EXHIBIT 10.37
MIDAMERICAN ENERGY COMPANY
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT, effective as of July 1, 1995, between
MidAmerican Energy Company, an Iowa corporation ("Corporation"), and
_____________ ("Indemnitee").
WITNESSETH:
WHEREAS, Indemnitee either is, or will become, a member of the board
of directors of the Corporation ("Board of Directors") or an officer of the
Corporation, or both, and in such capacity or capacities (as hereinafter
defined), is performing or will perform valuable services for or on behalf of
the Corporation;
WHEREAS, Indemnitee is willing to perform or to continue to perform
such services and to perform additional services for or on behalf of the
Corporation on the condition that Indemnitee is indemnified as provided in this
Agreement;
WHEREAS, it is intended that Indemnitee shall be paid promptly by the
Corporation all amounts necessary to effectuate in full the indemnity provided
herein; and
WHEREAS, all capitalized terms used in this Agreement have the
respective meanings set forth in Section 15.
NOW THEREFORE, in consideration of the premises and the covenants in
this Agreement, and of Indemnitee agreeing to perform and performing services
for or on behalf of the Corporation as a member of its Board of Directors or one
of its officers, and intending to be legally bound hereby, the Corporation and
Indemnitee agree as follows:
1. SERVICES BY INDEMNITEE.
Indemnitee agrees to serve as a director or as an officer of the
Corporation, or both, so long as Indemnitee is duly appointed or elected and
qualified in accordance with the applicable provisions of the Restated Articles
of Incorporation, as amended ("Articles of Incorporation"), and Restated Bylaws
("Bylaws") of the Corporation, and until such time as Indemnitee resigns or
otherwise ceases to be such director or officer. Indemnitee may from time to
time also perform other services at the request or for the convenience of, or
otherwise benefiting, the Corporation. Indemnitee may at any time and for any
reason resign or be removed (subject to any obligation) as such director or
officer, and, in such event, the Company shall continue to be obligated to
indemnify Indemnitee for acts occurring while Indemnitee served as a director or
officer as set forth in this Agreement, however, the Company shall not be
obligated to indemnify Indemnitee for acts occurring after such event.
2. INDEMNIFICATION.
Subject to the limitations set forth in this Section 2 and in Section
6, the Corporation hereby agrees to indemnify Indemnitee as follows:
The Corporation shall indemnify Indemnitee from and against any and
all Expenses and Liabilities with respect to any Proceeding associated with
Indemnitee being or having been a director or officer of the Corporation, to the
fullest extent permitted by applicable laws and the Articles of Incorporation in
effect on the date hereof or as such laws or Articles of Incorporation may from
time to time be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than applicable laws and the Articles of Incorporation
permitted the Corporation to provide before such amendment). The right to
indemnification conferred in this Agreement and the Articles of Incorporation
shall be presumed to have been relied upon by Indemnitee in agreeing to serve,
serving or continuing to serve the Corporation as a director or officer of the
Corporation, and shall be enforceable as a contract right. Without in any way
diminishing the scope of the indemnification provided by this Section 2, the
Corporation shall indemnify Indemnitee if and whenever Indemnitee is or was a
party or is threatened to be made a party to any Proceeding, including without
limitation to the fullest extent permitted by applicable laws any such
Proceeding brought by or in the right of the Corporation, because Indemnitee is
or was a director or officer of the Corporation, or because of anything done or
not done by Indemnitee in such capacity, against all Expenses and Liabilities
actually and reasonably incurred by or on behalf of Indemnitee in connection
with the investigation, defense, settlement or appeal of such Proceeding. In
addition to, and not as a limitation of, the foregoing, the rights of Indemnitee
to indemnification provided in this Agreement shall include those rights set
forth in Sections 3 and 8.
