FORM OF] INDEMNIFICATION AGREEMENT
Exhibit 10.1
[FORM OF]
This INDEMNIFICATION AGREEMENT (this “Agreement”) is made and entered into effective
as of April 6, 2009 by and between PowerSecure International, Inc., a Delaware corporation (the
“Company”), and (“Indemnitee”).
WHEREAS, it is essential to the Company to retain and attract as directors and officers the
most capable persons available;
WHEREAS, Indemnitee is a director and/or officer of the Company;
WHEREAS, both the Company and Indemnitee recognize the increased risk of litigation and other
claims currently being asserted against directors and officers of corporations;
WHEREAS, the Certificate of Incorporation and By-laws of the Company provide for the Company
to indemnify and advance expenses to its directors and officers to the fullest extent permitted
under Delaware law, and the Indemnitee has been serving and continues to serve as a director and/or
officer of the Company in part in reliance on the Company’s Certificate of Incorporation and
Bylaws; and
WHEREAS, in recognition of Indemnitee’s need for (i) substantial protection against personal
liability based on Indemnitee’s reliance on the aforesaid Certificate of Incorporation and Bylaws,
(ii) specific contractual assurance that the protection promised by the Certificate of
Incorporation and Bylaws will be available to Indemnitee (regardless of, among other things, any
amendment to or revocation of the Certificate of Incorporation and By-laws or any change in the
composition of the Company’s Board of Directors or acquisition transaction relating to the
Company), and (iii) an inducement to provide effective services to the Company as a director and/or
officer, 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
under Delaware law and as set forth in this Agreement, and, to the extent insurance is maintained,
to provide for the continued coverage of Indemnitee under the Company’s directors’ and officers’
liability insurance policies.
NOW, THEREFORE, in consideration of the above premises and of Indemnitee’s continuing to serve
the Company directly or, at its request, with another enterprise, and intending to be legally bound
hereby, the parties agree as follows:
1. Certain Definitions. As used herein, the following terms shall have the following
respective meanings:
(a) “Board” shall mean the Board of Directors of the Company.
(b) 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
(the “Exchange Act”)) (other than a trustee or other fiduciary holding
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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, and other than any person holding shares of the Company on the
date that the Company first registers under the Act or any transferee of such individual if such
transferee is a spouse or lineal descendant of the transferee or a trust for the benefit of the
individual, his spouse or lineal descendants), is or becomes the “beneficial owner” (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company
representing 20% or more of the total voting power represented by the Company’s then outstanding
Voting Securities, or (ii) during any period of two consecutive years, individuals who at the
beginning of such period constitute the Board and any new director 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 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 of the Board, or (iii) the stockholders of the Company approve a
merger or consolidation of the Company with any other entity, other than a merger or consolidation
that would result in the Voting Securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted into Voting
Securities of the surviving entity) 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 (iv) the stockholders of the Company approve a plan of complete liquidation 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.
(c) “Disinterested Director” shall mean a director of the Company who is not and was
not a party to the Proceeding in respect of which indemnification is sought by Indemnitee.
(d) “Expenses” shall mean any expense, liability, or loss, including attorneys’
fees, judgments, fines, ERISA excise taxes and penalties, amounts paid or to be paid in settlement,
any interest, assessments, or other charges imposed thereon, any federal, state, local, or foreign
taxes imposed as a result of the actual or deemed receipt of any payments under this Agreement, and
all other costs and obligations, paid or incurred in connection with investigating, defending,
being a witness in, participating in (including on appeal), or preparing for any of the foregoing
in, any Proceeding relating to any Indemnifiable Event.
(e) “Indemnifiable Event” shall mean any event or occurrence that takes place
either prior to or after the execution of this Agreement, related to the fact that Indemnitee is or
was a director, officer or employee of the Company, or while a director, officer or employee, is or
was serving at the request of the Company as a director, officer, employee, trustee, agent, limited
partner, member or fiduciary of another foreign or domestic corporation, partnership, joint
venture, employee benefit plan, trust, or other enterprise, or was a director, officer, employee,
or agent of a foreign or domestic corporation that was a predecessor corporation of the Company or
of another enterprise at the request of such predecessor corporation, or related to anything done
or not done by Indemnitee in any such capacity, whether or not the basis of the Proceeding is
alleged action in an official capacity as a director, officer, employee, or agent or in
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any other capacity while serving as a director, officer, employee, or agent of the Company, as
described above.
(f) “Independent Counsel” shall mean the person or body appointed in connection
with Section 3.
(g) A “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 to consider taking actions that, 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, increases his beneficial ownership of such securities by 5% 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 purposes of this Agreement, a Potential Change in Control has
occurred.
