Director Indemnification Agreement IDACORP, Inc.
Exhibit 10(h)(ix)
Director Indemnification
Agreement
IDACORP, Inc.
This Agreement is made and
entered into as of the ____ day of _________, 2004 by and between IDACORP, Inc., an Idaho corporation
(the "Corporation"), and __________________(the
"Indemnitee").
Recitals
Whereas, it is essential
to the Corporation that it attract and retain as Directors of the Corporation
and the Subsidiaries the most capable persons available; and
Whereas, Indemnitee is a
Director of the Corporation and/or one or more of the Subsidiaries and is
serving as such at the request of the Corporation; and
Whereas, both the
Corporation and Indemnitee recognize the increased risk of litigation and other
claims being asserted against directors of public companies in the current
environment; and
Whereas, in addition to
the indemnification to which Indemnitee is entitled pursuant to the Idaho
Business Corporation Act, the general corporation law of each other
jurisdiction in which a Subsidiary for whom Indemnitee serves as a Director is
organized, the Articles of Incorporation of the Corporation, as amended, and
the Articles of Incorporation or similar document of each Subsidiary for whom
Indemnitee serves as a Director (collectively, the "Charters"), the
Corporation has purchased, at its expense, directors' liability insurance
protecting Indemnitee in connection
with such service; and
Whereas, the Corporation
and Indemnitee have concluded that the indemnities available under the Charters
and the insurance currently in effect need to be supplemented to more fully
protect Indemnitee against the risks associated with Indemnitee's service as a
Director of the Corporation and/or any Subsidiary; and
Whereas, in recognition of
Indemnitee's need for additional protection against personal liability in order
to enhance Indemnitee's service to the Corporation and/or any Subsidiary in an
effective manner, and in order to induce Indemnitee to provide services to the
Corporation and/or any Subsidiary as a Director thereof, the Corporation wishes
to provide in this Agreement for the indemnification of Indemnitee to the
fullest extent permitted by law and as set forth in this Agreement; and
Now, therefore, in
consideration of the foregoing, the covenants contained herein and Indemnitee's
service to the Corporation and/or any Subsidiary, the Corporation and
Indemnitee, intending to be legally bound, hereby agree as follows:
Section 1. Agreement
to Serve
Indemnitee will serve or continue
to serve, at will of the Corporation and/or any Subsidiary, as a Director
faithfully and to the best of Indemnitee's ability so long as Indemnitee is
duly elected and qualified in accordance with the applicable provisions of the
applicable Charter or bylaws of the Corporation and/or any Subsidiary or until
such earlier time as Indemnitee tenders his resignation in writing.
Section 2. Definitions
The following terms, as used
herein, shall have the following respective meanings:
2.1. "Affiliate" of any specified Person
means any other Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled"
have meanings relative to the foregoing.
2.2. "Beneficial Owner" shall have the
meaning set forth in Exchange Act Rule 13d-3.
2.3. "Board" means the Board of Directors of
the Corporation.
2.4. "Change in Control" means the earliest
of the following to occur: (a) the public announcement by the Corporation or by
any Person (which shall not include the Corporation, any Subsidiary or any
employee benefit plan of the Corporation or of any Subsidiary) (the
"Announcing Person") that such Announcing Person, who or which,
together with all affiliates and associates (within the meanings ascribed to
such terms in Rule 12b-2 under the Exchange Act) of such Announcing Person,
shall be the Beneficial Owner of twenty percent (20%) or more of the Voting
Securities then outstanding; (b) the commencement of, or after the first public
announcement of any Announcing Person to commence, a tender or exchange offer
the consummation of which would result in any Announcing Person becoming the
Beneficial Owner of Voting Securities aggregating thirty percent (30%) or more
of the then outstanding Voting Securities; (c) the announcement of any
transaction relating to the Corporation required to be described pursuant to
the requirements of Item 6(e) of Schedule 14A of Regulation 14A under the
Exchange Act; (d) a proposed change in the constituency of the Board such that,
during any period of two (2) consecutive years, individuals who at the
beginning of such period constitute the Board cease for any reason to
constitute at least a majority thereof, unless the election or nomination for
election by the shareholders of the Corporation of each new Director was
approved by a vote of at least two-thirds (2/3) of the Directors then still in
office who were members of the Board at the beginning of the period; (e) the
Corporation enters into an agreement of merger, consolidation, share exchange
or similar transaction with any other corporation or limited liability company
other than a transaction which could result in the Voting Securities
outstanding immediately prior to the consummation of such transaction
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) at least two-thirds of the
combined voting power of the Corporation's or such surviving entity's
outstanding voting stock immediately after such transaction; (f) the Board
approves a plan of liquidation or dissolution of the Corporation or an
agreement for the sale or disposition by the Corporation (in one transaction or
a series of transactions) of all or substantially all of the Corporation's
assets to a Person or entity which is not an Affiliate of the Corporation other
than a transaction or transactions for the purpose of dividing the
Corporation's assets into separate distribution, transmission or generation entities
or such other entities as the Corporation may determine; or (g) any other event
which shall be deemed by a majority of the Executive Committee of the Board to
constitute a "Change in Control."