3. ADVANCEMENT OF EXPENSES: LETTER OF CREDIT.
(a) ADVANCEMENT OF EXPENSES. All reasonable Expenses incurred by or
on behalf of Indemnitee shall be advanced from time to time by the Corporation
to Indemnitee within 20 days after the receipt by the Corporation of a written
request for the advancement of such Expenses, whether prior to or after final
disposition of a Proceeding (except to the extent that there has been a Final
Adverse Determination that Indemnitee is not entitled to be indemnified for such
Expenses), including without limitation to the fullest extent permitted by
applicable laws any Proceeding brought by or in the right of the Corporation.
The written request for an advancement of any and all Expenses under this
Section 3(a) shall contain reasonable details of the Expenses incurred by or on
behalf of Indemnitee for which advancement is thereby requested, and by
execution of such request, Indemnitee shall be deemed to have made whatever (i)
written affirmation concerning the good faith of Indemnitee about the standard
of conduct of Indemnitee or any other matter, which may be required by
applicable law or the Articles of Incorporation, as from time to time amended,
to give Indemnitee the right to be indemnified under this Agreement or
otherwise, and (ii)
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written undertaking may be required with respect to repayment to the
Corporation of such Expenses under applicable provisions of any law, or the
Articles of Incorporation, as from time to time amended; PROVIDED, HOWEVER; that
in no circumstances shall Indemnitee be deemed to have undertaken to repay to
the Corporation Expenses for which Indemnitee has the right to be indemnified
under this Agreement or otherwise.
(b) LETTER OF CREDIT. In order to secure the obligations of the
Corporation to indemnify and advance Expenses to Indemnitee pursuant to this
Agreement, the Corporation shall obtain at its expense at the time of any Change
in Control an irrevocable standby letter of credit naming Indemnitee as the sole
beneficiary ("Letter of Credit"). The Letter of Credit shall be in an
appropriate amount not less than $1,000,000, issued by a financial institution
having assets in excess of $100,000,000 and containing terms and conditions
reasonably acceptable to Indemnitee. The Letter of Credit shall provide that
Indemnitee may from time to time draw certain amounts thereunder, upon written
certification by Indemnitee to the issuer of the Letter of Credit that (i)
Indemnitee has made written request upon the Corporation for an amount not less
than the amount Indemnitee is drawing under the Letter of Credit and that the
Corporation has failed or refused to provide Indemnitee with such amount in full
within 20 days after receipt of such request, and (ii) Indemnitee believes that
Indemnitee is entitled under the terms of this Agreement to the amount which
Indemnitee is drawing under the Letter of Credit. The issuance of the Letter of
Credit shall not, in any way, diminish the obligation of the Corporation to
indemnify Indemnitee against Expenses and Liabilities to the full extent
required by this Agreement or otherwise.
(c) TERM OF LETTER OF CREDIT. Once the Corporation has obtained the
Letter of Credit, the Corporation shall at its expense maintain and renew the
Letter of Credit or a substitute letter of credit meeting the criteria of
Section 3(b) during the term of this Agreement so that the Letter of Credit
shall have an initial term of five years, be renewed for successive five-year
terms, and always have at least one year of its term remaining after the
termination of this Agreement.
4. PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS.
(a) Upon making a request for indemnification, Indemnitee shall be
presumed to be entitled to indemnification under this Agreement and the
Corporation shall have the burden of proof to overcome such presumption in
reaching any contrary determination. The termination of any Proceeding by
judgment, order, settlement, arbitration award or conviction, or upon a plea of
NOLO CONTENDERE or its equivalent, shall not affect such presumption or, except
as may be provided in Section 6, of itself be determinative that the Indemnitee
failed to meet any requisite standard of conduct or establish a presumption with
regard to any other factual matter relevant to determining the right of
Indemnitee to indemnification under this Agreement or otherwise.
