Exhibit 10-e
[THE FOLLOWING IS A FORM OF RESTATED SEVERANCE AGREEMENT
ENTERED INTO WITH CERTAIN KCPL EXECUTIVES]
RESTATED SEVERANCE AGREEMENT
THIS RESTATED AGREEMENT is entered into as of the _____
day of January, 2000, by and between Kansas City Power &
Light Company, a Missouri corporation (the "Company"), and
_______________ ("Executive").
W I T N E S S E T H
WHEREAS, Executive currently serves as a key employee of
the Company and the services and knowledge of Executive are
valuable to the Company in connection with the management of
the Company's business; and
WHEREAS, the Board (as defined in Section 1) has
determined that it is in the best interests of the Company
and its shareholders to secure Executive's continued services
and to ensure Executive's continued dedication and
objectivity in the event of any threat or occurrence of, or
negotiation or other action that could lead to, or create the
possibility of, a Change in Control (as defined in Section 1)
of the Company, without concern as to whether Executive might
be hindered or distracted by personal uncertainties and risks
created by any such possible Change in Control, and to
encourage Executive's full attention and dedication to the
Company, the Board has authorized the Company to enter into
this Agreement.
WHEREAS, Executive and Company entered into a Severance
Agreement dated _________________, 19___, which was
subsequently amended on ________________, and Executive and
Company wish to restate into one document such Severance
Agreement and subsequent amendments1.
NOW, THEREFORE, for and in consideration of the premises
and the mutual covenants and agreements herein contained, the
Company and Executive hereby restate as 2follows:
1. DEFINITIONS. As used in this Agreement, the
following terms shall have the respective meanings set forth
below:
(a) "BENEFICIAL OWNER" has the same meaning set
forth in Rule 13d-3 under the Exchange Act.
(b) "BOARD" means the Board of Directors of the
Company.
(c) "CAUSE" means (1) a material breach by
Executive of those duties and responsibilities of
Executive which do not differ in any material respect
from the duties and responsibilities of Executive during
the 90-day period immediately prior to a Change in
Control (or, for purposes of Section
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3(d), during the 90-day period immediately preceding a
Potential Change in Control), other than as a result of
incapacity due to physical or mental illness, which is
demonstrably willful and deliberate on Executive's part,
committed in bad faith or without reasonable belief that
such breach is in the best interests of the Company, and
is not remedied in a reasonable period of time after
receipt of written notice from the Company specifying
such breach or (2) the commission by Executive of a
felony involving moral turpitude.
(d) "CHANGE IN CONTROL" means the occurrence of
one of the following events:
(1) any Person is or becomes the Beneficial
Owner, directly or indirectly, of securities of the
Company (not including in the securities
beneficially owned by such Person any securities
acquired directly from the Company or its
affiliates other than in connection with the
acquisition by the Company or its affiliates of a
business) representing 20% or more of either the
then outstanding shares of common stock of the
Company or the combined voting power of the
Company's then outstanding securities; or
(2) the following individuals cease for any
reason to constitute a majority of the number of
directors then serving: individuals who, on the
date hereof, constitute the Board and any new
director (other than a director whose initial
assumption of office is in connection with an
actual or threatened election contest, including
but not limited to a consent solicitation, relating
to the election of directors of the Company, as
such terms are used in Rule 14a-11 of Regulation
14A under the Exchange Act) whose appointment or
election by the Board or nomination for election by
the Company's stockholders was approved by a vote
of at least two-thirds (2/3) of the directors then
still in office who either were directors on the
date hereof or whose appointment, election or
nomination for election was previously so approved;
or
(3) the stockholders of the Company approve a
merger or consolidation of the Company with any
other corporation or approve the issuance of voting
securities of the Company in connection with a
merger or consolidation of the Company (or any
direct or indirect subsidiary of the Company)
pursuant to applicable stock exchange requirements,
other than (i) a merger or consolidation which
would result in the voting securities of the
Company outstanding immediately prior to such
merger or consolidation continuing to represent
(either by remaining outstanding or by being
converted into voting securities of the surviving
entity or any parent thereof), in
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combination with the ownership of any trustee or
other fiduciary holding securities under an
employee benefit plan of the Company, at least 60%
of the combined voting power of the voting
securities of the Company or such surviving entity
or any parent thereof outstanding immediately after
such merger or consolidation, or (ii) a merger or
consolidation effected to implement a recapi
talization of the Company (or similar transaction)
in which no Person is or becomes the Beneficial
Owner, directly or indirectly, of securities of the
Company (not including in the securities
Beneficially Owned by such Person any securities
acquired directly from the Company or its
affiliates other than in connection with the
acquisition by the Company or its affiliates of a
business) representing 20% or more of either the
then outstanding shares of common stock of the
Company or the combined voting power of the
Company's then outstanding securities; or
(4) the stockholders of the Company approve a
plan of complete liquidation or dissolution of the
Company or an agreement for the sale or disposition
by the Company of all or substantially all of the
Company's assets, other than a sale or disposition
by the Company of all or substantially all of the
Company's assets to an entity, at least 60% of the
combined voting power of the voting securities of
which are owned by Persons in substantially the
same proportions as their ownership of the Company
immediately prior to such sale.
