EXHIBIT 10.1
INDEMNIFICATION AGREEMENT
This AGREEMENT, effective as of ____________, 200___, is between Beacon
Power Corporation, a Delaware corporation (the "Company"), and
___________________ ("Indemnitee").
WHEREAS, it is essential to the Company to retain and attract as directors
the most capable persons available; the Company wishes to retain the services of
the Indemnitee as a director; and the Indemnitee is unwilling to serve the
Company as a director without assurances that indemnification and adequate
liability insurance is and will continue to be provided to the fullest extent
possible;
WHEREAS, lawsuits seeking significant money judgments against publicly held
corporations and their officers and directors have become commonplace in recent
years and uncertainties about the possible judicial interpretations of
applicable statutes, regulations and corporate charter and by-law provisions
leave corporate officers and directors with inadequate reliable knowledge of the
legal risks to which they may be exposed by such lawsuits; whether or not the
case is meritorious, the cost of defending such lawsuits is significant with few
individual officers and directors having the resources to sustain such legal
costs and such lawsuits present individual officers and directors with the risk
of significant money judgments even in cases where the defendant was neither
culpable nor profited personally to the detriment of the Company;
WHEREAS, 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 and in part to provide Indemnitee with
specific contractual assurance that the indemnification protection provided by
the Certificate of Incorporation and Bylaws of the Company will be available to
Indemnitee (regardless of, among other things, any amendment to or revocation of
such Certificate of Incorporation and Bylaws or any change in the composition of
the Company's Board of Directors (the "Board") or acquisition transaction
relating to the Company), and in order to induce Indemnitee to continue to
provide services to the Company as a director thereof, the Company wishes to
provide in this Agreement for the indemnification of and the advancing of
expenses to Indemnitee to the fullest extent (whether partial or complete)
permitted by law, and for the continued coverage of Indemnitee under the
Company's directors' and officers' liability insurance policies.
NOW, THEREFORE, in consideration of the promises set forth herein and of
Indemnitee continuing to serve the Company as a director and intending to be
legally bound hereby, the parties agree as follows:
1. Certain Definitions.
(a) Change in Control: shall be deemed to have occurred if (i) any "person"
(as such term is used in Sections 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 Company or 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, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under said Act) directly or
indirectly of securities of the Company representing 40% or more of the total
voting power represented by the Company's then outstanding Voting Securities, or
of the then outstanding Voting Securities of the surviving entity in a merger or
consolidation which includes the Company, (ii) during any period of 24
consecutive whole months, individuals who at the beginning of such period
constitute the Board and any new directors whose 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
officers or directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any reason to
constitute a majority thereof, or (iii) the stockholders of the Company approve
a merger or consolidation of the Company with any other corporation, other than
a merger or consolidation which (X) would result in the persons who immediately
prior thereto hold outstanding Voting Securities of the Company then continuing
to hold Voting Securities immediately after such merger or consolidation which
represent (either by remaining outstanding or by being converted into Voting
Securities of the surviving entity, and by being combined with any additional
Voting Securities which such holder(s) may have received in such merger or
consolidation by reason of such holder(s) having held Voting Securities in the
other corporation) at least 80% of the total voting power represented by the
Voting Securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or the stockholders of the
Company approve a plan of complete liquidation (as that term is used in the
Internal Revenue Code of 1986, as amended, and the rules and regulations
promulgated thereunder) of the Company or an agreement for the sale or
disposition by the Company (in one transaction or a series of transactions) of
all or substantially all of the Company's assets (as that phrase is used in the
General Corporation Law of the State of Delaware), and (Y) does not result in
the percentage total voting power of any stockholder of the company who
immediately prior to such transaction beneficially owned at least 5% of the
total voting securities of the company increasing by more than 100%.
Notwithstanding the foregoing, an event shall not be considered to be a Change
in Control for purposes of this Agreement if it has been prospectively or
retroactively determined not to constitute a Change in Control for purposes of
this Agreement, by a majority of the directors who are disinterested in the
event referenced in subclause (i) or (iii) above, and who also qualify under the
rules set forth in subclause (ii), above (either because they were directors at
the start of the 24 month period or because they were approved by the 2/3rds of
the directors described in such subclause).