(h) “Proceeding” shall mean any threatened, pending, or completed action, suit,
arbitration, alternative dispute mechanism, inquiry, administrative or legislative hearing,
investigation or any other actual, threatened or completed proceeding, including any and all
appeals, whether conducted by the Company or any other party, whether civil, criminal,
administrative, investigative, or other, and in each case whether or not commenced prior to the
date of this Agreement, that relates to an Indemnifiable Event.
(i) “Reviewing Party” shall mean the person or body appointed in accordance with
Section 3.
(j) “Voting Securities” shall mean any securities of the Company that vote
generally in the election of directors.
2. Agreement to Indemnify. The Company agrees to indemnify Indemnitee as follows:
(a) General Agreement. 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 Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the
Company shall indemnify Indemnitee from and against any and all Expenses, liability or loss,
judgments, fines, ERISA excise taxes and penalties, amounts paid or to be paid in settlement, any
interest, assessments, or other charges imposed thereon, and any federal, state, local, or foreign
taxes imposed as a result of the actual or deemed receipt of any payments under this Agreement, to
the fullest extent permitted by applicable law, as the same exists or may hereafter be amended or
interpreted (but in the case of any such amendment or interpretation, only to the extent that such
amendment or interpretation permits the Company to provide broader
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indemnification rights than were permitted prior thereto). The parties hereto intend that this
Agreement shall provide for indemnification in excess of that expressly permitted by statute,
including, without limitation, any indemnification provided by the Company’s Certificate of
Incorporation, its By-laws, vote of its shareholders or disinterested directors, or applicable law.
(b) Initiation of Proceeding. Notwithstanding anything in this Agreement to the
contrary, Indemnitee shall not be entitled to indemnification or advancement pursuant to this
Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any
director or officer of the Company unless (i) the Company has joined in or the Board has consented
to the initiation of such Proceeding; (ii) the Proceeding is one to enforce indemnification rights
under Section 5; or (iii) the Proceeding is instituted after a Change in Control (other than a
Change in Control approved by a majority of the directors on the Board who were directors
immediately prior to such Change in Control) and Independent Counsel has approved its initiation.
(c) Expense Advances. If so requested by Indemnitee, the Company shall advance
any and all Expenses to Indemnitee (an “Expense Advance”) within thirty (30) calendar days
after the receipt by the Company of a statement or statements from Indemnitee requesting such
advance or advances, whether prior to or after final disposition of any Proceeding. Expense
Advances shall be made without regard to Indemnitee’s ability to repay the Expenses and without
regard to Indemnitee’s ultimate entitlement to indemnification under the provisions of this
Agreement. The Indemnitee shall qualify for such Expense Advances solely upon the execution and
delivery to the Company of an undertaking in form and substance reasonably satisfactory to the
Company providing that the Indemnitee undertakes to repay the Expense Advances if and to the extent
that it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company.
Expesnse Advances shall include any and all reasonable Expenses incurred pursuing an action to
enforce this right of advancement. If Indemnitee has commenced legal proceedings in a court of
competent jurisdiction in the State of Delaware to secure a determination that Indemnitee should be
indemnified under applicable law, as provided in Section 4, 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 have lapsed). Indemnitee’s obligation to reimburse the Company for
Expense Advances shall be unsecured and no interest shall be charged thereon.
(d) Mandatory Indemnification. Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee has been successful on the merits in defense of any
Proceeding relating in whole or in part to an Indemnifiable Event or in defense of any issue or
matter therein, Indemnitee shall be indemnified against all Expenses incurred in connection
therewith.
(e) Partial Indemnification. If Indemnitee is entitled under any provision of
this Agreement to indemnification by the Company for some or a portion of Expenses, but not,
however, for the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the
portion thereof to which Indemnitee is entitled.
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3. Reviewing Party.
(a) Prior to any Change in Control, the Reviewing Party shall be (a) the Board acting by a
majority vote of Disinterested Directors, whether or not such majority constitutes a quorum of the
Board of Directors; (b) a committee of Disinterested Directors designated by a majority vote of
such Disinterested Directors, whether or not such majority constitutes a quorum; or (c) if there
are no Disinterested Directors, or if the Disinterested Directors so direct, by Independent Counsel
(as described below in Section 3(b)) in a written determination to the Board of Directors, a copy
of which shall be delivered to Indemnitee.
