Exhibit 10.1.25
INDEMNIFICATION AGREEMENT
AGREEMENT, effective as of ________________ 2000, between Beacon
Power Corporation, a Delaware corporation (the "Company"), and __________
("Indemnitee").
WHEREAS, it is essential to the Company to retain and attract as
officers and directors the most capable persons available; and the Company
wishes to retain the services of the Indemnitee as an officer or director;
WHEREAS, lawsuits seeking significant money judgments against
publicly held corporations and their officers and directors have become
commonplace in recent years and uncertainties about the possible judicial
interpretations of applicable statutes, regulations and corporate charter and
by-law provisions leave corporate officers and directors with inadequate
reliable knowledge of the legal risks to which they may be exposed by such
lawsuits; whether or not the case is meritorious, the cost of defending such
lawsuits is significant with few individual officers and directors having the
resources to sustain such legal costs and such lawsuits present individual
officers and directors with the risk of significant money judgments even in
cases where the defendant was neither culpable nor profited personally to the
detriment of the Company;
WHEREAS, the Indemnitee is unwilling to continue to serve the
Company as an officer or director without assurances that indemnification and
adequate liability insurance is and will continue to be provided to the
fullest extent possible; 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 and in part to
provide Indemnitee with specific contractual assurance that the
indemnification protection provided by the Certificate of Incorporation and
Bylaws of the Company will be available to Indemnitee (regardless of, among
other things, any amendment to or revocation of such Certificate of
Incorporation and Bylaws or any change in the composition of the Company's
Board of Directors (the "Board") or acquisition transaction relating to the
Company), and in order to induce Indemnitee to continue to provide services
to the Company as an officer or director thereof, 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 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 as an officer or director and intending to be
legally bound hereby, the parties agree as follows:
1. CERTAIN DEFINITIONS.
(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), other than 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, (ii) during any period of two consecutive
years, individuals who at the beginning of such period constitute the Board
and any new officers and directors 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
officers or 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 thereof or (iii) the stockholders of the Company
approve a merger or consolidation of the Company with any other corporation,
other than a merger or consolidation which 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 the stockholders of the Company approve a plan of complete
liquidation (as that term is used in the Internal Revenue Code of 1986, as
amended, and the rules and regulations promulgated thereunder) 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 (as that phrase is used in the General Corporation Law of
the State of Delaware).
(b) Claim: any threatened, pending or completed action,
suit, proceeding or alternative dispute resolution mechanism, which arises by
reason of or in part out of an Indemnifiable Event, or any inquiry, hearing
or investigation, whether conducted by the Company or any other party, that
Indemnitee in good faith believes might lead to the institution of any such
action, suit, proceeding or alternative dispute resolution mechanism, whether
civil, criminal, administrative, investigative or other.
(c) D&O Insurance: the directors' and officers' liability
insurance issued by the insurer(s), and having the policy number(s),
amount(s) and deductible(s) set forth on Exhibit A hereto and any replacement
or substitute policies issued by one or more reputable insurers providing in
all material respects coverage at least comparable to and in the same amount
as that provided under the policy or policies identified on Exhibit A.
(d) Expenses: include reasonable attorneys' fees, travel
expenses, fees of experts, transcript costs, filing fees, witness fees,
telephone charges, postage, delivery service fees, and all other expenses and
obligations of any nature whatsoever 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) Expense Advance: a payment to Indemnitee pursuant to
Section 2(b) of Expenses in advance of the settlement of or final judgment in
any action, suit, proceeding or alternative dispute resolution mechanism,
hearing, inquiry or investigation which constitutes a Claim.
(f) Indemnifiable Event: any event, occurrence or
circumstance that takes place either prior to or after the execution of this
Agreement related to the fact that Indemnitee is or was an officer or
director of the Company, or is or was serving at the request of the Company
as a director, officer, partner, 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.
(g) 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 consider taking actions which 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, acquires additional shares with the effect that his beneficial
ownership of such securities increases by five percentage points 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 purpose of this Agreement, a
Potential Change in Control has occurred.
