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Exhibit
99.3
FORM OF
INDEMNIFICATION
AGREEMENT
This Agreement made and
entered into this 9th day of July, 2007 (the
“Agreement”), by and between Plug Power Inc., a
Delaware corporation (the “Company,” which term shall
include, where appropriate, any Entity (as hereinafter defined)
controlled directly or indirectly by the Company) and Gerald A.
Anderson (the “Indemnitee”):
WHEREAS, it is essential to
the Company that it be able to retain and attract as a Chief
Financial Officer the most capable persons available;
WHEREAS, increased corporate
litigation has subjected Chief Financial Officers to litigation
risks and expenses, and the limitations on the availability of
directors and officers liability insurance have made it
increasingly difficult for the Company to attract and retain such
persons;
WHEREAS, the Company’s
By-laws (the “By-laws”) require it to indemnify its
chief Financial Officers to the fullest extent permitted by law and
permit it to make other indemnification arrangements and
agreements;
WHEREAS, the Company desires
to provide Indemnitee with specific contractual assurance of
Indemnitee’s rights to full indemnification against
litigation risks and expenses (regardless, among other things, of
any amendment to or revocation of the By-laws or any change in the
ownership of the Company or the composition of its Board of
Directors);
WHEREAS, the Company intends
that this Agreement provide Indemnitee with greater protection than
that which is provided by the By-laws; and
WHEREAS, Indemnitee is
relying upon the rights afforded under this Agreement in becoming
the Chief Financial Officer of the Company.
NOW, THEREFORE, in
consideration of the promises and the covenants contained herein,
the Company and Indemnitee do hereby covenant and agree as
follows:
1. Definitions
.
(a) “Corporate
Status” describes the status of a person who is serving or
has served (i) as Chief Financial Officer of the Company,
(ii) in any capacity with respect to any employee benefit plan
of the Company, or (iii) as a director, partner, trustee,
officer, employee, or agent of any other Entity at the request of
the Company. For purposes of subsection (iii) of this
Section 1(a), if Indemnitee is serving or has served as a
director, partner, trustee, officer, employee or agent of a
Subsidiary, Indemnitee shall be deemed to be serving at the request
of the Company.
(b) “Entity”
shall mean any corporation, partnership, limited liability company,
joint venture, trust, foundation, association, organization or
other legal entity.
(c) “Expenses”
shall mean all fees, costs and expenses incurred by Indemnitee in
connection with any Proceeding (as defined below), including,
without limitation, attorneys’ fees, disbursements and
retainers (including, without limitation, any such fees,
disbursements and retainers incurred by Indemnitee pursuant to
Sections 10 and 11(c) of this Agreement), fees and
disbursements of expert witnesses, private investigators and
professional advisors (including, without limitation, accountants
and investment bankers), court costs, transcript costs, fees of
experts, travel expenses, duplicating, printing and binding costs,
telephone and fax transmission charges, postage, delivery services,
secretarial services, and other disbursements and
expenses.
(d) “Indemnifiable
Expenses,” “Indemnifiable Liabilities” and
“Indemnifiable Amounts” shall have the meanings
ascribed to those terms in Section 3(a) below.
(e) “Liabilities”
shall mean judgments, damages, liabilities, losses, penalties,
excise taxes, fines and amounts paid in settlement.
(f) “Proceeding”
shall mean any threatened, pending or completed claim, action,
suit, arbitration, alternate dispute resolution process,
investigation, administrative hearing, appeal, or any other
proceeding, whether civil, criminal, administrative, arbitrative or
investigative, whether formal or informal, including a proceeding
initiated by Indemnitee pursuant to Section 10 of this
Agreement to enforce Indemnitee’s rights
hereunder.
(g) “Subsidiary”
shall mean any corporation, partnership, limited liability company,
joint venture, trust or other Entity of which the Company owns
(either directly or through or together with another Subsidiary of
the Company) either (i) a general partner, managing member or
other similar interest or (ii) (A) 50% or more of the
voting power of the voting capital equity interests of such
corporation, partnership, limited liability company, joint venture
or other Entity, or (B) 50% or more of the outstanding voting
capital stock or other voting equity interests of such corporation,
partnership, limited liability company, joint venture or other
Entity.
2. Services of
Indemnitee . In consideration of the Company’s covenants
and commitments hereunder, Indemnitee agrees to serve or continue
to serve as Chief Financial Officer of the Company. However, this
Agreement shall not impose any obligation on Indemnitee or the
Company to continue Indemnitee’s service to the Company
beyond any period otherwise required by law or by other agreements
or commitments of the parties, if any.
3. Agreement to
Indemnify . The Company agrees to indemnify Indemnitee as
follows:
(a) Proceedings Other Than
By or In the Right of the Company . Subject to the exceptions
contained in Section 4(a) below, if Indemnitee was or is a
party or
is threatened to be made a
party to any Proceeding (other than an action by or in the right of
the Company) by reason of Indemnitee’s Corporate Status,
Indemnitee shall be indemnified by the Company against all Expenses
and Liabilities incurred or paid by Indemnitee in connection with
such Proceeding (referred to herein as “Indemnifiable
Expenses” and “Indemnifiable Liabilities,”
respectively, and collectively as “Indemnifiable
Amounts”).
