**Exhibit10.6**

 

**INDEMNIFICATION AGREEMENT dated as of                                    between**

**Broadwind Energy, Inc. (the “Company”) and**                                        **(“Indemnitee”)**

 

WHEREAS,the Board of Directors has determined that the Company’s ability to attract andretain qualified persons as directors and officers is necessary to further thebest interests of the Company’s stockholders and that in order to attract suchindividuals, the Company should act to assure such persons that there shall beadequate certainty of protection through insurance and indemnification againstrisks of claims and actions against them arising out of their service to andactivities on behalf of the Company; and

 

WHEREAS,the Company has adopted provisions in its Certificate of Incorporation andBy-laws providing for indemnification and advancement of expenses of itsdirectors and officers to the fullest extent permitted by the Delaware GeneralCorporation Law, and the Company wishes to clarify and enhance the rights andobligations of the Company and Indemnitee with respect to indemnification andadvancement of expenses; and

 

WHEREAS,in order to induce and encourage highly experienced and capable persons such asIndemnitee to serve and continue to serve as directors and officers of theCompany and in any other capacity with respect to the Company, and to otherwisepromote the desirable end that such persons shall resist what they considerunjustified lawsuits and claims made against them in connection with the goodfaith performance of their duties to the Company, with the knowledge thatcertain costs, judgments, penalties, excise taxes, fines, liabilities andexpenses incurred by them in their defense of such litigation are to be borneby the Company and they shall receive the maximum protection against such risksand liabilities as may be afforded by law, the Board of Directors of theCompany has determined that the following Agreement is reasonable and prudentto promote and ensure the best interests of the Company and its stockholders;and

 

WHEREAS,the Company desires to have Indemnitee continue to serve as a director orofficer of the Company and in such other capacity with respect to the Companyas the Company may request, as the case may be, free from undue concern forunpredictable, inappropriate or unreasonable legal risks and personalliabilities by reason of Indemnitee acting in good faith in the performance ofIndemnitee’s duty to the Company; and Indemnitee desires to continue so toserve the Company, provided, and on the express condition, that he or she isfurnished with the indemnity set forth hereinafter;

 

Now,therefore, in consideration of Indemnitee’s continued service as a director orofficer of the Company, the sufficiency of which is hereby acknowledged, theparties hereto agree as follows:

 

1.Service by Indemnitee; Effectiveness. Indemnitee shall serve and/orcontinue to serve as a director or officer of the Company faithfully and to thebest of Indemnitee’s ability so long as Indemnitee is duly elected or appointedand until such time as Indemnitee is removed as permitted by law or tenders aresignation in writing. This Agreement shall be effective as of the date firstset forth above, and this Agreement shall apply to any event that occurredprior to or after such date if Indemnitee was, or is deemed to have been, adirector, officer, employee, agent or fiduciary of the Company, or was servingat the request of the Company as a director, officer, employee, agent orfiduciary of any other entity (including, but not limited to, another

 

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corporation,partnership, joint venture or trust) at the time such event occurred.

 

2.Indemnification and Advancement of Expenses. The Company shall indemnifyIndemnitee, and shall pay to Indemnitee in advance of the final disposition ofany Proceeding all Expenses incurred by Indemnitee, to the fullest extentpermitted by the Delaware General Corporation Law in effect on the date of thisAgreement or as such law may from time to time be amended (but, in the case ofany such amendment, only to the extent that such amendment permits the Companyto provide broader rights than said law permitted the Company to provide priorto such amendment). Without diminishing the scope of the rights provided bythis Section, the rights of Indemnitee to indemnification and advancement ofExpenses provided hereunder shall include but shall not be limited to thoserights hereinafter set forth, except that no indemnification or, only in thecase of clauses (a) through (c) below, advancement of Expenses shallbe paid to Indemnitee:

 

(a) tothe extent expressly prohibited by Delaware law or the Certificate ofIncorporation and By-laws of the Company;

 