(b) If the person or persons so empowered to make a determination
pursuant to Section 5 shall have failed to make the requested determination
within 30 days after any judgment, order, settlement, dismissal, arbitration
award, conviction, acceptance of a plea of
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NOLO CONTENDERE or its equivalent, or other disposition or partial disposition
of any Proceeding or any other event which could enable the Corporation to
determine the right of Indemnitee to be indemnified under this Agreement or
otherwise, the requisite determination that Indemnitee has the right to
indemnification shall be deemed to have been made; PROVIDED, HOWEVER, that such
30 day period may be extended for a reasonable time, not to exceed an additional
30 days, if the person or persons so empowered to make a determination pursuant
to Section 5 in good faith requires such additional time to obtain or evaluate
documentation or information relating thereto; and PROVIDED FURTHER, that the
foregoing provisions of this Section 4(b) shall not apply if the determination
of entitlement to indemnification is to be made by the shareholders pursuant to
Section 5(b) of this Agreement and if (i) within 15 days after receipt by the
Corporation of the request for such determination the Board of Directors has
resolved to submit such determination to the shareholders for their
consideration at an annual meeting to be held within 75 days after such receipt
and such determination is made thereat, or (ii) a special meeting of
shareholders is called within 15 days after such receipt for the purpose of
making such determination, such meeting is held for such purpose within 60 days
after having been so called and such determination is made thereat.
5. PROCEDURE FOR DETERMINATION OF RIGHT OF INDEMNITEE TO BE
INDEMNIFIED.
(a) Whenever Indemnitee believes that Indemnitee has a right to
indemnification pursuant to this Agreement, Indemnitee shall submit a written
request for indemnification to the Corporation. Any request for indemnification
shall include sufficient documentation or information reasonably available to
Indemnitee for the determination of the right of Indemnitee to be indemnified
pursuant to this Agreement. In any event, Indemnitee shall submit such request
for indemnification within a reasonable time, not to exceed five years after any
judgment, order, settlement, dismissal, arbitration award, conviction,
acceptance of a plea of NOLO CONTENDERE or its equivalent, or final disposition
of such Proceeding, whichever is the later date for which Indemnitee requests
indemnification. The Secretary, General Counsel or other appropriate officer of
the Corporation shall, promptly upon receipt of such request for
indemnification, advise the Board of Directors in writing that Indemnitee has
made such request. Determination of the right of Indemnitee to indemnification
shall be made not later than 30 days after the receipt by the Corporation of
such written request for indemnification, PROVIDED that any request for
indemnification for Liabilities with respect to a particular Proceeding, other
than amounts paid in settlement, shall be made after a determination thereof in
such Proceeding. If it is so determined that Indemnitee is entitled to
indemnification, payment to Indemnitee shall be made within 10 days after such
determination.
(b) The Corporation shall be entitled to select the forum in which
the right of Indemnitee to indemnification will be heard; PROVIDED, HOWEVER,
that if such forum is selected after a Change in Control of the Corporation,
Independent Legal Counsel shall determine whether Indemnitee has the right to
indemnification. The forum shall be any one of the following:
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(i) The shareholders of the Corporation, other than shareholders
who are parties to the Proceeding with respect to which the Indemnitee
has claimed indemnification;
(ii) A majority of a quorum of the Board of Directors consisting
of Disinterested Directors;
(iii) Independent Legal Counsel, who shall make the
determination in a written opinion; or
(iv) A panel of three arbitrators, one selected by the
Corporation, another by Indemnitee and the third by the first two
arbitrators selected; or if for any reason three arbitrators are not
selected within 30 days after the appointment of the first arbitrator,
then selection of additional arbitrators shall be made by the American
Arbitration Association. If any arbitrator resigns or is unable to
serve in such capacity for any reason, the American Arbitration
Association shall select a replacement. The arbitration shall be
conducted pursuant to the commercial arbitration rules of the American
Arbitration Association in effect on the date of this Agreement.
