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 Affiliates.


 


(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.


 


2

















 


(i)    Voting Securities:    any
securities of the Company that vote generally in the election of directors.


 


2.    Basic
Indemnification Arrangement.


 


(a)   In
the event 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 by reason of (or arising in part out of) an
Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest
extent permitted 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. If so requested by Indemnitee, the
Company shall advance to the fullest extent permitted by law (within two
business days of such request) any and all Expenses to Indemnitee (an “Expense Advance”). Notwithstanding
anything in this Agreement to the contrary, Indemnitee shall not be entitled to
indemnification pursuant to this Agreement in connection with any Claim
initiated by Indemnitee unless the Board of Directors has authorized or
consented to the initiation of such Claim.


 


(b)   Notwithstanding
the foregoing, (i) the obligations of the Company under Section 2(a)
shall be subject to the condition that the Reviewing Party shall not have
determined (in a written opinion, in any case in which the Independent Legal
Counsel referred to in Section 3 hereof is involved) that Indemnitee would
not be permitted to be indemnified under applicable law, and (ii) the
obligation of the Company to make an Expense Advance pursuant to
Section 2(a) shall be subject to the condition that, if, when and to the
extent that the Reviewing Party determines that Indemnitee would not be
permitted to be so indemnified under applicable law, the Company shall be
entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the
Company) for all such amounts theretofore paid; provided, however, that if
Indemnitee has commenced or thereafter commences legal proceedings in a court
of competent jurisdiction to secure a determination that Indemnitee should be
indemnified under applicable law, any determination made by the Reviewing Party
that Indemnitee would not be permitted to be indemnified under applicable law
shall not be binding and Indemnitee shall not be required to reimburse the
Company for any Expense Advance until a final judicial determination is made
with respect thereto (as to which all rights of appeal therefrom have been
exhausted or lapsed). 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 such a
Change in Control (other than a Change in Control that 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. If there has been no
determination by the Reviewing Party or if the Reviewing Party determines that
Indemnitee substantively would not be permitted to be indemnified in whole or
in part under applicable law, Indemnitee and the Company agree that any dispute
regarding the right to indemnification shall be litigated exclusively in
Delaware Chancery Court and each of the Indemnitee and the Company hereby
consents to service of process and to appear in any such proceeding. Any
determination by the Reviewing Party otherwise shall be conclusive and binding
on the Company and Indemnitee.


 


3.    Change in Control.    The
Company agrees that if there is a Change in Control of the Company (other than
a Change in Control that has been approved by a majority of the Company’s Board
of Directors who were directors immediately prior to such Change in Control),
then with respect to all matters thereafter arising concerning the rights of
Indemnitee to indemnity payments and Expense Advances under this Agreement or
any other agreement or the By-laws now or hereafter in effect relating to
Claims for Indemnifiable Events, the Company shall seek legal advice only from
Independent Legal Counsel selected by Indemnitee and approved by the Company
(which approval shall not be unreasonably withheld). Such counsel, among other
things, shall render its written opinion to the Company and Indemnitee as to
whether and to what extent the Indemnitee would be permitted to be indemnified
under applicable law. The Company agrees to pay the reasonable fees of the
Independent Legal Counsel referred to above and to indemnify fully such counsel
against any and all expenses (including attorneys’ fees), claims, liabilities and
damages arising out of or relating to this Agreement or its engagement pursuant
hereto.


 


4.    Indemnification for
Additional Expenses.    The Company shall
indemnify Indemnitee against any and all expenses (including attorneys’ fees)
and, if requested by Indemnitee, shall (within two business days of such
request) advance such expenses to Indemnitee, which are incurred by Indemnitee
in connection with any action brought by Indemnitee for
(i) indemnification or advance payment of Expenses by the Company under
this


 


3

















 


Agreement or any other
agreement or the By-laws now or hereafter in effect relating to Claims for
Indemnifiable Events and/or (ii) recovery under any directors’ and
officers’ liability insurance policies maintained by the Company, regardless of
whether Indemnitee ultimately is determined to be entitled to such
indemnification, advance expense payment or insurance recovery, as the case may
be.


 


5.    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, judgments, 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 provision of this Agreement, to the extent that
Indemnitee has been successful on the merits or 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.


 


6.    Burden of Proof.    In
connection with any determination by the Reviewing Party or otherwise as to
whether Indemnitee is entitled to be indemnified hereunder the burden of proof
shall be on the Company to establish that Indemnitee is not so entitled.


 


7.    No Presumptions.    For
purposes of this Agreement, the termination or conclusion 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. In
addition, neither the failure of the Reviewing Party to have made a
determination as to whether Indemnitee has met any particular standard of
conduct or had any particular belief, nor an actual determination by the
Reviewing Party that Indemnitee has not met such standard of conduct or did not
have such belief, prior to the commencement of legal proceedings by Indemnitee
to secure a judicial determination that Indemnitee should be indemnified under
applicable law shall be a defense to Indemnitee’s claim or create a presumption
that Indemnitee has not met any particular standard of conduct or did not have
any particular belief.


 


8.    Nonexclusivity, Etc.    The
rights of the Indemnitee hereunder shall be in addition to any other rights
Indemnitee may have under the Company’s By-Laws or the Delaware General
Corporation Law or otherwise. To the extent that a change in the Delaware
General Corporation Law (whether by statute or judicial decision) permits
greater indemnification by agreement than would be afforded currently under the
Company’s By-Laws 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.


 


9.    Liability Insurance.    To
the extent the Company maintains an insurance policy or policies providing
directors’ and officers’ liability insurance, Indemnitee shall be covered by
such policy or policies, in accordance with its or their terms, to the maximum
extent of the coverage available for any Company director or officer.


 


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 against Indemnitee, Indemnitee’s spouse, heirs,
executors 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 shall be extinguished and deemed released unless
asserted by the timely filing 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 or 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
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.


 


4

















 


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, the By-laws or
otherwise) of the amounts otherwise indemnifiable hereunder.


 


14.    Binding Effect, 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, executors and personal and legal representatives. 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.    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 in any respect, and the validity and enforceability
of any such provision in every other respect and of the remaining provisions
hereof shall not be in any way impaired and shall remain enforceable to the
fullest extent permitted by law.


 


16.    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 executed this Agreement this      day
of                        ,
200__.


 


 


	
   

  	
  INFRASOURCE
  SERVICES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Indemnitee]

  



 


5