(b) Claim: any threatened, pending or completed action, suit, proceeding or
alternative dispute resolution mechanism, which arises by reason of or in part
out of an Indemnifiable Event, or any inquiry, hearing or investigation, whether
conducted by the Company or any other party, that Indemnitee in good faith
believes might lead to the institution of any such action, suit, proceeding or
alternative dispute resolution mechanism, whether civil, criminal,
administrative, investigative or other.
(c) D&O Insurance: the directors' and officers' liability insurance
currently carried by the Company and any replacement or substitute policies
issued by one or more reputable insurers providing in all material respects
coverage at least comparable to and in the same amount as those policies
currently carried by the Company.
(d) Expenses: include reasonable attorneys' fees, travel expenses, fees of
experts, transcript costs, filing fees, witness fees, telephone charges,
postage, delivery service fees, and all other expenses and obligations of any
nature whatsoever 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.
(e) Expense Advance: a payment to Indemnitee pursuant to Section 2(b) of
Expenses in advance of the settlement of or final judgment in any action, suit,
proceeding or alternative dispute resolution mechanism, hearing, inquiry or
investigation which constitutes a Claim.
(f) Indemnifiable Event: any event, occurrence or circumstance that takes
place either prior to or after the execution of this Agreement related to the
fact that Indemnitee is or was an officer or director of the Company, or is or
was serving at the request of the Company as a director, officer, partner,
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) Potential Change in Control: shall be deemed to have occurred if (i)
the Company enters into an agreement or arrangement, the consummation of which
would result in the occurrence of a Change in Control; (ii) any person
(including the Company) publicly announces an intention to take or consider
taking actions which if consummated would constitute a Change in Control; (iii)
any person, other than a trustee or other fiduciary holding securities under an
employee benefit plan of the Company acting in such capacity or 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,
who is, or becomes, the beneficial owner, directly or indirectly, of securities
of the Company representing 10% or more of the combined voting power of the
Company's then outstanding Voting Securities, thereafter acquires additional
shares with the effect that his beneficial ownership of such securities
increases by five percentage points or more over the percentage so owned by such
person on the date hereof; or (iv) the Board adopts a resolution to the effect
that, for purpose of this Agreement, a Potential Change in Control has occurred.
Notwithstanding the foregoing, an event shall not be considered to be a
Potential Change in Control for purposes of this Agreement if it has been
prospectively or retroactively determined not to constitute a Potential Change
in Control for purposes of this Agreement, by a majority of the directors who
are disinterested in the event referenced above in (i), (ii), or (iii) and who
also qualify under the rules set forth in subclause (ii) of the definition of
Change of Control in Section 1(a) above (either because they were directors at
the start of the 24 month period or because they were approved by the 2/3rds of
the directors described in such subclause).
(h) 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. 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
an event that does not constitute a Change in Control because it has been
approved by the applicable majority of the Board as referenced in the definition
of Change of Control in Section 1(a)), the Reviewing Party shall be the
Independent Legal Counsel referred to in Section 3 hereof.
(i) Independent Legal Counsel: shall refer to an attorney, selected in
accordance with the provisions of Section 3 hereof, who shall not have otherwise
performed services for the Company or Indemnitee within the last five years
(other than in connection with seeking indemnification under this Agreement).
Independent Legal Counsel shall not be any person who, under the applicable
standards of professional conduct then prevailing, would have conflict of
interest in representing either the Company or Indemnitee in an action to
determine Indemnitee's rights under this Agreement, nor shall Independent Legal
Counsel be any person who has been sanctioned or censured for ethical violations
of applicable standards of professional conduct.
(j) Voting Securities: any securities of the Company which vote generally in the
election of directors.
2. Basic Indemnification Agreement.
(a) General. Subject to Section 2(c), if 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, the Company shall
indemnify Indemnitee to the fullest extent not prohibited 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, and against any and all federal, state, local or foreign taxes imposed on
the Indemnitee as a result of the actual or deemed receipt of any payments under
this Agreement (including the creation of the trust referred to in Section 4
hereof). Notwithstanding anything in this Agreement to the contrary and except
as provided in Section 2(b) (with respect to indemnification for Expenses
incurred in obtaining indemnification or Expense Advances from the Company),
prior to a Change in Control, Indemnitee shall not be entitled to
indemnification pursuant to this Agreement in connection with any Claim
initiated by Indemnitee against the Company or any director or officer of the
Company unless the Company has joined in or consented to the initiation of such
Claim.