Notwithstanding the foregoing, no "Change in
Control" shall be deemed to have occurred if there is
consummated any transaction or series of integrated
transactions immediately following which the record
holders of the common stock of the Company immediately
prior to such transaction or series of transactions
continue to have substantially the same proportionate
ownership in an entity which owns all or substantially
all of the assets of the Company immediately following
such transaction or series of transactions.
(e) "DATE OF TERMINATION" means (1) the effective
date on which Executive's employment by the Company
terminates as specified in a prior written notice by the
Company or Executive, as the case may be, to the other,
delivered pursuant to Section 11, or (2) if Executive's
employment by the Company terminates by reason of death,
the date of death of Executive.
(f) "EXCHANGE ACT" means the Securities Exchange
Act of 1934, as amended from time to time.
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(g) "GOOD REASON" means, without Executive's
express written consent, the occurrence of any of the
following events after a Change in Control (or after any
potential Change in Control under the circumstances
described in Clause (2) of Section 3 (d) hereof
(treating all references in this paragraph (g) to a
"Change in Control" as references to a "Potential Change
in Control")):
(1) any of (i) the assignment to Executive of
any duties inconsistent in any material respect
with Executive's position(s), duties,
responsibilities or status with the Company
immediately prior to such Change in Control, (ii) a
change in Executive's reporting responsibilities,
titles or offices with the Company as in effect
immediately prior to such Change in Control, or
(iii) any removal or involuntary termination of
Executive from the Company otherwise than as
expressly permitted by this Agreement or any
failure to re-elect Executive to any position with
the Company held by Executive immediately prior to
such Change in Control;
(2) a reduction by the Company in Executive's
rate of annual base salary as in effect immediately
prior to such Change in Control or as the same may
be increased from time to time thereafter;
(3) any requirement of the Company that
Executive (i) be based anywhere other than at the
offices where the Executive is located at the time
of the Change in Control, or (ii) travel on Company
business to an extent substantially more burdensome
than the travel obligations of Executive
immediately prior to such Change in Control;
(4) the failure of the Company to (i)
continue in effect any employee benefit plan or
compensation plan in which Executive is
participating immediately prior to such Change in
Control, unless Executive is permitted to
participate in other plans providing Executive with
substantially comparable benefits, or the taking of
any action by the Company which would adversely
affect Executive's participation in or materially
reduce Executive's benefits under any such plan,
(ii) provide Executive and Executive's dependents
welfare benefits (including, without limitation,
medical, prescription, dental, disability, salary
continuance, employee life, group life, accidental
death and travel accident insurance plans and
programs) in accordance with the most favorable
plans, practices, programs and policies of the
Company and its affiliated companies in effect for
Executive immediately prior to such Change in
Control or, if more favorable to Executive, as in
effect generally at any time thereafter
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with respect to other peer executives of the
Company and its affiliated companies, (iii) provide
fringe benefits in accordance with the most
favorable plans, practices, programs and policies
of the Company and its affiliated companies in
effect for Executive immediately prior to such
Change in Control or, if more favorable to
Executive, as in effect generally at any time
thereafter with respect to other peer executives of
the Company and its affiliated companies, (iv)
provide an office or offices of a size and with
furnishings and other appointments, together with
exclusive personal secretarial and other
assistance, at least equal to the most favorable of
the foregoing provided to Executive by the Company
and its affiliated companies immediately prior to
such Change in Control or, if more favorable to
Executive, as provided generally at any time
thereafter with respect to other peer executives of
the Company and its affiliated companies, (v)
provide Executive with paid vacation in accordance
with the most favorable plans, policies, programs
and practices of the Company and its affiliated
companies as in effect for Executive immediately
prior to such Change in Control or, if more
favorable to Executive, as in effect generally at
any time thereafter with respect to other peer
executives of the Company and its affiliated
companies, or (vi) reimburse Executive promptly for
all reasonable employment expenses incurred by
Executive in accordance with the most favorable
policies, practices and procedures of the Company
and its affiliated companies in effect for
Executive immediately prior to such Change in
Control, or if more favorable to Executive, as in
effect generally at any time thereafter with
respect to other peer executives of the Company and
its affiliated companies; or
(5) the failure of the Company to obtain the
assumption agreement from any successor as
contemplated in Section 10(b).