(b) Proceedings By or In
the Right of the Company . Subject to the exceptions contained
in Section 4(b) below, if Indemnitee was or is a party or is
threatened to be made a party to any Proceeding by or in the right
of the Company by reason of Indemnitee’s Corporate Status,
Indemnitee shall be indemnified by the Company against all
Indemnifiable Expenses.
(c) Expenses as a
Witness . To the extent that Indemnitee is, by reason of his or
her Corporate Status, a witness in any Proceeding to which
Indemnitee is not a party and is not threatened to be made a party,
Indemnitee shall be indemnified by the Company against all Expenses
incurred or paid by Indemnitee in connection therewith, which
Expenses shall be considered Indemnifiable Expenses for purposes of
this Agreement.
(d) Conclusive Presumption
Regarding Standard of Care . In making any determination
required to be made under Delaware law with respect to entitlement
to indemnification hereunder, the person, persons or entity making
such determination shall presume that Indemnitee is entitled to
indemnification under this Agreement if Indemnitee submitted a
request therefor in accordance with Section 5 of this
Agreement, and the Company shall have the burden of proof to
overcome that presumption in connection with the making by any
person, persons or entity of any determination contrary to that
presumption.
4. Exceptions to
Indemnification . Indemnitee shall be entitled to
indemnification under Sections 3(a) and 3(b) above in all
circumstances other than with respect to any specific claim, issue
or matter involved in the Proceeding out of which
Indemnitee’s claim for indemnification has arisen, as
follows:
(a) Proceedings Other Than
By or In the Right of the Company . If indemnification is
requested under Section 3(a) and it has been finally
adjudicated by a court of competent jurisdiction that, in
connection with such specific claim, issue or matter, Indemnitee
failed to act (i) in good faith and (ii) in a manner
Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company, or, with respect to any criminal
Proceeding, Indemnitee had reasonable cause to believe that
Indemnitee’s conduct was unlawful, Indemnitee shall not be
entitled to payment of Indemnifiable Amounts hereunder.
(b) Proceedings By or In
the Right of the Company . If indemnification is requested
under Section 3(b) and
(i) it has been finally
adjudicated by a court of competent jurisdiction that, in
connection with such specific claim, issue or matter, Indemnitee
failed to act (A) in good faith and (B) in a manner
Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company, Indemnitee shall not be entitled to
payment of Indemnifiable Expenses hereunder; or
(ii) it has been finally
adjudicated by a court of competent jurisdiction that Indemnitee is
liable to the Company with respect to such specific claim,
Indemnitee shall not be entitled to payment of Indemnifiable
Expenses hereunder with respect to such claim, issue or matter
unless the Court of Chancery or another court in which such
Proceeding was brought shall determine upon application that,
despite the adjudication of liability, but in view of all the
circumstances of the case, Indemnitee is fairly and reasonably
entitled to indemnification for such Indemnifiable Expenses which
such court shall deem proper; or
(iii) it has been finally
adjudicated by a court of competent jurisdiction that Indemnitee is
liable to the Company for an accounting of profits made from the
purchase or sale by the Indemnitee of securities of the Company
pursuant to the provisions of Section 16(b) of the Securities
Exchange Act of 1934, the rules and regulations promulgated
thereunder and amendments thereto or similar provisions of any
federal, state or local statutory law, Indemnitee shall not be
entitled to payment of Indemnifiable Expenses hereunder.
(c) Insurance Proceeds
. To the extent payment is actually made to the Indemnitee under a
valid and collectible insurance policy in respect of Indemnifiable
Amounts in connection with such specific claim, issue or matter,
Indemnitee shall not be entitled to payment of Indemnifiable
Amounts hereunder except in respect of any excess beyond the amount
of payment under such insurance.
5. Procedure for Payment
of Indemnifiable Amounts . Indemnitee shall submit to the
Company a written request specifying the Indemnifiable Amounts for
which Indemnitee seeks payment under Section 3 of this
Agreement and the basis for the claim. The Company shall pay such
Indemnifiable Amounts to Indemnitee promptly upon receipt of its
request. At the request of the Company, Indemnitee shall furnish
such documentation and information as are reasonably available to
Indemnitee and necessary to establish that Indemnitee is entitled
to indemnification hereunder.
6. Indemnification for
Expenses of a Party Who is Wholly or Partly Successful .
Notwithstanding any other provision of this Agreement, and without
limiting any such provision, to the extent that Indemnitee is, by
reason of Indemnitee’s Corporate Status, a party to and is
successful, on the merits or otherwise, in any Proceeding,
Indemnitee shall be indemnified against all Expenses reasonably
incurred by Indemnitee or on Indemnitee’s behalf in
connection therewith. If Indemnitee is not wholly successful in
such Proceeding but is successful, on the merits or otherwise, as
to one or more but less than all claims, issues or matters in such
Proceeding, the Company shall indemnify Indemnitee against all
Expenses reasonably incurred
by Indemnitee or on Indemnitee’s
behalf in connection with each successfully resolved claim, issue
or matter. For purposes of this Agreement, the termination of any
claim, issue or matter in such a Proceedi
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