Constellation Energy Group, Inc.
Exhibit 99.1
Constellation
Energy Group, Inc.
000
Xxxxxxxxxxxxx Xxx
Xxxxxxxxx,
Xxxxxxxx 00000
December
17, 2008
MidAmerican
Energy Holdings Company
0000
Xxxxx 000xx
Xxxxxx
Xxxxx,
XX 00000
Attention: Xxxxxxx
X. Xxxxxxxx
Senior
Vice President and General Counsel
Xx.
Xxxxxxxx:
Reference
is made to that certain Termination Agreement dated as of December 17, 2008 (the
“Termination
Agreement”) by and among MidAmerican Energy Holdings Company, MEHC
Investment, Inc., MEHC Merger Sub Inc., Constellation Energy Group, Inc., CER
Generation II LLC, Constellation Power Source Generation, Inc., and Électricité
de France International, SA. Capitalized terms used, but not
otherwise defined, herein shall have the meanings respectively ascribed to them
in the Termination Agreement. In consideration of the undertakings
and agreements in the Termination Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, and
notwithstanding Section 14 of the Termination Agreement, the undersigned do
hereby agree as set forth herein.
Constellation
hereby agrees to indemnify and hold harmless the MidAmerican Parties and their
respective Affiliated Parties (the “MidAmerican Indemnified
Parties”) against any and all liabilities, judgments, settlements, costs
and reasonable expenses, including, without limitation, reasonable legal fees
(collectively, “Losses”) incurred by
any MidAmerican Indemnified Party and arising out of or in connection with
(i) any breach of the Termination Agreement by Constellation or any EDF
Party or (ii) any claims (including, without limitation, claims that have
been or could have been asserted in actions pending prior to the date hereof) by
or on behalf of any Constellation securityholders (or by any such
securityholders on behalf or purportedly on behalf of Constellation) arising out
of or in connection with the Specified MidAmerican Agreements, the Termination
Agreement or the transactions contemplated thereby (including, without
limitation, any claims directly or indirectly challenging the validity or
enforceability of the amounts payable pursuant to Section 1(a) of the
Termination Agreement, Section 9.3(a) of the Merger Agreement, Section
7(b)(ii)(B) or Section 7(c) of the Series A Articles Supplementary or the first
sentence of the third paragraph of the Limited Waiver, the securities issuable
pursuant to Section 1(b) or 1(c) of the Termination Agreement, Section 7(a) of
the Series A Articles Supplementary, or the first sentence of the third
paragraph of the Limited Waiver, or seeking to modify, reduce, recoup, recover
or otherwise deprive any of the MidAmerican Indemnified Parties of the benefit
thereof) (the claims described in this clause (ii), “Constellation
Claims”). In connection with defending any such Constellation
Claims, the MidAmerican Indemnified Parties shall be entitled to retain counsel
to represent them (with reasonable fees and expenses of such counsel to be paid
by Constellation as above provided). The MidAmerican Indemnified
Parties will not settle any Constellation Claims without the prior written
consent of Constellation, which consent will not be unreasonably withheld, and
no MidAmerican Indemnified Party shall be entitled to any amounts hereunder with
respect to any Constellation Claim that is settled without such
consent. Unless the settlement of a Constellation Claim is for
monetary damages only and includes an unconditional release of the MidAmerican
Indemnified Parties without the requirement of any admission of fault by any
MidAmerican Indemnified Party, Constellation agrees that it will not settle such
Constellation Claim without the prior written consent of MidAmerican, which
consent will not be unreasonably withheld. Constellation also agrees
to indemnify the MidAmerican Indemnified Parties against legal fees and expenses
incurred in enforcing the Termination Agreement or this Agreement (including,
without limitation, this sentence). MidAmerican hereby agrees to
indemnify and hold harmless Constellation and its Affiliated Parties (the “Constellation Indemnified
Parties”) against any and all Losses incurred by any Constellation
Indemnified Party and arising out of or in connection with any breach of the
Termination Agreement by any of the MidAmerican Parties. MidAmerican
also agrees to indemnify the Constellation Indemnified Parties against legal
fees and expenses incurred in enforcing the Termination Agreement or this
Agreement (including, without limitation, this sentence).
In
connection with any litigation or other legal proceeding arising out of or
relating to matters for which Constellation
provides indemnification to any of the MidAmerican Indemnified Parties as
described above (“Indemnifiable
Matters”), the MidAmerican Indemnified Parties and the Constellation
Indemnified Parties each agree to, and to cause their counsel to, cooperate in
good faith in the defense or prosecution of such Indemnifiable
Matters. Such cooperation will include, without limitation, (i) the
provision of records and information which are necessary to the defense,
prosecution or appeal of such Indemnifiable Matters and which are reasonably
requested, (ii) making employees (and, to the extent reasonably feasible, former
employees) available on a mutually convenient basis to provide additional
information and explanation of materials provided hereunder, and (iii)
reasonable consultation regarding the defense, prosecution or appeal of the
Indemnifiable Matters, in each case, with respect to clauses (i), (ii) and (iii)
hereof, at the cost of the party requesting such cooperation.
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Sections
8, 9 and 11 through 21 of the Termination Agreement are hereby incorporated by
reference and shall apply mutatis mutandis to this letter agreement as if this
letter agreement were included in the Termination Agreement.
CONSTELLATION ENERGY GROUP, INC. | |||
|
By:
|
/s/ Xxxxxxx X. Xxxxxxxxxx | |
Name: Xxxxxxx X. Xxxxxxxxxx | |||
Title: Senior Vice President and | |||
General Counsel |
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MIDAMERICAN
ENERGY HOLDINGS COMPANY
By:
/s/ Xxxxxxx X.
Xxxxxxxx
Name: Xxxxxxx X.
Xxxxxxxx
Title: Senior
Vice President and General Counsel
|
MEHC
MERGER SUB INC.
By:
/s/ Xxxxxxx X.
Xxxxxxxx
Name: Xxxxxxx X.
Xxxxxxxx
Title: Senior
Vice President and General Counsel
|
MEHC
INVESTMENT, INC.
By:
/s/ Xxxxxxx X.
Xxxxxxxx
Name: Xxxxxxx X.
Xxxxxxxx
Title: Senior
Vice President and General Counsel
|
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