(b) forwhich payment is actually made to Indemnitee under a valid and collectible insurancepolicy or under a valid and enforceable indemnity clause, provision of thecertificate of incorporation or by-laws, or agreement of the Company or anyother company or organization where Indemnitee is serving at the request of theCompany, except in respect of any indemnity exceeding the payment under suchinsurance, indemnity clause, provision of the certificate of incorporation orby-laws, or agreement; or

 

(c) inconnection with an action, suit or proceeding, or part thereof (includingclaims and counterclaims) initiated by Indemnitee, except a judicial proceedingor arbitration pursuant to Section 10 to enforce rights under thisAgreement, unless the action, suit or proceeding (or part thereof) wasauthorized by the Board of Directors of the Company; or

 

(d) withrespect to any Proceeding brought by or on behalf of the Company againstIndemnitee that is authorized by the Board of Directors of the Company, exceptas provided in Sections 4, 5 and 6 below.

 

3.Action or Proceedings Other than an Action by or in the Right of the Company.Except as limited by Section 2 above, Indemnitee shall be entitled to theindemnification rights provided in this Section if Indemnitee is a partyor is threatened to be made a party to any Proceeding (other than an action byor in the name of the Company) by reason of the fact that Indemnitee is or was,or is deemed to be or have been, a director, officer, employee, agent orfiduciary of the Company, or is or was serving at the request of the Company asa director, officer, employee, agent or fiduciary of any other entity(including, but not limited to, another corporation, partnership, joint ventureor trust); or by reason of anything done or not done by Indemnitee in any suchcapacity. Pursuant to this Section, Indemnitee shall be indemnified on anafter-tax basis against all costs, judgments, penalties, excise taxes, fines,liabilities, amounts paid in settlement and Expenses, actually and reasonablyincurred by Indemnitee in connection with such Proceeding, if Indemnitee actedin good faith and in a manner Indemnitee reasonably believed to be in or notopposed to the best interests of the Company, and with respect to any criminalProceeding, had no reasonable cause to believe his or her conduct was unlawful.

 

4.Indemnity in Proceedings by or in the Name of the Company. Except aslimited by Section 2 above, Indemnitee shall be entitled to theindemnification rights provided in this

 

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Section ifIndemnitee was or is a party or is threatened to be made a party to anyProceeding brought by or in the name of the Company to procure a judgment inits favor by reason of the fact that Indemnitee is or was, or is deemed to beor have been, 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, agent or fiduciary of any other entity (including, but not limitedto, another corporation, partnership, joint venture or trust); or by reason ofanything done or not done by Indemnitee in any such capacity. Pursuant to thisSection, Indemnitee shall be indemnified on an after-tax basis against allcosts, judgments, penalties, excise taxes, fines, liabilities, amounts paid insettlement and Expenses, actually and reasonably incurred by Indemnitee inconnection with such Proceeding if Indemnitee acted in good faith and in amanner Indemnitee reasonably believed to be in or not opposed to the bestinterests of the Company; provided, however, that no such indemnification shallbe made in respect of any claim, issue, or matter as to which Delaware lawexpressly prohibits such indemnification by reason of any adjudication ofliability of Indemnitee to the Company, unless and only to the extent that theCourt of Chancery of the State of Delaware or the court in which suchProceeding was brought shall determine upon application that, despite theadjudication of liability but in view of all the circumstances of the case,Indemnitee is entitled to indemnification for such costs, judgments, penalties,excise taxes, fines, liabilities, amounts paid in settlement and Expenses assuch court shall deem proper.

 

5.Indemnification for Costs, Charges and Expenses of Successful Party.Notwithstanding the limitations of Section 2(d), 3 and 4 above, to theextent that Indemnitee has been successful, on the merits or otherwise, inwhole or in part, in defense of any Proceeding or in defense of any claim,issue or matter therein, including, without limitation, the dismissal of anyaction without prejudice, or if it is ultimately determined, after all appealsby a court of competent jurisdiction, that Indemnitee is otherwise entitled tobe indemnified against Expenses, Indemnitee shall be indemnified against allExpenses actually and reasonably incurred in connection therewith.