(b) Expense Advances, etc. Subject to Section 2(c), the
Company shall make Expense Advances for reasonable Expenses to Indemnitee,
within twenty business days of a request by Indemnitee. The parties agree that
for the purposes hereof all Expenses included in an Expense Advance request that
are certified by affidavit of Indemnitee's counsel as being reasonable shall be
presumed conclusively to be reasonable. The Company shall also indemnify
Indemnitee against any and all Expenses which are incurred by Indemnitee in
connection with any action brought by Indemnitee (i) for indemnification or
advance payment of Expenses by the Company under this Agreement or any other
agreement or Certificate of Incorporation or Bylaws of the Company now or
hereafter in effect relating to Claims for Indemnifiable Events, and/or (ii) for
recovery under the D&O Insurance policies maintained by the Company.
(c) Circumstances of No Indemnification; Reimbursement.
Notwithstanding the foregoing, the obligations of the Company under Section 2(a)
and 2(b) shall not apply if either the Reviewing Party has determined (in a
written opinion, in any case in which the Independent Legal Counsel referred to
in Section 3 hereof is involved), or a final judicial determination is made (as
to which all rights of appeal therefrom have been exhausted or lapsed), that
Indemnitee would not be permitted to be indemnified under this Agreement and
applicable law. In either such case, the Indemnitee shall reimburse the Company
for all amounts paid by the Company to Indemnitee under this Agreement with
respect to such Claim. Indemnitee's obligation to reimburse the Company for
Expense Advances shall be unsecured and no interest shall be charged thereon.
However, a determination by the Reviewing Party shall not be binding if the
Indemnitee or the Company has commenced legal proceedings to secure a judicial
determination whether Indemnitee should be indemnified under applicable law, and
Indemnitee shall not be required to reimburse the Company until a final judicial
determination is made with respect thereto (as to which all rights of appeal
therefrom have been exhausted or lapsed, and herein, a "Final Adjudication").
Indemnitee and the Company shall each have the right to commence litigation
seeking an initial determination by a court or challenging any determination
made by a Reviewing Party or any aspect thereof, or the legal or factual bases
therefor, and the parties hereby consent to service of process and to appear in
any such proceeding.
No indemnification shall be paid by the Company with respect
to a Claim, if there is a Final Adjudication relating to such Claim (i) that
paying Indemnitee hereunder violates this Agreement or applicable law; (ii) that
Indemnitee is liable for an accounting of profits made from the purchase or sale
by Indemnitee of securities of the Company pursuant to the provisions of Section
16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar
provisions of any federal, state or local statutory law, (iii) that Indemnitee's
conduct was knowingly fraudulent or deliberately dishonest, or constituted
willful misconduct, (iv) that Indemnitee willfully misappropriated corporate
assets, or knowingly disclosed the Company's confidential information in bad
faith.
3. Change in Control. The Company agrees that if there is a Change in Control of
the Company (other than an event that does not constitute a Change in Control
because it has been approved by the applicable majority of the Board as
referenced in the definition of Change of Control in Section 1(a)) then
Independent Legal Counsel shall be selected by Indemnitee and approved by the
Company (which approval shall not be unreasonably withheld) and such Independent
Legal Counsel shall determine whether the Indemnitee is entitled to indemnity
payments and Expense Advances under this Agreement or any other agreement or
Certificate of Incorporation or Bylaws of the Company now or hereinafter in
effect relating to Claims for Indemnifiable Events. Such Independent Legal
Counsel, among other things, shall render its written opinion to the Company and
Indemnitee as to whether and to what extent the Indemnitee will be permitted to
be indemnified. The Company agrees to pay the reasonable fees of the Independent
Legal Counsel and to indemnify fully such Independent Legal Counsel against any
and all expenses (including attorneys' fees), claims, liabilities and damages
arising out of or relating to this Agreement.
4. Establishment of Trust. In the event of a Potential Change in Control (other
than an event that does not constitute a Potential Change in Control because it
has been approved by the applicable majority of the Board as referenced in the
definition of Potential Change of Control in Section 1(g)), 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.
