Exhibit 10.35
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT is made as of ___________, 2000
between H Power Corp., a Delaware corporation ("H Power"), and _____________
(collectively with such person's heirs, executors, administrators and other
personal representatives, the "Indemnitee"), an officer or director of H Power.
WHEREAS, the Board of Directors has concluded that H Power'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 H Power;
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 H Power'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 H Power 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 H Power's Certificate of Incorporation (the "Certificate"), 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, H Power 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 H Power or by
Indemnitee to enforce any rights under this Agreement or otherwise against H
Power 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 H
Power 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 H
Power 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 H Power 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 H Power:
(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 H Power 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;
(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 H Power
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; or
(f) in connection with any Proceeding (or part thereof)
initiated by Indemnitee, or any Proceeding by Indemnitee against H Power 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 Board of Directors of H Power, (iii) such indemnification is
provided by H Power, in its sole discretion, pursuant to the powers vested in H
Power under applicable law, or (iv) the Proceeding is initiated pursuant to
Section 4 hereof.
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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 H Power within 45 days after a written request for
payment thereof has first been received by H Power, Indemnitee may, but need
not, at any time thereafter bring an action against H Power 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 H Power 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 H Power to indemnify Indemnitee for the amount
claimed, but the burden of proving such defense shall be on H Power 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
the Board of Directors of H Power to enable H Power to coordinate Indemnitee's
defense with, if applicable, H Power'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
the Board of Directors of H Power to subrogate to H Power any rights of recovery
(including rights to insurance or indemnification from persons other than H
Power) 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 H Power and Indemnitee; and
(d) Indemnitee agrees to cooperate with H Power and its
counsel and maintain any confidences revealed to him or her by H Power in
connection with H Power's defense of any action. H Power 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.
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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 H
Power in writing of the institution of any Proceeding that is or may be subject
to this Agreement and generally keep H Power informed of, and consult with H
Power 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 H Power. H Power
acknowledges that, in providing services to H Power, Indemnitee is relying on
this Agreement. Accordingly, H Power agrees that its obligations hereunder will
survive (i) any actual or purported termination of this Agreement by H Power or
its successors or assigns whether by operation of law or otherwise, (ii) any
change in H Power's Certificate or By- Laws and (iii) termination of the
Indemnitee's services to H Power (whether such services were terminated by H
Power or the Indemnitee), 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.
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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.
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H POWER CORP.
By:
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