SERVICES AGREEMENT
SERVICES AGREEMENT dated as of September , 1999 between
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. (the "Company") and MidAmerican Energy Holdings
Company (the "MidAmerican Holdings").
WHEREAS, the Company and MidAmerican Holdings desire that
MidAmerican Holdings assume and perform the Services (as defined below).
NOW THEREFORE, MidAmerican Holdings and the Company hereby
agree as follows:
1. Defined Terms.
"Commencement Date" shall mean the first date after
the consummation of the Initial Public Offering.
"Losses" shall have the meaning given to it in
Section 6 of this Agreement.
"Material Adverse Effect" shall mean, with respect
to any person, any loss or interference that could, individually or in the
aggregate, have a material adverse effect on the condition (financial or
other), business, properties, prospects or results of operations of such person
and its subsidiaries, taken as a whole.
"person" shall mean an individual, partnership,
corporation, business trust, joint stock company, trust, unincorporated
association, joint venture, governmental authority or other entity of whatever
nature.
"Services" shall have the meaning given to it in
Section 3 of this Agreement.
"Termination Date" shall mean the earlier of (a) the
180th day following notice provided to the Company by MidAmerican Holdings that
MidAmerican Holdings is no longer a holder of at least 5% of the Common Stock of
the Company and (b) the date both parties mutually agree that this Agreement is
terminated.
2. Retention.
(a) The Company hereby retains MidAmerican
Holdings to provide Services to the Company beginning on the Commencement Date.
(b) MidAmerican Holdings hereby agrees that it shall
provide Services to the Company until the Termination Date.
3. Duties and Rights of MidAmerican Holdings.
(a) Beginning on the Commencement Date and until
the Termination Date, MidAmerican Holdings shall provide management, advisory,
financial, accounting, legal, employee benefit plan and insurance administration
and other services (the "Services"), as mutually agreed upon between the Company
and MidAmerican Holdings, for the benefit of the Company.
(b) To the extent necessary or appropriate to
perform any of the Services, MidAmerican Holdings shall have the power to
execute and deliver all necessary and appropriate documents and instruments on
behalf of the Company with respect to Services.
(c) Notwithstanding any other provision of this
Agreement, MidAmerican Holdings need not make available any service agreed to be
provided herein to the extent doing so would unreasonably and materially
interfere with the use of or access to any personnel, equipment, office space
or facility by MidAmerican Holdings or otherwise cause an unreasonable burden
to MidAmerican Holdings.
4. Compensation and Reimbursement.
(a) Beginning on the Commencement Date and until
the Termination Date, the Company shall pay to MidAmerican Holdings monthly, ten
days following the end of each month, a fee in an amount equal to $50,000.
(b) In addition, the Company shall reimburse
MidAmerican Holdings for all reasonable employee and out-of-pocket costs and
expenses(including, without limitation, payments made to third parties) incurred
by MidAmerican Holdings in connection with providing the Services to the
Company. MidAmerican Holdings shall provide the Company with a detailed invoice
which invoice or a schedule thereto sets forth in reasonable detail on an
itemized basis the out-of-pocket costs and expenses to be reimbursed by the
Company pursuant to this Section 4(b). Payment shall be due within [ _______ ]
days following the receipt of each such invoice. Invoices may be provided on a
monthly or quarterly basis.
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(c) It is expressly agreed that the out-of-pocket
costs and expenses that are to be reimbursed by the Company pursuant to
Section 4(b) shall not include any ▇▇▇▇-up or profit factor for MidAmerican
Holdings but shall include all indirect costs and an appropriate allocation for
overhead costs associated with performing the Services.
5. Nonliability of Advisor. MidAmerican Holdings shall
perform on behalf of the Company only the duties that have been specifically
delegated to MidAmerican Holdings in this Agreement and MidAmerican Holdings
shall have no implied covenants or obligations to perform any other duties under
this Agreement. MidAmerican Holdings shall not be responsible for any losses,
liabilities, damages, claims or expenses (collectively, the "Losses") incurred
by the Company arising from any acts or omissions by MidAmerican Holdings in
connection with the performance of its duties under this Agreement other than
Losses resulting solely from its gross negligence or willful misconduct.
6. Notice. Any notice or other communication required
or permitted to be given hereunder shall be in writing and shall be effective
(a) upon hand delivery or delivery by telex (with correct answerback received),
telecopy or facsimile at the address or number designated below (if delivered on
a business day during normal business hours where such notice is to be
received), or the first business day following such delivery (if delivered other
than on a business day during normal business hours where such notice is to be
received) or (b) on the third business day following the date of mailing by
express courier service, fully prepaid, addressed to such address, or upon
actual service, fully prepaid, addressed to such address, or upon actual receipt
of such mailing, whichever shall first occur. The addresses for such
communications shall be:
If to the Company, to:
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to MidAmerican Holdings, to:
MidAmerican Energy Holdings Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Senior Vice President, Mergers and Acquisitions
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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Either party hereto may from time to time change its address for notices under
this Section 6 by giving at least 10 days' notice of such changes to the other
party hereto.
7. Section Headings. The section headings used in this
Agreement are inserted for convenience of reference only and are not intended to
be a part of or to affect the meaning or interpretation of this Agreement.
8. Multiple Counterparts. This Agreement may be
executed in one or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
9. Invalidity. In the event that any one or more of
the provisions contained in this Agreement or in any other instrument referred
to herein, shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, then to the maximum extent permitted by law, such
invalidity, illegality or unenforceability shall not affect any other provision
of this Agreement or any other such instrument.
10. Successors and Assigns. This Agreement shall be
binding upon and inure solely to the benefit of the parties hereto and their
respective successors, endorsees, transferees and assigns, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person or persons any rights, benefits or remedies of any nature whatsoever
under or by reason of this Agreement. Further, it is expressly agreed that any
of the Services to be provided by MidAmerican Holdings may be provided to the
Company by any subsidiary of MidAmerican Holdings (other than the Company or its
subsidiaries) and in such case, such subsidiary of MidAmerican Holdings shall be
entitled to the same rights, benefits and remedies hereunder as MidAmerican
Holdings.
11. Entire Agreement; Amendment and Waiver. This
Agreement constitutes the entire agreement among the parties pertaining to the
subject matter hereof and supersedes all prior agreements, understandings,
negotiations and discussions, whether oral or written, of the parties. No
amendment, supplement, modification or waiver of this Agreement shall be binding
unless executed in writing by the party to be bound thereby. No waiver of any of
the provisions of this Agreement shall be deemed or shall constitute a waiver of
any other provision hereof (whether or not similar), nor shall such waiver
constitute a continuing waiver unless otherwise expressly provided.
12. Governing Law. This Agreement shall be construed,
interpreted and the rights of the parties determined in accordance with the laws
of the State of Delaware, regardless of the laws that might otherwise govern
under applicable principles of conflicts of laws thereof.
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IN WITNESS WHEREOF, the undersigned have caused this Agreement
to be duly executed and delivered as of the date first above written.
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ INC.
By: _______________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
MIDAMERICAN ENERGY HOLDINGS COMPANY
By: _______________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
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