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Exhibit
10(cccc)
EXECUTION
VERSION
This INDEMNIFICATION
AGREEMENT, dated as of October 10, 2007 (the “
Agreement ”), is among Texas Energy Future Holdings
Limited Partnership, a Delaware limited partnership (“
Parent” ), Energy Future Holdings Corp., a Texas
corporation (the “ Company ” and together with
Parent, the “ Company Entities ”), Kohlberg
Kravis Roberts & Co. L.P. a New York limited partnership,
TPG Capital, L.P., a Delaware limited partnership and Goldman,
Sachs & Co., a New York limited partnership (the “
Managers ” and each, a “ Manager
”). Capitalized terms used herein without definition have the
meanings set forth in Section 1 of this Agreement.
RECITALS
A. The Company, Parent and
Texas Energy Future Merger Sub Corp., a Texas corporation and
wholly owned subsidiary of Parent (“ Merger Sub
”) have entered into a Merger Agreement, dated as of
February 25, 2007 (as the same may be amended from time to
time in accordance with its terms, the “ Merger
Agreement ”), pursuant to which Merger Sub will be merged
with and into the Company, with the Company being the surviving
corporation of the merger (the “ Merger
”).
B. In connection with the
Merger, Affiliates of each of the Managers (such Affiliates, the
“ Investors ”) have entered into equity
commitment letters with Parent or one of its Affiliates, pursuant
to which they have agreed to purchase limited partnership interests
in Parent.
C. The Investors, along with
certain co-investors, have entered into an Amended and Restated
Limited Partnership Agreement of Parent (as the same may be amended
from time to time in accordance with the terms thereof, the “
Partnership Agreement ”), dated as the date hereof,
setting forth certain agreements with respect to, among other
things, the management of Parent and transfers of its limited
partnership units in various circumstances.
D. In order to finance the
Merger and related transactions, the Managers have assisted Parent
in arranging to sell limited partnership units to the Investors and
to certain co-investors, including such other limited partners of
Parent as are listed in the signature pages of the Partnership
Agreement (the “ Equity Offering ”).
E. The Company, Merger Sub
and one or more of their respective wholly-owned Subsidiaries
intends to issue securities and incur indebtedness in order to
finance the Merger (collectively, the “ Financings
”), which Financings have been facilitated and arranged with
the assistance of the Managers.
F. The Company or one or more
of its Subsidiaries or Affiliates from time to time in the future
may (i) offer and sell or cause to be offered and sold equity
or debt securities (such offerings, collectively, the “
Subsequent Offerings ”), including without
limitation (a) offerings of shares
of capital stock of the Company or any of its Subsidiaries, and/or
options to purchase such shares to employees, directors and
consultants of and to the Company or any of its Subsidiaries (any
such offering, a “ Management Offering ”), and
(b) one or more offerings of debt securities for the purpose
of refinancing any indebtedness of the Company or any of its
Subsidiaries or for other corporate purposes, and
(ii) repurchase, redeem or otherwise acquire certain
securities of the Company or any of its Subsidiaries or engage in
recapitalization or structural reorganization transactions relating
thereto (any such repurchase, redemption, acquisition,
recapitalization or reorganization, a “Redemption”), in
each case subject to the terms and conditions of the Partnership
Agreement and any other applicable agreement, which offerings
and/or Redemptions are expected to be arranged and facilitated
through the services of the Managers as provided herein and
pursuant to the terms of that certain letter agreement between the
Managers and the Company Entities, dated as of the date hereof (the
“ Management Agreement ”).
G. The parties hereto
recognize the possibility that claims might be made against and
liabilities incurred by the Managers or related Persons or
Affiliates under applicable securities laws or otherwise in
connection with the Transactions or the Securities Offerings, or
relating to other actions or omissions of or by members of the
Company Group, or relating to the provision of financial advisory,
investment banking, monitoring and management consulting services
(the “ Transaction Services ”) to the Company
Group by the Managers or Affiliates thereof, and the parties hereto
accordingly wish to provide for the Managers and related Persons
and Affiliates to be indemnified in respect of any such claims and
liabilities.
H. The parties hereto
recognize that claims might be made against and liabilities
incurred by directors and officers of any member of the Company
Group in connection with their acting in such capacity, and
accordingly wish to provide for such directors and officers to be
indemnified to the fullest extent permitted by law in respect of
any such claims and liabilities.
NOW, THEREFORE, in
consideration of the foregoing premises, and the mutual agreements
and covenants and provisions herein set forth, the parties hereto
hereby agree as follows:
1. Definitions
.
