Exhibit
10.45


 


FIRST WIND HOLDINGS INC.


 


FORM OF INDEMNIFICATION AGREEMENT


 


This Indemnification
Agreement (this “Agreement”), is
made and entered into as of the         
day of                         ,
2010, by and between FIRST WIND HOLDINGS INC., a Delaware corporation (“WIND”) and                           
(“Indemnitee”).


 


W
I T N E S S E T H:


 


WHEREAS, highly competent
persons have become more reluctant to serve publicly-held corporations as
directors unless they are provided with adequate protection through insurance
and adequate indemnification against risks of claims and actions against them
arising out of their service to and activities on behalf of the corporation.


 


WHEREAS, the Board of
Directors of WIND (the “Board”)
has determined that, in order to attract and retain qualified individuals, WIND
will attempt to maintain on an ongoing basis, at its sole expense, liability
insurance to protect persons serving WIND and its subsidiaries from certain
liabilities.  Although the furnishing of
such insurance has been a customary and widespread practice among United
States-based corporations and other business enterprises, WIND believes that,
given current market conditions and trends, such insurance may be available to
it in the future only at higher premiums and with more exclusions.  At the same time, directors, officers, and
other persons in service to corporations or business enterprises are being
increasingly subjected to expensive and time-consuming litigation relating to,
among other things, matters that traditionally would have been brought only
against WIND or business enterprise itself.


 


WHEREAS, the Certificate of
Incorporation of WIND (as the same may be amended from time to time, the “Certificate of Incorporation”) provides
that WIND shall indemnify and advance expenses to all directors and officers of
WIND in the manner set forth therein and to the fullest extent permitted by
applicable law, and the Certificate of Incorporation provides for a limitation
of liability for directors.  In addition, Indemnitee
may be entitled to indemnification pursuant to the General Corporation Law of
the State of Delaware (the “DGCL”).  The Certificate of Incorporation and the DGCL
expressly provide that the indemnification provisions set forth therein are not
exclusive, and thereby contemplate that contracts may be entered into between
WIND and members of the Board with respect to indemnification.


 


WHEREAS, the uncertainties
relating to such insurance and to indemnification may increase the difficulty
of attracting and retaining directors.


 


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WHEREAS, the Board has
determined that the possible increased difficulty in attracting and retaining
directors is detrimental to the best interests of WIND’s stockholders and that
WIND should act to assure directors that there will be increased certainty of
such protection in the future.


 


WHEREAS, it is reasonable,
prudent and necessary for WIND contractually to obligate itself to indemnify,
and to advance expenses on behalf of, directors to the fullest extent permitted
by applicable law so that they will serve or continue to serve WIND free from
undue concern that they will not be so indemnified.


 


WHEREAS, this Agreement is a
supplement to and in furtherance of the Certificate of Incorporation and any
resolutions adopted pursuant thereto and shall not be deemed a substitute
therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.


 


WHEREAS, Indemnitee
does not regard the protection available under the Certificate of Incorporation
and insurance as adequate under the present circumstances, and may not be
willing to serve as a director of WIND without adequate protection, and WIND
desires Indemnitee to serve in such capacity. 
Indemnitee is willing to serve and continue to serve for or on behalf of
WIND on the condition that he or she be so indemnified.


 


[WHEREAS, Indemnitee
has certain rights to indemnification, advancement and/or insurance provided by
the Sponsor Indemnitors (as defined below) which Indemnitee and the Sponsor
Indemnitors intend to be secondary to the primary obligation of WIND to provide
indemnification and advancement to Indemnitee as provided herein, with WIND’s
acknowledgement and agreement to the foregoing being a material condition to
Indemnitee’s willingness to serve on the Board.]*


 


NOW, THEREFORE, in
consideration of the premises and the covenants contained herein, and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, WIND and Indemnitee do hereby covenant and agree as
follows:


 


ARTICLE 1

CERTAIN DEFINITIONS


 


(a) As used in this
Agreement:


 






* Bracketed language in this form of agreement to be
included in indemnification agreements between WIND and the Sponsor
Indemnitors’ designees.


 


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“Change of Control” means any one of the following
circumstances occurring after the date hereof: (i) there shall have
occurred an event required to be reported with respect to WIND in response to
Item 6(e) of Schedule 14A of Regulation 14A (or in response to any similar
item or any similar schedule or form) under the Exchange Act, regardless of
whether WIND is then subject to such reporting requirement; (ii) any “person”
or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act) shall have become, without prior approval of WIND’s Board by
approval of at least two-thirds of the Continuing Directors, the “beneficial
owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly,
of securities of WIND representing 15% or more of the combined voting power of
WIND’s then outstanding voting securities; (iii) there occurs a merger or
consolidation of WIND with any other entity, other than a merger or
consolidation that would result in the voting securities of WIND outstanding
immediately prior to such merger or consolidation continuing to represent
(either by remaining outstanding or by being converted into voting securities
of the surviving entity) more than 51% of the combined voting power of the
voting securities of the surviving entity outstanding immediately after such
merger or consolidation and with the power to elect at least a majority of the
board of directors or other governing body of such surviving entity; (iv) all
or substantially all the assets of WIND are sold or disposed of in a
transaction or series of transactions; (v) the approval by the
stockholders of WIND of a complete liquidation of WIND; or (vi) the
Continuing Directors cease for any reason to constitute at least a majority of
the members of the Board.


 


“Continuing Director” means (i) each director on the Board
on the date hereof or (ii) any new director whose election or nomination
for election by WIND’s stockholders was approved by a vote of at least a majority
of the directors then still in office who were directors on the date hereof or
whose election or nomination was so approved.