(h) Reviewing Party: any appropriate person or body
consisting of a member or members of the Company's Board of Directors, or any
other person or body appointed by the Board who is not a party to the
particular Claim for which Indemnitee is seeking indemnification, or
Independent Legal Counsel. If there has not been a Change in Control, the
Reviewing Party shall be selected by the Board of Directors, and if there has
been
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such a Change in Control (other than a Change in Control which has been
approved by a majority of the Company's Board of Directors who were directors
immediately prior to such Change in Control), the Reviewing Party shall be
the Independent Legal Counsel referred to in Section 3 hereof.
(i) Independent Legal Counsel: shall refer to an attorney,
selected in accordance with the provisions of Section 3 hereof, who shall not
have otherwise performed services for the Company or Indemnitee within the
last five years (other than in connection with seeking indemnification under
this Agreement). Independent Legal Counsel shall not be any person who, under
the applicable standards of professional conduct then prevailing, would have
conflict of interest in representing either the Company or Indemnitee in an
action to determine Indemnitee's rights under this Agreement, nor shall
Independent Legal Counsel be any person who has been sanctioned or censured
for ethical violations of applicable standards of professional conduct.
(j) Voting Securities: any securities of the Company which
vote generally in the election of directors.
2. BASIC INDEMNIFICATION AGREEMENT.
(a) GENERAL. Subject to Section 2(c), if 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 Claim,
the Company shall indemnify Indemnitee to the fullest extent not prohibited
by law as soon as practicable but in any event no later than thirty days
after written demand is presented to the Company, against any and all
Expenses, judgments, fines, penalties and amounts paid in settlement
(including all interest, assessments and other charges paid or payable in
connection with or in respect of such Expenses, judgments, fines, penalties
or amounts paid in settlement) of such Claim, and against any and all
federal, state, local or foreign taxes imposed on the Indemnitee as a result
of the actual or deemed receipt of any payments under this Agreement
(including the creation of the trust referred to in Section 4 hereof).
Notwithstanding anything in this Agreement to the contrary and except as
provided in Section 2(b) (with respect to indemnification for Expenses
incurred in obtaining indemnification or Expense Advances from the Company),
prior to a Change in Control, Indemnitee shall not be entitled to
indemnification pursuant to this Agreement in connection with any Claim
initiated by Indemnitee against the Company or any director or officer of the
Company unless the Company has joined in or consented to the initiation of
such Claim.
(b) EXPENSE ADVANCES, ETC.. Subject to Section 2(c), the
Company shall make Expense Advances for reasonable Expenses to Indemnitee,
within twenty business days of a request by Indemnitee. The parties agree
that for the purposes hereof all Expenses included in an Expense Advance
request that are certified by affidavit of Indemnitee's counsel as being
reasonable shall be presumed conclusively to be reasonable.
The Company shall also indemnify Indemnitee against any and
all Expenses which are incurred by Indemnitee in connection with any action
brought by Indemnitee (i) for indemnification or advance payment of Expenses
by the Company under this Agreement or any other agreement or Certificate of
Incorporation or Bylaws of the Company now or hereafter in effect relating to
Claims for Indemnifiable Events, and/or (ii) for recovery under the D&O
Insurance policies maintained by the Company.
(c) CIRCUMSTANCES OF NO INDEMNIFICATION; REIMBURSEMENT.
Notwithstanding the foregoing, the obligations of the Company under Section
2(a) and 2(b) shall not apply if either the Reviewing Party has determined
(in a written opinion, in any case in which the Independent Legal Counsel
referred to in Section 3 hereof is involved), or a final judicial
determination is made (as to which all rights of appeal therefrom have been
exhausted or lapsed), that Indemnitee would not be permitted to be
indemnified under this Agreement and applicable law. In either such case, the
Indemnitee shall reimburse the Company for all amounts paid by the Company to
Indemnitee under this Agreement with respect to such Claim. Indemnitee's
obligation to reimburse the Company for Expense Advances shall be unsecured
and no interest shall be charged thereon. However, a determination by the
Reviewing Party shall not be binding if the Indemnitee or the Company has
commenced legal proceedings to secure
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a judicial determination whether Indemnitee should be indemnified under
applicable law, and Indemnitee shall not be required to reimburse the Company
until a final judicial determination is made with respect thereto (as to
which all rights of appeal therefrom have been exhausted or lapsed, and
herein, a "Final Adjudication"). Indemnitee and the Company shall each have
the right to commence litigation seeking an initial determination by a court
or challenging any determination made by a Reviewing Party or any aspect
thereof, or the legal or factual bases therefor, and the parties hereby
consent to service of process and to appear in any such proceeding.
