Exhibit 10-f
INDEMNIFICATION AGREEMENT
This Agreement is made as of the 5th day of
January, 1996, by and between Kansas City Power & Light
Company, a Missouri corporation (the "Company"), and
<> ("Indemnitee"), a Director or Officer of the
Company.
WHEREAS, it is essential to the Company to retain
and attract as Directors and Officers the most capable per
sons available;
WHEREAS, it is now and always has been the express
policy of the Company to indemnify its Directors and Officers
so as to provide them with the maximum possible protection
permitted by law;
WHEREAS, Indemnitee does not regard the protection
available under the Company's Articles of Consolidation and
by-laws as adequate in the present circumstances, and may not
be willing to serve as a Director or Officer without adequate
protection, and the Company desires Indemnitee to serve in
such capacity;
WHEREAS, the Company and Indemnitee have previously
entered into an agreement (the "Prior Agreement") pursuant to
which the Company has agreed, among other things, to
indemnify the Indemnitee under the circumstances described
therein; and
WHEREAS, the Company and the Indemnitee desire to
amend the Prior Agreement in recognition of Indemnitee's need
for substantial protection against personal liability in
order to enhance Indemnitee's continued service to the
Company in an effective manner;
NOW, THEREFORE, in consideration of the premises
and of Indemnitee continuing to serve the Company directly
or, at its request, another enterprise, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. Certain Definitions:
(a) Beneficial Owner: shall have the meaning set forth in
Rule 13d-3 under the Exchange Act.
(b) Change in Control: shall be deemed to have occurred if:
(I) any Person is or becomes the
Beneficial Owner, directly or indirectly, of securi
ties of the Company (not including in the secu
rities beneficially owned by such Person any
securities acquired directly from the Company or
its affiliates other than in connection with the
acquisition by the Company or its affiliates of a
business) representing 20% or more of either the
then outstanding shares of common stock of the
Company or the combined voting power of the
Company's then outstanding securities; or
(II) the following individuals
cease for any reason to constitute a majority of
the number of directors then serving: individuals
who, on the date hereof, constitute the Board and
any new director (other than a director whose
initial assumption of office is in connection with
an actual or threatened election contest, including
but not limited to a consent solicitation, relating
to the election of directors of the Company, as
such terms are used in Rule 14a-11 of Regulation
14A under the Exchange Act) whose appointment or
election by the Board or nomination for election by
the Company's stockholders was approved by a vote
of at least two-thirds (2/3) of the directors then
still in office who either were directors on the
date hereof or whose appointment, election or nomi
nation for election was previously so approved; or
(III) the stockholders of the
Company approve a merger or consolidation of the
Company with any other corporation or approve the
issuance of voting securities of the Company in
connection with a merger or consolidation of the
Company (or any direct or indirect subsidiary of
the Company) pursuant to applicable stock exchange
requirements, other than (i) a merger or consolida
tion which would result in the voting securities of
the Company outstanding immediately prior to such
merger or consolidation continuing to represent
(either by remaining outstanding or by being
converted into voting securities of the surviving
entity or any parent thereof), in combination with
the ownership of any trustee or other fiduciary
holding securities under an employee benefit plan
of the Company, at least 60% of the combined voting
power of the voting securities of the Company or
such surviving entity or any parent thereof
outstanding immediately after such merger or
consolidation, or (ii) a merger or consolidation
effected to implement a recapitalization of the
Company (or similar transaction) in which no Person
is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company (not
including in the securities Beneficially Owned by
such Person any securities acquired directly from
the Company or its affiliates other than in connec
tion with the acquisition by the Company or its
affiliates of a business) representing 20% or more
of either the then outstanding shares of common
stock of the Company or the combined voting power
of the Company's then outstanding securities; or
(IV) the stockholders of the Company
approve a plan of complete liquidation or disso
lution of the Company or an agreement for the sale
or disposition by the Company of all or
substantially all of the Company's assets, other
than a sale or disposition by the Company of all or
substantially all of the Company's assets to an
entity, at least 60% of the combined voting power
of the voting securities of which are owned by
Persons in substantially the same proportions as
their ownership of the Company immediately prior to
such sale.
Notwithstanding the foregoing, no "Change in
Control" shall be deemed to have occurred if there
is consummated any transaction or series of
integrated transactions immediately following which
the record holders of the common stock of the
Company immediately prior to such transaction or
series of transactions continue to have substan
tially the same proportionate ownership in an
entity which owns all or substantially all of the
assets of the Company immediately following such
transaction or series of transactions.
(c) Claim: any threatened, pending or completed action,
suit or proceeding, or any inquiry or investigation, whether
instituted by the Company or any other party, that Indemnitee
in good faith believes might lead to the institution of any
such action, suit or proceeding, whether civil, criminal,
administrative, investigative or other.