 


“Corporate Status” means the status of a person who is, was or
in the future becomes a director of WIND or a director, officer, trustee,
general partner, managing member, fiduciary, board of directors’ committee
member, employee or agent of any other Enterprise (as defined below) which such
person is or was serving at the request of WIND.


 


“Disinterested Director” means a director of WIND who is not
and was not a party to the Proceeding in respect of which indemnification or
advancement of Expenses is sought by Indemnitee.


 


“Enterprise” means WIND and any other corporation, limited
liability company, partnership, joint venture, trust, employee benefit plan or
other enterprise of which Indemnitee is or was serving or may in the future
serve at the request of WIND as a director, officer, trustee, general partner,
managing member, fiduciary, board of directors’ committee member, employee or
agent.


 


“ERISA” means the Employee Retirement Income Security Act of
1974, as amended.


 


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“Exchange Act” means the Securities Exchange Act of 1934, as
amended.


 


“Expenses” means all direct and indirect costs (including
attorneys’ fees, retainers, court costs, transcript costs, fees and costs of
experts and other professionals, witness fees, travel expenses, duplicating
costs, printing and binding costs, telephone charges, postage, delivery service
fees, and all other disbursements or expenses) of the types customarily
incurred in connection with (i) prosecuting, defending, preparing to
prosecute or defend, investigating, being or preparing to be a witness in,
responding to discovery in connection with, or otherwise participating in, a
Proceeding, or (ii) submitting a request for, or establishing or enforcing
a right to, indemnification, advancement, contribution or any other right under
this Agreement, applicable law or otherwise. 
Expenses also shall include Expenses incurred in connection with any
appeal resulting from any Proceeding, including the premium, security for, and
other costs relating to any cost bond, supersedeas bond, or other appeal bond
or its equivalent.  For the avoidance of
doubt, Expenses, however, shall not include any amounts paid in settlement by
Indemnitee or the amounts of judgments, fines or penalties against Indemnitee.


 


“Independent Counsel” means a law firm, or a member of a law
firm, that is experienced in matters of corporate law and neither currently is,
nor in the five years previous to its selection or appointment has been,
retained to represent (i) WIND or Indemnitee in any matter material to
either such party (other than with respect to matters concerning the rights of
Indemnitee under this Agreement or of other indemnitees under similar
indemnification agreements) or (ii) any other party to the Proceeding
giving rise to a claim for indemnification hereunder.  Notwithstanding the foregoing, the term “Independent
Counsel” shall not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest in
representing either WIND or Indemnitee in an action to determine Indemnitee’s
rights under this Agreement.


 


“Liabilities” means any losses or liabilities, including any
judgments, fines, ERISA excise taxes and penalties, penalties and amounts paid
in settlement, arising out of or in connection with any Proceeding (including
all interest, assessments and other charges paid or payable in connection with
or in respect of any such judgments, fines, ERISA excise taxes and penalties,
penalties or amounts paid in settlement).


 


“person” shall have the meaning set forth in Sections 13(d) and
14(d) of the Exchange Act; provided,
however that the term “person” shall exclude (x) WIND, (y) any
trustee or other fiduciary holding securities under an employee benefit plan of
WIND, and (z) any corporation owned, directly or indirectly, by the
stockholders of WIND in substantially the same proportions as their ownership
of stock of WIND).


 


“Proceeding” means any actual, threatened, pending or completed
action, derivative action, suit, claim, counterclaim, cross claim, arbitration,
alternate dispute resolution mechanism, investigation, inquiry, administrative
hearing or any other actual,


 


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threatened, pending or
completed proceeding, whether civil (including intentional and unintentional
tort claims), criminal, administrative or investigative, including any appeal
therefrom, and whether instituted by or on behalf of WIND or any other party,
or any inquiry or investigation that Indemnitee in good faith believes might
lead to the institution of any such action, suit or other proceeding hereinabove
listed in which Indemnitee was, is or will be involved as a party or otherwise
by reason of, in connection with or as a result of any Corporate Status of
Indemnitee, or by reason of any action taken (or failure to act) by him or her
or of any action (or failure to act) on his or her part as a result of serving
in any Corporate Status, in each case whether or not serving in such capacity
at the time any Liability or Expense is incurred for which indemnification,
contribution, reimbursement, or advancement of Liabilities or Expenses can be
provided under this Agreement.


 


(b)        For the purposes of this Agreement:


 


References to “WIND” shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger that, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, employees or agents, so that if
Indemnitee is or was a director of such constituent corporation or is or was
serving at the request of such constituent corporation as a director, officer,
trustee, general partner, managing member, fiduciary, board of directors’
committee member, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, then 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.


 


Reference to “other
enterprise” shall include employee benefit plans; references to “fines” shall
include any excise tax assessed with respect to any employee benefit plan;
references to “serving at the request of WIND” shall include any service as a
director, officer, trustee, general partner, managing member, fiduciary, board
of directors’ committee member, employee or agent which imposes duties on, or
involves services by, such director, officer, trustee, general partner, managing
member, fiduciary, board of directors’ committee member, employee or agent with
respect to an employee benefit plan, its participants or beneficiaries; and a
person who acted in good faith and in a manner he or she reasonably believed to
be in the best interests of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner “not opposed to the best
interests of WIND” as referred to in this Agreement.


 


Reference to “including”
shall mean “including, without limitation,” regardless of whether the words “without
limitation” actually appear, references to the words “herein,” “hereof” and “hereunder”
and other words of similar import shall refer to this Agreement as a whole and
not to any particular paragraph, subparagraph, section, subsection or other
subdivision.  The word “or” shall not be
exclusive.  The phrase “to the extent”
shall mean the degree to which a subject or other matter extends, and such
phrase not simply mean 


 


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“if”.  Whenever the context may require, any pronoun
used in this Agreement shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns, pronouns and verbs shall include
the plural and vice versa.


