Exhibit 10.2
INDEMNIFICATION
AGREEMENT
This INDEMNIFICATION AGREEMENT,
effective as
of ,
200__, is entered into by and between InfraSource
Services, Inc., a Delaware corporation (the “
Company ”),
and (the
“ 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 or
officer of the Company;
WHEREAS, both the Company and
Indemnitee recognize the increased risk of litigation and other
claims being asserted against directors and officers of public
companies in today’s environment;
WHEREAS, basic protection against
undue risk of personal liability of directors and officers
heretofore has been provided through insurance coverage providing
reasonable protection at reasonable cost, and Indemnitee has relied
on the availability of such coverage; but as a result of
substantial changes in the marketplace for such insurance it has
become increasingly more difficult to obtain such insurance on
terms providing reasonable protection at reasonable
cost;
WHEREAS, the Amended and Restated
By-Laws of the Company, in effect as of the date of this Agreement
(the “By-Laws”), require the Company to indemnify and
advance expenses to its directors and officers in certain
circumstances and the Indemnitee has agreed to serve as a director
or officer of the Company in part in reliance on such By-Laws;
and
WHEREAS, in recognition of
Indemnitee’s need for substantial protection against personal
liability in order to enhance Indemnitee’s continued service
to the Company in an effective manner, the increasing difficulty in
obtaining satisfactory director and officer liability insurance
coverage, and Indemnitee’s reliance on the aforesaid By-Laws,
and in part to provide Indemnitee with specific contractual
assurance that the protection promised by such By-Laws will be
available to Indemnitee (regardless of, among other things, any
amendment to or revocation of such By-Laws or any change in the
composition of the Company’s Board of Directors or
acquisition transaction relating to the Company), 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 by law and as set forth in
this Agreement, and, to the extent insurance is maintained, for the
continued coverage of Indemnitee under the Company’s
directors’ and officers’ liability insurance
policies.
NOW, THEREFORE, in consideration of
the premises and of Indemnitee continuing to serve the Company
directly or, at its request, another enterprise, and intending to
be legally bound hereby, the parties hereto agree as
follows:
1.
Certain Definitions:
(a) ”
Affiliate ” of any specified person means any other
person, directly or indirectly, controlling or controlled by or
under direct or indirect common control with such specified person.
For the purposes of this definition, “ control ”
when used with respect to any person means the power to direct the
management and policies of such person, directly or indirectly,
whether through the ownership of voting securities, by contract or
otherwise; and the terms “ controlling ” and
“ controlled ” have meanings correlative to the
foregoing.
(b)
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), other
than one or more Permitted Holders, a trustee or other fiduciary
holding 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, is or
becomes the “ beneficial owner ” (as defined in
Rule 13d-3 under said Act), directly or indirectly, of
securities of the Company representing 35% or more of the total
voting power represented by the Company’s then outstanding
Voting Securities; provided , however , that no
Change of Control shall be deemed to have occurred under this
paragraph (i) if the Permitted Holders either
(a) beneficially own (as defined above), directly or
indirectly, (x) in the aggregate more than 35% of the total
voting power of the Company’s then outstanding Voting
Securities and (y) a greater percentage of the total voting
power of the Company’s then outstanding Voting Securities
than any other person or (b) have the right or ability by
voting power, contract or otherwise to elect or designate for
election a majority of the Board of Directors;
(ii) during any period of
two consecutive years, individuals who at the beginning of such
period constituted the Board of Directors of the Company and any
new director whose election by the Board of Directors or nomination
for election by the Company’s stockholders was approved by a
vote of at least a majority 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
(including new directors designated in or provided for in an
agreement regarding the merger, consolidation or sale, transfer or
other conveyance, or all or substantially all of the assets of the
Company, if such agreement was approved by a vote of such majority
of directors), cease for any reason to constitute a majority of the
Board of Directors then in office; or
(iii) the stockholders of
the Company approve a merger or consolidation of the Company with
any other corporation in which 100% of the Voting Securities of the
Company are exchanged into or exchanged for cash, securities or
properties, other than a merger or consolidation (a) to one or
more Permitted Holders or any entity controlled by one or more
Permitted Holders or (b) 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 30% of the total voting power represented by the Voting
Securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation and a greater
percentage of the surviving entity’s Voting Securities than
the percentage of Voting Securities beneficially owned by any other
person, or the stockholders of the Company approve a plan of
liquidation of the Company or an agreement for the sale or
disposition by the Company of (in one transaction or a series of
transactions) all or substantially all the Company’s
assets.
(c)
Claim: any
threatened, pending or completed action, suit or proceeding, or any
inquiry or investigation, whether instituted by the Company or any
other party, that Indemnitee in good faith believes might lead to
the institution of any such action, suit or proceeding, whether
civil, criminal, administrative, investigative or other.
(d)
Expenses:
include attorneys’ fees and all other
costs, expenses and obligations paid or incurred in connection with
investigating, defending, being a witness in or participating in
(including on appeal), or preparing to defend, be a witness in or
participate in, any Claim relating to any Indemnifiable
Event.
(e)
Indemnifiable Event:
any event or occurrence related to the fact
that Indemnitee is or was a director, officer, employee, agent or
fiduciary of the Company, or is or was serving at the request of
the Company as a director, officer, employee, trustee, agent or
fiduciary of another corporation, partnership, joint venture,
employee benefit plan, trust or other enterprise, or by reason of
anything done or not done by Indemnitee in any such
capacity.
(f)
Independent Legal Counsel:
an attorney or firm of attorneys, selected
in accordance with the provisions of Section 3, who shall not
have otherwise performed services for the Company or Indemnitee
within the last three years (other than with respect to matters
concerning the rights of Indemnitee under this Agreement, or of
other indemnitees under similar indemnity agreements).
(g) Permitted
Holders means OCM Principal Opportunities Fund II, L.P.,
OCM/GFI Power Opportunities Fund, L.P. and their
respective