2.5. "Claim" means any threatened, pending
or completed action, suit, proceeding, arbitration or other alternative dispute
resolution mechanism, inquiry, hearing or investigation, whether conducted by
the Corporation, a Subsidiary or any other Person, whether civil, criminal,
administrative, legislative, investigative, or other, and in each case whether
or not commenced prior to the date of this Agreement, that relates to a Covered
Event, and includes, without limitation, those brought by or in the name of the
Corporation, a Subsidiary or any
Director or officer of the Corporation or of any Subsidiary.
2.6. "Covered Event" means any event or
occurrence that takes place either prior to, on or after the date of this
Agreement arising out of, or related to, the fact that Indemnitee is or was a
Director, or while a Director, is or was serving at the request of the
Corporation or a Subsidiary as a director, officer, employee, trustee, agent,
partner, member or fiduciary of another corporation, partnership, limited
liability company, association, joint venture, employee benefit plan, trust, or
other enterprise or organization, or related to anything done or not done by
Indemnitee in any such capacity, whether or not the basis of the Claim is
alleged action or failure to act in an Official Capacity or in any other
capacity while serving as described above.
A Director is considered to be serving an employee benefit plan at the
request of the Corporation or a Subsidiary if the Director's duties to the
Corporation or such Subsidiary also impose duties on, or otherwise involve
services by, the Director to the plan or to participants in or beneficiaries of
the plan.
2.7. "D & O Insurance" means the
directors' and officers' liability insurance issued by the insurers, and having
the policy numbers, amounts and deductibles set forth in Section 5.1 hereof and
any replacement or substitute policy or policies issued by one or more
reputable insurers, providing, in the aggregate, at all times and in all
respects, coverage at least comparable and in the same amount as that provided
under the policies identified in Section 5.1 hereof.
2.8. "Director" means an individual who is
or was a director of the Corporation and/or one or more Subsidiaries, unless
the context indicates otherwise.
"Director" includes, unless the context requires otherwise,
the estate or personal representative of a Director.
2.9. "Disinterested Director" means a
Director of the Corporation, who at the time of any vote referred to in Section
7.2.2 hereof, is not:
(a) A party to the Claim giving rise to the subject matter of
the decision being made; or
(b) An individual having a familial, financial, professional
or employment relationship with Indemnitee whose indemnification or advance for
Expenses is the subject of the decision being made, which relationship would,
in the circumstances, reasonably be expected to exert an influence on such
Director's judgment when voting on the decision being made.
2.10. "Exchange Act"
means the Securities Exchange Act of 1934, as amended.
2.11. "Expenses"
includes attorneys' fees, retainers, court costs, travel expenses, fees and
expenses of experts, including accountants and other advisors, transcript
costs, filing fees, telephone charges, postage, copying costs, delivery service
fees and other costs, disbursements, expenses and obligations of the type
typically paid or incurred in connection with (i) investigating, prosecuting or
defending, being a witness in or participating in (including on appeal), or
preparing for any of the foregoing in
any Claims relating to a Covered Event or (ii) establishing a right to
indemnification under Section 7.2.5 hereof.
2.12. "Loss" means any
amount which Indemnitee incurs as a result of any Claim, including, without
limitation (a) all judgments, penalties and fines, and amounts paid or to be
paid in settlement, (b) all interest, assessments and other charges paid or
payable in connection therewith and (c) any federal, state, local or foreign
taxes imposed (net of the value to Indemnitee of any tax benefits resulting
from tax deductions or otherwise as a result of the actual or deemed receipt of
any payments under this Agreement).