No indemnification shall be paid by the Company with
respect to a Claim, if there is a Final Adjudication relating to such Claim
(i) that paying Indemnitee hereunder violates this Agreement or applicable
law; (ii) that Indemnitee is liable for an accounting of profits made from
the purchase or sale by Indemnitee of securities of the Company 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, (iii) that Indemnitee's conduct was knowingly fraudulent or
deliberately dishonest, or constituted willful misconduct, (iv) that
Indemnitee willfully misappropriated corporate assets, or knowingly disclosed
the Company's confidential information in bad faith.
3. CHANGE IN CONTROL. The Company agrees that if there is a
Change in Control of the Company (other than a Change in Control which has
been approved by a majority of the Board who were directors immediately prior
to such Change in Control) then Independent Legal Counsel shall be selected
by Indemnitee and approved by the Company (which approval shall not be
unreasonably withheld) and such Independent Legal Counsel shall determine
whether the Indemnitee is entitled to indemnity payments and Expense Advances
under this Agreement or any other agreement or Certificate of Incorporation
or Bylaws of the Company now or hereinafter in effect relating to Claims for
Indemnifiable Events. Such Independent Legal Counsel, among other things,
shall render its written opinion to the Company and Indemnitee as to whether
and to what extent the Indemnitee will be permitted to be indemnified. The
Company agrees to pay the reasonable fees of the Independent Legal Counsel
and to indemnify fully such Independent Legal Counsel against any and all
expenses (including attorneys' fees), claims, liabilities and damages arising
out of or relating to this Agreement.
4. ESTABLISHMENT OF TRUST. In the event of a Potential Change
in Control, the Company shall, upon written request by Indemnitee, create a
trust for the benefit of Indemnitee and from time to time upon written
request of Indemnitee shall fund such 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 and
defending any Claim relating to an Indemnifiable Event, and any and all
judgments, fines, penalties and settlement amounts of any and all Claims
relating to an Indemnifiable Event from time to time actually paid or
claimed, reasonably anticipated or proposed to be paid. The amount or amounts
to be deposited in the trust pursuant to the foregoing funding obligation
shall be determined by the Reviewing Party, in any case in which the
Independent Legal Counsel referred to above is involved. 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
Indemnitee and the Company, which shall not be unreasonably withheld, (ii)
the trustee shall advance, within twenty business days of a request by
Indemnitee, any and all Expenses to Indemnitee (and Indemnitee hereby agrees
to reimburse the trust under the circumstances under which 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) absent a judicial order to the
contrary, the trustee shall promptly pay to Indemnitee all amounts for which
Indemnitee shall be entitled to indemnification pursuant to this Agreement or
otherwise, and (v) all unexpended funds in such trust shall revert to the
Company upon a final determination by a court of competent jurisdiction (or
the Reviewing Party, in the case that no court has so determined) that
Indemnitee has been fully indemnified under the terms of this Agreement. The
trustee shall be a bank or trust company or other individual or entity chosen
by the Indemnitee and approved by the Company. Nothing in this Section 4
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.
5. CERTAIN PROCEDURES. If any Claim shall be brought or
asserted against Indemnitee in respect of
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which indemnification may be sought hereunder, Indemnitee shall promptly
notify the Company in writing, and the Company shall have the right to assume
the defense thereof, including the employment of counsel reasonably
satisfactory to Indemnitee and the payment of all expenses. Indemnitee shall
have the right to employ separate counsel in any such action and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of Indemnitee unless (i) the Company agrees to pay
such fees and expenses, or (ii) the Company has failed promptly to assume the
defense of such action or proceeding and employ counsel reasonably
satisfactory to Indemnitee in any such action or proceeding, or (iii) the
named parties to any such action or proceeding include both Indemnitee and
Company, and Indemnitee has been advised by counsel that there may be one or
more legal defenses available to him which are different from or additional
to those available to the Company, in which case, if Indemnitee notifies the
Company in writing that he elects to employ separate counsel at the expense
of the Company, the Company shall not have the right to assume the defense of
such action or proceeding on behalf of Indemnitee and shall pay all Expenses
including attorneys' fees incurred by Indemnitee in such defense.