(a) “ Affiliate
” means, with respect to any Person, (i) any other
Person directly or indirectly Controlling, Controlled by or under
common Control with, such Person, (ii) any Person directly or
indirectly owning or Controlling 10% or more of any class of
outstanding voting securities of such Person or (iii) any
officer, director, general partner, limited partner or trustee of
any such Person described in clause (i) or (ii). “
Control ” of any Person shall consist of the power to
direct the management and policies of such Person (whether through
the ownership of voting securities, by contract, as trustee or
executor, or otherwise).
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(b) “ Change in
Control ” means (i) the sale of all or substantially
all of the assets of Parent to any Person (or group of Persons
acting in concert), other than to (x) the Investors or their
Affiliates or (y) any employee benefit plan (or trust forming
a part thereof) maintained by Parent or its Affiliates or other
Person of which a majority of its voting power or other equity
securities is owned, directly or indirectly, by Parent; or
(ii) a merger, recapitalization or other sale by Parent, the
Investors or any of their respective Affiliates, to a Person (or
group of Persons acting in concert) of equity interests that
results in more than 50% of the equity interests of Parent (or any
resulting company after a merger) being held by a Person (or group
of Persons acting in concert) that does not include (x) the
Investors or their Affiliates or (y) an employee benefit plan
(or trust forming a part thereof) maintained by Parent or its
Affiliates or other Person of which a majority of its voting power
or other equity securities is owned, directly or indirectly, by
Parent; in any event, which results in the Investors and their
Affiliates or such employee benefit plan ceasing to hold the
ability to elect a majority of the members of the board of managers
of the general partner of Parent holding a majority of the votes
thereon.
(c) “ Claim
” means, with respect to any Indemnitee, any claim by or
against such Indemnitee involving any Obligation with respect to
which such Indemnitee may be entitled to be indemnified by any
member of the Company Group under this Agreement.
(d) “ Commission
” means the United States Securities and Exchange Commission
or any successor entity thereto.
(e) “ Company
Group ” means Texas Energy Future Capital Holdings, LLC
Parent, the Company and any of their Subsidiaries or
Affiliates.
(f) “ Exchange
Act ” means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated
thereunder.
(g) “ Expenses
” means all attorneys’ fees and expenses, retainers,
court, arbitration and mediation costs, transcript costs, fees of
experts, bonds, witness fees, costs of collecting and producing
documents, travel expenses, duplicating costs, printing and binding
costs, telephone charges, postage, delivery service fees and all
other disbursements or expenses of the types customarily incurred
in connection with prosecuting, defending, preparing to prosecute
or defend, investigating, being or preparing to be a witness in,
appealing or otherwise participating in a Proceeding.
(h) “ Indemnitee
” means each of the Managers, their respective Affiliates,
their respective successors and assigns, and the respective
directors, officers, partners, members, employees, agents,
advisors, consultants, representatives and controlling
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persons (within the meaning of the
Securities Act) of each of them, or of their partners, members and
controlling persons, and each other person who is or becomes a
director or an officer of any member of the Company Group, in each
case irrespective of the capacity in which such person
acts.
(i) “
Obligations ” means, collectively, any and all claims,
obligations, liabilities, causes of actions, Proceedings,
investigations, judgments, decrees, losses, damages (including
punitive and exemplary damages), fees, fines, penalties, amounts
paid in settlement, costs and Expenses (including without
limitation interest, assessments and other charges in connection
therewith and disbursements of attorneys, accountants, investment
bankers and other professional advisors), in each case whether
incurred, arising or existing with respect to third parties or
otherwise at any time or from time to time.
(j) “ Person
” means an individual, corporation, limited liability
company, limited or general partnership, trust or other entity,
including a governmental or political subdivision or an agency or
instrumentality thereof.
(k) “ Proceeding
” means a threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative, including without limitation a claim, demand,
discovery request, formal or informal investigation, inquiry,
administrative hearing, arbitration or other form of alternative
dispute resolution, including an appeal from any of the
foregoing.
(l) “ Public
Offering ” means the first day as of which (i) sales
of shares of Registrable Securities of the IPO Corporation (as such
terms are defined in the Partnership Agreement) are made to the
public in the United States pursuant to an underwritten public
offering led by one or more underwriters at least one of which is
an underwriter of nationally recognized standing or (ii) the
board of directors of the Company has determined that such shares
otherwise have become publicly-traded for this purpose.