 


ARTICLE 2

SERVICES BY INDEMNITEE


 


Section 2.01.  Services By
Indemnitee.  Indemnitee hereby
agrees to serve or continue to serve as a director of WIND, for so long as
Indemnitee is duly elected or until Indemnitee tenders his or her resignation
(which Indemnitee may do at any time for any reason) or is removed.


 


ARTICLE 3

INDEMNIFICATION


 


Section 3.01.  General.


 


(a)        WIND hereby agrees to and shall, to the
fullest extent permitted by applicable law, indemnify Indemnitee and hold
Indemnitee harmless from and against any and all Expenses and Liabilities, in
any case, actually and reasonably incurred by Indemnitee or on Indemnitee’s
behalf that arise by reason of, in connection with or as a result of Indemnitee’s
Corporate Status (including any Expenses and Liabilities incurred in connection
with any Proceeding by or in the right of WIND or any Proceeding that is not a
Proceeding by or in the right of WIND). 
Without limiting the generality of the foregoing, the rights of Indemnitee
and obligations of WIND under this Agreement include claims for monetary
damages against Indemnitee in respect of any actual or alleged Liability or
Expense of Indemnitee to the fullest extent permitted under applicable law.


 


For purposes of this
Agreement, the meaning of the phrase “to the fullest extent permitted by
applicable law” shall include, but not be limited to:


 


(i)    to the fullest extent permitted by any
provision of the DGCL (including, as applicable, Section 145 of the DGCL),
or the corresponding provision of any amendment to or replacement of the DGCL
after the date hereof, and


 


(ii)   to the fullest extent authorized or permitted
by any amendments to or replacements of the DGCL adopted after the date of this
Agreement that increase the extent to which a corporation may indemnify its
directors.


 


(b)        Witness
Expenses.  Notwithstanding any
other provision of this Agreement, to the extent that Indemnitee is, by reason
of his or her Corporate Status, a witness or 


 


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participant, or threatened
to be a witness or participant, or is asked or forced to respond to any
discovery requests), in any Proceeding to which Indemnitee is not a party, he
or she shall be indemnified against all Liabilities and Expenses actually and
reasonably incurred by Indemnitee or on his or her behalf in connection
therewith.


 


(c)        Expenses
as a Party Where Wholly or Partly Successful.  Notwithstanding any other provisions of this Agreement, to the
fullest extent permitted by applicable law, to the extent that Indemnitee is a
party to (or a participant in) and is successful, on the merits or otherwise,
in any Proceeding or in defense of any claim, issue or matter therein, in whole
or in part, WIND shall indemnify Indemnitee against all Liabilities and
Expenses actually and reasonably incurred by him or her in connection
therewith.  If Indemnitee is not wholly
successful in such Proceeding, but is successful, on the merits or otherwise,
as to one or more but less than all claims, issues or matters in such
Proceeding, WIND shall, to the fullest extent permitted by applicable law,
indemnify Indemnitee against all Liabilities and Expenses actually and
reasonably incurred by Indemnitee or on his or her behalf in connection with
each successfully resolved claim, issue or matter.  For purposes of this Section and without
limitation, the termination of any claim, issue or matter in such a Proceeding
by dismissal, with or without prejudice, shall be deemed to be a successful
result as to such claim, issue or matter.


 


Section 3.02. Exclusions.  Notwithstanding
any provision of this Agreement, WIND shall not be obligated under this
Agreement to make any indemnity in connection with any claim made against
Indemnitee:


 


(a)        for (i) an accounting of profits
made from the purchase and sale (or sale and purchase) by Indemnitee of
securities of WIND within the meaning of Section 16(b) of the
Exchange Act or similar provisions of state statutory law or common law or (ii) any
reimbursement of WIND by Indemnitee of any
bonus or other incentive-based or equity-based compensation (including stock
options awarded as compensation) or of any profits realized by Indemnitee from
the sale of securities of WIND, as required in each case under the Exchange Act
(including any such reimbursements that arise from an accounting restatement of
WIND pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”) or Section 954 of
the Dodd-Frank Wall Street Reform and Consumer Protection Act, or the payment
to WIND of profits arising from the purchase and sale by Indemnitee of
securities in violation of Section 306 of the Sarbanes-Oxley Act); or


 


(b)        except as otherwise provided in Sections
6.01(d)-(f) hereof, prior to a Change of Control, in connection with any
Proceeding (or any part of any Proceeding) initiated by Indemnitee, including
any Proceeding (or any part of any Proceeding) initiated by Indemnitee against
WIND or its directors, officers, employees or other indemnitees, unless (i) the
Board authorized the Proceeding (or any part of any Proceeding) prior to its
initiation or (ii) WIND provides the indemnification, in its sole
discretion, pursuant to the powers vested in WIND under applicable law.


 


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ARTICLE 4

ADVANCEMENT OF EXPENSES; DEFENSE OF CLAIMS


 


Section 4.01. 
Advances.  Notwithstanding
any provision of this Agreement to the contrary and subject to the last
sentence of this Section 4.01, WIND shall advance any Expenses actually
and reasonably incurred by Indemnitee in connection with any Proceeding within
ten (10) days after the receipt by WIND of each statement requesting such
advance from time to time, whether prior to or after final disposition of any
Proceeding.  Advances shall be made
without regard to Indemnitee’s ability to repay such amounts and without regard
to Indemnitee’s ultimate entitlement to indemnification under the other
provisions of this Agreement (including without regard to any adverse
determination in any Proceeding unless and until there is a final judgment or
other final adjudication under the provisions of any applicable law (as to
which all rights of appeal therefrom have been exhausted or lapsed) that
Indemnitee is not entitled to be indemnified by WIND for such Expenses).  Advances shall include any and all reasonable
Expenses incurred pursuing an action to enforce this right of advancement,
including Expenses incurred preparing and forwarding statements to WIND to
support the advances claimed.  This Section 4.01
shall not apply to any claim made by Indemnitee for which indemnity is excluded
pursuant to Section 3.02.