 

6.Partial Indemnification. If Indemnitee is entitled under any provisionof this Agreement to indemnification by the Company for some or a portion ofthe costs, judgments, penalties, excise taxes, fines, liabilities, amounts paidin settlement or Expenses, actually and reasonably incurred in connection withany Proceeding, or in connection with any judicial proceeding or arbitrationpursuant to Section 10 to enforce rights under this Agreement, but not,however, for all of the total amount thereof, the Company shall neverthelessindemnify Indemnitee for the portion of such costs, judgments, penalties,excise taxes, fines, liabilities, amounts paid in settlement and Expenses,actually and reasonably incurred to which Indemnitee is entitled.

 

7.Indemnification for Expenses of a Witness. Notwithstanding any otherprovision of this Agreement, to the maximum extent permitted by the DelawareGeneral Corporation Law, Indemnitee shall be entitled to indemnificationagainst all Expenses actually and reasonably incurred or suffered by Indemniteeor on Indemnitee’s behalf if Indemnitee appears as a witness or otherwiseincurs legal expenses as a result of or related to Indemnitee’s service as adirector or officer of the Company, in any threatened, pending or completedaction, suit or proceeding, whether of a civil, criminal, administrative,investigative, legislative or other nature, to which Indemnitee neither is, noris threatened to be made, a party.

 

8.Determination of Entitlement to Indemnification. To receiveindemnification under this Agreement, Indemnitee shall submit a written requestto the Secretary of the Company. Such request shall include documentation orinformation which is necessary for such determination

 

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andwhich is reasonably available to Indemnitee. Upon written request by Indemniteefor indemnification pursuant to Sections 3, 4, 5, 6 or 7 the entitlementof Indemnitee to indemnification, to the extent not provided pursuant to theterms of this Agreement, shall be determined by the following person or personswho shall be empowered to make such determination: (a) the Board ofDirectors of the Company by a majority vote of Disinterested Directors, whetheror not such majority constitutes a quorum; (b) a committee ofDisinterested Directors designated by a majority vote of such directors,whether or not such majority constitutes a quorum; (c) if there are noDisinterested Directors, or if the Disinterested Directors so direct, byIndependent Counsel in a written opinion to the Board of Directors, a copy ofwhich shall be delivered to Indemnitee; (d) the stockholders of theCompany; or (e) in the event that a Change in Control has occurred, byIndependent Counsel in a written opinion to the Board of Directors, a copy ofwhich shall be delivered to Indemnitee. Such Independent Counsel shall beselected by the Board of Directors and reasonably approved by Indemnitee,except that in the event that a Change in Control has occurred, IndependentCounsel shall be selected by Indemnitee and reasonably approved by the Board ofDirectors. Upon failure of the Board so to select (or so to approve, in theevent that a Change in Control has occurred) such Independent Counsel or uponfailure of Indemnitee so to approve (or so to select, in the event that a Changein Control has occurred), such Independent Counsel shall be selected uponapplication to a court of competent jurisdiction. The determination ofentitlement to indemnification shall be made not later than 30 calendar daysafter receipt by the Company of a written request for indemnification. Anyamounts incurred by Indemnitee in connection with a request for indemnificationor payment of Expenses hereunder, under any other agreement, any provision ofthe Company’s Certificate of Incorporation and By-laws or any directors’ andofficers’ liability insurance, shall be borne by the Company. The Companyhereby indemnifies Indemnitee for any such amounts and agrees to holdIndemnitee harmless therefrom irrespective of the outcome of the determinationof Indemnitee’s entitlement to indemnification. If the person making suchdetermination shall determine that Indemnitee is entitled to indemnification asto part (but not all) of the application for indemnification, such person shallreasonably prorate such partial indemnification among the claims, issues ormatters at issue at the time of the determination.

