EXHIBIT 10.1


 


APA OPTICS, INC.1


 


INDEMNIFICATION AGREEMENT


 


This INDEMNIFICATION AGREEMENT (the “Agreement”)
is made as of ____________, by and between APA Optics, Inc., a Minnesota corporation (the “Company”), and ____________
(“Indemnitee”).2


 


RECITALS


 


1.                 
The Company desires to attract and retain qualified directors, officers, employees and other agents, and to provide them
with protection against liability and expenses incurred while acting in that capacity;


 


2.                 
The Articles of Incorporation and Bylaws of the Company contain provisions for indemnifying directors and officers of the
Company, and the Bylaws and Minnesota law contemplate that separate contracts may be entered into between the Company and its directors
and officers, employees and other agents with respect to their indemnification by the Company;


 


3.                 
The Company understands that Indemnitee has reservations about serving or continuing to serve the Company without adequate
protection against personal liability arising from such service, and that it is also of critical importance to Indemnitee that
adequate provision be made for advancing costs and expenses of legal defense; and


 


4.                 
The Board of Directors of the Company has approved, as being in the best interests of the Company, indemnity contracts substantially
in the form of this Agreement for directors and officers of the Company and its subsidiaries and for certain other employees and
agents of the Company designated by the Board of Directors.


 


NOW, THEREFORE, in order to induce Indemnitee to serve or
to continue to serve as a director and/or officer of the Company, and in consideration of Indemnitee’s service to the Company,
the parties agree as follows:


 


1.                 
Contractual Indemnity. The Company hereby agrees, subject to the limitations of Sections 2 and 5 hereof and the limitations
of Minnesota Statute 302A.521:


 


______________________


 


1 APA Optics, Inc.
is now known as Clearfield, Inc.


 


2 Current directors
that are Indemnitee parties to this Agreement and dates of the Agreement are: Ronald G. Roth dated February 5, 2002. Former directors/officers
that are Indemnitee parties to this Agreement and dates of the Agreement are: Anil Jain dated February 5, 2002, Kenneth A. Olsen
dated February 5, 2002, Robert M. Ringstad dated February 5, 2002, Gregory Von Wald dated February 5, 2002, Stephen A. Zuckerman,
MD dated February 5, 2002 and John G. Reddan dated November 14, 2002.


 







     

     


    

(a)               
To indemnify, defend and hold Indemnitee harmless to the greatest extent possible under applicable law from and against
any and all judgments, fines, penalties, amounts paid in settlement and any other amounts reasonably incurred or suffered by Indemnitee
(including attorneys’ fees) in connection with any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative, or investigative, including an action by or in the right of the Company, to which Indemnitee is, was
or at any time becomes a party, or is threatened to be made a party, by reason of the fact that Indemnitee is, was or at any time
becomes a director, officer, employee or agent of the Company or is or was serving or at any time serves at the request of the
Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise
(collectively referred to hereafter as a “Claim”), whether or not arising prior to the date of this Agreement.


 


(b)              
To pay any and all expenses reasonably incurred by Indemnitee (i) in defending any Claim or Claims (including reasonable
attorneys’ fees and other reasonable costs of investigation and defense) or (ii) in appearing as a witness for, or at the
request of, or cooperating with or assisting the Company, in connection with any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative, or investigative, including an action by or in the right of the Company,
as the same are incurred and in advance of the final disposition of any such Claim or Claims; provided, however, that advances
pursuant to clause b(i) shall be made only upon receipt of an undertaking by or on behalf of Indemnitee to reimburse such amounts
if it shall be ultimately determined that Indemnitee is not entitled to be indemnified by the Company under this Agreement, and
is not entitled to be indemnified by the Company under the Articles of Incorporation, the Bylaws, or Minnesota law.


 


(c)               
The termination of any action or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contenders
or its equivalent, shall not, of itself, create a presumption that (i) Indemnitee did not act in good faith and in a manner which
Indemnitee reasonably believed to be in the best interests of the Company, or (ii) with respect to any criminal action or proceeding,
Indemnitee had reasonable cause to believe that Indemnitee’s conduct was unlawful.