 


Section 4.02.  Repayment of
Advances or Other Expenses.  Indemnitee
agrees that Indemnitee shall reimburse WIND for all Expenses advanced by WIND
pursuant to Section 4.01, in the event and only to the extent that it
shall be determined by final judgment or other final adjudication under the
provisions of any applicable law (as to which all rights of appeal therefrom
have been exhausted or lapsed) that Indemnitee is not entitled to be indemnified
by WIND for such Expenses.


 


Section 4.03.  Defense of
Claims.  WIND will be entitled
to participate in the Proceeding at its own expense.  WIND shall not settle any action, claim or
Proceeding (in whole or in part) that would impose any Expense, judgment, fine,
penalty or limitation on Indemnitee without Indemnitee’s prior written consent,
such consent not to be unreasonably withheld. 
Indemnitee shall not settle any action, claim or Proceeding (in whole or
in part) which would impose any Expense, judgment, fine, penalty or limitation
on WIND without WIND’s prior written consent, such consent not to be
unreasonably withheld.


 


ARTICLE 5

PROCEDURES FOR NOTIFICATION OF AND DETERMINATION OF ENTITLEMENT TO
INDEMNIFICATION


 


Section 5.01. 
Notification; Request For Indemnification.  (a) Within thirty (30) days after the
actual receipt by Indemnitee of notice that he or she is a party to or a
participant (as a witness or otherwise) in any Proceeding, Indemnitee
shall submit to WIND a written notice identifying the Proceeding.  The omission by Indemnitee to so 


 


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notify or timely notify WIND
will not relieve WIND from any liability which it may have to Indemnitee (i) under
this Agreement, except and only to the extent WIND can establish that such
omission to notify resulted in actual material prejudice to WIND, or (ii) otherwise
than under this Agreement.


 


(b)        Indemnitee shall thereafter deliver to
WIND a written request to have WIND indemnify Indemnitee in accordance with
this Agreement.  Such request(s) may
be delivered from time to time and at such time(s) as Indemnitee deems
appropriate in his or her sole discretion. 
Following such a written request for indemnification by Indemnitee, Indemnitee’s
entitlement to indemnification shall be determined according to Section 5.02
of this Agreement and applicable law.


 


Section 5.02. 
Determination of Entitlement.  (a) Where there has been a request for
indemnification by Indemnitee for indemnification pursuant to Section 5.01(b),
a determination, if expressly required by applicable law which cannot be
waived, with respect to Indemnitee’s entitlement thereto shall be made in the
specific case:  (i) by a majority
vote of the Disinterested Directors, even though less than a quorum of the
Board, if the request is not made by Indemnitee pursuant to the immediately
following clause (ii); or (ii) if so requested by Indemnitee in his or her
sole discretion, by Independent Counsel in a written opinion to the Board, a
copy of which shall be delivered to Indemnitee; provided that no such
determination shall be required in connection with indemnification pursuant to Section 3.01(b) of
this Agreement or incurred in connection with any Proceeding or portion thereof
with respect to which Indemnitee has been successful on the merits or
otherwise.  If it is so determined that
Indemnitee is entitled to indemnification, payment to Indemnitee shall be made
within ten (10) days after such determination.  Indemnitee shall reasonably cooperate with
the person, persons or entity making such determination with respect to
Indemnitee’s entitlement to indemnification, including providing to such
person, persons or entity upon reasonable advance request any documentation or
information which is not privileged or otherwise protected from disclosure and
which is reasonably available to Indemnitee and reasonably necessary to such
determination.  Any Expenses actually and
reasonably incurred by Indemnitee in so cooperating with the person, persons or
entity making such determination shall be borne by WIND (irrespective of the
determination as to Indemnitee’s entitlement to indemnification) and WIND
hereby indemnifies and agrees to hold Indemnitee harmless therefrom.


 


(b)        If entitlement to indemnification is to be
determined by Independent Counsel pursuant to Section 5.02(a)(ii), such
Independent Counsel shall be selected as provided in this Section 5.02(b).  The Independent Counsel shall be selected by
Indemnitee (unless Indemnitee shall request that such selection be made by the
Board, in which event the Board shall make such selection, subject to the
remaining provisions of this Section 5.02(b), and WIND shall give written
notice to Indemnitee advising him or her of the identity of the Independent
Counsel so selected).  In either event, Indemnitee
or WIND, as the case may be, may, within 10 days after such written notice of
selection shall have been received, deliver to WIND or to Indemnitee, as the
case may be, a written 


 


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objection to such selection;
provided, however, that such
objection may be asserted only on the ground that the Independent Counsel so
selected does not meet the requirements of “Independent Counsel” as defined in Section 1
of this Agreement, and the objection shall set forth with particularity the
factual basis of such assertion.  Absent
a proper and timely objection, the person so selected shall act as Independent
Counsel.  If such written objection is so
made and substantiated, the Independent Counsel so selected may not serve as
Independent Counsel unless and until such objection is withdrawn or a court of
competent jurisdiction has determined that such objection is without
merit.  If, within 20 days after the
submission by Indemnitee of a request for indemnification pursuant to Section 5.01(b) hereof,
no Independent Counsel shall have been selected and not objected to, either
WIND or Indemnitee may petition a court of competent jurisdiction for
resolution of any objection which shall have been made by WIND or Indemnitee to
the other’s selection of Independent Counsel and/or for the appointment as
Independent Counsel of a person selected by the court or by such other person
as the court shall designate, and the person with respect to whom all objections
are so resolved or the person so appointed shall act as Independent Counsel
under Section 5.02(a) hereof. Upon the due commencement of any
judicial proceeding or arbitration pursuant to Section 6.01(a) of
this Agreement, the Independent Counsel shall be discharged and relieved of any
further responsibility in such capacity (subject to the applicable standards of
professional conduct then prevailing).