 

9.Presumptions and Effect of Certain Proceedings. The Secretary of theCompany shall, promptly upon receipt of Indemnitee’s written request forindemnification, advise in writing the Board of Directors or such other personor persons empowered to make the determination as provided in Section 8that Indemnitee has made such request for indemnification. Upon making suchrequest for indemnification, Indemnitee shall be presumed to be entitled toindemnification hereunder and the Company shall have the burden of proof inmaking any determination contrary to such presumption. If the person or personsso empowered to make such determination shall have failed to make the requesteddetermination with respect to indemnification within 30 calendar days afterreceipt by the Company of such request, a requisite determination ofentitlement to indemnification shall be deemed to have been made and Indemniteeshall be absolutely entitled to such indemnification, absent actual andmaterial fraud in the request for indemnification. The termination of anyProceeding described in Sections 3 or 4 by judgment, order, settlement orconviction, or upon a plea of*  nolo contendere*  or its equivalent, shall not, of itself: (a) createa presumption that Indemnitee did not act in good faith and in a manner whichIndemnitee reasonably believed to be in or not opposed to the best interests ofthe Company, or, with respect to any criminal Proceeding, that Indemnitee hadreasonable cause to believe that Indemnitee’s conduct was unlawful; or (b) otherwiseadversely affect the rights of Indemnitee to

 

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indemnificationexcept as may be provided herein.

 

10.Remedies of Indemnitee in Cases of Determination not to Indemnify or toAdvance Expenses. In the event that a determination is made that Indemniteeis not entitled to indemnification hereunder or if payment has not been timelymade following a determination of entitlement to indemnification pursuant toSections 8 and 9, or if Expenses are not paid pursuant to Section 15,Indemnitee shall be entitled to final adjudication in a court of competentjurisdiction of entitlement to such indemnification or payment. Alternatively,Indemnitee at Indemnitee’s option may seek an award in an arbitration to beconducted by a single arbitrator pursuant to the rules of the AmericanArbitration Association, such award to be made within 60 calendar daysfollowing the filing of the demand for arbitration. The Company shall notoppose Indemnitee’s right to seek any such adjudication or award in arbitrationor any other claim. The determination in any such judicial proceeding orarbitration shall be made*  de novo*  and Indemnitee shall not be prejudiced byreason of a determination (if so made) pursuant to Sections 8 or 9 thatIndemnitee is not entitled to indemnification. If a determination is made ordeemed to have been made pursuant to the terms of Section 8 or 9 thatIndemnitee is entitled to indemnification, the Company shall be bound by suchdetermination and is precluded from asserting that such determination has notbeen made or that the procedure by which such determination was made is notvalid, binding and enforceable. The Company further agrees to stipulate in anysuch court or before any such arbitrator that the Company is bound by all theprovisions of this Agreement and is precluded from making any assertions to thecontrary. If the court or arbitrator shall determine that Indemnitee isentitled to any indemnification or payment of Expenses hereunder, the Companyshall pay all Expenses actually and reasonably incurred by Indemnitee inconnection with such adjudication or award in arbitration (including, but notlimited to, any appellate proceedings).

 

11.Other Rights to Indemnification. Indemnification and payment of Expensesprovided by this Agreement shall not be deemed exclusive of any other rights towhich Indemnitee may now or in the future be entitled under any provision ofthe Certificate of Incorporation or By-laws of the Company, vote ofstockholders or Disinterested Directors, provision of law, agreement orotherwise.

 

12.Expenses to Enforce Agreement. In the event that Indemnitee is subjectto or intervenes in any action, suit or proceeding in which the validity orenforceability of this Agreement is at issue or seeks an adjudication or awardin arbitration to enforce Indemnitee’s rights under, or to recover damages forbreach of, this Agreement, Indemnitee, if Indemnitee prevails in whole or inpart in such action, suit or proceeding, shall be entitled to recover from theCompany and shall be indemnified by the Company against any Expenses actuallyand reasonably incurred by Indemnitee.

