred under Section 4.1,
the Company shall add an amount equal to fifty percent (50%) of the amount
deferred under 4.1, provided that the Participant is not eligible for matching
contributions in the Qualified Plan at the time the deferred compensation would
have otherwise been paid to the Participant.


 


Section 4.3
– Additional Deferrals. Each Participant making the maximum
deferral under Section 4.1 may also defer up to an additional
forty-four percent (44%) of his Compensation.


 


Section 4.4
– Company Contribution to Additional Deferrals. Any amounts
deferred by a Participant under Section 4.3 shall not be subject to any
additional Company contribution. However, for all other purposes of this Plan,
deferrals made by a Participant under Section 4.3 shall be treated the
same as those made under Section 4.1.


 


Section 4.4
– Company Contribution to Additional Deferrals. Any amounts
deferred by a Participant under Section 4.3 shall not be subject to any
additional Company contribution. However, for all other purposes of this Plan,
deferrals made by a Participant under Section 4.3 shall be treated the
same as those made under Section 4.1.


 


Section 4.5
– Duration of Deferral Agreement. Deferral Agreements remain
in effect for the calendar year following the year of election, unless
otherwise provided by law or regulation.


 


5

















 


ARTICLE 5: DEFERRAL ACCOUNT AND CREDITING


 


Section 5.1
– Bookkeeping Account. Compensation deferred by a Participant
under a written Deferral Agreement and matching Company contributions shall be
credited in a dollar amount to a separate Bookkeeping Account for each
Participant. Compensation deferred under subsequent written Deferral Agreements
by a Participant shall be added to his Bookkeeping Account. Separate
Bookkeeping Accounts shall be established by each Company, or its designee, for
each Participant employed thereby.


 


Section 5.2
– Crediting of Contributions. Deferred Compensation and
matching Company contributions, since the preceding Valuation Date, shall be
credited to the Bookkeeping Account of each Valuation Date or, in the case of a
Termination of Service or Retirement, as of the date of the Participant’s
Termination of Service or Retirement.


 


Section 5.3
– Crediting of Interest. As of each Valuation Date, the
amount in the Participant’s Bookkeeping Account shall be credited with interest
at an annual rate equal to the Prime Interest Rate reset as of the immediately
preceding March 31, June 30, September 30, and December 31.
Interest shall be calculated by applying such rate to the balance in the
Participant’s Bookkeeping Account as of each Valuation Date.


 


6

















 


ARTICLE 6: DISTRIBUTION


 


Section 6.1
– Distribution of Account Balance. At the time of completion
of the Deferral Agreement, the Participant shall elect the commencement date of
the distribution and the manner of distribution of his Bookkeeping Accounts on
such forms as the Committee, or its designee, shall provide. The Participant
(or the Participant’s Beneficiary, if the Participant is deceased) shall be
entitled to the receive the value of any Bookkeeping Account established for
him at the time and in the manner elected. After completion of the Deferral
Agreement, the time and manner of distribution cannot be changed unless:


 


(a)                                  The
requested change in time or form of distribution:


 


(i)            Does not
take effect for a period of at least 12 months,


(ii)           Is made by
the Participant at least twelve (12) months prior to the scheduled payment
date, and


(iii)          Results
in a deferral for a period of an additional five (5) years from the date
of the original elected commencement of payment, or


 


(b)                                 The
requested change in time or form of distribution:


 


(i)            Occurs
after the Participant’s death,


(ii)           Occurs
after the Participant’s Disability, as defined by Section 409A of the
Internal Revenue Code and related Treasury Regulations, or


(iii)          Occurs
as a result of an unforeseeable emergency, as defined by Section 409A of
the Internal Revenue Code and related Treasury Regulations, or


 


(c)                                  The
requested change in time of form of distribution is permitted pursuant to Section 409A
of the Internal Revenue Code and related Treasury Regulations, as a result of a
change in the ownership or effective control of the corporation, or in the
ownership of a substantial portion of the assets of the company.


 


Section 6.2
– Permissible Forms of Distribution. The Deferral Agreement
and any permitted changes as defined in Section 6.1 shall provide for the
Participant’s election of the form of distribution. The available forms of
distribution under the Plan shall be either:


 


(a)                                  A
lump sum payment in the year of the Participant’s Termination of Service,
Retirement or specified date; or


 


(b)                                 Annual
installment payments for a period of not less than two (2) years and not
more than ten (10) years, as selected by the Participant or Beneficiary,
beginning in the year of the Participant’s Termination of Service, Retirement
or specified date.