 


(c)           WIND agrees to pay the reasonable fees of any Independent
Counsel and to fully indemnify such Independent Counsel against any and all
Expenses, claims, liabilities and damages arising out of or relating to this
Agreement or its engagement pursuant hereto, irrespective of the determination
of Indemnitee’s entitlement to indemnification.


 


Section 5.03.  Presumptions
and Burdens of Proof; Effect of Certain Proceedings.  (a) In making any
determination with respect to entitlement to indemnification hereunder, the
person or persons or entity (including any court) making such determination
shall, to the fullest extent not prohibited by law, presume that Indemnitee is
entitled to indemnification under this Agreement if Indemnitee has submitted a
request for indemnification in accordance with Section 5.01(b) of
this Agreement, and WIND or other person, persons entity challenging such right
shall, to the fullest extent not prohibited by law, have the burden of proof to
overcome that presumption in connection with the making by any person, persons
or entity of any determination contrary to that presumption.  Neither the failure of any person, persons or
entity to have made a determination prior to the commencement of any action
pursuant to this Agreement that indemnification is proper in the circumstances
because Indemnitee has met the applicable standard of conduct, nor an actual
determination by any person, persons or entity that Indemnitee has not met such
applicable standard of conduct, shall be a defense to the action or create a
presumption that Indemnitee has not met the applicable standard of conduct.


 


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(b)           If the person, persons or entity empowered or selected
under Section 5.02 of this Agreement to determine whether Indemnitee is
entitled to indemnification shall not have made a determination within sixty
(60) days after receipt by WIND of the request therefor, the requisite
determination of entitlement to indemnification shall, to the fullest extent
not prohibited by law, be deemed to have been made and Indemnitee shall be
entitled to such indemnification, absent (i) a misstatement by Indemnitee
of a material fact, or an omission of a material fact necessary to make
Indemnitee’s statement not materially misleading, in connection with the
request for indemnification, or (ii) a prohibition of such indemnification
under applicable law; provided,
however, that such 60-day period may be extended for a reasonable time, not to
exceed an additional thirty (30) days, if the person, persons or entity making
the determination with respect to entitlement to indemnification in good faith
requires such additional time for the obtaining or evaluating of documentation
and/or information relating thereto.


 


(c)           The termination of any Proceeding or of any claim, issue
or matter therein, by judgment, order, settlement or conviction, or upon a plea
of nolo contendere or its equivalent,
shall not (except as otherwise expressly provided in this Agreement) of itself
adversely affect the right of Indemnitee to indemnification or create a
presumption that Indemnitee did not act in good faith and in a manner which he
or she reasonably believed to be in or not opposed to the best interests of
WIND or, with respect to any criminal Proceeding, that Indemnitee had
reasonable cause to believe that his or her conduct was unlawful.


 


(d)           For purposes of any determination of good faith, Indemnitee
shall be deemed to have acted in good faith if Indemnitee’s action is in good
faith reliance on the records or books of account of any Enterprise, including
financial statements, or on information supplied to Indemnitee by the officers
of such Enterprise in the course of their duties, or on the advice of legal
counsel for such Enterprise or on information or records given or reports made
to such Enterprise by an independent certified public accountant or by an
appraiser or other expert selected by such Enterprise.


 


(e)           The knowledge and/or actions, or failure to act, of any
other director, trustee, partner, managing member, fiduciary, officer, agent or
employee of any Enterprise shall not be imputed to Indemnitee for purposes of
determining or limiting any right to indemnification under this Agreement.


 


(f)            The provisions of this Section 5.03 shall not be
deemed to be exclusive or to limit in any way the other circumstances in which
Indemnitee may be deemed or found to have met the applicable standard of
conduct set forth in this Agreement.


 


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ARTICLE 6

REMEDIES OF INDEMNITEE


 


Section 6.01.  Adjudication
or Arbitration.  (a) In
the event that (i) a determination is made pursuant to Section 5.02
of this Agreement that Indemnitee is not entitled to indemnification under this
Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 4.01
of this Agreement, (iii) no determination of entitlement to
indemnification shall have been made pursuant to Section 5.02(a) of
this Agreement within forty-five (45) days after receipt by WIND of the request
for indemnification, (iv) payment of indemnification is not made pursuant
to the last sentence of Section 5.02(a) of this Agreement within ten (10) days
after receipt by WIND of a written request therefor, or (v) payment of
indemnification pursuant to Section 3.01 of this Agreement is not made
within ten (10) days after a determination has been made that Indemnitee
is entitled to indemnification, Indemnitee shall be entitled to an
adjudication by a court of his or her entitlement to such indemnification or
advancement of Expenses.  Alternatively, Indemnitee,
at his or her option, may seek an award in arbitration to be conducted by a
single arbitrator pursuant to the Commercial Arbitration Rules of the
American Arbitration Association.  WIND
shall not oppose Indemnitee’s right to seek any such adjudication or award in
arbitration.


