Exhibit
10.6


 


INDEMNIFICATION AGREEMENT dated as of
                                    
between


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


 


WHEREAS,
the Board of Directors has determined that the Company’s ability to attract and
retain qualified persons as directors and officers is necessary to further the
best interests of the Company’s stockholders and that in order to attract such
individuals, the Company should act to assure such persons that there shall be
adequate certainty of protection through insurance and indemnification against
risks of claims and actions against them arising out of their service to and
activities on behalf of the Company; and


 


WHEREAS,
the Company has adopted provisions in its Certificate of Incorporation and
By-laws providing for indemnification and advancement of expenses of its
directors and officers to the fullest extent permitted by the Delaware General
Corporation Law, and the Company wishes to clarify and enhance the rights and
obligations of the Company and Indemnitee with respect to indemnification and
advancement of expenses; and


 


WHEREAS,
in order to induce and encourage highly experienced and capable persons such as
Indemnitee to serve and continue to serve as directors and officers of the
Company and in any other capacity with respect to the Company, and to otherwise
promote the desirable end that such persons shall resist what they consider
unjustified lawsuits and claims made against them in connection with the good
faith performance of their duties to the Company, with the knowledge that
certain costs, judgments, penalties, excise taxes, fines, liabilities and
expenses incurred by them in their defense of such litigation are to be borne
by the Company and they shall receive the maximum protection against such risks
and liabilities as may be afforded by law, the Board of Directors of the
Company has determined that the following Agreement is reasonable and prudent
to promote and ensure the best interests of the Company and its stockholders;
and


 


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


 


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


 


1.
Service by Indemnitee; Effectiveness. Indemnitee shall serve and/or
continue to serve as a director or officer of the Company faithfully and to the
best of Indemnitee’s ability so long as Indemnitee is duly elected or appointed
and until such time as Indemnitee is removed as permitted by law or tenders a
resignation in writing. This Agreement shall be effective as of the date first
set forth above, and this Agreement shall apply to any event that occurred
prior to or after such date if Indemnitee was, or is deemed to have been, a
director, officer, employee, agent or fiduciary of the Company, or was serving
at the request of the Company as a director, officer, employee, agent or
fiduciary of any other entity (including, but not limited to, another


 

















 


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


 


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


 


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


 


(b) for
which payment is actually made to Indemnitee under a valid and collectible insurance
policy or under a valid and enforceable indemnity clause, provision of the
certificate of incorporation or by-laws, or agreement of the Company or any
other company or organization where Indemnitee is serving at the request of the
Company, except in respect of any indemnity exceeding the payment under such
insurance, indemnity clause, provision of the certificate of incorporation or
by-laws, or agreement; or


 


(c) in
connection with an action, suit or proceeding, or part thereof (including
claims and counterclaims) initiated by Indemnitee, except a judicial proceeding
or arbitration pursuant to Section 10 to enforce rights under this
Agreement, unless the action, suit or proceeding (or part thereof) was
authorized by the Board of Directors of the Company; or


 


(d) with
respect to any Proceeding brought by or on behalf of the Company against
Indemnitee that is authorized by the Board of Directors of the Company, except
as provided in Sections 4, 5 and 6 below.


 


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


 


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


 

















 


Section if
Indemnitee was or is a party or is threatened to be made a party to any
Proceeding brought by or in the name of the Company to procure a judgment in
its favor by reason of the fact that Indemnitee is or was, or is deemed to be
or have been, a director, officer, employee, agent or fiduciary of the Company,
or is or was serving at the request of the Company as a director, officer,
employee, agent or fiduciary of any other entity (including, but not limited
to, another corporation, partnership, joint venture or trust); or by reason of
anything done or not done by Indemnitee in any such capacity. Pursuant to this
Section, Indemnitee shall be indemnified on an after-tax basis against all
costs, judgments, penalties, excise taxes, fines, liabilities, amounts paid in
settlement and Expenses, actually and reasonably incurred by Indemnitee in
connection with such Proceeding if Indemnitee acted in good faith and in a
manner Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company; provided, however, that no such indemnification shall
be made in respect of any claim, issue, or matter as to which Delaware law
expressly prohibits such indemnification by reason of any adjudication of
liability of Indemnitee to the Company, unless and only to the extent that the
Court of Chancery of the State of Delaware or the court in which such
Proceeding was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
Indemnitee is entitled to indemnification for such costs, judgments, penalties,
excise taxes, fines, liabilities, amounts paid in settlement and Expenses as
such court shall deem proper.