 


7

















 


Notwithstanding
the foregoing, distribution elections must be consistent with the provisions of
Section 409A of the Internal Revenue Code and related Treasury
Regulations, including provisions related to “Key Employees” as defined therein.


 


Section 6.3
– Nonforfeitable Right to Employee Contributions. The
Participant shall have a nonforfeitable right to the value of his Bookkeeping
Account attributable to his contributions under Section 4.1 and 4.3
hereof, plus interest under the terms of this Plan.


 


Section 6.4
– Vesting of Company Contributions. The Participant shall
have a nonforfeitable right to any Company contributions under Section 4.2,
plus interest thereon.


 


Section 6.5
– Form of Distribution. All distributions of a
Participant’s Bookkeeping Account shall be made in cash only.


 


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ARTICLE 7:  BENEFICIARY


 


Section 7.1
– Beneficiary Designation. A Participant shall designate his
Beneficiary to receive benefits under the Plan by completing the appropriate
space in the Deferral Agreement. If more than one Beneficiary is named, the
shares and/or precedence of each Beneficiary shall be indicated. A Participant
shall have the right to change the Beneficiary by submitting to the Company a
Change of Beneficiary form. However, no change of beneficiary shall be
effective until acknowledged in writing by the Company.


 


Section 7.2
– Proper Beneficiary. If the Company has any doubt as to the
proper Beneficiary to receive payments hereunder, the Company shall have the
right to withhold such payments until the matter is finally adjudicated. However,
any payment made by the Company, in good faith and in accordance with this
Plan, shall fully discharge the Company from all further obligations with
respect to that payment.


 


Section 7.3
– Minor or Incompetent Beneficiary. In making any payments to
or for the benefit of any minor or an incompetent Beneficiary, the Committee,
in its sole and absolute discretion, may make a distribution to a legal or
natural guardian or other relative of a minor or court appointed committee of
such incompetent. The Committee may, in its sole and absolute discretion, make
a payment to any adult with whom the minor or incompetent temporarily or
permanently resides. The receipt by a guardian, committee, relative, or other
person shall be a complete discharge to the Company. Neither the Committee nor
the Company shall have any responsibility to see to the proper application of
any payments so made.


 


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ARTICLE 8:  ADMINISTRATION OF THE PLAN


 


Section 8.1
– Majority Vote. All resolutions or other actions taken by
the Committee shall be by vote of a majority of those present at a meeting at
which a majority of the members are present, or in writing by all the members
at the time in office if they act without a meeting.


 


Section 8.2
– Finality of Determination. Subject to the Plan, the
Committee shall, from time to time, establish rules, forms, and procedures for
the administration of the Plan. Except as herein otherwise expressly provided,
the Committee shall have the exclusive right to interpret the Plan and to
decide any and all matters arising thereunder or in connection with the
administration of the Plan, and it shall endeavor to act, whether by general rules or
by particular decisions, so as not to discriminate of or against any person. The
decisions, actions, and records of the Committee shall be conclusive and
binding upon the Company and all persons having or claiming to have any right or
interest in or under the Plan.


 


Section 8.3
– Certificates and Reports. The members of the Committee and
the officers and directors of the Company shall be entitled to rely on all
certificates and reports made by any duly appointed accountants, and on all
opinions given by any duly appointed legal counsel, which legal counsel may be
counsel for the Company.


 


Section 8.4
– Indemnification and Exculpation. LG&E Energy LLC shall
indemnify and hold harmless each member of the Committee against any and all
expenses and liabilities arising out of his membership on the Committee. Expenses
against which a member of the Committee shall be indemnified hereunder shall
include, without limitation, the amount of any settlement or judgment, costs,
counsel fees, and related charges reasonably incurred in connection with a
claim asserted, or a proceeding brought or settlement thereof. The foregoing
right of indemnification shall be in addition to any other rights to which any
such member of the Committee may be entitled as a matter of law.


 


Section 8.5
– Expenses. The expenses of administering the Plan shall be
borne by the Company.


 


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ARTICLE 9: CLAIMS PROCEDURE


 


Section 9.1
– Written Claim. Benefits shall be paid in accordance with
the provisions of this agreement. The Participant, or a designated recipient or
any other person claiming through the Participant shall make a written request
for benefits under this agreement. This written claim shall be reviewed by the
Committee or its delegate.


 


Section 9.2
– Denied Claim. If the claim is denied, in full or in part,
the Committee shall provide a written notice within ninety (90) days setting
forth the specific reasons for denial, and any additional material or
information necessary to perfect the claim, and an explanation of why such
material or information is necessary, and appropriate information and
explanation of the steps to be taken if a review of the denial is desired.


