INDEMNIFICATIONAGREEMENT

EX-10.1 4 ex10_1.htm FORM OF INDEMNIFICATION AGMT WITH OFFICERS AND DIRECTORS ex10_1.htm


Exhibit 10.1

INDEMNIFICATION AGREEMENT

This Agreement is made as of the _____ day of _____________, 200___, by and between Great Plains Energy Incorporated, 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 persons 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 Incorporation 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;

NOW, THEREFORE, in consideration of the premis­es and of Indemnitee serving 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:

 
  (1)  any 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 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

 
 (2)  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

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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 nomi­nation for elec­tion was previously so approved; or

 
  (3)  the occurrence of, or the stock­holders of the Company approve, a merger, consolidation, reorganization or similar corporate transaction of the Company, whether or not the Company is the surviving corporation in such transaction, or the stockholders of the Company approve the issuance of voting securities of the Company in connection with a merger, consoli­dation, reorganization or similar corporate transaction of the Company (or any direct or indi­rect subsidiary of the Company) pursuant to applicable stock exchange require­ments, other than (i) a merger, consolida­tion, reorganization or similar corporate transaction which would result in the voting securi­ties of the Company outstanding immedi­ately prior to such merger, consolidation, reorganization or similar corporate transaction 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, consolidation, reorganization or similar corporate transaction, or (ii) a merger, consolida­tion, reorganization or similar corporate transaction 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 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

 
(4) the occurrence of, or the stockholders of the Company ap­prove a plan of, a complete liquidation or dis­so­lution 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

 
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contin­ue to have substan­tially 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, em­ployee, agent or fiduciary of the Company, or is or was serv­ing 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 under­writer 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 sub­stan­tially the same propor­tions as their owner­ship of stock of the Company.

 
(i)
Potential Change in Control:  shall be deemed to have occurred if:

 
(1)  the Company enters into an agreement, the consumma­tion of which would result in the oc­currence of a Change in Con­trol;

 
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(2)  the Company or any Person pub­licly an­nounces an intention to take or to consider taking ac­tions which, if consummated, would constitute a Change in Control;

 
(3)  any Person becomes the Bene­fi­cial 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

 
(4)  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 ­Indem­nitee is seeking indemnifica­tion, or Inde­pen­dent Legal Coun­sel.

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 obliga­tions of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have deter­mined (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

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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 Articles of Incorporation dated February 26, 2001. 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 Indepen­dent 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 Poten­tial 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

 
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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.                      Presumption; Burden of Proof.  Upon making any demand for indemnification under this Agreement, Indemnitee shall be presumed to be entitled to such indemnification.  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 by clear and convincing evidence that Indemnitee is not so entitled.

8.                      Effect of Certain Proceedings, Etc.  For purposes of this Agree­ment, the termination of any claim, action, suit or proceeding, by judgment, order, settlement (whether with

 
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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 proceed­ings 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) per­mits greater indemni­fi­cation by agreement than would be af­forded currently under the Company's By-laws and this Agree­ment, 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.

 
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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 Indemni­fication Agreement shall supersede the Prior Agreement.

15.                      Binding Effect, Etc.  This Agreement shall be bind­ing 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 _____ day of _____________, 200___.


GREAT PLAINS ENERGY INCORPORATED


By _______________________________
   Name:                  [typed name]
   Title:                    Chairman of Board and
Chief Executive Officer



INDEMNITEE:


    ______________________________
 [typed name]

 
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