EXHIBIT 10.21
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT is made as of ___________, 2000 between
Nuvera Fuel Cells, Inc., a Delaware corporation ("Nuvera"), and _____________
(collectively with such person's heirs, executors, administrators and other
personal representatives, the "Indemnitee"), an officer or director of Nuvera.
WHEREAS, the Board of Directors has concluded that Nuvera's executive
officers and directors should be provided with reasonable and appropriate
protection against inordinate risks in order to ensure that the most capable
persons will be attracted to such positions; and, therefore, has determined to
contractually obligate itself to indemnify in a reasonable and adequate manner
its officers and directors, and to assume for itself liability for expenses and
damages in connection with claims lodged against such persons as a result of
their service to Nuvera;
WHEREAS, applicable law empowers corporations to indemnify a person who
serves as a director, officer, employee or agent of a corporation or a person
who serves at the request of a corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, or other
enterprise; and
WHEREAS, the parties believe it appropriate to memorialize and reaffirm
Nuvera's indemnification obligations to Indemnitee and, in addition, to set
forth the agreements contained herein.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties agree as follows:
1. Indemnification. Indemnitee shall be indemnified and held harmless by
Nuvera against any judgments, penalties, fines, amounts paid in settlement and
Expenses (as hereinafter defined) incurred in connection with any actual or
threatened Proceeding (as hereinafter defined) to the fullest extent permitted
by Nuvera's Certificate of Incorporation (the "Certificate") and by-laws
("By-Laws") and the General Corporation Law of the State of Delaware ("Delaware
Law") as in effect on the date hereof and to such greater extent as Delaware
Law may hereafter from time to time permit. In addition, Nuvera agrees to
advance to Indemnitee Expenses incurred in connection with the foregoing.
"Proceeding" includes, without limitation, any action, suit, arbitration,
alternate dispute resolution mechanism, investigation, administrative hearing
or any other actual, threatened or contemplated proceeding, whether civil,
criminal, administrative or investigative, whether by a third party, by or in
the right of Nuvera or by Indemnitee to enforce any rights under this Agreement
or otherwise against Nuvera or its affiliates.
2. Interim Expenses. Expenses incurred by Indemnitee in defending any
Proceeding for which Indemnitee may be entitled to indemnification hereunder
shall be paid by Nuvera in advance of the final disposition of such Proceeding
upon receipt of an undertaking by or on behalf of Indemnitee to repay such
amount if it shall ultimately be determined that he or she is not entitled to
be indemnified by Nuvera hereunder. "Expenses" means all attorneys' fees and
expenses, retainers, court costs, transcript costs, duplicating costs, fees of
experts, fees of witnesses, travel expenses, printing and binding costs,
telephone charges, postage and delivery fees, service fees, all other costs and
expenses customarily incurred in connection with prosecuting, defending,
preparing to prosecute or defend, investigating or being or preparing to be a
witness in a Proceeding, and per diem payments to Indemnitee in an amount equal
to the last annual salary payable under any employment agreement between Nuvera
and Indemnitee divided by 365 for each day spent by Indemnitee in connection
with prosecuting, defending, preparing to prosecute or defend, investigating or
being or preparing to be a witness in a Proceeding.
3. Exceptions to Indemnifications. Notwithstanding the foregoing, no
indemnity pursuant to Sections 1 or 2 shall be paid by Nuvera:
(a) on account of any suit in which judgment is rendered against
Indemnitee for an accounting of profits made from the purchase or sale by
Indemnitee of securities of Nuvera 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 or common
law;
(b) on account of Indemnitee's conduct which is finally adjudged to
have been knowingly fraudulent or deliberately dishonest, or to constitute
willful misconduct;
(c) on account of Indemnitee's conduct which is finally adjudged to
have constituted a breach of Indemnitee's duty of loyalty to Nuvera or
resulted in any personal profit or advantage to which Indemnitee was not
legally entitled;
(d) for which payment is actually made to Indemnitee under a valid
and collectible insurance policy or under a valid and enforceable
indemnity clause, bylaw or agreement, except in respect of any excess
beyond payment under such insurance policy, indemnity clause, bylaw or
agreement;
(e) if a final decision by a court having jurisdiction in the matter
shall determine that such indemnification is not lawful;
(f) in connection with any Proceeding (or part thereof) initiated by
Indemnitee, or any Proceeding by Indemnitee against Nuvera or its
directors, officers, employees or other indemnitees, unless (i) such
indemnification is expressly required to be made by law, (ii) the
Proceeding was authorized by the
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Board of Directors of Nuvera, (iii) such indemnification is provided by
Nuvera, in its sole discretion, pursuant to the powers vested in Nuvera
under applicable law, or (iv) the Proceeding is initiated pursuant to
Section 4 hereof; or
g) in connection with a judicial action by or in the right of Nuvera
in respect of any claim, issue or matter as to which the Indemnitee shall
have been adjudged to be liable for negligence or misconduct in the
performance of his duty to Nuvera unless, and only to the extent that, any
court in which such action was brought shall determine upon application
that, despite the adjudication of liability but in view of all the
circumstances of the case, the Indemnitee is fairly and reasonably
entitled to indemnity for such expenses as such court shall deem proper.