 

13.Continuation of Indemnity. All agreements and obligations of the Companycontained herein shall continue during the period Indemnitee is a director,officer, employee, agent or fiduciary of the Company or is serving at therequest of the Company as a director, officer, employee, agent or fiduciary ofany other entity (including, but not limited to, another corporation,partnership, joint venture or trust) and shall continue thereafter with respectto any possible claims based on the fact that Indemnitee was a director,officer, employee, agent or fiduciary of the Company or was serving at therequest of the Company as a director, officer, employee, agent or fiduciary ofany other entity (including, but not limited to, another corporation,partnership, joint venture or trust). This Agreement shall be binding upon all

 

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successorsand assigns of the Company (including any transferee of all or substantiallyall of its assets and any successor by merger or operation of law) and shallinure to the benefit of the heirs, personal representatives and estate ofIndemnitee.

 

14.Notification and Defense of Claim. Promptly after receipt by Indemniteeof notice of any Proceeding, Indemnitee shall, if a claim in respect thereof isto be made against the Company under this Agreement, notify the Company inwriting of the commencement thereof; but the omission so to notify the Companyshall not relieve it from any liability that it may have to Indemnitee.Notwithstanding any other provision of this Agreement, with respect to any suchProceeding of which Indemnitee notifies the Company:

 

(a) TheCompany shall be entitled to participate therein at its own expense; and

 

(b) Exceptas otherwise provided in this Section 14(b), to the extent that it maywish, the Company, jointly with any other indemnifying party similarlynotified, shall be entitled to assume the defense thereof, with counselsatisfactory to Indemnitee. After notice from the Company to Indemnitee of itselection so to assume the defense thereof, the Company shall not be liable toIndemnitee under this Agreement for any expenses of counsel subsequentlyincurred by Indemnitee in connection with the defense thereof except asotherwise provided below. Indemnitee shall have the right to employ Indemnitee’sown counsel in such Proceeding, but the fees and expenses of such counselincurred after notice from the Company of its assumption of the defense thereofshall be at the expense of Indemnitee unless (i) the employment of counselby Indemnitee has been authorized by the Company, (ii) Indemniteereasonably concludes, based upon an opinion of counsel approved by the Company,which approval shall not be unreasonably withheld, that there may be a conflictof interest between the Company and Indemnitee in the conduct of the defense ofsuch Proceeding, or (iii) the Company shall not within 60 calendar days ofreceipt of notice from Indemnitee in fact have employed counsel to assume thedefense of the Proceeding, in each of which cases the fees and expenses ofIndemnitee’s counsel shall be at the expense of the Company. The Company shallnot be entitled to assume the defense of any Proceeding brought by or on behalfof the Company or as to which Indemnitee shall have made the conclusionprovided for in (ii) above; and

 

(c) Ifthe Company has assumed the defense of a Proceeding, the Company shall not beliable to indemnify Indemnitee under this Agreement for any amounts paid insettlement of any Proceeding effected without the Company’s written consent.The Company shall not settle any Proceeding in any manner that would impose anyongoing obligation with respect to Indemnitee without Indemnitee’s writtenconsent; it being understood that the Company may settle any claim for monetaryrelief at its own discretion; provided that the Company may not utilizeinsurance proceeds to fund any such settlement unless the settlement contains arelease in favor of the Indemnitee from any further liability in connectionwith the matters giving rise to such Proceeding. Neither the Company norIndemnitee shall unreasonably withhold its consent to any proposed settlement.