 


(b)           In the event that a determination shall have been made
pursuant to Section 5.02(a) of this Agreement that Indemnitee is not
entitled to indemnification, any judicial proceeding or arbitration commenced
pursuant to this Section 6.01 shall be conducted in all respects as a de novo trial, or arbitration, on the
merits, and Indemnitee shall not be prejudiced by reason of that adverse
determination.  In any judicial
proceeding or arbitration commenced pursuant to this Section 6.01 WIND
shall have the burden of proving Indemnitee is not entitled to indemnification
or advancement of Expenses, as the case may be, and WIND may not refer to or
introduce into evidence any determination pursuant to Section 5.02(a) of
this Agreement adverse to Indemnitee for any purpose.  If Indemnitee commences a judicial proceeding
or arbitration pursuant to this Section 6.01, Indemnitee shall not be
required to reimburse WIND for any advances pursuant to Section 4.02 until
a final determination is made with respect to Indemnitee’s entitlement to
indemnification (as to which all rights of appeal have been exhausted or
lapsed).


 


(c)           If a determination shall have been made pursuant to Section 5.02(a) of
this Agreement that Indemnitee is entitled to indemnification, WIND shall be
bound by such determination in any judicial proceeding or arbitration commenced
pursuant to this Section 6.01, absent (i) a misstatement by
Indemnitee of a material fact, or an omission of a material fact necessary to
make Indemnitee’s statement not materially misleading, in connection with the
request for indemnification, or (ii) a prohibition of such indemnification
under applicable law.


 


(d)           In the event that Indemnitee, pursuant to this Section 6.01,
seeks a judicial adjudication of or an award in arbitration to enforce his or
her rights under, or to recover damages for breach of, this Agreement or any
other right to indemnification, 


 


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contribution, reimbursement
or advancement, Indemnitee shall be entitled to recover from WIND, and
shall be indemnified by WIND against, any and all Expenses and Liabilities
actually and reasonably incurred by him or her in such judicial adjudication or
arbitration.  If it shall be determined
in said judicial adjudication or arbitration that Indemnitee is entitled to
receive part but not all of the indemnification of Expenses and Liabilities or
advancement of Expenses sought, Indemnitee shall be entitled to recover
from WIND, and shall be indemnified by WIND against, any and all Expenses
reasonably incurred by Indemnitee in connection with such judicial adjudication
or arbitration.


 


(e)           WIND shall be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to this Section 6.01 that the
procedures and presumptions of this Agreement are not valid, binding and
enforceable and shall stipulate in any such court or before any such arbitrator
that WIND is bound by all the provisions of this Agreement.


 


(f)            WIND shall indemnify Indemnitee to the fullest extent
permitted by law against all Expenses and, if requested by Indemnitee, shall
(within ten (10) days after WIND’s receipt of such written request)
advance such Expenses to Indemnitee, which are reasonably incurred by
Indemnitee in connection with any judicial proceeding or arbitration brought by
Indemnitee for (i) indemnification against Expenses or Liabilities or
advances of Expenses by WIND under this Agreement or any other agreement,
including any other indemnification, contribution or advancement agreement, or
any provision of the Certificate of Incorporation or Bylaws now or hereafter in
effect or (ii) recovery or advances under any directors’ and officers’
liability insurance policy maintained by any person for the benefit of
Indemnitee, regardless of whether Indemnitee ultimately is determined to be
entitled to such indemnification, advance or insurance recovery, as the case
may be.


 


ARTICLE 7

DIRECTORS’ AND OFFICERS’ LIABILITY INSURANCE


 


Section 7.01.  D&O
Liability Insurance.  (a) WIND
shall obtain and maintain a policy or policies of insurance (“D&O Liability Insurance”) with
reputable insurance companies with A.M. Best rating of “A” or better (the “D&O Insurers”) providing for an
appropriate level of coverage, both for Liabilities and Expenses that WIND has
the power to indemnify against and, to the extent available on commercially
reasonable terms as determined by the Board, Liabilities and Expenses that WIND
does not have the power to indemnify against, under the circumstances existing
at the time (as determined from time to time by the Board) for each Corporate
Status for which Indemnitee serves (and directors, officers, trustees, general
partners, managing members, fiduciaries, board of directors’ committee members,
employees or agents of any other Enterprise which such person serves at the
request of WIND) in respect of acts or omissions occurring while serving in
such capacity.


 


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(b)           Upon request by Indemnitee, WIND shall provide copies of
all policies of D&O Liability Insurance obtained and maintained in
accordance with Section 7.01(a) of this Agreement.  WIND shall promptly notify Indemnitee of any
changes in such insurance coverage.


 


(c)           Indemnitee shall be covered by the D&O Insurance
Policy in accordance with its terms to the maximum extent of the coverage
available for any similarly situated director of WIND (or any such similarly
situated director, officer, trustee, general partner, managing member,
fiduciary, board of directors’ committee member, employee or agent of any other
Enterprise which such person is or was serving at the request of WIND) under
such policy.  If WIND receives notice
from any source of a Proceeding as to which Indemnitee is a party or a
participant (as a witness or otherwise), WIND shall give prompt notice of such
Proceeding to the D&O Insureres in accordance with the procedures set forth
in the respective D&O Insurance Policies. 
WIND 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 Proceeding in accordance with the terms of such policies.  The failure or refusal of any such insurer to
pay any such amount shall not affect or impair the obligations of WIND under
this Agreement.  WIND shall provide the
insurance coverage called for hereby to Indemnitee for a period of at least six
(6) years after Indemnitee is no longer serving in any Corporate Status.


