OFFICER INDEMNIFICATION AGREEMENT IDACORP, INC.
Exhibit 10(h)(viii)
OFFICER 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 Officers of the Corporation
and the Subsidiaries the most capable persons available; and
Whereas, Indemnitee is an
Officer 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 officers 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 an Officer 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 an Officer (collectively, the "Charters"), the Corporation
has purchased, at its expense, officers' 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 an
Officer 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 an Officer 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 as an Officer faithfully and to the best of Indemnitee's ability at
will 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 an Officer, or while an Officer, 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. An Officer is considered to be
serving an employee benefit plan at the request of the Corporation or a
Subsidiary if the Officer's duties to the Corporation or such Subsidiary also
impose duties on, or otherwise involve services by, the Officer 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 hereofand 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. "Director" includes, unless the
context requires otherwise, the estate or personal representative of a
Director.
2.9. "Disinterested
Director" means a Director, 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. "Officer"
means an individual who is or was an officer of the Corporation and/or any
Subsidiary. "Officer"
includes, unless the context requires otherwise, the estate or personal
representative of an officer.
2.14. "Official
Capacity" means the position in the Corporation and/or any
Subsidiary held by Indemnitee.
2.15. "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.
2.16. "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).
2.17. "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.
2.18. "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.
2.19. "Trust" shall have
the meaning set forth in Section 10 hereof.
2.20. "Voting Securities"
means any securities of the Corporation that vote generally in the election of
Directors.
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 an Officer.
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 an Officer.
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 determinedthat
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;
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; and
4.1.10. In
connection with a loss arising out of Indemnitee's conduct that constitutes an
intentional infliction of harm on the Corporation, the shareholders or any
Subsidiary, or an intentional violation of criminal law.
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 an Officer, 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.
6.1. 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 suchClaim 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 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, 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 an Officer.
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.
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Attest: |
IDACORP, Inc.
By: _________________________________ Name: Title: |
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____________________________________ Secretary: |
Officer
____________________________________ Name:
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