(d) Exchange Act: shall mean the Securities Exchange Act of
l934, as amended from time to time.
(e) Expenses: include attorneys' fees and all other costs,
expenses and obligations paid or incurred in connection with
investigating, defending, being a witness in or participating
in (including on appeal), or preparing to defend, be a
witness in or participate in any Claim relating to any
Indemnifiable Event.
(f) Indemnifiable Event: any event or occurrence related to
the fact that Indemnitee is or was a director, officer, em
ployee, agent or fiduciary of the Company, or is or was serv
ing at the request of the Company as a director, officer,
employee, trustee, agent or fiduciary of another corporation,
partnership, joint venture, employee benefit plan, trust or
other enterprise, or by reason of anything done or not done
by Indemnitee in any such capacity.
(g) Independent Legal Counsel: an attorney or firm of
attorneys, selected in accordance with the provisions of
Section 3, who shall not have otherwise performed services
for the Company or Indemnitee within the last three years
(other than with respect to matters concerning the rights of
Indemnitee under this Agreement, or of other indemnitees
under similar indemnity agreements).
(h) Person: shall have the meaning given in Section 3(a)(9)
of the Exchange Act, as modified and used in Sections 13(d)
and 14(d) thereof, except that such term shall not include
(i) the Company or any of its affiliates (as defined in Rule
12b-2 promulgated under the Exchange Act), (ii) a trustee or
other fiduciary holding securities under an employee benefit
plan of the Company or any of its affiliates, (iii) an under
writer temporarily holding securities pursuant to an offering
of such securities, or (iv) a corporation owned, directly or
indirectly, by the stockholders of the Company in substan
tially the same proportions as their ownership of stock of
the Company.
(i) Potential Change in Control: shall be deemed to have
occurred if:
(I) the Company enters into an
agreement, the consummation of which would result
in the occurrence of a Change in Control;
(II) the Company or any Person pub
licly announces an intention to take or to consider
taking actions which, if consummated, would
constitute a Change in Control;
(III) any Person becomes the Benefi
cial Owner, directly or indirectly, of securities
of the Company representing 10% or more of either
the then outstanding shares of common stock of the
Company or the combined voting power of the
Company's then outstanding securities; or
(IV) the Board adopts a resolution
to the effect that, for purposes of this Agreement,
a Potential Change in Control has occurred.
(j) Reviewing Party: any appropriate person or body
consisting of a member or members of the Company's Board of
Directors or any other person or body appointed by the Board
who is not a party to the particular Claim for which Indem
xxxxx is seeking indemnification, or Independent Legal Coun
sel.
2. Basic Indemnification Arrangement. (a) In the
event Indemnitee was, is or becomes a party to or witness or
other participant in, or is threatened to be made a party to
or witness or other participant in, a Claim by reason of (or
arising in part out of) an Indemnifiable Event, the Company
shall indemnify Indemnitee to the fullest extent permitted by
law as soon as practicable but in any event no later than
thirty days after written demand is presented to the Company,
against any and all Expenses, judgments, fines, penalties and
amounts paid in settlement (including all interest,
assessments and other charges paid or payable in connection
with or in respect of such Expenses, judgments, fines,
penalties or amounts paid in settlement) of such Claim. If
so requested by Indemnitee, the Company shall advance (within
two business days of such request) any and all Expenses to
Indemnitee (an "Expense Advance").
(b) Notwithstanding the foregoing, (i) the obliga
tions of the Company under Section 2(a) shall be subject to
the condition that the Reviewing Party shall not have deter
mined (in a written opinion, in any case in which the
Independent Legal Counsel referred to in Section 3 hereof is
involved) that Indemnitee would not be permitted to be
indemnified under applicable law, and (ii) the obligation of
the Company to make an Expense Advance pursuant to Section
2(a) shall be subject to the condition that, if, when and to
the extent that the Reviewing Party determines that
Indemnitee would not be permitted to be so indemnified under
applicable law, the Company shall be entitled to be
reimbursed by Indemnitee (who hereby agrees to reimburse the
Company) for all such amounts theretofore paid; provided,
however, that if Indemnitee has commenced or thereafter
commences legal proceedings in a court of competent
jurisdiction to secure a determination that Indemnitee should
be indemnified under applicable law, any determination made
by the Reviewing Party that Indemnitee would not be permitted
to be indemnified under applicable law shall not be binding
and Indemnitee shall not be required to reimburse the Company
for any Expense Advance until a final judicial determination
is made with respect thereto (as to which all rights of
appeal therefrom have been exhausted or lapsed). If there
has not been a Change in Control, the Reviewing Party shall
be selected by the Board of Directors, and if there has been
such a Change in Control (other than a Change in Control
which has been approved by a majority of the Company's Board
of Directors who were directors immediately prior to such
Change in Control), the Reviewing Party shall be the
Independent Legal Counsel referred to in Section 3 hereof.