2.13. "Official Capacity"
means the position of Indemnitee in the Corporation and/or any Subsidiary.
2.14. "Other Enterprise"
means any corporation (other than the Corporation or any Subsidiary),
partnership, limited liability company, joint venture, association, employee
benefit plan, trust or other enterprise or organization to which Indemnitee
renders service at the request of the Corporation or any Subsidiary.
2.15. "Person" means any
individual, corporation, limited liability company, partnership, joint venture,
association, joint-stock corporation, trust, unincorporated organization or
government (or any subdivision, department, commission or agency thereof).
2.16. "Special Legal Counsel"
means a law firm or an attorney that (a) neither is nor in the past five years
has been retained to represent in any material matter the Corporation, any
Subsidiary, any Other Enterprise, Indemnitee or any other party to the Claim,
(b) under applicable standards of professional conduct then prevailing would
not have a conflict of interest in representing either the Corporation or
Indemnitee in an action to determine Indemnitee's rights to indemnification
under this Agreement and (c) is reasonably acceptable to the Corporation and
Indemnitee.
2.17. "Subsidiary" of a
Person means (i) any corporation more than fifty percent (50%) of the outstanding
securities having ordinary voting power of which shall at the time be owned or
controlled, directly or indirectly, by such Person or by one or more of its
Subsidiaries or by such Person and one or more of its Subsidiaries, or (ii) any
partnership, limited liability company, association, joint venture or similar
business organization more than fifty percent (50%) of the ownership interests
having ordinary voting power of which shall at the time be so owned or
controlled. Unless otherwise expressly
provided, all references herein to a "Subsidiary" shall mean a
Subsidiary of the Corporation.
2.18. "Trust" shall have
the meaning set forth in Section 10 hereof.
2.19. "Voting Securities"
means any securities of the Corporation that vote generally in the election of
Directors of the Corporation.
Section 3. Indemnification
3.1. General Indemnity
Obligation.
3.1.1. Subject to the remaining provisions of
this Agreement, the Corporation hereby indemnifies and holds Indemnitee
harmless for all Losses and Expenses, until no Claims relating to any Covered
Event may be asserted against Indemnitee and until any Claims commenced prior
thereto are finally terminated and resolved, regardless of whether Indemnitee
continues to serve as a Director.
3.1.2. The obligations of the Corporation
under this Agreement shall apply to the fullest extent authorized or permitted
by the provisions of applicable law, as presently in effect or as changed after
the date of this Agreement, whether by statute or judicial decision.
3.1.3. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Corporation for a portion
of the Losses and/or Expenses paid with respect to a Claim but not, however, for
the total amount thereof, the Corporation shall nevertheless indemnify and hold
Indemnitee harmless against the portion thereof to which Indemnitee is
entitled. The Reviewing Party (as such
term is defined in Section 7.2.2 hereof) shall determine the portion (if less
than all) of such Losses and/or Expenses for which Indemnitee is entitled to
indemnification under this Agreement.
3.1.4. Notwithstanding any other provision of
this Agreement, to the extent that Indemnitee has been wholly successful on the
merits or otherwise in defense of any or all Claims relating to (or arising in
whole or in part out of) a Covered Event or in defense of any issue or matter
therein, including dismissal without prejudice, the Corporation shall indemnify
and hold Indemnitee harmless against all Expenses incurred in connection
therewith.
3.2. Indemnification for Serving as Witness. Subject to the exclusions set forth in
Section 4 hereof, the Corporation hereby indemnifies and holds Indemnitee
harmless for all Losses and Expenses in connection with the preparation to
serve or service as a witness for any Claim in which Indemnitee is not a party,
if such actual or proposed service as a witness arose by reason of Indemnitee
having served as a Director.
3.3. Events Covered. Indemnification under Section 3.1 and/or 3.2 of this Agreement
shall be available to Indemnitee regardless of whether the Covered Event that
gives rise to the Claim for which Indemnitee seeks indemnification arose prior
to, on or after the date of this Agreement.