Neither the Company nor Indemnitee may settle or compromise any
Claim as to which Indemnitee has notified the Company that he seeks
indemnification under this Agreement, without the prior written consent of
the other party hereto, provided that consent to such settlement or
compromise shall not be unreasonably withheld by any of the parties hereto
and shall be deemed to have been given by the Company if Indemnitee provides
the Company with a written notice setting forth the material terms of such
settlement or compromise and the Company does not object thereto in a written
notice delivered to Indemnitee within 30 calendar days after the Company's
receipt of such notice from Indemnitee. Notwithstanding the foregoing,
Indemnitee shall not be required to consent to any settlement or compromise
that does not include a complete, full and absolute release of the
Indemnitee, in form and substance satisfactory to the Indemnitee in his or
her sole discretion, from any liability under such claim.
6. MAINTENANCE OF D&O INSURANCE.
(a) The Company hereby represents and warrants that Exhibit A
contains a complete and accurate description of the policies of directors and
officers' liability insurance maintained by the Company and that such
policies are in full force and effect.
(b) The Company hereby covenants and agrees that, so long as
Indemnitee shall continue to serve as an officer or director of the Company
and thereafter for a period of three years, the Company, subject to Section
5(d), shall maintain in full force and effect D&O Insurance.
(c) In all policies of D&O Insurance, Indemnitee shall be named as
an insured in such a manner as to provide Indemnitee the same rights and
benefits, subject to the same limitation, as are accorded to the Company's
directors or officers most favorably insured by such policies.
(d) The Company shall have no obligation to maintain D&O Insurance
if the Company determines in good faith that such insurance is not reasonably
available, the premium costs for such insurance is disproportionate to the
amount of coverage provided, or the coverage provided by such insurance is
limited by exclusions so as to provide an insufficient benefit.
(e) Upon receipt by the Company of notice of a Claim, the Company
shall give prompt notice of the commencement of such Claim to its liability
insurers in accordance with the procedures set forth in the respective D&O
Insurance policies. The Company shall thereafter take all necessary or
desirable action to cause such insurers to pay, on behalf of Indemnitee, all
amounts payable as a result of such Claim in accordance with the terms of
such policies.
7. PARTIAL INDEMNITY, ETC. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of the Expenses, judgment, fines, penalties and amounts paid in
settlement of a Claim but not, however, for all of the total amount thereof,
the Company shall nevertheless indemnify Indemnitee for the portion thereof
to which Indemnitee is entitled. Moreover, notwithstanding any other
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provision of this Agreement, to the extent that Indemnitee has been
successful on the merits otherwise in defense of any or all Claims relating
in whole or in part to an Indemnifiable Event or in defense of any issue or
matter therein, including dismissal without prejudice, Indemnitee shall be
indemnified against all Expenses incurred in connection therewith.
8. DEFENSE TO INDEMNIFICATION, BURDEN OF PROOF AND
PRESUMPTIONS. 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 Claim in advance of
its final disposition where the required undertaking for any applicable
contingent reimbursement has been tendered to the Company) that Indemnitee
has not met the standards of conduct that make it permissible under the
Delaware General Corporation Law for the Company to indemnify Indemnitee for
the amount claimed. It shall be presumed that Indemnitee was acting in good
faith within the scope of his employment or authority, as he could reasonably
have perceived it under the circumstances and for a purpose he could
reasonably have believed under the circumstances was in or not opposed to the
best interests of the Company. In connection with any determination by the
Reviewing Party or otherwise as to whether the Indemnitee is entitled to be
indemnified hereunder, the burden of proof shall be on the Company to
establish that Indemnitee is not so entitled. Upon the commencement of legal
proceedings by Indemnitee to secure a judicial determination that Indemnitee
should be indemnified under the Agreement under applicable law, neither the
failure of any Reviewing Party to have made a determination as to whether
Indemnitee has met any particular standard of conduct nor an actual
determination by any Reviewing Party that Indemnitee has not met such
standard of conduct, shall be a defense to Indemnitee's claim or create a
presumption that Indemnitee has not met any particular standard of conduct.