 


2.                 
Limitations on Contractual Indemnity. Indemnitee shall not be entitled to indemnification or advancement of expenses
under Section 1:


 


(a)               
if a court of competent jurisdiction, by final judgment or decree, shall determine that (i) the Claim or Claims in respect
of which indemnity is sought arise from Indemnitee’s fraudulent, dishonest or willful misconduct, or (ii) such indemnity
is not permitted under applicable law; or


 


(b)              
on account of any suit in which judgment is rendered for an accounting of profits made from the purchase or sale by Indemnitee
of securities of the Company in violation of 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; or


 






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(c)               
for any acts or omissions or transactions from which a director may not be indemnified under the Minnesota Business Corporation
Act; or


 


(d)              
with respect to proceedings or claims initiated or brought voluntarily by Indemnitee and not by way of defense, except (i)
with respect to proceedings brought in good faith to establish or enforce a right to indemnification under this Agreement or any
other statute or law, or (ii) at the Company’s discretion, in specific cases if the Board of Directors of the Company has
approved the initiation or bringing of such suit; or


 


(e)               
for expenses or liabilities of any type whatsoever (including, but not limited to, judgments, fines, ERISA excise taxes
or penalties, and amounts paid in settlement) which have been paid directly to Indemnitee by an insurance carrier under a policy
of directors’ and officers’ liability insurance maintained by the Company; or


 


(f)               
on account of any suit brought against Indemnitee for misuse or misappropriation of non-public information, or otherwise
involving Indemnitee’s status as an “insider” of the Company, in connection with any purchase or sale by Indemnitee
of securities of the Company.


 


3.                 
Continuation of Contractual Indemnity. Subject to the termination provisions of Section 11, all agreements and obligations
of the Company contained herein shall continue for so long as Indemnitee shall be subject to any possible action, suit, proceeding
or other assertion of a Claim or Claims.


 


4.                 
Expenses; Indemnification Procedure. The Company shall advance all expenses incurred by Indemnitee in connection
with the investigation, defense, settlement or appeal of any civil or criminal action or proceeding referenced in Section 1 hereof
(but not amounts actually paid in settlement of any such action or proceeding). Indemnitee hereby undertakes to repay such amounts
advanced if, and to the extent that, it shall ultimately be determined that Indemnitee is not entitled to be indemnified by the
Company as authorized hereby. The advances to be made hereunder shall be paid by the Company to Indemnitee within twenty (20) days
following delivery of a written request therefor by Indemnitee to the Company.


 


5.                 
Notification and Defense of Claim. If any action, suit, proceeding or other Claim is brought against Indemnitee in
respect of which indemnity may be sought under this Agreement:


 


(a)               
Indemnitee will promptly notify the Company in writing of the commencement thereof, and the Company and any other indemnifying
party similarly notified will be entitled to participate therein at its own expense or to assume the defense thereof and to employ
counsel reasonably satisfactory to Indemnitee. Notice to the Company shall be directed to the Chief Executive Officer of the Company
at the address shown on the signature page of this Agreement (or such other address as the Company shall designate in writing to
Indemnitee). Notice shall be deemed received three (3) business days after the date postmarked if sent by domestic certified or
registered mail, properly addressed; otherwise notice shall be deemed received when such notice shall actually be received by the
Company. Indemnitee shall have the right to employ its own counsel in connection with any such Claim 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 shall not
have assumed the defense of the Claim and employed counsel for such defense, or (ii) the named parties to any such action (including
any impleaded parties) include both Indemnitee and the Company, and Indemnitee shall have reasonably concluded that joint representation
is inappropriate under applicable standards of professional conduct due to a material conflict of interest between Indemnitee and
the Company, in either of which events the reasonable fees and expenses of such counsel to the Indemnitee shall be borne by the
Company upon delivery to the Company of the undertaking referred to in subparagraph (b) of Section 1. However, in no event will
the Company be obligated to pay the fees or expenses of more than one firm of attorneys representing Indemnitee and any other agents
of the Company in connection with any one Claim or separate but substantially similar or related Claims in the same jurisdiction
arising out of the same general allegations or circumstances.


 






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(b)              
The Company shall not be liable to indemnify Indemnitee for any amounts paid in settlement of any Claim effected without
the Company’s written consent, and the Company shall not settle any Claim in a manner which would impose any penalty or limitation
on Indemnitee without Indemnitee’s written consent; provided, however, that neither the Company nor Indemnitee will unreasonably
withhold its consent to any proposed settlement and, provided further, that if a claim is settled by the Indemnitee with the Company’s
written consent, or if there be a final judgment or decree for the plaintiff in connection with the Claim by a court of competent
jurisdiction, the Company shall indemnify and hold harmless Indemnitee from and against any and all losses, costs, expenses and
liabilities incurred by reason of such settlement or judgment.