Section 4. Limitations on Indemnification
4.1. Coverage Limitations. No indemnification is available pursuant to the provisions of this
Agreement:
4.1.1. If such indemnification is prohibited
by applicable law;
4.1.2. In respect of any Claim initiated by
Indemnitee against the Corporation, any Subsidiary or any Director or officer
of the Corporation or any Subsidiary, unless (i) the Corporation has joined in
or consented to the initiation of such Claim or (ii) the Claim is one to
enforce indemnification rights under Section 7.2.5 hereof;
4.1.3. In respect of any Losses, Expenses or
payment of profits arising from the purchase and sale by Indemnitee of
securities in accordance with the provisions of Section 16(b) of the Exchange
Act or any similar provisions of any federal, state or local statutory law;
4.1.4. In respect of any fine or penalty
arising out of a violation of Section 16(a) of the Exchange Act or similar
provisions of any federal, state or local statutory law;
4.1.5. In respect of any civil penalty arising
out of a violation of the federal securities laws under Section 21A of the
Exchange Act or similar provisions of any federal, state or local statutory
law;
4.1.6. In connection with a Claim by or in the
right of the Corporation or any Subsidiary, except for reasonable Expenses
incurred in connection with such Claim if it is determined that Indemnitee has
conducted himself in good faith and (a) that he reasonably believed (1) in the
case of conduct in his Official Capacity with the Corporation or any
Subsidiary, that his conduct was in the Corporation's or such Subsidiary's best
interests; and (2) in all other cases, that his conduct was at least not opposed
to the Corporation's or such
Subsidiary's best interests; and (3) in the case of any criminal proceeding,
that he had no reasonable cause to believe his conduct was unlawful; or (b)
that the Claim involved conduct for which indemnification has been made
permissible or obligatory under a provision of the applicable Charter;
4.1.7 In connection with any Claim with
respect to conduct for which Indemnitee was adjudged liable on the basis that
he received a financial benefit to which Indemnitee was not entitled, whether
or not involving action in his Official Capacity;
4.1.8. If a final decision by a court having
jurisdiction in the matter determines that such indemnification is unlawful;
and
4.1.9. If Indemnitee's conduct giving rise to
the Claim with respect to which indemnification is requested is finally
adjudged to have been known by Indemnitee to be fraudulent, deliberately
dishonest or willful misconduct.
4.2. No Duplication of Payments. The Corporation shall not be liable under
this Agreement to make any payment otherwise due and payable to the extent
Indemnitee has otherwise actually received payment (whether under the Charter
or the bylaws of the Corporation or of any Subsidiary, the D & O Insurance
or otherwise) of any amounts otherwise due and payable under this Agreement,
except to the extent the aggregate of Losses and Expenses to be indemnified
exceeds the Losses and Expenses for which Indemnitee has been indemnified.
Section 5. D & O Insurance
5.1 Current Policies. The Corporation presently has in force and
effect policies of D & O Insurance with such insurance companies, and
having the policy numbers, amounts and deductibles as follows:
|
Insurer |
Policy No. |
Amount |
Deductible |
|
|
|
|
|
|
AEGIS |
DO167A1A04 |
$35,000,000 |
None |
|
EIM |
90083804DO |
$50,000,000 |
None |
Copies of such policies are
available for inspection by Indemnitee at the Corporation's principal executive
offices.
5.2. Continued Coverage. The Corporation hereby covenants and agrees that, subject only to
the provisions of Section 5.3 hereof, the Corporation shall maintain the D
& O Insurance providing, in all respects, coverage at least comparable and
in the same amount as the D & O Insurance specified in Section 5.1 hereof,
for so long as Indemnitee shall continue to serve as a Director, and thereafter
so long as Indemnitee shall be subject to any possible Claim relating to a
Covered Event.
5.3. Limitations on D & O Insurance. The Corporation shall have no obligation to
maintain D & O Insurance if the Board determines in good faith, as a matter
of reasonable business judgment, that such insurance is not reasonably
available, the premium cost for such insurance is substantially
disproportionate to the amount of coverage provided, or the coverage provided
by such insurance is so limited by exclusions as to provide an insufficient
benefit. The Corporation shall promptly
inform Indemnitee in writing of such determination.
5.4. Indemnification.
The Corporation's indemnification obligation to Indemnitee under this
Agreement shall not be affected by any reduction in, or cancellation of, the
D&O Insurance (whether voluntary or involuntary on behalf of the
Corporation).