6. SPECIFIC LIMITATIONS ON INDEMNIFICATION.
Notwithstanding anything in this Agreement to the contrary, the
Corporation shall not be obligated under this Agreement to make any payment to
Indemnitee for indemnification with respect to any Proceeding:
(a) To the extent that payment is actually made to Indemnitee under
any insurance policy, or is made to Indemnitee by the Corporation or an
affiliate otherwise than pursuant to this Agreement. Notwithstanding the
availability of such insurance, Indemnitee also may claim indemnification from
the Corporation pursuant to this Agreement by assigning to the Corporation any
claims under such insurance to the extent Indemnitee is paid by the Corporation;
(b) If a court in such Proceeding has entered a judgment or other
adjudication which is final and has become nonappealable and establishes that
the claim of Indemnitee for such indemnification arose from: (i) a breach by
Indemnitee of his or her duty of loyalty to the Corporation or its shareholders;
(ii) acts or omissions of Indemnitee not in good faith or which involve
intentional misconduct or knowing violations of the law; (iii) a transaction in
which Indemnitee derived an improper personal benefit; or (iv) liability of
Indemnitee to the Corporation pursuant to Section 490.833 of the Iowa Business
Corporation Act (or any successor provision);
(c) If there has been no Change in Control, for Liabilities in
connection with Proceedings settled without the consent of the Corporation,
which consent, however, shall not be unreasonably withheld; or
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(d) For an accounting of profits made from the purchase or sale by
Indemnitee of securities of the Corporation within the meaning of Section 16(b)
of the Securities Exchange Act of 1934, as amended, or similar provisions of any
state statutory or common law.
7. FEES AND EXPENSES OF INDEPENDENT LEGAL COUNSEL.
The Corporation agrees to pay the reasonable fees and expenses of
Independent Legal Counsel or a panel of three arbitrators if such Counsel or
panel of arbitrators is retained to make a determination of the right of
Indemnitee to indemnification pursuant to Section 5(b), and to fully indemnify
such Counsel or arbitrators against any and all expenses and losses incurred by
any of them arising out of or relating to this Agreement or their engagement
pursuant hereto.
8. REMEDIES OF INDEMNITEE.
(a) If (i) a determination is made pursuant to Section 5 that
Indemnitee is not entitled to indemnification, (ii) advances of Expenses are not
made to Indemnitee pursuant to this Agreement, (iii) payment has not been timely
made following a determination that Indemnitee has a right to indemnification
pursuant to this Agreement, or (iv) Indemnitee otherwise seeks enforcement of
this Agreement, Indemnitee shall be entitled to a final adjudication in an
appropriate court of the State of Iowa of the remedy sought. Alternatively,
unless the determination was made by a panel of arbitrators pursuant to Section
5(b)(iv), Indemnitee may elect to seek an award in arbitration to be conducted
by a single arbitrator pursuant to the commercial arbitration rules of the
American Arbitration Association in effect on the date of this Agreement, which
award is to be made within 90 days following the filing of the demand for
arbitration. The Corporation shall not oppose the right of Indemnitee to seek
any such adjudication or arbitration award. In any such proceeding or
arbitration Indemnitee shall be presumed to be entitled to indemnification under
this Agreement and the Corporation shall have the burden of proof to overcome
such presumption.
(b) If a determination that Indemnitee is not entitled to
indemnification, in whole or in part, has been made pursuant to Section 5, the
decision in the judicial proceeding or arbitration provided in Section 8(a)
shall be made DE NOVO and Indemnitee shall not be prejudiced by reason of a
determination that Indemnitee is not entitled to indemnification.
(c) If a determination that Indemnitee is entitled to indemnification
has been made pursuant to Section 5 or is deemed to have been made pursuant to
Section 4 or otherwise pursuant to this Agreement, the Corporation shall be
bound by such determination in the absence of a misrepresentation of a material
fact by Indemnitee.
(d) The Corporation shall be precluded from asserting that the
procedures and presumptions of this Agreement are not valid, binding and
enforceable. The Corporation shall stipulate in any such court or before any
such arbitrator that the Corporation is bound by all the provisions of this
Agreement and is precluded from making any assertion to the contrary.
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(e) Expenses reasonably incurred by Indemnitee in connection with the
request of Indemnitee for indemnification under, seeking enforcement of, or to
recover damages for breach of, this Agreement shall be borne by the Corporation
when and as incurred by Indemnitee irrespective of any Final Adverse
Determination that Indemnitee is not entitled to indemnification.
