Exhibit
10.76


 


 


SECOND AMENDMENT TO THE


EMPLOYMENT AND SEVERANCE AGREEMENT


OF


JOHN R. McCALL


 


                This Second Amendment to the Employment and Severance Agreement of
John R. McCall (“Second Amendment”) is made and entered into this 20 day of May, 2002 by
and among (i) LG&E Energy Corp., a Kentucky
corporation (“Company”), (ii) Powergen, plc, a
United Kingdom public limited company (“Parent”), (iii) E.ON AG, an
aktiengesellschaft formed under the Federal Republic of Germany (“German
Parent”), and (iv) John R. McCall
(“Executive”), collectively referred to as the “Parties”.


 


                WHEREAS,  the
Executive, the Company and the Parent entered into an Employment and Severance
Agreement, dated February 25, 2000 (“Agreement”);


 


                WHEREAS, the Agreement was previously amended by the Executive,
the Company and the Parent in a document dated December 8, 2000 (“First
Amendment”);


 


                WHEREAS, the Parent and German Parent have agreed to the terms
of a recommended pre-conditional cash offer, whereby German Parent or its
subsidiary will acquire ownership of the Parent;


 


                WHEREAS, the Parent and the German Parent have determined that
the acquisition of the Parent by the German Parent shall be completed by way of
a scheme of arrangement, whereby the acquisition will become effective in accordance
with the terms of the scheme (“Acquisition Date”); and


 


                WHEREAS, the Parties have determined that it is now desirable
to amend the Agreement to reflect certain changes resulting from the German
Parent’s acquisition of the Parent.


 


AGREEMENT:


 


                NOW
THEREFORE, in consideration of the respective agreements of the
parties contained herein, it is agreed as follows:


 


                 1.            A new Section 1.4 shall be added to the
end of Article 1 to read as follows:


 


 


“1.4         If the Executive is (i) employed on the
day following the second anniversary of the Acquisition Date by the Company,
the Parent, the German Parent, or any subsidiary of the Company, the Parent or
the German Parent, hereinafter referred to as the


 

















 


“Employer”, or
(ii) terminated from employment prior to expiration of the twenty-four (24)
month period following the Acquisition Date for any reason other than a
termination by an Employer for Cause or a termination by the Executive without
Good Reason (as hereinafter defined), the Employer shall pay to the Executive
on such an anniversary or within 10 days of such termination date a lump sum
cash payment in an amount equal to (i) the Executive’s Salary Amount (as
hereinafter defined), and (ii) the Executive’s Target Annual Incentive Amount
(as hereinafter defined).  For purposes
of this Agreement, “Salary Amount” shall mean the Executive’s annual base
salary from an Employer in effect at the time of payment, including all amounts
of base salary that are deferred under any qualified or non-qualified employee
benefit plan of an Employer; provided however, if an Employer has reduced the
Executive’s annual base salary, the Salary Amount shall be the annual base
salary in effect prior to the reduction. 
For purposes of this Agreement, “Target Annual Incentive Amount” shall
mean the target annual bonus of the Executive under the annual incentive plan
of the Employer at the time of payment; provided however, that if an Employer
has reduced the target annual bonus of the Executive, the Target Annual
Incentive Amount shall be the target annual bonus in effect prior to the
reduction.”


 


2.             Section
2 shall be deleted and replaced in its entirety to read as follows:


 


“2.  TERM OF AGREEMENT.  This Agreement shall commence as of the
Effective Time, and shall continue in effect until the second anniversary of
the Effective Time; provided, however, that commencing on the second
anniversary of the Effective Time, and on each anniversary of the Effective
Time thereafter, the term of this Agreement shall automatically be extended for
one (1) year unless the Company or the Executive shall have given written
notice to the other at least ninety days prior thereto (if such notice is given
following the second anniversary of the Effective Time, otherwise such notice
period shall be one hundred and eighty days) that the term of this Agreement
shall not be so extended; and provided, further, however, that notwithstanding
any such notice by the Company not to extend, the term of this Agreement shall
not expire prior to the expiration of the later of (i) twenty-four (24) months
after any Change in Control which occurs while this Agreement is in effect, or
(ii) forty-eight (48) months after the Acquisition Date.”


 


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3.                                       Section 3.4 shall be deleted and replaced
in its entirety to read as follows:


 


“3.4.        The
Executive will perform his services at the Company’s headquarters in
Louisville, Kentucky, with the understanding that he will be required to travel
as reasonably required (including travel to the United Kingdom and Germany) for
the performance of his duties under this Agreement.”