Section 6. Notifications and Defense of Claims
6.1. Notice by Indemnitee. Indemnitee shall give notice in writing to the Corporation as
soon as practicable after Indemnitee becomes aware of any Claim with respect to
which indemnification will or could be sought under this Agreement; provided that
the failure of Indemnitee to give such notice shall not relieve the Corporation
of any obligations it may have to Indemnitee otherwise than under this
Agreement.
6.2. Defense.
6.2.1. In the event any Claim relating to
Covered Events is by or in the right of the Corporation or any Subsidiary,
Indemnitee may, at the option of Indemnitee, either control the defense thereof
or accept the defense provided under the D & O Insurance; provided,
however, that Indemnitee may not control the defense if such decision would
affect the coverage provided by the D & O Insurance, if any, to Indemnitee,
the Corporation, any Subsidiary or the other Directors and officers covered
thereby. The Corporation shall not be
entitled to assume the defense of any Claim relating to Covered Events brought
by or in the right of the Corporation or any Subsidiary.
6.2.2. In the event any Claim relating to
Covered Events is other than by or in the right of the Corporation or any
Subsidiary, the Corporation shall be entitled to participate therein at its own
expense. Except as otherwise provided
below, at the option of the Corporation, the Corporation, alone or jointly with
any other notified indemnifying party, shall be entitled to assume the defense
of any such Claim relating to Covered Events of which Indemnitee notifies the
Corporation, with counsel reasonably satisfactory to Indemnitee. After notice from the Corporation to
Indemnitee of the Corporation's decision to assume the defense of the Claim,
the Corporation shall not be liable to Indemnitee under this Agreement for any
Expenses subsequently incurred by Indemnitee in connection with the defense of
the Claim other than reasonable costs of investigation or as otherwise provided
below. Indemnitee shall have the right
to employ counsel in such Claim but the Expenses in connection with employment
of such counsel shall be borne by Indemnitee unless (i) the employment of such
counsel by Indemnitee has been authorized by the Corporation, (ii) Indemnitee
shall have reasonably concluded that there may be a conflict of interest
between the Corporation and Indemnitee in the conduct of the defense of such
Claim, or (iii) the Corporation shall not within sixty (60) days in fact have
employed counsel to assume the defense of such Claim, in each of which cases
the Expenses in connection with employment of
Indemnitee's counsel shall be borne by the Corporation. The Corporation shall not be entitled to
assume the defense of any Claim relating to Covered Events as to which Indemnitee
shall have reasonably concluded that there may be a conflict of interest
between the Corporation and Indemnitee in the course of defense of such Claim.
6.2.3. The Corporation shall have no
obligation under this Agreement with respect to any amounts paid, or to be
paid, in settlement of any Claim relating to any Covered Event without the
express prior written consent of the Corporation to any related
settlement. In no event shall the
Corporation authorize any settlement imposing any liability or other
obligations on Indemnitee without the express prior written consent of
Indemnitee. Neither the Corporation nor
Indemnitee shall unreasonably withhold consent to any proposed settlement.
Section 7. Advancements; Determinations; and Payments
7.1. Advancement of
Expenses.
7.1.1. To obtain advancement of Expenses
under this Agreement, Indemnitee shall submit to the Corporation a written
request for such advancement, together with such documentation and information
as is reasonably available to Indemnitee and is reasonably necessary to
determine whether and to what extent Indemnitee is entitled to such
advancement. Indemnitee must also
furnish to the Corporation a written affirmation of his good faith belief that
(a) he has conducted himself in good faith and (1) that he reasonably believed
(A) in the case of conduct in his Official Capacity with the Corporation or any
Subsidiary, that his conduct was in the Corporation's or such Subsidiary's best
interests; and (B) in all other cases, that his conduct was at least not
opposed to the Corporation's or such Subsidiary's best interests; and (C) in
the case of any criminal proceeding, that he had no reasonable cause to believe
his conduct was unlawful, or (2) that the Claim involved conduct for which
indemnification has been made permissible or obligatory under a provision of
the applicable Charter, or that (b) the Claim involves conduct for which
liability has been eliminated under a provision of the applicable Charter, as authorized
by applicable law. In addition, Indemnitee must furnish to the
Corporation a written undertaking to repay the advance if it is ultimately
determined that he is not entitled to indemnification. Advances shall be made without regard to
Indemnitee's ability to repay the advance and without regard to Indemnitee's
ultimate entitlement to indemnification under the provisions of this
Agreement. Indemnitee's obligation to
repay the Corporation for advances shall be unsecured and no interest shall be
charged thereon. Advances shall include
any and all reasonable Expenses incurred by Indemnitee in pursuing an action to
enforce this right of advancement.