 

15.Advancement of Expenses. All Expenses incurred by Indemnitee in advanceof the final disposition, including any appeal thereof, of any Proceeding shallbe paid by the Company at the request of Indemnitee, without requiring apreliminary determination of Indemnitee’s ultimate entitlement toindemnification hereunder. To receive payment of Expenses under this Agreement,Indemnitee shall submit a written request to the Secretary of the Company. Suchrequest shall reasonably evidence the Expenses incurred by Indemnitee and shallinclude or be

 

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accompaniedby a written affirmation by Indemnitee of Indemnitee’s good faith belief thatthe standard of conduct necessary for indemnification by the Company asauthorized by law and by this Agreement has been met and an undertaking, by oron behalf of Indemnitee, to reimburse such amounts if it is ultimatelydetermined, after all appeals by a court of competent jurisdiction, thatIndemnitee is not entitled to be indemnified against such Expenses by theCompany as provided by this Agreement or otherwise, each in the form as setforth in Annex I hereto. Indemnitee’s undertaking to reimburse any such amountsis not required to be secured and shall not accrue interest.  Notwithstanding the foregoing, advances shallbe made without regard to Indemnitee’s ability to repay.  Each such payment of Expenses shall be madewithin 20 calendar days after the receipt by the Company of such writtenrequest. Indemnitee’s entitlement to such Expenses shall include those incurredin connection with any action, suit or proceeding by Indemnitee seeking ajudgment in court or an adjudication or award in arbitration pursuant to Section 10of this Agreement (including the enforcement of this provision) to the extentthe court or arbitrator shall determine that Indemnitee is entitled to paymentof Expenses hereunder.  In the event thatthe Company shall breach its obligation to advance Expenses under this Section 15,the parties hereto agree that Indemnitee’s remedies available at law would notbe adequate and that Indemnitee would be entitled to specific performance.  The Company acknowledges that, in the absenceof a waiver, a bond or undertaking may be required of Indemnitee by the applicablecourt, and the Company hereby waives any such requirement of a bond orundertaking except to the extent of the undertaking set forth above.

 

16.Contribution.  If theindemnification provided in this Agreement is unavailable in whole or in partand may not be paid to Indemnitee for any reason other than those explicitlyset forth herein, then in respect to any Proceeding in which the Company isjointly liable with Indemnitee (or would be if joined in such Proceeding), tothe fullest extent permissible under applicable law, the Company, in lieu ofindemnifying and holding harmless Indemnitee, shall pay, in the first instance,all costs, judgments, penalties, excise taxes, fines, liabilities, amounts paidin settlement and Expenses, actually and reasonably incurred by Indemnitee inconnection with such Proceeding without requiring Indemnitee to contribute tosuch payment, and the Company hereby waives and relinquishes any right ofcontribution it may have at any time against Indemnitee.

 

17.Separability; Prior Indemnification Agreements. If any provision orprovisions of this Agreement shall be held to be invalid, illegal orunenforceable for any reason whatsoever (a) the validity, legality andenforceability of the remaining provisions of this Agreement (including withoutlimitation, all portions of any paragraphs of this Agreement containing anysuch provision held to be invalid, illegal or unenforceable, that are not bythemselves invalid, illegal or unenforceable) shall not in any way be affectedor impaired thereby, and (b) to the fullest extent possible, theprovisions of this Agreement (including, without limitation, all portions ofany paragraph of this Agreement containing any such provision held to beinvalid, illegal or unenforceable, that are not themselves invalid, illegal orunenforceable) shall be construed so as to give effect to the intent of theparties that the Company provide protection to Indemnitee to the fullestenforceable extent. This Agreement shall supersede and replace any priorindemnification agreements entered into by and between the Company andIndemnitee and any such prior agreements shall be terminated upon execution ofthis Agreement.

 

18.Insurance.  (a) The Companywill use its reasonable best efforts to acquire directors and officersliability insurance, on terms and conditions deemed appropriate by the Board of

 

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Directorsof the Company covering Indemnitee or any claim made against Indemnitee forservice as a director or officer of the Company and covering the Company forany indemnification or advancement of Expenses made by the Company toIndemnitee for any claims made against Indemnitee for service as a director orofficer of the Company.  Without in anyway limiting any other obligation under this Agreement, the Company shallindemnify Indemnitee for any payment by Indemnitee arising out of the amount ofany deductible or retention and the amount of any excess of the aggregate ofall judgments, penalties, excise taxes, fines, settlements and Expensesincurred by Indemnitee in connection with a Proceeding over the coverage of anyinsurance referred to in the previous sentence.

