EXHIBIT 10.5
EXECUTION
COPY
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This
Amended and Restated Employment Agreement, dated as of
February 25, 2008, amends and restates the employment
agreement originally entered into as of April 21, 1999, and is
by and between MidAmerican Energy Holdings Company, an Iowa
corporation (the Company”), and Patrick J. Goodman (the
Executive).
RECITALS
The
Company desires to employ the Executive as its Senior Vice
President and Chief Financial Officer on the terms set forth
in this Agreement, and the Executive desires to accept such
employment.
Accordingly,
the Company and the Executive agree as follows:
AGREEMENT
Section
1. Defined
Terms. Terms used but not defined in this Agreement
will have the meanings ascribed to them in Exhibit A to this
Agreement.
Section
2. Emp1oyment.
(a) The
Company will employ the Executive as, and the
Executive will act as the Senior Vice President and Chief
Financial Officer of the Company, subject to and upon the
terms set forth in this Agreement, for the Term of
Employment.
(b) The
Executive’s primary place of employment will be Des
Moines, Iowa.
Section
3. Duties.
(a) The
Executive (i) will perform and discharge the duties incident
to and consistent with his title of Senior Vice President and
Chief Financial Officer, and (ii) will perform and discharge
such other duties, and will have such other authority, as are
delegated to him by the Chairman of the Board of the Company
(hereinafter referred to as the “Chairman of the
Board”). In performing such duties, the Executive will
report directly to, and be subject to the direction of, the
Chairman of the Board.
(b) The
Executive will act, without any compensation in addition to
the compensation payable pursuant to this Agreement, as an
officer or member, of the board of directors of any subsidiary
of the Company, if so appointed or elected.
(c) During
the Term of Employment the Executive (i) will devote his
entire time, attention and energies during normal business
hours to the business of the Company and its subsidiaries and
(ii) will not, without the written consent of the Chairman of
the Board, perform any services for any other Person or engage
in any other business or professional activity, whether or not
performed or engaged in for profit.
(d) Notwithstanding
subsection 3(c), the Executive, without the consent of the
Chairman of the Board, may (i) purchase securities issued by,
or otherwise passively invest his personal or family assets
in, any other company or business within the constraints
imposed by the Code of Business Conduct referred to below, and
(ii) engage in governmental, political, educational or
charitable activities, but only to the extent that those
activities (A) are not inconsistent with any direction of the
Chairman of the Board or any duties under this Agreement, and
(B) do not interfere with the devotion by the Executive of his
entire time, attention and energies during normal business
hours to the business of the Company.
Section
4. Compensation.
(a) During
the Term of Employment, the Company will pay the Executive a
base salary at an annual rate of $220,000, in substantially
equal periodic payments in accordance with the Company’s
practices for executive employees, as determined from time to
time by the Chairman of the Board.
(b) The
Chairman of the Board will review the salary payable to the
Executive at least annually beginning in the fourth fiscal
quarter of 2007. The Chairman of the Board, in his discretion,
may increase the salary of the Executive from time to time,
but may not reduce the salary of the Executive below the
amount set forth in subsection 4(a) above.
(c) During
the Term of Employment, the Executive shall be eligible for
consideration for an annual incentive merit bonus, for the
Executive’s performance during the fiscal year of the
Company in an amount determined by the Chairman of the Board
in his discretion, by reference to the accomplishment by the
Executive of goals established by the Chairman of the Board
for the related fiscal year. The Executive shall also be
eligible to be paid other bonuses for each fiscal year as
determined by the Chairman of the Board. The Executive’s
annual incentive merit bonus, together with all such other
bonuses paid or payable for the fiscal year (including any
amounts for which receipt is otherwise deferred pursuant to a
plan or arrangement with the Company), is referred to herein
as “Annual Bonus Compensation.”
(d) The
Company will reimburse the Executive, subject to compliance by
the Executive with the Company’s customary reimbursement
practices, for all reasonable and necessary out-of-pocket
expenses incurred by the Executive on behalf of the Company in
the course of its business.
(e) The
Company may reduce any payments made to the Executive under
this Agreement by any required federal, state or local
government withholdings or deductions for taxes or similar
charges, or otherwise pursuant to law, regulation or
order.
(f) Any
base salary payable to the Executive for any period of
employment of less than one year during the Term of Employment
will be reduced to reflect the actual number of days of
employment during the period except as provided in Sections
8(b) and 8(c).
Section
5. Other
Benefits.
(a) During
the Term of Employment, the Executive and his dependents may
participate in and receive benefits under any employee benefit
plan which the Company makes generally available to its
employees and their families, including any pension, life
insurance, medical benefits, dental benefits or disability
plan, but only to the extent that the Executive or his
dependents otherwise satisfies the standards established for
participation in the plan. The terms of Executive’s
existing option agreements, as amended, remain unaffected
hereby, except as set forth in Sections 8(b) and 8(c)
hereof.
(b) The
Executive may take up to three weeks of vacation during each
full calendar year during the Term of Employment at a time
mutually convenient to the Executive and the Company, without
loss of compensation or other benefits under this
Agreement.
Section
6. Confidentiality
and Post-Employment Restrictions.