If there has been no determination by the Reviewing Party or
if the Reviewing Party determines that Indemnitee
substantively would not be permitted to be indemnified in
whole or in part under applicable law, Indemnitee shall have
the right to commence litigation in any court in the State of
Missouri having subject matter jurisdiction thereof and in
which venue is proper seeking an initial determination by the
court or challenging any such determination by the Reviewing
Party or any aspect thereof, including the legal or factual
bases therefor, and the Company hereby consents to service of
process and to appear in any such proceeding. Any
determination by the Reviewing Party otherwise shall be
conclusive and binding on the Company and Indemnitee.
(c) The Company and Indemnitee agree that this
indemnification arrangement is based upon the statutory
authorization in the Missouri General and Business
Corporation Law, 351.355, and in particular subparts 6 and 7
thereof, by virtue of the provisions in Article Thirteenth of
the Company's Restated Articles of Consolidation, as amended
May 5, 1992. No provision of this Agreement shall permit the
Company to indemnify Indemnitee from or on account of
Indemnitee's conduct which is finally adjudged to have been
knowingly fraudulent, deliberately dishonest or willful
misconduct.
3. Change in Control. The Company agrees that if
there is a Change in Control of the Company (other than a
Change in Control which has been approved by a majority of
the Company's Board of Directors who were directors
immediately prior to such Change in Control) then with
respect to all matters thereafter arising concerning the
rights of Indemnitee to indemnity payments and Expense
Advances under this Agreement or any other agreement or
Company By-law now or hereafter in effect relating to Claims
for Indemnifiable Events, the Company shall seek legal advice
only from Independent Legal Counsel selected by Indemnitee
and approved by the Company (which approval shall not be
unreasonably withheld). Such counsel, among other things,
shall render its written opinion to the Company and
Indemnitee as to whether and to what extent the Indemnitee
would be permitted to be indemnified under applicable law.
The Company agrees to pay the reasonable fees of the Indepen
dent Legal Counsel referred to above and to fully indemnify
such counsel against any and all expenses (including
attorneys' fees), claims, liabilities and damages arising out
of or relating to this Agreement or its engagement pursuant
hereto.
4. Establishment of Trust. In the event of a Poten
tial Change in Control, the Company shall, upon written
request by Indemnitee, create a trust for the benefit of
Indemnitee and from time to time upon written request of
Indemnitee shall fund such 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 and defending any Claim relating
to an Indemnifiable Event, and any and all judgments, fines,
penalties and settlement amounts of any and all Claims
relating to an Indemnifiable Event from time to time actually
paid or claimed, reasonably anticipated or proposed to be
paid, provided that in no event shall more than $1 million be
required to be deposited in any trust created hereunder in
excess of amounts deposited in respect of reasonably
anticipated Expenses. The amount or amounts to be deposited
in the trust pursuant to the foregoing funding obligation
shall be determined by the Reviewing Party, in any case in
which the Independent Legal Counsel referred to above is
involved. The terms of the trust shall provide that upon a
Change in Control (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 two
business days of a request by the Indemnitee, any and all
Expenses to the Indemnitee (and the Indemnitee hereby agrees
to reimburse the trust under the circumstances under which
the Indemnitee would be required to reimburse the Company
under Section 2(b) of this Agreement), (iii) the trust shall
continue to be funded by the Company 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 or otherwise, and (v) all unexpended funds in such
trust shall revert to the Company 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 chosen by Indemnitee. Nothing in this Section 4
shall relieve the Company of any of its obligations under
this Agreement.
5. Indemnification for Additional Expenses. The Company
shall indemnify Indemnitee against any and all expenses
(including attorneys' fees) and, if requested by Indemnitee,
shall (within two business days of such request) advance such
expenses to Indemnitee, which are incurred by Indemnitee in
connection with any action brought by Indemnitee for (i)
indemnification or advance payment of Expenses by the Company
under this Agreement or any other agreement or Company By-law
now or hereafter in effect relating to Claims for
Indemnifiable Events and/or (ii) recovery under any
directors' and officers' liability insurance policies
maintained by the Company, regardless of whether Indemnitee
ultimately is determined to be entitled to such
indemnification, advance expense payment or insurance
recovery, as the case may be.