 

(b) In the event of a Change in Control or the Company’s becoming insolvent,including being placed into receivership or entering the federal bankruptcyprocess, the Company shall maintain in force any directors’ and officers’liability insurance policies then maintained by the Company in providinginsurance in respect of Indemnitee, for a period of six years thereafter (a “TailPolicy”). The Company shall use commercially reasonable efforts to place suchcoverage with the incumbent insurance carriers using the policies that were inplace at the time of the change of control event (unless the incumbent carrierswill not offer such policies, in which case the Company shall use commerciallyreasonable efforts to obtain a Tail Policy comparable in scope and amount asthe expiring policies, with insurance carriers for the Tail Policy having an AMBest rating that is the same or better than the AM Best ratings of the expiringpolicies).

 

19.Notification of Investigation. For so long as Indemnitee is serving as a director or agent of theCompany or employed by the Company, if the Indemnitee is the subject of or isimplicated in any investigation, whether formal or informal, at the request of,or in which the Company is coordinating with, any third party (other than anyagent, counsel or other advisor or representative of the Company), the Companyshall provide Indemnitee with reasonably prompt notice that such investigationis being conducted, it being understood that the Company shall not  be required to share any information gatheredin connection with such investigation and, provided, that by executing thisAgreement, Indemnitee agrees maintain the confidentiality of such notification.

 

20.Headings; References; Pronouns. The headings of the sections of thisAgreement are inserted for convenience only and shall not be deemed toconstitute part of this Agreement or to affect the construction thereof.References herein to section numbers are to sections of this Agreement. Allpronouns and any variations thereof shall be deemed to refer to the masculine,feminine, neuter, singular or plural as appropriate.

 

21.Definitions. For purposes of this Agreement:

 

(a) “Changein Control” means the occurrence of any of the following:

 

(i) asale, lease or other disposition of all or substantially all of the assets ofthe Company and its subsidiaries, taken as a whole,

 

(ii) anyconsolidation or merger of the Company with or into any other corporation orother person, or any other corporate reorganization or transaction (including the acquisition ofcapital stock of the Company), whether or not the Company is a party thereto,after giving effect to which in excess of fifty percent (50%) of the Company’svoting power is owned directly, or 

 

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indirectlythough one or more entities, by any person and its “affiliates” or “associates”(as such terms are defined in the rules adopted by the Securities andExchange Commission under the Securities Exchange Act of 1934, as amended),

 

(iii) anystock sale or other transaction or series of relatedtransactions, whether or not the Company is a party thereto, after givingeffect to which in excess of fifty percent (50%) of the Company’s voting poweris owned directly, or indirectly though one or more entities, by any person andits “affiliates” or “associates” (as such terms are defined in the rules adoptedby the Securities and Exchange Commission under the Securities Exchange Act of1934, as amended).

 

(b) “DisinterestedDirector” means a director of the Company who is not or was not a party to theProceeding in respect of which indemnification is being sought by Indemnitee.

 

(c) “Expenses”means all reasonable expenses incurred in connection with the defense or settlementof, or acting as a witness in, any investigation, action, suit or otherproceeding, including any judicial, administrative, investigative, legislativeor other proceedings, and appeals, attorneys’ fees, witness fees and expenses,fees and expenses of accountants and other advisors, retainers anddisbursements and advances thereon, the premium, security for, and other costsrelating to any bond (including cost bonds, appraisal bonds or theirequivalents), and any expenses of establishing a right to indemnification,advancement or contribution under Sections 8, 10, 12, 15 and 16 above butshall not include the amount of judgments, penalties, excise taxes, fines oramounts paid in settlement.

 

(d) “IndependentCounsel” means a law firm or a member of a law firm experienced in matters ofcorporate law that neither is presently nor in the past five years has beenretained to represent: (i) the Company or Indemnitee in any mattermaterial to either such party, or (ii) any other party to the Proceedinggiving rise to a claim for indemnification hereunder. Notwithstanding theforegoing, the term “Independent Counsel” shall not include any person who,under the applicable standards of professional conduct then prevailing, wouldhave a conflict of interest in representing either the Company or Indemnitee inan action to determine Indemnitee’s right to indemnification under thisAgreement.