7.1.2. If requested by Indemnitee, in
accordance with Section 7.1.1 hereof, the Corporation shall advance to
Indemnitee, no later than thirty (30) days following any such request, any and
all Expenses for which advancement has been requested in accordance with
Section 7.1.1 hereof.
7.2. Determination of Indemnification; Appeal.
7.2.1. To
obtain indemnification under this Agreement, Indemnitee shall submit to the
Corporation a written request, together with such documentation and information
as is reasonably available to Indemnitee and is reasonably necessary to
determine whether and to what extent Indemnitee is entitled to indemnification.
7.2.2. Prior
to any Change in Control, the Person or Persons who shall determine whether and
to what extent Indemnitee is entitled to indemnification (the "Reviewing
Party") shall be (i) if there are two (2) or more Disinterested Directors,
the Board acting by a majority vote of all the Disinterested Directors, a
majority of whom shall for such purposes constitute a quorum, or by a majority
of the members of a committee of two (2) or more Disinterested Directors
appointed by such a vote; (ii) Special
Legal Counsel selected: (A) if there are fewer than two (2) Disinterested
Directors, by the Board, in which
selection Directors of the Corporation
who do not qualify as Disinterested Directors may participate; or (B) by a
majority vote of Disinterested Directors, a majority of whom shall for such
purposes constitute a quorum; or (iii) the shareholders of the Corporation (if
submitted by the Board) but shares of
stock owned by or voted under the control of any Indemnitee who is at the time
party to the Claim may not be voted.
The Corporation shall notify Indemnitee in writing of such determination
no later than two (2) business days thereafter.
7.2.3. After a Change in Control, the
Reviewing Party shall be Special Legal Counsel selected in the manner set forth
in clause (ii) of the first sentence in Section 7.2.2 hereof and approved by
Indemnitee (which approval shall not be unreasonably withheld). With respect to all matters arising after a
Change in Control concerning the rights of Indemnitee to indemnification under
this Agreement (including the determinations required in the context of Section
10 of this Agreement) or any other agreement or under applicable law, the
Charter or the by-laws of the Corporation or any applicable Subsidiary now or
hereafter in effect relating to indemnification for Claims arising out of
Covered Events, the Corporation shall seek legal advice only from such Special
Legal Counsel. Such Special Legal
Counsel, among other things, shall render its written opinion to the
Corporation and Indemnitee as to whether and to what extent Indemnitee should
be permitted to be indemnified under applicable law. The Corporation agrees to pay the reasonable fees of such Special
Legal Counsel and indemnify fully such Special Legal Counsel against any and
all expenses (including attorneys' fees), claims, liabilities, loss, and
damages arising out of or relating to this Agreement or the engagement of such
Special Legal Counsel pursuant hereto.
7.2.4. If a determination is made, in
accordance with Section 7.2.2 or 7.2.3 hereof, that Indemnitee is entitled to
all or a portion of the requested indemnification, payment to Indemnitee shall
be made within thirty (30) days after such determination.
7.2.5. If (i) no determination of
entitlement to indemnification shall have been made within thirty (30) days
after Indemnitee has made a request in accordance with Section 7.2.1 hereof,
(ii) payment of indemnification pursuant to Section 7.2.4 hereof is not made
within thirty (30) days after a determination has been made that Indemnitee is
entitled to indemnification, (iii) it is determined pursuant to Section 7.2.2
or 7.2.3 hereof that Indemnitee is not entitled to indemnification under this
Agreement or is only entitled to a portion of such indemnification, or (iv)
Indemnitee has not received advancement of Expenses within thirty (30) days
after making such a request in accordance with Section 7.1 hereof, Indemnitee
shall have the right to enforce the indemnification rights under this Agreement
by commencing litigation in any court of competent jurisdiction in the State of
Idaho seeking an initial determination by the court or challenging any
determination made in accordance with Section 7.2.2 or 7.2.3 hereof or any
aspect thereof. Any determination made
in accordance with Section 7.2.2 or 7.2.3 hereof not challenged by Indemnitee
on or before the first anniversary of the date of the determination shall be
binding on the Corporation and Indemnitee.