(a) The
Executive acknowledges that the Company and its Affiliates
have confidential information and trade secrets, whether
written or unwritten, with respect to carrying on their
business, including sensitive marketing, bidding,
technological and engineering information and data, names of
past, present and prospective customers or partners of and
vendors or suppliers to the Company and its Affiliates,
working relationships with governmental agencies and
officials, methods of pricing contracts and income and
expenses associated therewith, the international business
strategy and relative ranking of opportunities in various
countries, negotiated prices and offers outstanding, credit
terms and status of accounts and the terms or circumstances of
any current or prospective business arrangements between the
Company and its Affiliates and any third parties
(“Confidential Information and Trade Secrets”). As
used in this Agreement, the term Confidential Information and
Trade Secrets does not include (i) information which becomes
generally available to the public other than as a result of a
disclosure by the Executive, (ii) information which becomes
available to the Executive on a nonconfidential basis from a
source other than the Company or its Affiliates, or (iii)
information known to the Executive prior to any disclosure to
him by the Company or its Affiliates. The Executive further
acknowledges that the Executive possesses a high degree of
knowledge of the independent energy industry and, in
particular, has committed to a longstanding relationship with
the Company and its Affiliates as an employee and officer,
which has allowed, and will continue to allow, him access to
the Company’s Confidential Information and Trade
Secrets. Accordingly, any employment by the Executive with
another employer in the independent energy industry or
participation by him as a substantial investor in any such
industry may necessarily involve disclosure of the
Company’s Confidential Information and Trade Secrets.
Consequently, the Executive agrees that, if he voluntarily
resigns his employment with the Company for any reason other
than (i) a breach of this Agreement by the Company, or (ii)
for Good Reason, he shall not at any time during the two-year
period after such resignation, directly or indirectly accept
employment by or invest in (except as a passive investor in a
public corporation or in a publicly issued partnership
interest which, in either event, would not exceed an ownership
interest of 2% of the outstanding equity or partnership
interest) in any person, firm, corporation, partnership, joint
venture or business which is engaged in the production or
marketing of steam or electrical energy or the distribution or
supply of electricity or natural gas (in each case in the
States of Iowa, Illinois, Nebraska, South Dakota, Kansas,
Missouri, Minnesota or Wisconsin) or which otherwise directly
competes with the business of the Company or its Affiliates
and, further, the Executive agrees that, to avoid the risk of
disclosing or improperly using Confidential Information or
Trade Secrets, he shall not directly, or indirectly, provide
consulting or advisory services to any of such independent
energy or utility businesses which conduct business in such
States or otherwise directly compete with the Company or its
Affiliates. The preceding sentence notwithstanding, Executive
shall not be precluded from accepting employment or providing
services to Peter Kiewit Sons’, Inc. or any Affiliate
thereof.
(b) Without
the written consent of the Chairman of the Board, the
Executive will not, during and for three years after the Term
of Employment, (i) disclose any Confidential Information and
Trade Secrets of the Company or any Affiliate of the Company
to any Person (other than the Company, directors, officers or
employees of the Company, its Affiliates or duly authorized
agents, attorneys or other representatives thereof), or (ii)
otherwise make use of any Confidential Information and Trade
Secrets other than in connection with authorized dealings with
or by the Company and its Affiliates.
(c) For
a period of three years after the Term of Employment, the
Executive shall neither directly nor indirectly solicit, on
behalf of another employer, the employment of, or hire or
cause another employer to hire, any person who is then
currently employed by the Company or an Affiliate thereof, or
otherwise induce, on behalf of another employer, such person
to leave the employment of the Company or an Affiliate thereof
without the prior written approval of the Chairman of the
Board.
(d) The
Executive will hold, on behalf of the Company and its
Affiliates and as the property of the Company and its
Affiliates, all memoranda, manuals, books, papers, letters,
documents, computer discs, data and software and other similar
property obtained during the course of his employment by the
Company or its Affiliates and relating to the Company’s
or its Affiliates business, and will return such property to
the Company or its Affiliates at any time upon demand by the
Chairman of the Board and, in any event, within five calendar
days after the end of the Term of Employment.
(e) During
the Term of Employment, Executive agrees to comply in all
material respects with the Company’s Code of Business
Conduct and Berkshire Hathaway’s Code of Business
Conduct and all future amendments and restatements to such
policy and to deliver an executed Certificate of Compliance
with respect thereto upon request by the Company.
(f) If
any of the provisions of, or covenants contained in, this
Section 6 are hereafter construed to be invalid or
unenforceable in any jurisdiction, the same shall not affect
the remainder of the provisions or the enforceability thereof
in any other jurisdiction, which shall be given full effect,
without regard to the invalidity or unenforceability in such
other jurisdiction. If any of the provisions of, or covenants
contained in, this Section 6 are held to be unenforceable in
any jurisdiction because of the duration or geographical scope
thereof, the parties agree that the court making such
determination shall have the power to reduce the duration or
geographical scope of such provision or covenant and, in its
reduced form, such provision or covenant shall be enforceable;
provided, however, that the determination of such court shall
not affect the enforceability of this Section 6 in any other
jurisdiction.
Section
7. Termination
of Employment.
(a) The
employment of the Executive under this Agreement will
terminate on the earliest of: (i) written notice by the
Executive of his resignation other than for Good Reason; (ii)
the day the Company gives to the Executive written notice of
termination without Cause; (iii) the day the Company gives to
the Executive written notice of termination for Cause; (iv)
the Permanent Disability of the Executive; (v) the death of
the Executive; or (vi) written notice by the Executive of his
resignation for Good Reason.
(b) If
the employment of the Executive is terminated under this
Agreement for any reason whatsoever, the obligations of the
Executive under Section 6 will remain in full force and effect
to the extent provided therein, and the termination will not
abrogate any rights or remedies of the Company or the
Executive with respect to any breach of the Agreement, except
as expressly provided in Section 8.
Section
8. Payment
Upon Termination.
(a) &