For purposes of this Agreement, any good faith
determination of Good Reason made by Executive shall be
conclusive; PROVIDED, HOWEVER, that an isolated,
insubstantial and inadvertent action taken in good faith
and which is remedied by the Company promptly after
receipt of notice thereof given by Executive shall not
constitute Good Reason.
(h) "NONQUALIFYING TERMINATION" means a
termination of Executive's employment (1) by the Company
for Cause, (2) by Executive for any reason other than a
Good Reason, (3) as a result of Executive's death, or
(4) by the Company due to Executive's absence from
Executive's duties with the Company on a full-time basis
for at least 180 consecutive days as a result of
Executive's incapacity due to physical or mental
illness; PROVIDED, HOWEVER, that a termination of
Executive's employment for any
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reason whatsoever during the "Window Period"
(hereinafter defined) shall not constitute a
Nonqualifying Termination.
(i) "PERSON" has the meaning given in Section
3(a)(9) of the Exchange Act, as modified and used in
Sections 13(d) and 14(d) thereof, except that such term
shall not include (1) the Company or any of its subsid
iaries, (2) a trustee or other fiduciary holding securi
ties under an employee benefit plan of the Company or
any of its subsidiaries, (3) an underwriter temporarily
holding securities pursuant to an offering of such secu
rities, or (4) a corporation owned, directly or indirect
ly, by the stockholders of the Company in substantially
the same proportions as their ownership of stock of the
Company.
(j) "POTENTIAL CHANGE IN CONTROL" means the
occurrence of one of the following events:
(1) the Company enters into an
agreement, the consummation of which would result
in the occurrence of a Change in Control;
(2) the Company or any Person publicly
announces an intention to take or to consider
taking actions which, if consummated, would
constitute a Change in Control;
(3) any Person becomes the Beneficial
Owner, directly or indirectly, of securities of the
Company representing 10% or more of either the then
outstanding shares of common stock of the Company
or the combined voting power of the Company's then
outstanding securities; or
(4) the Board adopts a resolution to the
effect that, for purposes of this Agreement, a
Potential Change in Control has occurred.
(k) "TERMINATION PERIOD" means the period of time
beginning with a Change in Control (or, if later,
beginning with the consummation of the transaction the
approval of which by the Company's stockholders
constitutes a Change in Control under Section 1(d)(3) or
(4) hereof) and ending on the earliest to occur of (1)
Executive's 70th birthday, (2) Executive's death, and
(3) three years following such Change in Control (or, if
later, three years following the consummation of the
transaction the approval of which by the Company's stock
holders constitutes a Change in Control under Section
1(d)(3) or (4) hereof).
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(l) "WINDOW PERIOD" means the 30-day period com
mencing one year after the date of a Change in Control,
or, if later, the 30-day period commencing one year
after the consummation of the transaction the approval
of which by the Company's stockholders constitutes a
Change in Control under Section 1(d)(3) or (4) hereof).
2. OBLIGATIONS OF EXECUTIVE.
(a) Executive agrees that in the event any person
or group attempts a Change in Control, he shall not
voluntarily leave the employ of the Company without Good
Reason (1) until such attempted Change in Control
terminates, or (2) if a Change in Control shall occur,
until 90 days following such Change in Control (or, if
later, until the consummation of the transaction the
approval of which by the Company's stockholders
constitutes a Change in Control under Section 1(d)(3) or
(4) hereof). For purposes of the foregoing subsection
(1), Good Reason shall be determined as if a Change in
Control had occurred when such attempted Change in
Control became known to the Board.
(b) Executive acknowledges and agrees that (1) all
records and other material not released to the general
public, and (2) all trade secrets, confidential and
proprietary information, unpublished data and
information, in each case relating to the operations,
services and business of the Company, whether reduced to
writing or not ("Confidential Material"), are
confidential and are the sole property of the Company.
Executive agrees that Executive will not disclose any
Confidential Material to any person or entity, either
during or subsequent to Executive's employment by the
Company, nor will Executive use any Confidential
Material, except in the regular course of Executive's
employment by the Company, without the Company's written
consent. Executive agrees not to make use of the
Confidential Material, except on behalf of the Company.
Upon termination of Executive's employment, Executive
agrees to surrender all Confidential Material and any
copies thereof as may be in possession or under control
of Executive.