9. INSURANCE.
(a) MAINTENANCE OF INSURANCE. The Corporation represents that it
presently maintains certain policies of directors' and officers' liability
insurance. Subject only to the provisions within this Section 9, the
Corporation agrees that during the Indemnification Period, the Corporation shall
use its best efforts to purchase and maintain in effect for the benefit of
Indemnitee one or more valid, binding and enforceable policies of directors' and
officers' liability insurance providing, in all respects, coverage both in scope
and amount which is no less favorable than that presently provided.
Notwithstanding the foregoing, the Corporation shall not be required to maintain
such policies of directors' and officers' liability insurance if such insurance
is not reasonably available or if it is in good faith determined by the then
Board of Directors either that:
(i) the premium cost of maintaining such insurance is
substantially disproportionate to the amount of coverage provided
thereunder; or
(ii) the protection provided by such insurance is so limited by
exclusions, deductions or otherwise that there is insufficient benefit
to warrant the cost of maintaining such insurance.
Anything in this Agreement to the contrary notwithstanding, to the
extent that and for so long as the Corporation shall choose to continue to
maintain any policies of directors' and officers' liability insurance during the
Indemnification Period, the Corporation shall maintain similar and equivalent
insurance for the benefit of Indemnitee during the Indemnification Period
(whether more or less favorable to Indemnitee than the existing policies of such
insurance maintained by the Corporation).
(b) ADDITIONAL INDEMNIFICATION IN LIEU OF INSURANCE. If the
Corporation discontinues any policy or policies of directors' and officers'
liability insurance referred to in Section 9(a) or limits in any way the
coverages provided thereunder either in scope or amount, or such policies or
coverages provided thereunder become unavailable in whole or in part for any
reason, the Corporation agrees to hold harmless and indemnify Indemnitee for the
remainder of the Indemnification Period to the full extent of the coverage which
would otherwise have been provided for the benefit of Indemnitee if such
insurance policies specified in Section 9(a) had been maintained.
10. MODIFICATION, WAIVER, TERMINATION AND CANCELLATION.
No supplement, modification, termination, cancellation or amendment of
this
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Agreement shall be binding unless executed in writing by both Indemnitee and the
Corporation. No waiver of any of the provisions of this Agreement shall be
deemed to be or shall constitute a waiver of any other provisions of this
Agreement (whether or not similar), nor shall any such waiver constitute a
continuing waiver.
11. SUBROGATION.
In the event of payment under this Agreement, the Corporation 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 which
may be necessary to secure such rights, including the execution of such
documents necessary to enable the Corporation effectively to bring suit to
enforce such rights.
12. NOTICE BY INDEMNITEE AND DEFENSE OF CLAIM.
Indemnitee shall promptly notify the Corporation in writing upon being
served with any summons, citation, subpoena, complaint, indictment, information
or other document relating to any matter, whether civil, criminal,
administrative or investigative, but the omission so to notify the Corporation
shall not relieve it from any liability which it may have to Indemnitee if such
omission does not materially prejudice the rights of the Corporation. If such
omission does materially prejudice the rights of the Corporation, the
Corporation shall be relieved from liability under this Agreement only to the
extent of such prejudice; nor will such omission relieve the Corporation from
any liability which it may have to Indemnitee otherwise than under this
Agreement. With respect to any Proceeding as to which Indemnitee notifies the
Corporation of the commencement thereof:
(a) The Corporation will be entitled to participate therein at its
own expense; and
(b) The Corporation jointly with any other indemnifying party
similarly notified will be entitled to assume the defense of Indemnitee therein,
with counsel reasonably satisfactory to Indemnitee; PROVIDED, HOWEVER, that the
Corporation shall not be entitled to assume the defense of Indemnitee in any
Proceeding if there has been a Change in Control or if Indemnitee has reasonably
concluded that there may be a conflict of interest between the Corporation and
Indemnitee with respect to such Proceeding. After notice to Indemnitee from the
Corporation of its election to assume the defense of Indemnitee therein, the
Corporation will not be liable to Indemnitee under this Agreement for any
Expenses subsequently incurred by Indemnitee in connection with the defense
thereof, other than reasonable costs of investigation or as otherwise provided
below. Indemnitee shall have the right to employ his or her own counsel in such
Proceeding but the fees and expenses of such counsel incurred after notice from
the Corporation of its assumption of the defense thereof shall be at the expense
of Indemnitee unless:
(i) The employment of counsel by Indemnitee has been authorized
by the Corporation;
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(ii) Indemnitee has reasonably concluded that counsel employed
by the Corporation may not adequately represent Indemnitee; or
(iii) The Corporation has not in fact employed counsel to assume
the defense of Indemnitee in such Proceeding or has not in fact
assumed such defense or is not acting in connection therewith with
reasonable diligence; in each of which cases the fees and expenses of
such counsel shall be at the expense of the Corporation.