The remedy provided for in this Section 7.2.5 shall be in addition to
any other remedies available to Indemnitee in law or equity.
Section 8. Indemnification for Expenses Incurred in
Enforcing Rights
8.1. The Corporation shall indemnify Indemnitee against any
and all Expenses and, if requested by Indemnitee, shall advance such Expenses
to Indemnitee, that are incurred by Indemnitee in connection with any Claim
asserted against or action brought by Indemnitee for (i) enforcement of this
Agreement, (ii) indemnification of Expenses or Expense advances by the
Corporation under this Agreement or any other agreement or under applicable law
or the Charter or the bylaws of the Corporation or any applicable Subsidiary now
or hereafter in effect relating to indemnification for Claims arising out of
Covered Events, and/or (iii) recovery under the D & O Insurance. The advancement of Expenses under this
Section 8.1 shall be governed by Section 7.1 hereof.
Section 9.
Burden of Proof and
Presumptions
9.1. Burden of Proof.
To the maximum extent permitted by applicable law in making a
determination with respect to entitlement to indemnification or advancement of
Expenses hereunder, it shall be presumed that Indemnitee is entitled to
indemnification or advancement of Expenses under this Agreement if Indemnitee
has submitted a request for indemnification or a request for advancement of
Expenses in accordance with Section 7.2.1 or 8.1 hereof, and the Corporation
shall have the burden of proof to overcome that presumption in connection with
the making of any determination in accordance with Section 7.1.1, 7.2.2, 7.2.3
or 8.1 of this Agreement contrary to that presumption.
9.2. Plea of Nolo Contendere. The termination of any Claim by judgment,
order, settlement (whether with or without court approval) or conviction, or
upon a plea of nolo contendere or its equivalent, shall not affect adversely
either the right of Indemnitee to indemnification under this Agreement or the
presumptions to which Indemnitee is otherwise entitled pursuant to the
provisions of this Agreement nor create a presumption that Indemnitee did not
meet any particular standard of conduct or have a particular belief or that a
court has determined that indemnification is not permitted by applicable law.
9.3. Employee Plans.
If Indemnitee is serving an employee benefit plan at the request of the
Corporation or a Subsidiary, Indemnitee's conduct with respect to the plan for
a purpose he reasonably believed to be in the best interests of the
participants in, and the beneficiaries of, the plan shall be deemed to be not
opposed to the best interests of the Corporation or the Subsidiary.
Section 10. Establishment of Trust
In the event of a Change in
Control, the Corporation shall, upon written request by Indemnitee, create a
trust (the "Trust") for the benefit of Indemnitee and from time to
time upon written request of Indemnitee shall fund the Trust in an amount sufficient
to satisfy any and all Expenses reasonably anticipated at the time of each such
request to be incurred in connection with investigating, preparing for,
participating in, and/or defending any Claim relating to a Covered Event. The amount or amounts to be deposited in the
Trust pursuant to the foregoing funding obligation shall be determined by the
Reviewing Party. The terms of the Trust
shall provide that (i) the Trust shall not be revoked or the principal thereof
invaded, without the written consent of the Indemnitee, (ii) the trustee shall
advance, within thirty (30) days of a request by Indemnitee, any and all
Expenses to Indemnitee (and Indemnitee hereby agrees to repay the Trust under
the same circumstances for which Indemnitee would be required to repay the
Corporation under Section 7.1.1 hereof), (iii) the Trust shall continue to be
funded by the Corporation in accordance with the funding obligation set forth
above, (iv) the trustee shall promptly pay to Indemnitee all amounts for which
Indemnitee shall be entitled to indemnification pursuant to this Agreement, and
(v) all unexpended funds in the Trust shall revert to the Corporation upon a
final determination by the Reviewing Party or a court of competent
jurisdiction, as the case may be, that Indemnitee has been fully indemnified
under the terms of this Agreement. The
trustee shall be a bank or trust company chosen by the Corporation and
reasonably satisfactory to Indemnitee.