 

(e) “Proceeding”includes any threatened, pending or completed investigation, action, suit orother proceeding, whether formal or informal and whether brought in the name ofthe Company or otherwise, against Indemnitee, whether of a civil, criminal,administrative, investigative, legislative or other nature, including, but notlimited to, actions, suits or proceedings in which Indemnitee may be or mayhave been involved as a party or otherwise, by reason of the fact thatIndemnitee is or was a director, officer, employee, agent or fiduciary of theCompany, or is or was serving, at the request of the Company, as a director,officer, employee, agent or fiduciary of any other entity, including, but notlimited to, another corporation, partnership, joint venture or trust, or byreason of anything done or not done by Indemnitee in any such capacity, whetheror not Indemnitee is serving in such capacity at the time any liability orexpense is incurred for which indemnification or reimbursement can be providedunder this Agreement.

 

22.Other Provisions.

 

(a) ThisAgreement shall be interpreted and enforced in accordance with the laws of Delaware.

 

(b) ThisAgreement may be executed in one or more counterparts, each of which shall forall purposes be deemed to be an original but all of which together shallconstitute one and the same 

 

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Agreement.Only one such counterpart signed by the party against whom enforceability issought needs to be produced as evidence of the existence of this Agreement.

 

(c) ThisAgreement shall not be deemed an employment contract between the Company andany Indemnitee who is an officer of the Company, and, if Indemnitee is anofficer of the Company, Indemnitee specifically acknowledges that Indemniteemay be discharged at any time for any reason, with or without cause, and withor without severance compensation, except as may be otherwise provided in aseparate written contract between Indemnitee and the Company.

 

(d) Upona payment to Indemnitee under this Agreement, the Company shall be subrogatedto the extent of such payment to all of the rights of Indemnitee to recoveragainst any person for such liability, and Indemnitee shall execute alldocuments and instruments required and shall take such other actions as may benecessary to secure such rights, including the execution of such documents asmay be necessary for the Company to bring suit to enforce such rights.

 

(e) Nosupplement, modification or amendment of this Agreement shall be binding unlessexecuted in writing by both parties hereto. No waiver of any of the provisionsof this Agreement shall be deemed or shall constitute a waiver of any otherprovisions hereof (whether or not similar) nor shall such waiver constitute acontinuing waiver.

 

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INWITNESS WHEREOF, the parties hereto have executed this Agreement on and as ofthe day and year first above written.

 

 
|   | BROADWIND  ENERGY, INC. |
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|   | [Indemnitee]            |

 

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ANNEX I

 

FORM OF AFFIRMATION AND UNDERTAKING

 

Theundersigned is the Indemnitee as defined in that certain IndemnificationAgreement dated                                  between the undersigned and Broadwind Energy, Inc. (the “IndemnificationAgreement”). Capitalized terms not otherwise defined herein shall have themeanings give in such agreement.

 

Asa condition to receiving advancement of Expenses, Indemnitee hereby (a) affirmsthat it is Indemnitee’s good faith belief that the standard of conductnecessary for indemnification by the Company as authorized by law and by theIndemnification Agreement has been met and (b) undertakes to reimbursewithin 60 days of the Company’s demand any such amounts advanced under theIndemnification Agreement if it is ultimately determined, after all appeals bya court of competent jurisdiction, that Indemnitee is not entitled to beindemnified against such Expenses by the Company as provided by theIndemnification Agreement or otherwise.

 

ThisAgreement shall not affect in any manner rights which Indemnitee may haveagainst the Company, any insurer or any other person to seek indemnificationfor or reimbursement of any expenses referred to herein or any judgment whichmay be rendered in any litigation or proceeding.

 
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|   | [Indemnitee] |

 

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