 


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


 


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


 


7.
Indemnification for Expenses of a Witness. Notwithstanding any other
provision of this Agreement, to the maximum extent permitted by the Delaware
General Corporation Law, Indemnitee shall be entitled to indemnification
against all Expenses actually and reasonably incurred or suffered by Indemnitee
or on Indemnitee’s behalf if Indemnitee appears as a witness or otherwise
incurs legal expenses as a result of or related to Indemnitee’s service as a
director or officer of the Company, in any threatened, pending or completed
action, suit or proceeding, whether of a civil, criminal, administrative,
investigative, legislative or other nature, to which Indemnitee neither is, nor
is threatened to be made, a party.


 


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


 

















 


and
which is reasonably available to Indemnitee. Upon written request by Indemnitee
for indemnification pursuant to Sections 3, 4, 5, 6 or 7 the entitlement
of Indemnitee to indemnification, to the extent not provided pursuant to the
terms of this Agreement, shall be determined by the following person or persons
who shall be empowered to make such determination: (a) the Board of
Directors of the Company by a majority vote of Disinterested Directors, whether
or not such majority constitutes a quorum; (b) a committee of
Disinterested Directors designated by a majority vote of such directors,
whether or not such majority constitutes a quorum; (c) if there are no
Disinterested Directors, or if the Disinterested Directors so direct, by
Independent Counsel in a written opinion to the Board of Directors, a copy of
which shall be delivered to Indemnitee; (d) the stockholders of the
Company; or (e) in the event that a Change in Control has occurred, by
Independent Counsel in a written opinion to the Board of Directors, a copy of
which shall be delivered to Indemnitee. Such Independent Counsel shall be
selected by the Board of Directors and reasonably approved by Indemnitee,
except that in the event that a Change in Control has occurred, Independent
Counsel shall be selected by Indemnitee and reasonably approved by the Board of
Directors. Upon failure of the Board so to select (or so to approve, in the
event that a Change in Control has occurred) such Independent Counsel or upon
failure of Indemnitee so to approve (or so to select, in the event that a Change
in Control has occurred), such Independent Counsel shall be selected upon
application to a court of competent jurisdiction. The determination of
entitlement to indemnification shall be made not later than 30 calendar days
after receipt by the Company of a written request for indemnification. Any
amounts incurred by Indemnitee in connection with a request for indemnification
or payment of Expenses hereunder, under any other agreement, any provision of
the Company’s Certificate of Incorporation and By-laws or any directors’ and
officers’ liability insurance, shall be borne by the Company. The Company
hereby indemnifies Indemnitee for any such amounts and agrees to hold
Indemnitee harmless therefrom irrespective of the outcome of the determination
of Indemnitee’s entitlement to indemnification. If the person making such
determination shall determine that Indemnitee is entitled to indemnification as
to part (but not all) of the application for indemnification, such person shall
reasonably prorate such partial indemnification among the claims, issues or
matters at issue at the time of the determination.


 


9.
Presumptions and Effect of Certain Proceedings. The Secretary of the
Company shall, promptly upon receipt of Indemnitee’s written request for
indemnification, advise in writing the Board of Directors or such other person
or persons empowered to make the determination as provided in Section 8
that Indemnitee has made such request for indemnification. Upon making such
request for indemnification, Indemnitee shall be presumed to be entitled to
indemnification hereunder and the Company shall have the burden of proof in
making any determination contrary to such presumption. If the person or persons
so empowered to make such determination shall have failed to make the requested
determination with respect to indemnification within 30 calendar days after
receipt by the Company of such request, a requisite determination of
entitlement to indemnification shall be deemed to have been made and Indemnitee
shall be absolutely entitled to such indemnification, absent actual and
material fraud in the request for indemnification. The termination of any
Proceeding described in Sections 3 or 4 by judgment, order, settlement or
conviction, or upon a plea of  nolo contendere  or its equivalent, shall not, of itself: (a) create
a presumption that Indemnitee did not act in good faith and in a manner which
Indemnitee reasonably believed to be in or not opposed to the best interests of
the Company, or, with respect to any criminal Proceeding, that Indemnitee had
reasonable cause to believe that Indemnitee’s conduct was unlawful; or (b) otherwise
adversely affect the rights of Indemnitee to