Nothing in this Section 10 shall relieve the Corporation of any of its
obligations under this Agreement. All
income earned on the assets in the Trust shall be reported as income by the
Corporation for federal, state, local, and foreign tax purposes. The Corporation shall pay all costs of
establishing and maintaining the Trust and shall indemnify the trustee against
any and all expenses (including attorneys' fees), claims, liabilities, loss,
and damages arising out of or relating to this Agreement or the establishment
and maintenance of the Trust.
Section 11.
Subrogation
In the event of any payment
under this Agreement to or on behalf of Indemnitee, the Corporation shall be
subrogated to the extent of such payment to all of the rights of recovery in
Indemnitee against any Person other than the Corporation or Indemnitee in
respect of the Claim giving rise to such payment. Indemnitee shall execute all papers reasonably required and shall
do everything reasonably necessary to secure such rights, including the
execution of such documents reasonably necessary to enable the Corporation
effectively to bring suit to enforce such rights.
Section 12. Miscellaneous Provisions
12.1. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of (a) the Corporation, its successors and assigns
(including any direct or indirect successor by merger, consolidation, share
exchange or operation of law or by transfer of all or substantially all of its
assets) and (b) Indemnitee and the heirs, personal and legal representatives, executors,
administrators or assigns of Indemnitee.
12.2. Severability. The provisions of this Agreement are
severable. If any provision of this
Agreement shall be held by any court of competent jurisdiction to be invalid,
void or unenforceable, such provision shall be deemed to be modified to the
minimum extent necessary to avoid a violation of law and, as so modified, such
provision and the remaining provisions shall remain valid and enforceable in
accordance with their terms to the fullest extent permitted by law.
12.3. Rights Not Exclusive; Continuation of
Right of Indemnification.
Nothing in this Agreement shall be deemed to diminish or otherwise
restrict Indemnitee's right to indemnification pursuant to any provision of the
Charter or bylaws of the Corporation or any Subsidiary, any agreement, vote of
shareholders or Disinterested Directors, applicable law or otherwise. This Agreement shall be effective as of the
date first above written and continue in effect until no Claims relating to any
Covered Event may be asserted against Indemnitee and until any Claims commenced
prior thereto are finally terminated and resolved, regardless of whether
Indemnitee continues to serve as a Director.
12.4. Subsequent Amendments. No amendment, termination or repeal of any
provision of the Charter or bylaws of the Corporation or any Subsidiary, or any
respective successors thereto, shall affect or diminish in any way the rights
of Indemnitee to indemnification, or the obligations of the Corporation, arising
under this Agreement, whether the alleged actions or conduct of Indemnitee
giving rise to the necessity of such indemnification arose before or after any
such amendment, termination or repeal.
12.5. Notices. Notices required under this Agreement shall
be given in writing and shall be deemed given when delivered in person or sent
by certified or registered mail, return receipt requested, postage
prepaid. Notices shall be directed to
the Corporation at its principal executive offices currently located at 0000
Xxxx Xxxxx Xxxxxx, Xxxxx, Xxxxx 00000, Attention: Corporate Secretary, and to
Indemnitee at its address set forth below (or such other address as either
party may designate in writing to the other party).
12.6. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Idaho
applicable to contracts made and performed in such state without giving effect
to the principles of conflict of laws.
12.7. Headings. The headings of the Sections of this
Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction thereof.
12.8. Counterparts. This Agreement may be executed in any number
of counterparts all of which taken together shall constitute one instrument.
12.9. Modifications and Waivers. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by both of the
parties hereto. No waiver of any of the
provisions of this Agreement shall constitute, or be deemed to constitute, a
waiver of any other provisions hereof (whether or not similar) nor shall any
such waiver constitute a continuing waiver.
12.10. Period of Limitations. No legal action shall be brought and no
cause of action shall be asserted by or on behalf of the Corporation or any
Affiliate of the Corporation against Indemnitee, Indemnitee's spouse, heirs,
executors, or personal or legal representatives after the expiration of two
years from the date of accrual of such cause of action. Any claim or cause of action of the
Corporation or any Affiliate shall be extinguished and deemed released unless
asserted by the timely filing of a legal action within such period; provided,
however, that if any shorter period of limitations is otherwise
applicable to any such cause of action, such shorter period shall govern.
The parties hereto have caused
this Agreement to be duly executed as of the day and year first above written.
|
Attest: |
IDACORP, Inc.
By: ___________________________________ Name: |
|
____________________________________ Secretary: |
______________________________________ Name: |