(c) The Corporation shall not settle any Proceeding in any manner
which would impose any liability, penalty or limitation on Indemnitee without
the written consent of Indemnitee; PROVIDED, HOWEVER, that Indemnitee will not
unreasonably withhold consent to any proposed settlement.
13. NOTICES.
All notices, requests, demands and other communications hereunder
shall be in writing and shall be deemed to have been duly given if (a) delivered
by hand and receipted for by the party to whom such notice or other
communication shall have been directed, or (b) mailed by registered mail with
postage prepaid, on the third business day after the date on which it is so
mailed.
(a) If to Indemnitee, to:
_________________
_________________
_________________
_________________
(b) If to the Corporation, to:
MidAmerican Energy Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
P. O. ▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Secretary
or to such other address as may have been furnished to Indemnitee by the
Corporation or to the Corporation by Indemnitee, as the case may be.
14. NONEXCLUSIVITY.
The rights of Indemnitee under this Agreement shall not be deemed
exclusive of any other rights to which Indemnitee may be entitled under the
Business Corporation Act of the State of Iowa, the Articles of Incorporation or
Bylaws of the Corporation, or any
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agreements, vote of shareholders, resolution of the Board of Directors or
otherwise, and to the extent that during the Indemnification Period the rights
of the then existing directors and officers are more favorable to such directors
or officers than the rights currently provided to Indemnitee thereunder or under
this Agreement, Indemnitee shall be entitled to the full benefits of such more
favorable rights.
15. CERTAIN DEFINITIONS.
(a) "CHANGE IN CONTROL" shall be deemed to have occurred if:
(1) Any "person" (as such term is used in Section 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended), other than
a trustee or other fiduciary holding securities under an employee
benefit plan of the Corporation or a corporation owned directly or
indirectly by the shareholders of the Corporation in substantially the
same proportions as their ownership of stock of the Corporation, is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under said
Act), directly or indirectly, of securities of the Corporation
representing 15% or more of the total voting power represented by the
then outstanding voting securities of the Corporation; or
(2) The Corporation is a party to a Business Combination
(as defined in Section C(1) of Article VIII of the Articles of
Incorporation, as in effect on the date hereof) except for any such
Business Combination which meets the conditions specified in paragraph
1 of Section B of such Article VIII.
(b) "DISINTERESTED DIRECTOR" means a director of the Corporation who
is not or was not a party to the Proceeding with respect to which
indemnification is being sought by Indemnitee.
(c) "EXPENSES" shall include all direct and indirect costs (including
without limitation attorneys' fees, retainers, court costs, transcripts, fees of
experts, witness fees, travel expenses, duplicating costs, printing and binding
costs, telephone charges, postage, delivery service fees, all other
disbursements or out-of-pocket expenses and reasonable compensation for time
spent by Indemnitee for which Indemnitee is otherwise not compensated by the
Corporation or any third party) actually and reasonably incurred in connection
with either the investigation, defense, settlement or appeal of a Proceeding or
establishing or enforcing a right to indemnification under this Agreement,
applicable law or otherwise: PROVIDED, HOWEVER, that "Expenses" shall not
include any liabilities.