(m) “ Related
Document ” means any agreement, certificate, instrument
or other document to which any member of the Company Group, Merger
Sub or their respective Subsidiaries or Affiliates may be a party
or by which it or any of its properties or assets may be bound or
affected from time to time relating in any way to the Transactions
or any Securities Offering or any of the transactions contemplated
thereby, including without limitation, in each case as the same may
be amended from time to time, (i) any registration statement
filed by or on behalf of any member of the Company Group, Merger
Sub or their respective Subsidiaries or Affiliates with the
Commission in connection with the Transactions or any Securities
Offering, including all exhibits, financial statements and
schedules appended thereto, and any submissions to the Commission
in connection therewith, (ii) any prospectus, preliminary,
free-writing or
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otherwise, included in such registration
statements or otherwise filed by or on behalf of any member of the
Company Group, Merger Sub or their respective Subsidiaries or
Affiliates in connection with the Transactions or any Securities
Offering or used to offer or confirm sales of their respective
securities in any Securities Offering, (iii) any private
placement or offering memorandum or circular, information statement
or other information or materials distributed by or on behalf of
any member of the Company Group, Merger Sub or their respective
Subsidiaries or Affiliates or any placement agent or underwriter in
connection with the Transactions or any Securities Offering,
(iv) any federal, state or foreign securities law or other
governmental or regulatory filings or applications made in
connection with any Securities Offering, the Transactions or any of
the transactions contemplated thereby, (v) any dealer-manager,
underwriting, subscription, purchase, stockholders, option or
registration rights agreement or plan entered into or adopted by
any member of the Company Group, Merger Sub or their respective
Subsidiaries or Affiliates in connection with any Securities
Offering, (vi) any purchase, repurchase, redemption,
recapitalization or reorganization or other agreement entered into
by any member of the Company Group in connection with any
Redemption, or (vii) any quarterly, annual or current reports
or other filing filed, furnished or supplementally provided by any
member of the Company Group with or to the Commission or any
securities exchange, including all exhibits, financial statements
and schedules appended thereto, and any submission to the
Commission or any securities exchange in connection
therewith.
(n) “ Securities
Act ” means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
(o) “ Securities
Offerings ” means the Equity Offering, any offering of
the securities contemplated by the Financings, any Management
Offering, and any Subsequent Offering.
(p) “ Subsidiary
” means each corporation or other Person in which a Person
owns or Controls, directly or indirectly, capital stock or other
equity interests representing more than 50% of the outstanding
voting stock or other equity interests.
(q) “
Transactions ” means the Merger, the Equity Offering,
the Financings and transactions for which Transaction Services are
provided.
2. Indemnification
.
(a) Each of the Company
Entities (each an “ Indemnifying Party ” and
collectively the “ Indemnifying Parties ”),
jointly and severally, agrees to indemnify, defend and hold
harmless each Indemnitee:
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(i) from and against any and
all Obligations, whether incurred with respect to third parties or
otherwise, in any way resulting from, arising out of or in
connection with, based upon or relating to (A) the Securities
Act, the Exchange Act or any other applicable securities or other
laws, in connection with any Securities Offering, the Financings,
any Related Document or any of the transactions contemplated
thereby, (B) any other action or failure to act of any member
of the Company Group or any of their predecessors, whether such
action or failure has occurred or is yet to occur or any obligation
of any member of the Company Group or any of their predecessors, or
(C) the performance by the Managers or any of their respective
Affiliates of Transaction Services for any member of the Company
Group (whether performed prior to the date hereof, hereafter,
pursuant to the Management Agreement or otherwise);
(ii) to the fullest extent
permitted by the law specified herein as governing this Agreement,
by the law of the place of organization of an Indemnifying Party,
or by any other applicable law in effect as of the date hereof or
as amended to increase the scope of permitted indemnification,
whichever is greater (except, with respect to any Indemnifying
Party, to the extent that such indemnification may be prohibited by
the law of the place of organization of such Indemnifying Party),
from and against any and all Obligations whether incurred with
respect to third parties or otherwise, in any way resulting from,
arising out of or in connection with, based upon or relating to
(A) the fact that such Indemnitee is or was a director or an
officer of any member of the Company Group or is or was serving at
the request of such corporation as a director, officer, member,
employee or agent of or advisor or consultant to another
corporation, partnership, joint venture, trust or other enterprise
or (B) any breach or alleged breach by such Indemnitee of his
or her fiduciary duty as a director or an officer of any member of
the Company Group; and
(iii) to the fullest extent
permitted by the law specified herein as governing this Agreement,
by the law of the place of organization of an Indemnifying Party,
or by any other applicable law in effect as of the date hereof or
as amended to increase the scope of permitted indemnification,
whichever is greater (except, with respect to any Indemnifying
Party, to the extent that such indemnification may be prohibited by
the law of the place of organization of such In
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