3. PAYMENTS UPON TERMINATION OF EMPLOYMENT.
(a) If during the Termination Period the
employment of Executive shall terminate, other than by
reason of a Nonqualifying Termination, then the Company
shall pay to Executive (or Executive's beneficiary or
estate) within 30 days following the Date of
Termination, as compensation for services rendered to
the Company:
(1) a cash amount equal to the sum of (i)
Executive's full annual base salary from the
Company and its affiliated companies
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through the Date of Termination, to the extent not
theretofore paid, (ii) a bonus in an amount at
least equal to the average annualized incentive
compensation awards paid or payable pursuant to the
Kansas City Power & Light Company incentive
compensation plan, including by reason of any
deferral, to Executive by the Company and its
affiliated companies during the five fiscal years
of the Company (or if Executive shall have
performed services for the Company and its
affiliated companies for four fiscal years or less,
the years during which Executive performed
services) immediately preceding the fiscal year in
which the Change in Control occurs, multiplied by a
fraction, the numerator of which is the number of
days in the fiscal year in which the Date of
Termination occurs through the Date of Termination
and the denominator of which is 365 or 366, as
applicable, to the extent not theretofore paid,
(iii) any amount credited to Executive's CAP Excess
Benefits Account pursuant to the Capital
Accumulation Plan Excess Benefit Agreement, dated
effective as of January 1, 1989, between Executive
and the Company, and any other compensation
previously deferred by Executive (together with any
interest and earnings thereon), in each case to the
extent not theretofore paid, and (iv) any accrued
unpaid vacation pay;
(2) a lump-sum cash amount in an amount equal
to (i) ___ (__) times Executive's highest annual
base salary from the Company and its affiliated
companies in effect during the 12-month period
prior to the Date of Termination, plus (ii) ___
(__) times Executive's average annualized incentive
compensation awards, paid or payable, including by
reason of any deferral, to Executive by the Company
and its affiliated companies during the five fiscal
years of the Company (or if Executive shall have
performed services for the Company and its
affiliated companies for four fiscal years or less,
the years during which Executive performed
services) immediately preceding the fiscal year in
which the Change in Control occurs; PROVIDED,
HOWEVER, that in the event there are fewer than ___
whole months remaining from the Date of Termination
to the date of Executive's 70th birthday, the
amount calculated in accordance with this Section
3(a)(II) shall be reduced by multiplying such
amount by a fraction the numerator of which is the
number of months, including a partial month (with a
partial month being expressed as a fraction the
numerator of which is the number of days remaining
in such month and the denominator of which is the
number of days in such month), so remaining and the
denominator of which is ___ months; PROVIDED
FURTHER, that any amount paid pursuant to this
Section 3(a)(2) shall be paid in lieu of any other
amount of severance pay to be received by Executive
upon termination of employment of
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Executive under any severance plan, policy or
arrangement of the Company.
(b) (1) In addition to the payments to be made
pursuant to paragraph (a) of this Section 3, the Company
shall pay to Executive within 30 days following the Date
of Termination a lump-sum cash amount equal to the
excess of (a) the actuarial equivalent value of the
monthly accrued benefits payable to Executive at age 65
under the Kansas City Power & Light Company Management
Pension Plan (the "Pension Plan") as in effect on the
date of this Agreement and the benefits provided under
the Supplemental Executive Retirement and Deferred
Compensation Plan in respect of the Pension Plan as in
effect on the date of this Agreement, assuming that
benefits have accrued thereunder and Executive is
entitled to such benefits, each such benefit shall be
computed as if Executive had ___ (__) additional Years
of Credited Service under the Pension Plan and were
fully vested in such hypothetical benefits, over (b) the
actuarial equivalent value of Executive's vested accrued
benefits under the Pension Plan and benefits payable
under the Supplemental Retirement Agreement. Such lump-
sum cash amount shall be computed using the same
actuarial methods and assumptions then in use for
purposes of computing benefits under the Pension Plan,
except that the computation shall be made without
actuarial reduction for early retirement and provided
that the interest rate used in such computation shall be
the interest rate used on the Date of Termination by the
Pension Benefit Guaranty Corporation for purposes of
determining the present value of a lump sum distribution
pursuant to a plan termination.
(2) In addition to the payments to be made
pursuant to paragraph (a) of this Section 3, if on the
Date of Termination Executive shall not be fully vested
in the matching employer contributions made on
Executive's behalf under the Kansas City Power & Light
Company Cash or Deferred Arrangement, the Company shall
pay to Executive within 30 days following the Date of
Termination a lump sum cash amount equal to the value of
the unvested portion of such matching employer
contributions; PROVIDED, HOWEVER, that if any payment
pursuant to this Section 3(b)(2) may or would result in
such payment being deemed a transaction which is subject
to Section 16(b) of the Exchange Act, the Company shall
make such payment so as to meet the conditions for an
exemption from such Section 16(b) as set forth in the
rules (and interpretive and no-action letters relating
thereto) under Section 16. The value of any such
unvested matching employer contributions shall be
determined as of the Date of Termination; provided that
if the common stock of the Company is traded on the New
York Stock Exchange on the Date of Termination, the
value of a share of common stock of the Company shall be
the closing price on the
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New York Stock Exchange on the Date of Termination or,
if such date is not a trading day, on the immediately
preceding trading day.