 


Section 9.3
– Review Procedure. If the claim is denied and a review is
desired, the Participant (or beneficiary) shall notify the Committee in writing
within sixty (60) days (a claim shall be deemed denied if the Committee does
not take any action within the aforesaid ninety (90) day period) after receipt
of the written notice of denial. In requesting a review, the Participant or his
Beneficiary may request a review of the Plan Document or other pertinent
documents with regard to the employee benefit plan created under this
agreement, may submit any written issues and comments, may request an
extension of time for such written submission of issues and comments, and may request
that a hearing be held, but the decision to hold a hearing shall be within the
sole discretion of the Committee.


 


Section 9.4
– Committee Review. The decision on the review of the denied
claim shall be rendered by the Committee within sixty (60) days after the
receipt of the request for review (if no hearing is held) or within sixty (60)
days after the hearing if one is held. The decision shall be written and shall
state the specific reasons for the decision, including reference to specific
provisions of this Plan on which the decision is based.


 


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ARTICLE 10: 
NATURE OF COMPANY’S OBLIGATION


 


Section 10.1
– Company’s Obligation. Each Company’s obligations under this
Plan shall be an unfunded and unsecured promise to pay. No Company shall be
obligated under any circumstances to fund its financial obligations under this
Plan.


 


Section 10.2
– Creditor Status. Any
assets which the Company may acquire or set aside to help cover its
financial liabilities are and must remain general assets of the Company subject
to the claims of its creditors. Neither the Company nor this Plan gives the
Participant any beneficial ownership interest in any asset of the Company. All
rights of ownership in any such assets are and remain in the Company.


 


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ARTICLE 11: MISCELLANEOUS


 


Section 11.1
– Written Notice. Any notice which shall be or may be
given under the Plan or a Deferral Agreement shall be in writing and shall be
mailed by United States mail, postage prepaid. If notice is to be given to the
Company, such notice shall be addressed to the Company marked for the attention
of the Committee, or if notice to an Executive, addressed to the address shown
on such Executive’s Deferral Agreement or subsequent new address as provided by
the Executive.


 


Section 11.2
– Change of Address. Any party may, from time to time, change
the address to which notices shall be mailed by giving written notice of such
new address.


 


Section 11.3
– Merger, Consolidation, or Acquisition. The plan shall be
binding upon the Company, its assigns, and any successor company, which shall
succeed to substantially all of its assets and business through merger,
acquisition, or consolidation, and upon an Executive, his Beneficiary, assigns,
heirs, executors, and administrators.


 


Section 11.4
– Amendment and Termination. LG&E
Energy LLC, by action of its Board of Directors, retains the sole and
unilateral right to terminate, amend, notify, or supplement this Plan, in whole
or in part, at any time. This right includes the right to make retroactive
amendments. However, no Company action under this right shall reduce the
Bookkeeping Account of any Participant or his Beneficiary.


 


Section 11.5
– Nontransferability. Except insofar as prohibited by
applicable law, no sale, transfer, alienation, assignment, pledge,
collateralization, or attachment of any benefits under this Plan shall be valid
or recognized by the Company. Neither the Participant, his spouse, or
designated Beneficiary shall have any power to hypothecate, mortgage, commute,
modify, or otherwise encumber in advance of any of the benefits payable hereunder,
not shall any of said benefits be subject to seizure for the payment of any
debts, judgments, alimony maintenance, owed by the Participant or his
Beneficiary, or be transferable by operation of law in the event of bankruptcy,
insolvency, or otherwise.


 


Section 11.6
– Legal Fees. All reasonable legal fees incurred by any
Participant (or former Participant) to successfully enforce his valid rights
under this Plan shall be paid by the Company in addition to sums due under this
Plan.


 


Section 11.7
– Tax Withholding. The Company may withhold from a
payment any federal, state, or local taxes required by law to be withheld with
respect to such payment and such sum as the Company may reasonably
estimate as necessary to cover any taxes for which the Company may be
liable and which may be assessed with regard to such payment.


 


Section 11.8
– Acceleration of Payment. The company reserves the right to
accelerate the payment of any benefits payable under this Plan at any time
without the consent of the Participant, his estate, his Beneficiary, or any
other person claiming through the Participant.


 


Section 11.9
– Applicable Law. This Plan shall be governed by the laws of
the Commonwealth of Kentucky.


 


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IN
WITNESS WHEREOF, the Company has caused this Plan to be executed as of the 1st
day of January 2005.


 


 


	
   

  	
  LG&E ENERGY
  LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 


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