 


(c)               
Indemnitee shall give the Company such information and cooperation as it may reasonably require and as shall be within Indemnitee’s
power.


 


(d)              
Any indemnification provided for in Section 1 shall be made no later than forty-five (45) days after receipt of the written
request of Indemnitee. If a Claim under this Agreement, under any statute, or under any provision of the Company’s Articles
of Incorporation or Bylaws providing for indemnification, is not paid in full by the Company within forty-five (45) days after
a written request for payment thereof has first been received by the Company, Indemnitee may, but need not, at any time thereafter
bring an action against the Company to recover the unpaid amount of the claim and, subject to Section 13 of this Agreement, Indemnitee
shall also be entitled to be reimbursed for the expenses (including attorneys’ fees) of bringing such action. It shall be
a defense to any such action (other than an action brought to enforce a claim for expenses incurred in connection with any action
or proceeding in advance of its final disposition) that Indemnitee has not met the standards of conduct which make it permissible
under applicable law for the Company to indemnify Indemnitee for the amount claimed but the burden of proving such defense shall
be on the Company, and Indemnitee shall be entitled to receive interim payments of expenses pursuant to Section 4 unless and until
such defense may be finally adjudicated by court order or judgment from which no further right of appeal exists. It is the parties’
intention that if the Company contests Indemnitee’s right to indemnification, the question of Indemnitee’s tight to
indemnification shall be for the court to decide, and neither the failure of the Company (including its Board of Directors, any
committee or subgroup of the Board of Directors, independent legal counsel, or its stockholders) to have made a determination that
indemnification of Indemnitee is proper in the circumstances because Indemnitee has met the applicable standard of conduct required
by applicable law, nor an actual determination by the Company (including its Board of Directors, any committee or subgroup of the
Board of Directors, independent legal counsel, or its stockholders) that Indemnitee has not met such applicable standard of conduct,
shall create a presumption that Indemnitee has or has not met the applicable standard of conduct.


 






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(e)               
If, at the time of the receipt of a notice of a Claim, the Company has director and officer liability insurance in effect,
the Company shall give prompt notice of the commencement of such proceeding to the insurers in accordance with the procedures set
forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to
pay, on behalf of the Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such policies.


 


6.                 
Scope. Notwithstanding any other provision of this Agreement, the Company hereby agrees to indemnify the Indemnitee
against any Claim to the fullest extent permitted by law, notwithstanding that such indemnification is not specifically authorized
by the other provisions of this Agreement, the Company’s Articles of Incorporation, the Company’s Bylaws or by statute.
In the event of any change, after the date of this Agreement, in any applicable law, statute or rule which expands the right of
a Minnesota corporation to indemnify a member of its board of directors, an officer or other corporate agent, such changes shall
be, ipso facto, within the purview of Indemnitee’s rights and the Company’s obligations, under this Agreement. In the
event of any change in any applicable law, statute, or rule which narrows the right of a Minnesota corporation to indemnify a member
of its Board of Directors, an officer, or other corporate agent, such changes, to the extent not otherwise required by applicable
law to be applied to this Agreement, shall have no effect on this Agreement or the parties’ rights and obligations hereunder.


 


7.                 
Partial Indemnification. 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 or penalties actually or reasonably incurred by him in the investigation,
defense, appeal or settlement of any civil or criminal action or proceeding, but not, however, for the total amount thereof, the
Company shall nevertheless indemnify Indemnitee for the portion of such expenses, judgments, fines or penalties to which Indemnitee
is entitled.


 


8.                 
Public Policy. Both the Company and Indemnitee acknowledge that in certain instances, Federal law or applicable public
policy may prohibit the Company from indemnifying its directors and officers under this Agreement or otherwise. Indemnitee understands
and acknowledges that the Company has undertaken or may be required in the future to undertake with the Securities and Exchange
Commission to submit the question of indemnification to a court in certain circumstances for a determination of the Company’s
right under public policy to indemnify Indemnitee.


 






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9.                 
Insurance. The Company shall maintain insurance for the purpose of indemnifying Indemnitee and other agents of the
Company against personal liability, including costs of legal defense, while Indemnitee continues to serve the Company in an “official
capacity” as defined in MSA 302A.521(1)(c). The terms and liability limits of such insurance shall be solely within the discretion
of the Company.


