Form of Officer Indemnification Agreement
(For Officers of a Delaware Corporation)
This Indemnification Agreement (“Agreement”) is made as this ____ day of ____________ 20__ by and between Plug Power Inc., a Delaware corporation (the “Company”), and ____________ (“Indemnitee”).
WHEREAS, the Company desires to attract and retain the services of highly qualified individuals, such as Indemnitee, to serve the Company;
WHEREAS, in order to induce Indemnitee to [provide]1 [continue to provide]2 services to the Company, the Company wishes to provide for the indemnification of, and advancement of expenses to, Indemnitee to the maximum extent permitted by law;
WHEREAS, the Third Amended and Restated Bylaws (the “Bylaws”) of the Company require indemnification of the officers and directors of the Company, and Indemnitee may also be entitled to indemnification pursuant to the General Corporation Law of the State of Delaware (the “DGCL”);
WHEREAS, the Bylaws and the DGCL expressly provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification;
WHEREAS, the Board of Directors of the Company (the “Board”) has determined that the increased difficulty in attracting and retaining highly qualified persons such as Indemnitee is detrimental to the best interests of the Company’s stockholders;
WHEREAS, it is reasonable and prudent for the Company contractually to obligate itself to indemnify, and to advance expenses on behalf of, such persons to the fullest extent permitted by applicable law, regardless of any amendment or revocation of the Charter or the Bylaws, so that they will [serve]3 [continue to serve]4 the Company free from undue concern that they will not be so indemnified; and
1 Plug: Include for new executive officers.
2 Plug: Include for existing executive officers.
3 Plug: Include for new executive officers.
4 Plug: Include for new executive officers.
WHEREAS, this Agreement is a supplement to and in furtherance of the indemnification provided in the Charter, the Bylaws and any resolutions adopted pursuant thereto, and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.
NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Company and Indemnitee do hereby covenant and agree as follows:
As used in this Agreement:
Notwithstanding the foregoing, no Person engaged in business as an underwriter of securities shall be deemed the Beneficial Owner of any securities acquired through such Person’s participation as an underwriter in good faith in a firm commitment underwriting.
5 Plug: Include for new executive officers.
6 Plug: Include for existing executive officers.
Plug Power Inc.
968 Albany-Shaker Road
Latham, NY 12110
Facsimile: (518) 782-7884
Attn: General Counsel
or to any other address as may have been furnished to Indemnitee by the Company.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the day and year first above written.
PLUG POWER INC.