4. Failure to Indemnify.
(a) If a claim under this Agreement, under any statute, or under any
provision of the Certificate or By-Laws providing for indemnification is
not paid in full by Nuvera within 45 days after a written request for
payment thereof has first been received by Nuvera, Indemnitee may, but
need not, at any time thereafter bring an action against Nuvera to recover
the unpaid amount of the claim and, if successful in whole or in part,
Indemnitee shall also be entitled to be indemnified by Nuvera for
Indemnitee's reasonable expenses, including attorneys' fees, actually and
necessarily incurred in connection with successfully establishing the
right to indemnification, in whole or in part, in any such action.
(b) It shall be a defense to any such action (other than an action
brought to enforce a claim for expenses incurred in connection with any
Proceeding in advance of its final disposition) that Indemnitee has not
met the standards of conduct which make it permissible under the General
Corporation Law of the State of Delaware for Nuvera to indemnify
Indemnitee for the amount claimed, but the burden of proving such defense
shall be on Nuvera and Indemnitee shall be entitled to receive interim
payments of Expenses pursuant to Section 2 unless and until such defense
may be finally adjudicated by court order or judgment from which no
further right of appeal exists.
5. Certain Agreements of Indemnitee.
(a) Indemnitee agrees to do all things reasonably requested by Nuvera
to enable Nuvera to coordinate Indemnitee's defense with, if applicable,
Nuvera's defense, provided, however, that Indemnitee shall not be required
to take any action that would in any way prejudice his or her defense or
waive any defense or position available to him or her in connection with
any action;
(b) Indemnitee agrees to do all things reasonably requested by Nuvera
to subrogate to Nuvera any rights of recovery (including rights to
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insurance or indemnification from persons other than Nuvera) which
Indemnitee may have with respect to any action;
(c) Indemnitee agrees to be represented in any action by a law firm
mutually acceptable to Nuvera and Indemnitee; and
(d) Indemnitee agrees to cooperate with Nuvera and its counsel and
maintain any confidences revealed to him or her by Nuvera in connection
with Nuvera's defense of any action. Nuvera agrees to cooperate with
Indemnitee and his or her counsel and maintain any confidences revealed to
it by Indemnitee in connection with Indemnitee's defense of any action.
6. Successors. This Agreement establishes contract rights which shall be
binding upon, and shall inure to the benefit of, the successors, assigns, heirs
and legal representatives of the parties hereto.
7. Contract Rights Not Exclusive. The contract rights conferred by this
Agreement shall be in addition to, but not exclusive of, any other right which
Indemnitee may have or may hereafter acquire under any statute, provision of
the Certificate or By-Laws, agreement, vote of stockholders or disinterested
directors or otherwise.
8. Indemnitee's Obligations. Indemnitee shall promptly advise Nuvera in
writing of the institution of any Proceeding that is or may be subject to this
Agreement and generally keep Nuvera informed of, and consult with Nuvera with
respect to, the status of any such Proceeding.
9. Severability. Should any provision or Section of this Agreement, or any
clause hereof, be held to be invalid, illegal or unenforceable, in whole or in
part, the remaining provisions, clauses and Sections of this Agreement shall
remain fully enforceable and binding on the parties.
10. Choice of Law. The validity, interpretation, performance and
enforcement of this Agreement shall be governed by the laws of the State of
Delaware, regardless of the laws that might otherwise govern under principles
of conflicts of laws applicable thereto.
11. Continuation of Indemnification. The indemnification under this
Agreement shall continue as to Indemnitee even though he or she may have ceased
to be a director, officer, employee and/or agent of Nuvera. Nuvera acknowledges
that, in providing services to Nuvera, Indemnitee is relying on this Agreement.
Accordingly, Nuvera agrees that its obligations hereunder will survive (i) any
actual or purported termination of this Agreement by Nuvera or its successors
or assigns whether by operation of law or otherwise, (ii) any change in
Nuvera's Certificate or By-Laws and (iii) termination of Indemnitee's services
to Nuvera (whether such services were terminated by Nuvera or the Indemnitee),
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whether or not a claim is made or an action or Proceeding is threatened or
commenced before or after the actual or purported termination of this Agreement
or termination of Indemnitee's services.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and signed as of the day and year first above written.
NUVERA FUEL CELLS, INC.
By:
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Name:
Title:
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Name:
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