(b) After a Change in Control, the Reviewing Party shall be the Independent Counsel
referred to below. With respect to all matters arising from a Change in Control (other than a
Change in Control approved by a majority of the directors on the Board who were directors
immediately prior to such Change in Control) concerning the rights of Indemnitee to indemnity
payments and Expense Advances under this Agreement or any other agreement or under applicable law
or the Company’s articles of incorporation or by-laws now or hereafter in effect relating to
indemnification for Indemnifiable Events, the Company shall seek legal advice only from Independent
Counsel selected by Indemnitee and approved by the Company (which approval shall not be
unreasonably withheld), and who has not otherwise performed services for the Company or the
Indemnitee (other than in connection with indemnification matters) within the last five years. The
Independent Counsel shall not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest in representing either the
Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement. Such
counsel, among other things, shall render its written opinion to the Company and Indemnitee as to
whether and to what extent the Indemnitee should be permitted to be indemnified under applicable
law. The Company agrees to pay the reasonable fees of the Independent Counsel and to indemnify
fully such counsel against any and all expenses (including attorneys’ fees), claims, liabilities,
loss, and damages arising out of or relating to this Agreement or the engagement of Independent
Counsel pursuant hereto.
4. Indemnification Process and Appeal.
(a) Indemnification Payment. Indemnitee shall be entitled to indemnification of
Expenses, and shall receive payment thereof, from the Company in accordance with this Agreement
within thirty (30) calendar days after Indemnitee has made written demand on the Company for
indemnification (which written demand shall include such documentation and information as is
reasonably available to Indemnitee and is reasonably necessary to determine whether and to what
extent Indemnitee is entitled to indemnification), unless the Reviewing Party has provided a
written determination to the Company that Indemnitee is not entitled to indemnification under
applicable law. The Reviewing Party making the determination with respect to Indemnitee’s
entitlement to indemnification shall notify Indemnitee of such written determination no later than
two (2) business days thereafter.
(b) Suit to Enforce Rights. Regardless of any action by the Reviewing Party, if
(i) no determination of entitlement to indemnification shall have been made within thirty (30)
calendar days after Indemnitee has made a demand in accordance with Section 4(a), (ii) payment
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of indemnification pursuant to Section 4(a) is not made within thirty (30) calendar days after
a determination has been made that Indemnitee is entitled to indemnification, (iii) the Reviewing
Party determines pursuant to Section 4(a) that Indemnitee is not entitled to indemnification under
this Agreement, or (iv) Indemnitee has not received advancement of Expenses within thirty (30)
calendar days after making such a request in accordance with Section 2(c), then Indemnitee shall
have the right to enforce its indemnification rights under this Agreement by commencing litigation
in any court of competent jurisdiction in the State of Delaware seeking an initial determination by
the court or challenging any determination by the Reviewing Party or any aspect thereof. The
Company hereby consents to service of process and to appear in any such proceeding. Any
determination by the Reviewing Party not challenged by the Indemnitee on or before the first
anniversary of the date of the Reviewing Party’s determination shall be binding on the Company and
Indemnitee. The remedy provided for in this Section 4 shall be in addition to any other remedies
available to Indemnitee in law or equity.
(c) Defense to Indemnification, Burden of Proof, and Presumptions.
(i) To the maximum extent permitted by applicable law in making a determination with
respect to entitlement to indemnification (or advancement of expenses) hereunder, the Reviewing
Party shall presume that an Indemnitee is entitled to indemnification (or advancement of expenses)
under this Agreement if Indemnitee has submitted a request for indemnification in accordance with
Section 4(a) of this Agreement, and the Company shall have the burden of proof to overcome that
presumption in connection with the making by the Reviewing Party of any determination contrary to
that presumption.
(ii) 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 Proceeding in advance of its final disposition where the required undertaking has been
tendered to the Company) that it is not permissible under applicable law for the Company to
indemnify Indemnitee for the amount claimed.
(iii) In connection with any action brought pursuant to Section 4(c)(ii) as to whether
Indemnitee is entitled to be indemnified hereunder, the burden of proving Indemnitee is not
entitled to indemnification under this Agreement shall be on the Company.
(iv) Neither the failure of the Reviewing Party or the Company (including its Board,
independent legal counsel, or its stockholders) to have made a determination prior to the
commencement of such action by Indemnitee that indemnification of the claimant is proper under the
circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor
an actual determination by the Reviewing Party or Company (including its Board, independent legal
counsel, or its stockholders) that the Indemnitee had not met such applicable standard of conduct,
shall be admissible as evidence in any such action for any purpose.
(v) For purposes of this Agreement, the termination of any claim, action, suit, or
proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or
upon a plea of nolo contendere, or its equivalent, shall not create a presumption
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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.