 


10.             
No Restrictions. The rights and remedies of Indemnitee under this Agreement shall not be deemed to exclude or impair
any other rights or remedies to which Indemnitee may be entitled under the Certificate of Incorporation or Bylaws of the Company,
or under any other agreement, provision of law or otherwise, nor shall anything contained herein restrict the right of the Company
to indemnify Indemnitee in any proper case even though not specifically provided for in this Agreement, nor shall anything contained
herein restrict Indemnitee’s right to contribution as may be available under applicable law.


 


11.             
Termination. The Company may terminate this Agreement at any time upon ninety (90) days’ written notice, but
any such termination will not affect Claims relating to events occurring prior to the effective date of termination.


 


12.             
Severability. Each of the provisions of this Agreement is a separate and distinct agreement and independent of the
others, so that if any provision hereof shall be held to be invalid or unenforceable for any reason, such invalidity or unenforceability
shall not affect the validity or enforceability of the other provisions hereof.


 


13.             
Attorneys’ Fees. In the event of any litigation or other action or proceeding to enforce or interpret this
Agreement, the prevailing party as determined by the court shall be entitled to an award of its reasonable attorneys’ fees
and other costs, in addition to such relief as may be awarded by a court or other tribunal.


 


14.             
Further Assurances. The parties will do, execute and deliver, or will cause to be done, executed and delivered, all
such further acts, documents and things as may be reasonably required for the purpose of giving effect to this Agreement and the
transactions contemplated hereby.


 


15.             
Acknowledgment. The Company expressly acknowledges that it has entered into this Agreement and assumed the obligations
imposed on the Company hereunder in order to induce Indemnitee to serve or to continue to serve as an agent of the Company, and
acknowledges that Indemnitee is relying on this Agreement in serving or continuing to serve in such capacity.


 


16.             
Construction of Certain Phrases.


 


(a)               
“Company”: For purposes of this Agreement, references to the “Company” shall also include,
in addition to the resulting corporation in any consolidation or merger to which The Company, Inc. is a party, any constituent
corporation (including any constituent of a constituent) absorbed in consolidation or merger which, if its separate existence hid
continued, would have had power and authority to indemnify its directors, officers, employees or agents, so that if Indemnitee
is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise,
Indemnitee shall stand in the same position under the provisions of this Agreement with respect to the resulting or surviving corporation
as Indemnitee would have with respect to such constituent corporation if its separate existence had continued.


 






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(b)              
Benefit Plans: References to “fines” contained in this Agreement shall include any excise taxes assessed
on Indemnitee with respect to an employee benefit plan; and references to “serving at the request of the Company” shall
include any service as a director, officer, employee or agent of the Company which imposes duties on, or involves services by,
such director, officer, employee or agent with respect to an employee benefit plan, its participants, or beneficiaries.


 


(c)               
“Proceeding”: For purposes of this Agreement, “proceeding” shall include any and all forms
of “alternative dispute resolution,” including without limitation arbitration and mediation.


 


17.             
Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute an original.


 


18.             
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 receipted for by the party addressee, on the date of such receipt, 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.


 


19.             
Governing Law; Binding Effect; Amendment.


 


(a)               
This Agreement shall be interpreted and enforced in accordance with the laws of the State of Minnesota as applied to agreements
between Minnesota residents entered and to be performed entirely within Minnesota (without regard to conflict of law provisions).


 


(b)              
This Agreement shall be binding upon Indemnitee and the Company, their successors and assigns, and shall inure to the benefit
of Indemnitee, his heirs, personal representatives and assigns and to the benefit of the Company, its successors and assigns.


 


(c)               
No amendment, modification, termination or cancellation of this Agreement shall be effective unless in writing signed by
both parties hereto.


 


 


 






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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.


 


 


 


 





	 	
        APA Optics, Inc.

        a Minnesota corporation

         

	 	 
	 	By:	 
	 	Name:	 
	 	Title:	 


 


	 	
        Address:

         

	 	 
	 	 
	 	 


 


	 	 
	 	
        Indemnitee

         

	 	 
	 	
        (Signature of Indemnitee)

         

	 	 
	 	
        Address:

         

	 	 
	 	 
	 	 


 


 


 


 







 


 


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