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Exhibit 10(h)(xx)
Director Indemnification Agreement
IDACORP, Inc.
This Agreement is made and entered into as of the ____ day of
_________, 200_ 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
]
[ADD THE FOLLOWING IF THIS AGREEMENT REPLACES AN EXISTING
AGREEMENT-- Whereas , the Corporation and Indemnitee previously
entered into a Director Indemnification Agreement dated as of
____________, ______ (the "Prior Agreement") and the Corporation
and Indemnitee desire that this Agreement supersede the Prior
Agreement in its entirety; ]
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 Contro l" means:
(a)
any person (as such term is defined in Section 3(a)(9) of the
Exchange Act and as used in Section 13(d) of the Exchange Act,
excluding (i) the Corporation or any Subsidiary, (ii) a corporation
or other entity owned, directly or indirectly, by the stockholders
of the Corporation immediately prior to the transaction in
substantially the same proportions as their ownership of stock of
the Corporation, (iii) an employee benefit plan (or related trust)
sponsored or maintained by the Corporation or any Subsidiary or
(iv) an underwriter temporarily holding securities pursuant to an
offering of such securities ("Exchange Act Person")) is the
Beneficial Owner, directly or indirectly, of 20% or more of the
combined voting power of the then outstanding voting securities
eligible to vote generally in the election of directors of the
Corporation; provided, however, that no Change in Control will be
deemed to have occurred as a result of a change in ownership
percentage resulting solely from an acquisition of securities by
the Corporation;
(b)
any Exchange Act Person has commenced a tender or exchange offer to
acquire any stock of the Corporation (or securities convertible
into stock) for cash, securities or any other consideration
provided that, after the closing of the offer with full shareholder
subscription, such Exchange Act Person would be the Beneficial
Owner, directly or indirectly, of 20% or more of the combined
voting power of the then outstanding voting securities eligible to
vote generally in the election of directors of the Corporation
(calculated as provided in Paragraph (d) of Rule 13d-3 under the
Exchange Act in the case of rights to acquire stock);
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(c)
all required shareholder approvals have been obtained for a merger,
consolidation, reorganization or share exchange, or sale of all or
substantially all of the assets, of the Corporation or Idaho Power
Company (a "Qualifying Transaction"), unless, immediately following
such Qualifying Transaction, all of the following will have
occurred: (i) all or substantially all of the Beneficial Owners of
the Corporation immediately prior to such Qualifying Transaction
will be the Beneficial Owners in substantially the same
proportions, directly or indirectly, of more than 50% of the
combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors of the
corporation or other entity resulting from such Qualifying
Transaction (including, without limitation, a corporation or other
entity which, as a result of such transaction, owns the Corporation
or all or substantially all of the Corporation's assets either
directly or through one or more Subsidiaries) (as the case may be,
the "Successor Entity"), (ii) no Exchange Act Person will be the
Beneficial Owner, directly or indirectly, of 20% or more of the
combined voting power of the then outstanding voting securities
eligible to vote generally in the election of directors of the
Successor Entity and (iii) at least a majority of the members of
the board of directors of the Successor Entity will be Incumbent
Directors;
(d)
shareholder approval of a complete liquidation or dissolution of
the Corporation or Idaho Power Company;
(e)
within a 24-month period, individuals who were directors of the
Board immediately before such period ("Incumbent Directors") cease
to constitute at least a majority of the directors of the Board;
provided, however, that any director who was not a director of the
Board at the beginning of such period shall be deemed to be an
Incumbent Director if the election or nomination for election of
such director was approved by the vote of at least two-thirds of
the directors of the Board then still in office (i) who were in
office at the beginning of the 24-month period or (ii) whose
election or nomination for election was so approved, in each case,
unless such individual was elected or nominated as a result of an
actual or threatened election contest or as a result of an actual
or threatened solicitation of proxies or consents by or on behalf
of any Exchange Act Person other than the Board; or
(f)
consummation of any transaction described in Section 2.4(c) or
2.4(d) if such transaction was not approved by shareholders.
For avoidance of doubt, transactions for the
purpose of dividing Idaho Power Company's assets into separate
distribution, transmission or generation entities or such other
entities as the Corporation or Idaho Power Company may determine
shall not constitute a Change in Control unless so determined by
the Board.
Upon the Board's determination that (x) a tender offer that
constituted a Change in Control under Section 2.4(b) will not
result in an Exchange Act Person becoming the Beneficial Owner,
directly or indirectly, of 20% or more of the combined voting power
of the then outstanding voting securities eligible to vote
generally in the election of directors of the Corporation or (y)
the Qualifying Transaction described in Section 2.4(c) will not be
closed or (z) a complete liquidation or dissolution of the
Corporation or Idaho Power Company that was approved by
shareholders, as described in Section 2.4(d), will not occur, a
Change in Control shall be deemed not to have occurred from such
date of determination forward, and this Agreement shall continue in
effect as if no Change in Control had occurred.
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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.
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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.
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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 se
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