Exhibit 10(h)(xix)
OFFICER 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 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 ]
[ADD THE FOLLOWING IF
THIS AGREEMENT REPLACES AN EXISTING AGREEMENT--
Whereas , the Corporation and Indemnitee previously entered
into an Officer 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 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:
(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);
(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.
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 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. "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. &n