6. Partial Indemnity, Etc. If Indemnitee is entitled
under any provision of this Agreement to indemnification by
the Company for some or a portion of the Expenses, judgments,
fines, penalties and amounts paid in settlement of a Claim
but not, however, for all of the total amount thereof, the
Company shall nevertheless indemnify Indemnitee for the
portion thereof to which Indemnitee is entitled. Moreover,
notwithstanding any other provision of this Agreement, to the
extent that Indemnitee has been successful on the merits or
otherwise in defense of any or all Claims relating in whole
or in part to an Indemnifiable Event or in defense of any
issue or matter therein, including dismissal without
prejudice, Indemnitee shall be indemnified against all
Expenses incurred in connection therewith.
7. Burden of Proof. In connection with any determination
by the Reviewing Party or otherwise as to whether Indemnitee is
entitled to be indemnified hereunder the burden of proof shall be
on the Company to establish that Indemnitee is not so entitled.
8. No Presumptions. For purposes of this Agreement,
the termination of any claim, action, suit or proceeding, by
judgment, order, settlement (whether with or without court
approval) or conviction, or upon a plea of nolo contendere,
or its equivalent, shall not create a presumption that
Indemnitee did not meet any particular standard of conduct or
have any particular belief or that a court has determined
that indemnification is not permitted by applicable law. In
addition, neither the failure of the Reviewing Party to have
made a determination as to whether Indemnitee has met any
particular standard of conduct or had any particular belief,
nor an actual determination by the Reviewing Party that
Indemnitee has not met such standard of conduct or did not
have such belief, prior to the commencement of legal proceed
ings by Indemnitee to secure a judicial determination that
Indemnitee should be indemnified under applicable law shall
be a defense to Indemnitee's claim or create a presumption
that Indemnitee has not met any particular standard of
conduct or did not have any particular belief.
9. Nonexclusivity, Etc. The rights of the Indemnitee
hereunder shall be in addition to any other rights Indemnitee
may have under the Company's By-laws or the Missouri General
and Business Corporation Law or otherwise. To the extent
that a change in the Missouri General and Business
Corporation Law (whether by statute or judicial decision) per
mits greater indemnification by agreement than would be af
forded currently under the Company's By-laws and this Agree
ment, it is the intent of the parties hereto that Indemnitee
shall enjoy by this Agreement the greater benefits so
afforded by such change.
10. Liability Insurance. To the extent the Company
maintains an insurance policy or policies providing
directors' and officers' liability insurance, Indemnitee
shall be covered by such policy or policies, in accordance
with its or their terms, to the maximum extent of the
coverage available for any Company director or officer.
11. Period of Limitations. No legal action shall be
brought and no cause of action shall be asserted by or in the
right of the Company 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, and any claim or cause of action of the
Company shall be extinguished and deemed released unless
asserted by the timely filing of a legal action within such
two-year period; provided, however, that if any shorter
period of limitations is otherwise applicable to any such
cause of action such shorter period shall govern.
12. Amendments, Etc. 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 be deemed or shall
constitute a waiver of any other provisions hereof (whether
or not similar) nor shall such waiver constitute a continuing
waiver.
13. Subrogation. In the event of payment under this
Agreement, the Company shall be subrogated to the extent of
such payment to all of the rights of recovery of Indemnitee,
who shall execute all papers required and shall do everything
that may be necessary to secure such rights, including the
execution of such documents necessary to enable the Company
effectively to bring suit to enforce such rights.
14. No Duplication of Payments. The Company shall not
be liable under this Agreement to make any payment in
connection with any Claim made against Indemnitee to the
extent Indemnitee has otherwise actually received payment
(under any insurance policy, By-law or otherwise) of the
amounts otherwise indemnifiable hereunder. This Indemni
fication Agreement shall supersede the Prior Agreement.
15. Binding Effect, Etc. This Agreement shall be bind
ing upon and inure to the benefit of and be enforceable by
the parties hereto and their respective successors, assigns,
including any direct or indirect successor by purchase,
merger, consolidation or otherwise to all or substantially
all of the business and/or assets of the Company, spouses,
heirs, executors and personal and legal representatives.
This Agreement shall continue in effect regardless of whether
Indemnitee continues to serve as an officer or director of
the Company or of any other enterprise at the Company's
request.
16. Severability. The provisions of this Agreement
shall be severable in the event that any of the provisions
hereof (including any provision within a single section,
paragraph or sentence) is held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable
in any respect, and the validity and enforceability of any
such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired and shall
remain enforceable to the fullest extent permitted by law.
17. Governing Law. This Agreement shall be governed by
and construed and enforced in accordance with the laws of the
State of Missouri applicable to contracts made and to be
performed in such state without giving effect to the
principles of conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have
executed this Agreement this 5th day of January, 1996.
KANSAS CITY POWER & LIGHT COMPANY
By _______________________________
Name: <>
Title: <