(3) For a period of ___ (__) years commencing
on the Date of Termination, the Company shall continue
to keep in full force and effect all medical, accident,
disability and life insurance plans with respect to
Executive and Executive's dependents with the same level
of coverage, upon the same terms and otherwise to the
same extent as such plans shall have been in effect
immediately prior to the Date of Termination.
Notwithstanding the foregoing sentence, if any of the
medical, accident, disability or life insurance plans
then in effect generally with respect to other peer
executives of the Company and its affiliated companies
would be more favorable to Executive, such plan coverage
shall be substituted for the analogous plan coverage
provided to Executive immediately prior to the Date of
Termination, and the Company and Executive shall share
the costs of such plan coverage in the same proportion
as such costs were shared immediately prior to the Date
of Termination. The obligation of the Company to
continue coverage of Executive and Executive's
dependents under such plans shall cease at such time as
Executive and Executive's dependents obtain comparable
coverage under another plan, including a plan maintained
by a new employer. Execution of this Agreement by
Executive shall not be considered a waiver of any rights
or entitlements Executive and Executive's dependents may
have under applicable law to continuation of coverage
under the group health plan maintained by the Company or
its affiliated companies.
(c) If during the Termination Period the
employment of Executive shall terminate by reason of a
Nonqualifying Termination, then the Company shall pay to
Executive within 30 days following the Date of
Termination, a cash amount equal to the sum of (1)
Executive's full annual base salary from the Company
through the Date of Termination, to the extent not
theretofore paid, and (2) any compensation previously
deferred by Executive (together with any interest and
earnings thereon) and any accrued vacation pay, in each
case to the extent not theretofore paid.
(d) For the purposes of this Agreement, the
Executive's employment shall be deemed to have been
terminated within the Termination Period other than by
reason of a Nonqualifying Termination if:
(1) the Executive's employment is terminated
without Cause prior to a Change in Control (or, if
later, prior to the consummation of the transaction
the approval of which by the Company's stockholders
constitutes a Change in Control under
Section 1(d)(3) or (4) and such termination was at
the request or direction of a Person who has
entered into an agreement with the
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Company the consummation of which or the approval
of which by the Company's stockholders would
constitute a Change in Control;
(2) the Executive terminates his employment
with Good Reason prior to a Change of Control (or,
if later, prior to the consummation of the
transaction the approval of which by the Company's
stockholders constitutes a Change in Control under
Section 1(d)(3) or (4)) and the circumstance or
event which constitutes Good Reason occurs at the
request or direction of such Person; or
(3) the Executive's employment is terminated
without Cause prior to a Change in Control (or, if
later, prior to the consummation of the transaction
the approval of which by the Company's stockholders
constitutes a Change in Control under
Section 1(d)(3) or (4)) and such termination is
otherwise in connection with or in anticipation of
a Change in Control which actually occurs.
4. CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY.
(a) Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined that any
payment or distribution by the Company or its affiliated
companies to or for the benefit of Executive (whether paid or
payable or distributed or distributable pursuant to the terms
of this Agreement or otherwise, but determined without regard
to any additional payments required under this Section 4) (a
"Payment") would be subject to the excise tax imposed by
Section 4999 of the Code, or any interest or penalties are
incurred by Executive with respect to such excise tax (such
excise tax, together with any such interest and penalties,
are hereinafter collectively referred to as the "Excise
Tax"), then the Company shall pay to Executive an additional
payment (a "Gross-Up Payment") in an amount such that after
payment by Executive of all taxes (including any interest or
penalties imposed with respect to such taxes), including,
without limitation, any income taxes (and any interest and
penalties imposed with respect thereto) and Excise Tax
imposed upon the Gross-Up Payment, Executive retains an
amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments.
(b) Subject to the provisions of Section 4(c), all
determinations required to be made under this Section 4,
including whether and when a Gross-Up Payment is required and
the amount of such Gross-Up Payment and the assumptions to be
utilized in arriving at such determination, shall be made by
the Company's public accounting firm (the "Accounting Firm")
which shall provide detailed supporting calculations both to
the Company and Executive within 15 business days of the
receipt of notice from Executive that there has been a
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Payment, or such earlier time as is requested by the Company.
In the event that the Accounting Firm is serving as
accountant or auditor for the individual, entity or group
effecting the Change in Control, Executive shall appoint
another nationally recognized public accounting firm to make
the determinations required hereunder (which accounting firm
shall then be referred to as the Accounting Firm hereunder).