5. Indemnification for Expenses Incurred in Enforcing Rights. The Company shall
indemnify Indemnitee against any and all Expenses and, if requested by Indemnitee, shall advance
such Expenses to Indemnitee on such terms and conditions as the Board of Directors deems
appropriate, that are incurred by Indemnitee in connection with any claim asserted against or
action brought by Indemnitee for
(i) enforcement of this Agreement,
(ii) indemnification of Expenses or Expense Advances by the Company under this Agreement or
any other agreement or under applicable law or the Company’s articles of incorporation or by-laws
now or hereafter in effect relating to indemnification for Indemnifiable Events, and/or
(iii) recovery under directors’ and officers’ liability insurance policies maintained by
the Company, but only in the event that Indemnitee ultimately is determined to be entitled to such
indemnification or insurance recovery, as the case may be. In addition, the Company shall, if so
requested by Indemnitee, advance the foregoing Expenses to Indemnitee, subject to and in accordance
with Section 2(c).
6. Notification and Defense of Proceeding.
(a) Notice. Promptly after receipt by Indemnitee of notice of the commencement
of any Proceeding, Indemnitee will, if a claim in respect thereof is to be made against the Company
under this Agreement, notify the Company of the commencement thereof; but the omission so to notify
the Company will not relieve it from any liability that it may have to Indemnitee, except as
provided in Section 6(c).
(b) Defense. With respect to any Proceeding as to which Indemnitee notifies the
Company of the commencement thereof, the Company will be entitled to participate in the Proceeding
at its own expense and except as otherwise provided below, to the extent the Company so wishes, it
may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. After notice
from the Company to Indemnitee of its election to assume the defense of any Proceeding, the Company
will not be liable to Indemnitee under this Agreement or otherwise for any Expenses subsequently
incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable
costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ
his own counsel in such Proceeding, but all Expenses related thereto incurred after notice from the
company of its assumption of the defense shall be at Indemnitee’s expense unless: (i) the
employment of counsel by Indemnitee has been authorized by the Company, (ii) Indemnitee has
reasonably determined that there may be a conflict of interest between Indemnitee and the Company
in the defense of the Proceeding, (iii) after a Change in Control, the employment of counsel by
Indemnitee has been approved by the Independent Counsel, or (iv) the Company shall not within sixty
(60) calendar days in fact have employed counsel to assume the defense of such Proceeding, in each
of which case all Expenses
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of the Proceeding shall be borne by the Company; and (v) if the Company has selected counsel
to represent Indemnitee and other current and former directors, officers and employees of the
Company in the defense of a Proceeding, and a majority of such persons, including Indemnitee,
reasonably object to such counsel selected by the Company pursuant to this Section 6(b), then such
persons, including Indemnitee, shall be permitted to employ one (1) additional counsel of their
choice and the reasonable fees and expenses of such counsel shall be at the expense of the Company;
provided, however, that such counsel shall be chosen from amongst the list of counsel, if any,
approved by any company with which the Company obtains or maintains insurance. In the event
separate counsel is retained by an Indemnitee pursuant to this Section 6(b), the Company shall
cooperate with Indemnitee with respect to the defense of the Proceeding, including making
documents, witnesses and other reasonable information related to the defense available to the
Indemnitee and such separate counsel pursuant to joint-defense agreements or confidentiality
agreements, as appropriate. The Company shall not be entitled to assume the defense of any
Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the
determination provided for in (ii), (iii) and (iv) above.
(c) Settlement of Claims. The Company shall not be liable to indemnify
Indemnitee under this Agreement or otherwise for any amounts paid in settlement of any Proceeding
effected without the Company’s written consent, provided, however, that if a Change in Control has
occurred, the Company shall be liable for indemnification of Indemnitee for amounts paid in
settlement if the Independent Counsel has approved the settlement. The Company shall not settle any
Proceeding in any manner that would impose any penalty or limitation on Indemnitee without
Indemnitee’s written consent. Neither the Company nor the Indemnitee will unreasonably withhold
their consent to any proposed settlement. The Company shall not be liable to indemnify the
Indemnitee under this Agreement with regard to any judicial award if the Company was not given a
reasonable and timely opportunity, at its expense, to participate in the defense of such action;
the Company’s liability hereunder shall not be excused if participation in the Proceeding by the
Company was barred by this Agreement.