(d) "FINAL ADVERSE DETERMINATION" means a determination that
Indemnitee is not entitled to indemnification pursuant to Section 5 and either
(i) a final adjudication in an Iowa court or decision of an arbitrator pursuant
to Section 8(a) shall have denied the right of Indemnitee to indemnification
under this Agreement, and is no longer appealable, or (ii) Indemnitee shall have
failed to file a complaint in an Iowa court or seek an arbitration award
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pursuant to Section 8(a) for a period of 120 days after the determination made
pursuant to Section 5.
(e) "INDEMNIFICATION PERIOD" means the period of time for so long as
Indemnitee shall continue to serve as a director or officer of the Corporation,
or both, and thereafter so long as Indemnitee shall be subject to any possible
Proceeding.
(f) "INDEPENDENT LEGAL COUNSEL" means special legal counsel (i)
selected by the Board of Directors by vote of a majority of a quorum consisting
of Disinterested Directors or, if such quorum cannot be obtained, by vote of a
majority of the full Board of Directors, including directors who are not
Disinterested Directors, and (ii) approved by Indemnitee (which approval shall
not be unreasonably withheld) or, if there has been a Change in Control,
selected by Indemnitee and approved by the Board of Directors (which approval
shall not be unreasonably withheld), and that neither is presently nor in the
five years preceding such selection has been retained to represent (y) the
Corporation or any of its subsidiaries or affiliates, or Indemnitee or any
corporation or entity as to which Indemnitee is or was a director, officer or
employee, or any subsidiary or affiliate of such a corporation or entity, in any
material matter, or (z) any other party to the Proceeding giving rise to the
claim for indemnification with respect to which such counsel is being selected.
Notwithstanding the foregoing, the term "Independent Legal Counsel" shall not
include any person who, under the applicable standards of professional conduct
then prevailing, would have a conflict of interest in representing either the
Corporation or Indemnitee in an action to determine the right of Indemnitee to
indemnification under this Agreement.
(g) "LIABILITIES" means liabilities of any type whatsoever including,
but not limited to, any judgments, fines, ERISA excise taxes and penalties,
penalties and amounts paid in settlement (including all interest assessments and
other charges paid or payable in connection with or in respect of such
judgments, fines, penalties or amounts paid in settlement) of any Proceeding.
(h) "PROCEEDING" means any threatened, pending or completed action,
claim, suit, arbitration, alternate dispute resolution mechanism, investigation,
administrative hearing or any other proceeding whether civil, criminal,
administrative or investigative and whether formal or informal that is
associated with Indemnitee being or having been a director or officer of the
Corporation.
17. BINDING EFFECT; DURATION AND SCOPE OF AGREEMENT.
This Agreement shall be binding upon and inure to the benefit of and
be enforceable by Indemnitee and the Corporation and their respective successors
and assigns (including any direct or indirect successor by purchase, merger,
consolidation or otherwise to all or substantially all of the business or assets
of the Corporation), spouses, heirs, executors, personal representatives and
administrators and other legal representatives. This Agreement shall continue
in effect during the Indemnification Period, regardless of whether Indemnitee
continues to serve as a director or officer of the Corporation.
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18. SEVERABILITY.
If any provision or provisions of this Agreement (or any portion
thereof) shall be held to be invalid, illegal or unenforceable for any reason
whatsoever:
(a) The validity, legality and enforceability of the remaining
provisions of this Agreement shall not in any way be affected or impaired
thereby; and
(b) To the fullest extent legally possible, the provisions of this
Agreement shall be construed so as to give effect to the intent of any
provisions held invalid, illegal or unenforceable.
19. GOVERNING LAW.
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Iowa.
20. ENTIRE AGREEMENT.
This Agreement represents the entire agreement between the Corporation
and Indemnitee, and there are no other agreements, contracts or understandings
between them, with respect to the subject matter of this Agreement, except as
specifically referred to herein or as provided in Section 14.
IN WITNESS WHEREOF, this Indemnity Agreement is executed by
MidAmerican Energy Company and the Indemnitee as of the date first written
above.
MIDAMERICAN ENERGY COMPANY
By
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R. E. ▇▇▇▇▇▇▇▇▇▇▇▇
Chairman of the Board and
Chairman of the Office of the CEO
INDEMNITEE
------------------------------------
(Signature)
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