SERVICES AGREEMENT
SERVICES AGREEMENT dated as of October 14, 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 5 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 30 days following the receipt of
each such invoice. Invoices may be provided on a monthly or quarterly basis.
(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: (▇▇▇) ▇▇▇-▇▇▇▇
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.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed and delivered as of the date first above written.
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
MidAmerican Energy Holdings Company
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President