 


4.                                       Subsection 6.5(a) shall be deleted and
replaced in its entirety to read as follows:


 


“(a)         For
purposes of this Agreement, “Good Reason” shall mean the occurrence of any of
the events or conditions described in subsections (1) through (10) hereof:


 


                (1)           a
reduction by the Company in the Executive’s Base Salary or annual target bonus
opportunity as in effect prior to such reduction or any failure to pay the Executive
any compensation or benefits to which the Executive is entitled within thirty
days of the applicable due date, provided that the Company may correct such
reduction or failure within thirty (30) days of its commission;


 


                (2)           German
Parent, Parent or the Company require the Executive to be relocated anywhere in
excess of fifty (50) miles of his present office location, except for (i)
required travel on German Parent, Parent or Company business consistent with
his business travel obligations as in effect prior to the Effective Time and as
provided in Section 3.4 of this Agreement; or (ii) a relocation resulting from
appointment of Executive to the highest ranking legal position (whether Chief
Legal Officer, General Counsel or similar title) of the United States entity
primarily responsible for the management of the German Parent’s participation
in the United States’ energy industry;


 


                (3)           a
failure by Parent or the Company to maintain plans providing benefits at least
as beneficial in the aggregate as those provided by any benefit or compensation
plan, retirement or pension plan, stock option plan, bonus plan, long-term
incentive plan, life insurance plan, health and accident plan or disability
plan in which the


 


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Executive is
participating prior to the Effective Time, the Change in Control, or this
Second Amendment, as applicable, or if the Company or Parent has taken any
action which would adversely affect the Executive’s participation in or
materially reduce the Executive’s benefits under any of such plans or deprive
him of any material fringe benefit enjoyed by him prior to the Effective Time,
the Change in Control, or this Second Amendment, as applicable, or if the
Company or Parent has failed to provide him with the number of paid vacation
days to which he would be entitled in accordance with the Company’s normal
vacation policy immediately prior to the Effective Time, the Change in Control,
or this Second Amendment as applicable;


 


                (4)           Parent or the Company materially
reduces, individually or in the aggregate, the Executive’s title, job
authorities or responsibilities as in effect prior to such reduction;


 


                (5)           Parent or the Company fails to obtain
the assumption of the obligations contained in this Agreement by any successor
as contemplated in Section 11 hereof;


 


                (6)           any purported termination of the
Executive’s employment by Parent or the Company which is not effected pursuant
to a Notice of Termination satisfying the requirements of Section 8, hereof;
and, for purposes of this Agreement, no such purported termination shall be
effective;


 


                (7)           any
material breach by Parent or the Company of any provision of this Agreement;


 


                                                                                                                (8)           any purported termination of the
Executive’s employment for Cause by Parent or the Company which does not comply
with the terms of Section 6.2 of this Agreement;


 


                                                                                                                (9)           any removal of the Executive from the
position of Executive Vice President, General Counsel, and Corporate Secretary
of the Company, except for Cause; or


 


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                                                                                                                (10)         any failure to appoint Executive to the
highest ranking legal position (whether Chief Legal Officer, General Counsel or
similar title) of the United Sates entity primarily responsible for the management
of the German Parent’s participation in the United States’ energy industry.”


 


        4.     The introduction to Section 7.1 shall be
deleted and replaced in its entirety to read as follows:


 


“7.1.        If
during the Term of this Agreement, the Executive’s employment with the Company
shall be terminated within the later of (i) twenty-four months after the
effective time of any Change in Control, or (ii) forty-eight months of the
Acquisition Date, then the Executive shall be entitled to the following
compensation and benefits:”


 


5.             The
introduction to Section 7.2 shall be deleted and replaced in its entirety to
read as follows:


 


“7.2.        If
during the Term of this Agreement, the Executive’s employment with the Company
shall be terminated following the later of (i) twenty-four months after the
effective time of any Change in Control, or (ii) forty-eight months of the
Acquisition Date, then the Executive shall be entitled to the following
compensation and benefits:”


 


6.             Section
7.2(c)(ii) shall be deleted and replaced in its entirety to read as follows:


 


“7.2(c)(ii)                The
Company shall pay, as a severance amount to the Executive after the Termination
Date, an amount equal to the Executive’s (i) Salary Amount, and (ii) Target
Annual Incentive Amount;”


 


            IN WITNESS WHEREOF, the Company, the German Parent and the
Parent have caused this Second Amendment to be executed by its duly authorized
representative and the Executive has executed this Second Amendment as of the
date set forth below, but which shall


 


 


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be effective as of the later of (i) the Acquisition Date, provided the
Company employs Executive on that date, or (ii) the date the Executive executes
a release in the form attached hereto. 
Except as provided herein, nothing contained in this Second Amendment
shall alter the terms and conditions of the Agreement or the First Amendment.


 


	
  E. ON. AG

  
	
   

  	
   

  
	
  By:

  	
  /s/ Ulrich Hartmann

  	
   

  
	
   

  	
  Name

  	
   

  	
   

  
	
   

  	
  Title 

  	
   

  	
   

  
	
   

  	
   

  
	
  Date:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  LG&E ENERGY CORP.

  
	
   

  	
   

  
	
  By:

  	
  /signed/

  	
   

  
	
   

  	
  Name 

  	
   

  	
   

  
	
   

  	
  Title 

  	
   

  	
   

  
	
   

  	
   

  
	
  Date:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  POWERGEN, plc

  
	
   

  	
   

  
	
  By:

  	
  /signed/

  	
   

  
	
   

  	
  Name

  	
   

  	
   

  
	
   

  	
  Title

  	
   

  	
   

  
	
   

  	
   

  
	
  Date:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  EXECUTIVE

  
	
   

  	
   

  
	
   

  	
  /s/ John R. McCall

  	
   

  
	
   

  	
  John R. McCall

  	
   

  
	
   

  	
   

  
	
  Date

  	
  20 May 2002

  	
   

  



 


 


 


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