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 (other than an event that
does not constitute a Change in Control because it has been approved by the
applicable majority of the Board as referenced in the definition of Change of
Control in Section 1(a)) (i) the trust shall not be revoked or the principal
thereof invaded, without the written consent of Indemnitee and the Company,
which shall not be unreasonably withheld, (ii) the trustee shall advance, within
twenty business days of a request by Indemnitee, any and all Expenses to
Indemnitee (and Indemnitee hereby agrees to reimburse the trust under the
circumstances under which Indemnitee would be required to reimburse the Company
under Section 2(c) of this Agreement, (iii) the trust shall continue to be
funded by the Company in accordance with the funding obligation set forth above,
(iv) absent a judicial order to the contrary, 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 a court of
competent jurisdiction (or the Reviewing Party, in the case that no court has so
determined) that Indemnitee has been fully indemnified under the terms of this
Agreement. The trustee shall be a bank or trust company or other individual or
entity chosen by the Indemnitee and approved by the Company. Nothing in this
Section 4 shall relieve the Company of any of its obligations under this
Agreement. All income earned on the assets held in the trust shall be reported
as income by the Company for federal, state, local and foreign tax purposes.
5. Certain Procedures. If any Claim shall be brought or asserted against
Indemnitee in respect of which indemnification may be sought hereunder,
Indemnitee shall promptly notify the Company in writing, and the Company shall
have the right to assume the defense thereof, including the employment of
counsel reasonably satisfactory to Indemnitee and the payment of all expenses.
Indemnitee shall have the right to employ separate counsel in any such action
and to participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of Indemnitee unless (i) the Company agrees to
pay such fees and expenses, or (ii) the Company has failed promptly to assume
the defense of such action or proceeding and employ counsel reasonably
satisfactory to Indemnitee in any such action or proceeding, or (iii) the named
parties to any such action or proceeding include both Indemnitee and Company,
and Indemnitee has been advised by counsel that there may be one or more legal
defenses available to him which are different from or additional to those
available to the Company, in which case, if Indemnitee notifies the Company in
writing that he elects to employ separate counsel at the expense of the Company,
the Company shall not have the right to assume the defense of such action or
proceeding on behalf of Indemnitee and shall pay all Expenses including
attorneys' fees incurred by Indemnitee in such defense.
Neither the Company nor Indemnitee may settle or compromise any Claim
as to which Indemnitee has notified the Company that he seeks indemnification
under this Agreement, without the prior written consent of the other party
hereto, provided that consent to such settlement or compromise shall not be
unreasonably withheld by any of the parties hereto and shall be deemed to have
been given by the Company if Indemnitee provides the Company with a written
notice setting forth the material terms of such settlement or compromise and the
Company does not object thereto in a written notice delivered to Indemnitee
within 30 calendar days after the Company's receipt of such notice from
Indemnitee. Notwithstanding the foregoing, Indemnitee shall not be required to
consent to any settlement or compromise that does not include a complete, full
and absolute release of the Indemnitee, in form and substance satisfactory to
the Indemnitee in his or her sole discretion, from any liability under such
claim.
6. Maintenance of D&O Insurance.
(a) The Company hereby covenants and agrees that, so long as Indemnitee
shall continue to serve as an officer or director of the Company and thereafter
for a period of three years, the Company, subject to Section 6(c), shall
maintain in full force and effect D&O Insurance.
(b) In all policies of D&O Insurance, Indemnitee shall be named as an
insured in such a manner as to provide Indemnitee the same rights and benefits,
subject to the same limitation, as are accorded to the Company's directors or
officers most favorably insured by such policies.
(c) The Company shall have no obligation to maintain D&O Insurance if
the Company determines in good faith that such insurance is not reasonably
available, the premium costs for such insurance is disproportionate to the
amount of coverage provided, or the coverage provided by such insurance is
limited by exclusions so as to provide an insufficient benefit.
(d) Upon receipt by the Company of notice of a Claim, the Company shall
give prompt notice of the commencement of such Claim to its liability insurers
in accordance with the procedures set forth in the respective D&O Insurance
policies. The Company shall thereafter take all necessary or desirable action to
cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a
result of such Claim in accordance with the terms of such policies.
7. 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, judgment, 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 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.
