Exhibit
99.3
INDEMNIFICATION AGREEMENT
This Agreement made and entered into
this 27 th day of November, (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 Jean Nelson
(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 person 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 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 a director 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 an officer, employee, trustee or agent 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 an
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 Agreeme