All fees and expenses of the Accounting Firm shall be borne
solely by the Company. Any Gross-Up Payment, as determined
pursuant to this Section 4, shall be paid by the Company to
Executive within five days of the receipt of the Accounting
Firm's determination. If the Accounting Firm determines that
no Excise Tax is payable by Executive, it shall furnish
Executive with a written opinion that failure to report the
Excise Tax on Executive's applicable federal income tax
return would not result in the imposition of a negligence or
similar penalty. Any determination by the Accounting Firm
shall be binding upon the Company and Executive. As a result
of the uncertainty in the application of Section 4999 of the
Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Gross-Up
Payments which will not have been made by the Company should
have been made ("Underpayment"), consistent with the
calculations required to be made hereunder. In the event
that the Company exhausts its remedies pursuant to Section
4(c) and Executive thereafter is required to make a payment
of any Excise Tax, the Accounting Firm shall determine the
amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Company to or for
the benefit of Executive.
(c) Executive shall notify the Company in writing of
any claim by the Internal Revenue Service that, if
successful, would require the payment by the Company of the
Gross-Up Payment. Such notification shall be given as soon
as practicable but no later than 10 business days after
Executive is informed in writing of such claim and shall
apprise the Company of the nature of such claim and the date
on which such claim is requested to be paid. Executive shall
not pay such claim prior to the expiration of the 30-day
period following the date on which Executive gives such
notice to the Company (or such shorter period ending on the
date that any payment of taxes with respect to such claim is
due). If the Company notifies Executive in writing prior to
the expiration of such period that it desires to contest such
claim, Executive shall:
(1) give the Company any information reasonably
requested by the Company relating to such claim;
(2) take such action in connection with contesting
such claim as the Company shall reasonably request in
writing from time to time, including, without
limitation, accepting legal representation with respect
to such claim by an attorney reasonably selected by the
Company;
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(3) cooperate with the Company in good faith in
order effectively to contest such claim; and
(4) permit the Company to participate in any
proceedings relating to such claim; PROVIDED, HOWEVER,
that the Company shall bear and pay directly all costs
and expenses (including additional interest and
penalties) incurred in connection with such contest and
shall indemnify and hold Executive harmless, on an after-
tax basis, for any Excise Tax or income tax (including
interest and penalties with respect thereto) imposed as
a result of such representation and payment of costs and
expenses. Without limitation on the foregoing
provisions of this Section 4(c), the Company shall
control all proceedings taken in connection with such
contest and, at its sole option, may pursue or forgo any
and all administrative appeals, proceedings, hearings
and conferences with the taxing authority in respect of
such claim and may, at its sole option, either direct
Executive to pay the tax claimed and ▇▇▇ for a refund or
contest the claim in any permissible manner, and
Executive agrees to prosecute such contest to a
determination before any administrative tribunal, in a
court of initial jurisdiction and in one or more
appellate courts, as the Company shall determine;
PROVIDED FURTHER, that if the Company directs Executive
to pay such claim and ▇▇▇ for a refund, the Company
shall advance the amount of such payment to Executive on
an interest-free basis and shall indemnify and hold
Executive harmless, on an after-tax basis, from any
Excise Tax or income tax (including interest or
penalties with respect thereto) imposed with respect to
such advance or with respect to any imputed income with
respect to such advance; and PROVIDED FURTHER, that any
extension of the statute of limitations relating to
payment of taxes for the taxable year of Executive with
respect to which such contested amount is claimed to be
due is limited solely to such contested amount.
Furthermore, the Company's control of the contest shall
be limited to issues with respect to which a Gross-Up
Payment would be payable hereunder and Executive shall
be entitled to settle or contest, as the case may be,
any other issue raised by the Internal Revenue Service
or any other taxing authority.
(d) If, after the receipt by Executive of an amount
advanced by the Company pursuant to Section 4(c), Executive
becomes entitled to receive, and receives, any refund with
respect to such claim, Executive shall (subject to the
Company's complying with the requirements of Section 4(c))
promptly pay to the Company the amount of such refund
(together with any interest paid or credited thereon after
taxes applicable thereto). If, after the receipt by
Executive of an amount advanced by the Company pursuant to
Section 4(c), a determination is made that Executive shall
not be entitled to any refund with respect to such claim and
the Company does not notify Executive in writing of its
intent to contest such denial of refund prior to the
expiration of 30 days after such determination, then such
advance shall be forgiven and shall not be required to be
repaid and the
Page 13
amount of such advance shall offset, to the extent thereof,
the amount of Gross-Up Payment required to be paid.
5. WITHHOLDING TAXES. The Company may withhold from
all payments due to Executive (or Executive's beneficiary or
estate) hereunder all taxes which, by applicable federal,
state, local or other law, the Company is required to
withhold therefrom.