8. Defense to Indemnification, Burden of Proof and Presumptions. It shall be a
defense to any action brought by Indemnitee against the Company to enforce this
Agreement (other than an action brought to enforce a claim for Expenses incurred
in defending a Claim in advance of its final disposition where the required
undertaking for any applicable contingent reimbursement has been tendered to the
Company) that Indemnitee has not met the standards of conduct that make it
permissible under the Delaware General Corporation Law for the Company to
indemnify Indemnitee for the amount claimed. It shall be presumed that
Indemnitee was acting in good faith within the scope of his employment or
authority, as he could reasonably have perceived it under the circumstances and
for a purpose he could reasonably have believed under the circumstances was in
or not opposed to the best interests of the Company. In connection with any
determination by the Reviewing Party or otherwise as to whether the Indemnitee
is entitled to be indemnified hereunder, the burden of proof shall be on the
Company to establish that Indemnitee is not so entitled. Upon the commencement
of legal proceedings by Indemnitee to secure a judicial determination that
Indemnitee should be indemnified under the Agreement under applicable law,
neither the failure of any Reviewing Party to have made a determination as to
whether Indemnitee has met any particular standard of conduct nor an actual
determination by any Reviewing Party that Indemnitee has not met such standard
of conduct, shall be a defense to Indemnitee's claim or create a presumption
that Indemnitee has not met any particular standard of conduct. 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.
9. Non-exclusivity, Etc. The rights of Indemnitee hereunder shall be in addition
to any other rights Indemnitee may have under the Certificate of Incorporation
or Bylaws of the Company or the Delaware General Corporation law or otherwise.
To the extent that a change in the Delaware General Corporation Law (whether by
stature or judicial decision) permits greater indemnification by agreement than
would be afforded currently under the Certificate of Incorporation and Bylaws of
the Company 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 immediately upon the occurrence of such change without further
action by the Company or Indemnitee. In the event of any change in any
applicable law, statute or rule which narrows the right of a Delaware
corporation to indemnify a member of its board of directors or an officer,
employee, agent or fiduciary, such change, to the extent not otherwise required
by such law, statute or rule to be applied to this Agreement, shall have no
effect on this Agreement or the parties' rights and obligations hereunder.
10. 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 or any affiliate of
the Company against Indemnitee, Indemnitee's spouse, heirs, executors,
administrators 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 or its affiliate shall be extinguished and deemed
released unless asserted by the timely filling 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.
11. Amendments, Etc. No supplement, modification nor 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.
12. 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.
13. 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, Certificate of Incorporation or Bylaws of the
Company or otherwise) of the amounts otherwise indemnifiable hereunder.
14. Binding Effects, 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, and personal and legal
representatives. The Company shall require and cause any successor (whether
direct or indirect by purchase, merger, consolidation or otherwise) to all,
substantially all, or a substantial part, or the business and/or assets of the
Company, by written agreement in form and substance satisfactory to Indemnitee,
expressly to assume and agree to perform this Agreement in the same manner and
to the same extent that the Company would be required to perform if no such
succession had taken place. 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.
15. Notice. All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed duly given (i) if delivered by
hand and signed for by the party addressed, on the date of such delivery, or
(ii) if mailed by domestic certified or registered mail with postage prepaid, on
the third business day after the date postmarked. Addresses for notice to either
party are as shown on the signature page of this Agreement, or as subsequently
modified by written notice.
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) are held by a court of competent jurisdiction to
be invalid, void or otherwise unenforceable, and the remaining provisions shall
remain enforceable to the fullest extent permitted by law. Furthermore, to the
fullest extent possible, the provisions of this Agreement (including without
limitations, each portion of this Agreement containing any provision held to be
invalid, void or otherwise unenforceable, that is not itself invalid, void or
unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable.
17. Consent to Jurisdiction. The Company and Indemnitee each hereby irrevocably
consent to the jurisdiction of the courts of the State of Delaware for all
purposes in connection with any action or proceeding which arises out of or
relates to this Agreement and agree that any action instituted under this
Agreement shall be commenced, prosecuted and continued only in the Court of
Chancery of the State of Delaware in and for New Castle County, which shall be
the exclusive and only proper forum for adjudicating such a claim.
18. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware 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 duly executed and delivered
this Agreement as of the _____ day of ___________, 200___.
___________________________ BEACON POWER CORPORATION
__________________________________ By: ___________________________
Signature Name:
Title:
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