7. Establishment of Trust. In the event of a Change in Control (other than a
Change in Control approved by a majority of the directors on the Board who were directors
immediately prior to such Change in Control) or a Potential Change in Control, the Company shall,
upon written request by Indemnitee, create a Trust for the benefit of the Indemnitee and from time
to time upon written request of Indemnitee shall fund the 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, participating in, and/or defending any Proceeding
relating to an Indemnifiable Event. The amount or amounts to be deposited in the Trust pursuant to
the foregoing funding obligation shall be determined by the Reviewing Party. 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 ten 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 same circumstances for which the
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) the Trustee shall promptly pay to the Indemnitee all amounts for which the
Indemnitee shall be entitled to indemnification pursuant to this Agreement or otherwise, and (v)
all unexpended funds in the Trust shall revert to
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the Company upon a final determination by the Reviewing Party or a court of competent
jurisdiction, as the case may be, that the Indemnitee has been fully indemnified under the terms of
this Agreement. The Trustee shall be chosen by the Indemnitee. Nothing in this Section 7 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. The Company shall pay all costs of establishing and maintaining the Trust and shall
indemnify the Trustee against any and all expenses (including attorneys’ fees), claims,
liabilities, loss, and damages arising out of or relating to this Agreement or the establishment
and maintenance of the Trust.
8. Non-Exclusivity. The rights of Indemnitee hereunder shall be in addition to
any other rights Indemnitee may have under the laws of the State of Delaware, the Company’s
Certificate of Incorporation, By-laws, applicable law, or otherwise; provided, however, that this
Agreement shall supersede any prior indemnification agreement between the company and Indemnity. To
the extent that a change in applicable law (whether by statute or judicial decision) permits
greater indemnification by agreement than would be afforded currently under the Company’s
Certificate of Incorporation, By-laws, applicable law, or this Agreement, it is the intent of the
parties that Indemnitee enjoy by this Agreement the greater benefits so afforded by such change.
9. Liability Insurance. To the extent the Company maintains an insurance policy
or policies providing general and/or 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 officer or director thereunder.
10. Period of Limitations. No legal action shall be brought and no cause of
action shall be asserted by or on behalf of the Company or any affiliate 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, or such longer period as
may be required or permitted by federal or state law under the circumstances. Any claim or cause of
action of the Company or its affiliate shall be extinguished and deemed released unless asserted by
the timely filing of a legal action within such period; provided, however, that if any shorter
period of limitations is otherwise applicable to any such cause of action the shorter period shall
govern.
11. Amendment of this Agreement. 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 operate as a waiver of any other provisions hereof
(whether or not similar), nor shall such waiver constitute a continuing waiver. Except as
specifically provided herein, no failure to exercise or any delay in exercising any right or remedy
hereunder shall constitute a waiver thereof. Except as specifically provided herein, no failure to
exercise or any delay in exercising any right or remedy hereunder shall constitute a waiver
thereof.
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
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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, by law, or
otherwise) of the amounts otherwise indemnifiable hereunder.
14. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective successors (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), assigns, 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, of 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. The indemnification provided under this Agreement shall continue as to
Indemnitee for any action taken or not taken while serving in an indemnified capacity pertaining to
an Indemnifiable Event (i) even though Indemnitee may have cased to serve in such capacity at the
time of any Proceeding, and (ii) regardless of whether Indemnitee continues to serve as a director
or officer of the Company or of any other enterprise at the Company’s request.
15. Severability. If any provision (or portion thereof) of this Agreement shall
be held by a court of competent jurisdiction to be invalid, void, or otherwise unenforceable, 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 limitation,
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, void, or unenforceable.
16. 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.
17. Notices. All notices, demands, and other communications required or
permitted hereunder shall be made in writing and shall be deemed to have been duly given if
delivered by hand, against receipt, or mailed, postage prepaid, certified or registered mail,
return receipt requested, and addressed to the Company at:
PowerSecure International, Inc.
0000 Xxxxxxxx Xxxxxxxx Xxxxx
Xxxx Xxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Chief Financial Officer
0000 Xxxxxxxx Xxxxxxxx Xxxxx
Xxxx Xxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Chief Financial Officer
and to Indemnitee at the address set forth below his signature below.
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Notice of change of address shall be effective only when done in accordance with this Section.
All notices complying with this Section shall be deemed to have been received on the date of
delivery or on the third business day after mailing.
18. 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.
* * * * * * * * * * *
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IN WITNESS WHEREOF, this Indemnification Agreement has been duly executed and delivered by or
on behalf of the parties hereto as of the day and year first above written.
| THE COMPANY: | ||||||
| POWERSECURE INTERNATIONAL, INC. | ||||||
| By: | ||||||
| Its: | ||||||
| INDEMNITEE: | ||||||
| [Signature] | ||||||
| [Print Name] | ||||||
| [Street Address] | ||||||
| [City, State, Zip Code] | ||||||
| [Telephone Number, with area code] | ||||||
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