6. REIMBURSEMENT OF EXPENSES. If any contest or
dispute shall arise under this Agreement involving
termination of Executive's employment with the Company or
involving the failure or refusal of the Company to perform
fully in accordance with the terms hereof, the Company shall
reimburse Executive, on a current basis, for all legal fees
and expenses, if any, incurred by Executive in connection
with such contest or dispute, together with interest at a
rate equal to the rate of interest published in the Wall
Street Journal under the caption "Money Rates" as the prime
rate, but in no event higher than the maximum legal rate
permissible under applicable law, such interest to accrue
from the date the Company receives Executive's statement for
such fees and expenses through the date of payment thereof;
PROVIDED, HOWEVER, that in the event the resolution of any
such contest or dispute includes a finding denying, in total,
Executive's claims in such contest or dispute, Executive
shall be required to reimburse the Company, over a period of
12 months from the date of such resolution, for all sums
advanced to Executive pursuant to this Section 6.
7. OPERATIVE EVENT. Except as provided in Section
3(d), but notwithstanding any other provision herein to the
contrary, no amounts shall be payable hereunder unless and
until there is a Change in Control at a time when Executive
is employed by the Company.
8. TERMINATION OF AGREEMENT.
(a) This Agreement shall be effective on the date
hereof and shall continue until terminated by the
Company as provided in paragraph (b) of this Section 8;
PROVIDED, HOWEVER, that this Agreement shall terminate
in any event upon the first to occur of (1) Executive's
70th birthday, (2) Executive's death, or (3) except as
provided in Section 3(d) hereof, termination of
Executive's employment with the Company prior to a
Change in Control.
(b) The Company shall have the right, prior to a
Change in Control, in its sole discretion, pursuant to
action by the Board, to terminate this Agreement, which
termination shall not become effective until the date
fixed by the Board for such termination, which date
shall be at least 120 days after notice thereof is given
by the Company to Executive in accordance with Section
11; PROVIDED, HOWEVER, that no such action shall
Page 14
be taken by the Board during any period of time when the
Board has knowledge that any person has taken steps
reasonably calculated to effect a Change in Control
until, in the opinion of the Board, such person has
abandoned or terminated its efforts to effect a Change
in Control; and PROVIDED FURTHER, that in no event shall
this Agreement be terminated in the event of a Change in
Control.
9. SCOPE OF AGREEMENT. Nothing in this Agreement
shall be deemed to entitle Executive to continued employment
with the Company and its subsidiaries, and except as provided
in Section 3(d) hereof, if Executive's employment with the
Company shall terminate prior to a Change in Control, then
Executive shall have no further rights under this Agreement;
PROVIDED, HOWEVER, that any termination of Executive's
employment following a Change in Control (or as described in
Section 3(d)) shall be subject to all of the provisions of
this Agreement.
10. SUCCESSORS; BINDING AGREEMENT.
(a) This Agreement shall not be terminated by any
merger or consolidation of the Company whereby the
Company is or is not the surviving or resulting
corporation or as a result of any transfer of all or
substantially all of the assets of the Company. In the
event of any such merger, consolidation or transfer of
assets, the provisions of this Agreement shall be
binding upon the surviving or resulting corporation or
the person or entity to which such assets are
transferred.
(b) The Company agrees that concurrently with any
merger, consolidation or transfer of assets referred to
in paragraph (a) of this Section 10, it will cause any
successor or transferee unconditionally to assume, by
written instrument delivered to Executive (or
Executive's beneficiary or estate), all of the
obligations of the Company hereunder. Failure of the
Company to obtain such assumption prior to the
effectiveness of any such merger, consolidation or
transfer of assets shall be a breach of this Agreement
and shall entitle Executive to compensation and other
benefits from the Company in the same amount and on the
same terms as Executive would be entitled hereunder if
Executive's employment were terminated following a
Change in Control other than by reason of a
Nonqualifying Termination. For purposes of implementing
the foregoing, the date on which any such merger,
consolidation or transfer becomes effective shall be
deemed the Date of Termination.
(c) This Agreement shall inure to the benefit of
and be enforceable by Executive's personal or legal
representatives, executors, administrators, successors,
heirs, distributees, devisees and legatees. If
Executive shall die while any amounts would be payable
to Executive
Page 15
hereunder had Executive continued to live, all such
amounts, unless otherwise provided herein, shall be paid
in accordance with the terms of this Agreement to such
person or persons appointed in writing by Executive to
receive such amounts or, if no person is so appointed,
to Executive's estate.