For purposes of this Agreement, the termination of any claim, action, suit or
proceeding, by judgment, order, settlement (whether with or without court
approval) or conviction, or upon a plea of nolo contendere, or its
equivalent, shall not create a presumption 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.
9. NON-EXCLUSIVITY, ETC. The rights of Indemnitee hereunder
shall be in addition to any other rights Indemnitee may have under the
Certificate of Incorporation or Bylaws of the Company or the Delaware General
Corporation law or otherwise. To the extent that a change in the Delaware
General Corporation Law (whether by stature or judicial decision) permits
greater indemnification by agreement than would be afforded currently under
the Certificate of Incorporation and Bylaws of the Company and this
Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy
by this Agreement the greater benefits so afforded by such change immediately
upon the occurrence of such change without further action by the Company or
Indemnitee. In the event of any change in any applicable law, statute or rule
which narrows the right of a Delaware corporation to indemnify a member of
its board of directors or an officer, employee, agent or fiduciary, such
change, to the extent not otherwise required by such law, statute or rule to
be applied to this Agreement, shall have no effect on this Agreement or the
parties' rights and obligations hereunder.
10. PERIOD OF LIMITATIONS. No legal action shall be brought and
no cause of action shall be asserted by or in the right of the Company or any
affiliate of the Company against Indemnitee, Indemnitee's spouse, heirs,
executors, administrators or personal or legal representatives after the
expiration of two years from the date of accrual of such cause of action, and
any claim or cause of action of the Company or its affiliate shall be
extinguished and deemed released unless asserted by the timely filling of a
legal action within such two-year period; provided however, that if any
shorter period of limitations is otherwise applicable to any such cause of
action such shorter period shall govern.
11. AMENDMENTS, ETC. No supplement, modification nor 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 be
deemed or shall constitute a waiver of any other provisions hereof (whether
or not similar) nor shall such waiver constitute a continuing waiver.
12. SUBROGATION. In the event of payment under this Agreement,
the Company shall be subrogated to
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the extent of such payment to all of the rights of recovery of Indemnitee,
who 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, Certificate of Incorporation or Bylaws
of the Company or otherwise) of the amounts otherwise indemnifiable hereunder.
14. BINDING EFFECTS, ETC. This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the parties hereto and
their respective successors, assigns, 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, 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,
or 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.
This Agreement shall continue in effect regardless of whether Indemnitee
continues to serve as an officer or director of the Company or of any other
enterprise at the Company's request.
15. NOTICE. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be deemed
duly given (i) if delivered by hand and signed for by the party addressed, on
the date of such delivery, or (ii) if mailed by domestic certified or
registered mail with postage prepaid, on the third business day after the
date postmarked. Addresses for notice to either party are as shown on the
signature page of this Agreement, or as subsequently modified by written
notice.
16. SEVERABILITY. The provisions of this Agreement shall be
severable in the event that any of the provisions hereof (including any
provision within a single section, paragraph or sentence) are held by a court
of competent jurisdiction to be invalid, void or otherwise unenforceable, and
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 limitations, 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, illegal or unenforceable.
17. CONSENT TO JURISDICTION. The Company and Indemnitee each
hereby irrevocably consent to the jurisdiction of the courts of the State of
Delaware for all purposes in connection with any action or proceeding which
arises out of or relates to this Agreement and agree that any action
instituted under this Agreement shall be commenced, prosecuted and continued
only in the Court of Chancery of the State of Delaware in and for New Castle
County, which shall be the exclusive and only proper forum for adjudicating
such a claim.
18. 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.
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement as of the _____ day of ________, 2000.
__________________________________ BEACON POWER CORPORATION
[TYPE NAME OF OFFICER OR DIRECTOR]
By: ___________________________
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___________________________________ SIGNATURE
SIGNATURE
ADDRESS:___________________________ ADDRESS:_______________________
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EXHIBIT A
SCHEDULE OF DIRECTOR AND OFFICER LIABILITY INSURANCE POLICIES
NAME OF INSURER POLICY NUMBER COVERAGE AMOUNT DEDUCTIBLE
--------------- ------------- --------------- ----------
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