 


(d)           [WIND hereby acknowledges that Indemnitee has certain
rights to indemnification, advancement of expenses and/or insurance provided by
[   ] and/or certain of its affiliates
(collectively, the “Sponsor Indemnitors”).  WIND hereby agrees (i) that it is the
indemnitor of first resort (i.e., its obligations to Indemnitee are primary and
any obligation of the Sponsor Indemnitors to advance expenses or to provide
indemnification for the same expenses or liabilities incurred by Indemnitee are
secondary), (ii) that it shall be required to advance the full amount of
Expenses incurred by Indemnitee and shall be liable for the full amount of all
Expenses and Liabilities as required by the terms of this Agreement and WIND’s
Certificate of Incorporation and Bylaws (or any other agreement between WIND
and Indemnitee), without regard to any rights Indemnitee may have against the
Sponsor Indemnitors, and, (iii) that it irrevocably waives, relinquishes
and releases and shall use commercially reasonable efforts to cause each
D&O Insurer to waive, relinquish and release any and all claims against the
Sponsor Indemnitors for contribution, exoneration, contribution,
indemnification, subrogation or any other recovery of any kind in respect
thereof.  WIND further agrees that no
advancement or payment by the Sponsor Indemnitors on behalf of Indemnitee with
respect to any claim for which Indemnitee has sought indemnification from WIND
shall affect the foregoing and the Sponsor Indemnitors shall have a right of
contribution and/or be subrogated to the extent of such advancement or payment
to all of the rights of recovery of Indemnitee against WIND.  WIND and Indemnitee agree that the Sponsor
Indemnitors are express third party beneficiaries of the terms of this Section 7.01(d) and
the other terms of this Agreement.]*


 


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ARTICLE 8

MISCELLANEOUS


 


Section 8.01. 
Nonexclusivity of Rights.  The
rights of indemnification and advancement of Expenses as provided by this
Agreement shall not be deemed exclusive of any other rights to which Indemnitee
may at any time be entitled to under applicable law, the Certificate of
Incorporation, WIND’s Bylaws, any agreement, a vote of stockholders or a
resolution of directors, or otherwise. 
No amendment, alteration or repeal of this Agreement or of any provision
hereof shall limit or restrict any right of Indemnitee under this Agreement in
respect of any action taken or omitted by such Indemnitee in his or her
Corporate Status prior to such amendment, alteration or repeal.  To the extent that a change in Delaware law,
whether by statute or judicial decision, permits greater indemnification or advancement
of Expenses than would be afforded currently under the Certificate of
Incorporation 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.  No right or remedy herein
conferred is intended to be exclusive of any other right or remedy, and every
other right and remedy shall be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or otherwise.  The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other right or remedy.


 


Section 8.02.  Subrogation, etc.
(a) [Except for rights of recovery against a Sponsor Indemnitor,]* in the
event of any payment under this Agreement, WIND shall be subrogated to the
extent of such payment to all of the rights of recovery of Indemnitee [(other
than against the Sponsor Indemnitors)]*, who shall execute all papers required
and take all action, at WIND’s sole cost and expense, within Indemnitee’s power
necessary to secure such rights, including execution of such documents as are
necessary to enable WIND to bring suit to enforce such rights; provided that in
no event shall Indemnitee be required to execute any papers that purport to
limit any rights of such Indemnitee, whether arising pursuant to this Agreement
or otherwise, or that require a waiver of any attorney-client privilege or
other privilege.


 


(b)           [Except if received from a Sponsor Indemnitor,]* WIND
shall not be liable under this Agreement to make any payment of amounts
otherwise indemnifiable (or for which advancement is provided) hereunder if and
to the extent that Indemnitee has otherwise actually received such payment
under any insurance policy, contract, agreement or otherwise.


 


(c)           [Except if received from a Sponsor Indemnitor,]* WIND’s
obligation to indemnify or advance Expenses hereunder to Indemnitee who is or
was serving at the request of WIND as a director, officer, trustee, partner,
managing member, fiduciary, board of directors’ committee member, employee or
agent of any other Enterprise shall be reduced by any amount Indemnitee has
actually received as indemnification or advancement of Expenses from such
Enterprise.


 


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Section 8.03.  Acknowledgment
of Certain Matters.  Both WIND
and Indemnitee acknowledge that in certain instances, non-waivable provisions
of applicable law or public policy may prohibit indemnification of Indemnitee
by WIND under this Agreement or otherwise (with it being agreed by WIND that
WIND is hereby waiving all waivable provisions of applicable law to the maximum
extent permissible).  Indemnitee
understands and acknowledges that WIND has undertaken or may be required in the
future to undertake, by the Securities and Exchange Commission, to submit the
question of indemnification to a court in certain circumstances for a
determination of WIND’s right under public policy to indemnify Indemnitee.


 


Section 8.04. 
Contribution.  To the
fullest extent permissible under applicable law, if the indemnification
provided for in this Agreement is unavailable to Indemnitee for any reason
whatsoever (other than if Indemnitee is not entitled to indemnification
pursuant to the terms of this Agreement), WIND, in lieu of indemnifying
Indemnitee, shall contribute to the amount incurred by Indemnitee, whether for
judgments, fines, penalties, excise taxes, amounts paid or to be paid in
settlement and/or for Expenses, in connection with any claim relating to an
indemnifiable event under this Agreement, in such proportion as is deemed fair
and reasonable in light of all of the circumstances of such Proceeding in order
to reflect (i) the relative benefits received by WIND and Indemnitee as a
result of the event(s) and/or transaction(s) giving rise to such
Proceeding; and/or (ii) the relative fault of WIND (and its directors,
officers, employees and agents) and Indemnitee in connection with such event(s) and/or
transaction(s).  Each request for
indemnification hereunder shall, to the maximum extent permitted by law, be
deemed a request for contribution to the extent such indemnification is not
available.


 


Section 8.05. 
Amendment.  This
Agreement may not be modified or amended except by a written instrument
executed by or on behalf of each of the parties hereto.