11. NOTICE.
(a) For purposes of this Agreement, all notices
and other communications required or permitted hereunder
shall be in writing and shall be deemed to have been
duly given when delivered or five days after deposit in
the United States mail, certified and return receipt
requested, postage prepaid, addressed (1) if to the
Executive, to [OFFICER'S HOME ADDRESS] and if to the
Company, to Kansas City Power & Light Company, ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, attention
Corporate Secretary, or (2) to such other address as
either party may have furnished to the other in writing
in accordance herewith, except that notices of change of
address shall be effective only upon receipt.
(b) A written notice of Executive's Date of
Termination by the Company or Executive, as the case may
be, to the other, shall (1) indicate the specific
termination provision in this Agreement relied upon, (2)
to the extent applicable, set forth in reasonable detail
the facts and circumstances claimed to provide a basis
for termination of Executive's employment under the
provision so indicated, and (3) specify the termination
date (which date shall be not less than 15 days after
the giving of such notice). The failure by Executive or
the Company to set forth in such notice any fact or
circumstance which contributes to a showing of Good
Reason or Cause shall not waive any right of Executive
or the Company hereunder or preclude Executive or the
Company from asserting such fact or circumstance in
enforcing Executive's or the Company's rights hereunder.
12. FULL SETTLEMENT; RESOLUTION OF DISPUTES.
(a) The Company's obligation to make any payments
provided for in this Agreement and otherwise to perform
its obligations hereunder shall not be affected by any
set-off, counterclaim, recoupment, defense or other
claim, right or action which the Company may have
against Executive or others. In no event shall
Executive be obligated to seek other employment or take
any other action by way of mitigation of the amounts
payable to Executive under any of the provisions of this
Agreement and, such amounts shall not be reduced whether
or not Executive obtains other employment.
Page 16
(b) If there shall be any dispute between the
Company and Executive in the event of any termination of
Executive's employment, then, unless and until there is
a final, nonappealable judgment by a court of competent
jurisdiction declaring that such termination was for
Cause, that the determination by Executive of the
existence of Good Reason was not made in good faith, or
that the Company is not otherwise obligated to pay any
amount or provide any benefit to Executive and
Executive's dependents or other beneficiaries, as the
case may be, under paragraphs (a) and (b) of Section 3,
the Company shall pay all amounts, and provide all
benefits, to Executive and Executive's dependents or
other beneficiaries, as the case may be, that the
Company would be required to pay or provide pursuant to
paragraphs (a) and (b) of Section 3 as though such
termination were by the Company without Cause or by
Executive with Good Reason; PROVIDED, HOWEVER, that the
Company shall not be required to pay any disputed
amounts pursuant to this paragraph except upon receipt
of an undertaking by or on behalf of Executive to repay
all such amounts to which Executive is ultimately
adjudged by such court not to be entitled.
13. EMPLOYMENT WITH SUBSIDIARIES. Employment with the
Company for purposes of this Agreement shall include
employment with any corporation or other entity in which the
Company has a direct or indirect ownership interest of 50% or
more of the total combined voting power of the then
outstanding securities of such corporation or other entity
entitled to vote generally in the election of directors.
14. GOVERNING LAW; VALIDITY. The interpretation,
construction and performance of this Agreement shall be
governed by and construed and enforced in accordance with the
internal laws of the State of Missouri without regard to the
principle of conflicts of laws. The invalidity or
unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision
of this Agreement, which other provisions shall remain in
full force and effect.
15. COUNTERPARTS. This Agreement may be executed in
two or more counterparts, each of which shall be deemed to be
an original and all of which together shall constitute one
and the same instrument.
16. MISCELLANEOUS. No provision of this Agreement may
be modified or waived unless such modification or waiver is
agreed to in writing and signed by Executive and by a duly
authorized officer of the Company. No waiver by either party
hereto at any time of any breach by the other party hereto
of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. Failure by
Executive or the Company to insist upon strict compliance
with any provision of this Agreement or to assert any right
Executive or the Company may have hereunder, including,
Page 17
without limitation, the right of Executive to terminate
employment for Good Reason, shall not be deemed to be a
waiver of such provision or right or any other provision or
right of this Agreement. The rights and benefits payable
hereunder are in addition to any rights of, or benefits
payable to, Executive, Executive's estate or Executive's
beneficiaries under any other employee benefit plan or
compensation program of the Company, excluding any other
severance plan, policy or arrangement of the Company.
IN WITNESS WHEREOF, the Company has caused this Restated
Severance Agreement to be executed by a duly authorized
officer of the Company and Executive has executed this
Agreement as of the day and year first above written.
KANSAS CITY POWER & LIGHT COMPANY
By: _________________________________
_____________________________________
[officer name]
[title]
Subscribed and Sworn to before me
this _____ day of January, 2000.
__________________________________
Notary Public
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