 


Section 8.06. 
Waivers.  The
observance of any term of this Agreement may be waived (either generally or in
a particular instance and either retroactively or prospectively) by the party
entitled to enforce such term only by a writing signed by the party against
which such waiver is to be asserted. Unless otherwise expressly provided
herein, no delay on the part of any party hereto in exercising any right, power
or privilege hereunder shall operate as a waiver thereof, nor shall any waiver
on the part of any party hereto of any right, power or privilege hereunder
operate as a waiver of any other right, power or privilege hereunder nor shall
any single or partial exercise of any right, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege hereunder.


 


Section 8.07.  Entire
Agreement.  This Agreement and
the documents referred to herein constitute the entire agreement between the
parties hereto with respect to the matters covered hereby, and any other prior
or contemporaneous oral or written understandings or agreements with respect to
the matters covered hereby are superseded by this Agreement.


 


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Section 8.08. 
Severability.  If any
provision or provisions of this Agreement shall be held to be invalid, illegal
or unenforceable for any reason whatsoever: 
(a) the validity, legality and enforceability of the remaining
provisions of this Agreement (including each portion of any Section of
this Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall not
in any way be affected or impaired thereby and shall remain enforceable to the
fullest extent permitted by law; (b) such provision or provisions shall be
deemed reformed to the extent necessary to conform to applicable law and to
give the maximum effect to the intent of the parties hereto; and (c) to
the fullest extent possible, the provisions of this Agreement (including each
portion of any Section of this Agreement containing any such provision
held to be invalid, illegal or unenforceable, that is not itself invalid,
illegal or unenforceable) shall be construed so as to give effect to the intent
manifested thereby.


 


Section 8.09.  Notice Of
Proceedings.  Indemnitee
agrees promptly to notify WIND in writing upon being served with any summons,
citation, subpoena, complaint, indictment, information or other document
relating to any Proceeding or matter which may be subject to indemnification or
advancement of Expenses covered hereunder. 
The failure of Indemnitee to so notify WIND shall not relieve WIND of
any obligation which it may have to Indemnitee under this Agreement or
otherwise (unless WIND is prejudiced by the failure to receive such notice).


 


Section 8.10. 
Notices.  All notices,
requests, demands and other communications under this Agreement shall be in
writing (which may be by facsimile transmission).  All such notices, requests and other
communications shall be deemed received on the date of receipt by the recipient
thereof if received prior to 5:00 p.m. in the place of receipt and such
day is a business day in the place of receipt. 
Otherwise, any such notice, request or communication shall be deemed not
to have been received until the next succeeding business day in the place of
receipt.  The address for notice to a
party is as shown on the signature page of this Agreement, or such other
address as any party shall have given by written notice to the other party as
provided above.


 


Section 8.11.  Binding
Effect.  (a) WIND
expressly confirms and agrees that it has entered into this Agreement and
assumed the obligations imposed on it hereby in order to induce Indemnitee to
serve as a director of WIND, and WIND acknowledges that Indemnitee is relying
upon this Agreement in serving as a director of WIND.


 


(b)           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 WIND, spouses, heirs, and executors, administrators, personal
and legal representatives.  WIND shall
require and cause any successor (whether direct or indirect by purchase,
merger, consolidation or otherwise) to all or substantially all, or a
substantial part of the business or assets of WIND, by written agreement in
form and substance satisfactory to Indemnitee, expressly to assume and 


 


17

















 


agree to perform this
Agreement in the manner and to the same extent that WIND would be required to
perform if no such succession had taken place.


 


(c)           The indemnification and advancement of Expenses provided
by, or granted pursuant to this Agreement shall continue as to a person who has
ceased to serve in any particular Corporate Status and shall inure to the
benefit of the heirs, executors, administrators, legatees and assigns, of such
a person.


 


Section 8.12.  Governing
Law.  This Agreement and the
legal relations among the parties shall be governed by, and construed and enforced
in accordance with, the laws of the State of Delaware, without regard to its
conflict of laws rules.


 


Section 8.13.  Consent To
Jurisdiction.  Except with
respect to any arbitration commenced by Indemnitee pursuant to Section 6.01(a) of
this Agreement, WIND and Indemnitee hereby irrevocably and unconditionally (i) agree
that any action or proceeding arising out of or in connection with this
Agreement shall be brought only in the Chancery Court of the State of Delaware
(the “Delaware Court”), and not in
any other state or federal court in the United States of America or any court
in any other country, (ii) consent to submit to the exclusive jurisdiction
of the Delaware Court for purposes of any action or proceeding arising out of
or in connection with this Agreement, (iii) waive any objection to the
laying of venue of any such action or proceeding in the Delaware Court, and (iv) waive,
and agree not to plead or to make, any claim that any such action or proceeding
brought in the Delaware Court has been brought in an improper or inconvenient
forum.


 


Section 8.14. 
Headings.  The Article and
Section headings in this Agreement are for convenience of reference only,
and shall not be deemed to alter or affect the meaning or interpretation of any
provisions hereof.


 


Section 8.15. 
Counterparts.  This
Agreement may be executed in one or more counterparts, each of which shall for
all purposes be deemed to be an original but all of which together shall
constitute one and the same Agreement. 
Only one such counterpart signed by the party against whom
enforceability is sought needs to be produced to evidence the existence of this
Agreement.


 


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IN WITNESS WHEREOF, this
Agreement has been duly executed and delivered to be effective as of the date
first above written.


 


	
   

  	
  FIRST WIND HOLDINGS INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  179 Lincoln Street,
  Suite 500

  
	
   

  	
   

  	
  Boston, MA 02111

  
	
   

  	
  Facsimile: 617-960-2889

  
	
   

  	
  Attention:  General Counsel

  
	
   

  	
   

  	
   

  
	
   

  	
  INDEMNITEE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
  Facsimile:

  
	
   

  	
   

  
	
   

  	
  With a copy to:

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
  Facsimile:

  
	
   

  	
  Attention:

  
					



 


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