 

















 


indemnification
except as may be provided herein.


 


10.
Remedies of Indemnitee in Cases of Determination not to Indemnify or to
Advance Expenses. In the event that a determination is made that Indemnitee
is not entitled to indemnification hereunder or if payment has not been timely
made following a determination of entitlement to indemnification pursuant to
Sections 8 and 9, or if Expenses are not paid pursuant to Section 15,
Indemnitee shall be entitled to final adjudication in a court of competent
jurisdiction of entitlement to such indemnification or payment. Alternatively,
Indemnitee at Indemnitee’s option may seek an award in an arbitration to be
conducted by a single arbitrator pursuant to the rules of the American
Arbitration Association, such award to be made within 60 calendar days
following the filing of the demand for arbitration. The Company shall not
oppose Indemnitee’s right to seek any such adjudication or award in arbitration
or any other claim. The determination in any such judicial proceeding or
arbitration shall be made  de novo  and Indemnitee shall not be prejudiced by
reason of a determination (if so made) pursuant to Sections 8 or 9 that
Indemnitee is not entitled to indemnification. If a determination is made or
deemed to have been made pursuant to the terms of Section 8 or 9 that
Indemnitee is entitled to indemnification, the Company shall be bound by such
determination and is precluded from asserting that such determination has not
been made or that the procedure by which such determination was made is not
valid, binding and enforceable. The Company further agrees to stipulate in any
such court or before any such arbitrator that the Company is bound by all the
provisions of this Agreement and is precluded from making any assertions to the
contrary. If the court or arbitrator shall determine that Indemnitee is
entitled to any indemnification or payment of Expenses hereunder, the Company
shall pay all Expenses actually and reasonably incurred by Indemnitee in
connection with such adjudication or award in arbitration (including, but not
limited to, any appellate proceedings).


 


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


 


12.
Expenses to Enforce Agreement. In the event that Indemnitee is subject
to or intervenes in any action, suit or proceeding in which the validity or
enforceability of this Agreement is at issue or seeks an adjudication or award
in arbitration to enforce Indemnitee’s rights under, or to recover damages for
breach of, this Agreement, Indemnitee, if Indemnitee prevails in whole or in
part in such action, suit or proceeding, shall be entitled to recover from the
Company and shall be indemnified by the Company against any Expenses actually
and reasonably incurred by Indemnitee.


 


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


 

















 


successors
and assigns of the Company (including any transferee of all or substantially
all of its assets and any successor by merger or operation of law) and shall
inure to the benefit of the heirs, personal representatives and estate of
Indemnitee.


 


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


 


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


 


(b) Except
as otherwise provided in this Section 14(b), to the extent that it may
wish, the Company, jointly with any other indemnifying party similarly
notified, shall be entitled to assume the defense thereof, with counsel
satisfactory to Indemnitee. After notice from the Company to Indemnitee of its
election so to assume the defense thereof, the Company shall not be liable to
Indemnitee under this Agreement for any expenses of counsel subsequently
incurred by Indemnitee in connection with the defense thereof except as
otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s
own counsel in such Proceeding, but the fees and expenses of such counsel
incurred after notice from the Company of its assumption of the defense thereof
shall be at the expense of Indemnitee unless (i) the employment of counsel
by Indemnitee has been authorized by the Company, (ii) Indemnitee
reasonably concludes, based upon an opinion of counsel approved by the Company,
which approval shall not be unreasonably withheld, that there may be a conflict
of interest between the Company and Indemnitee in the conduct of the defense of
such Proceeding, or (iii) the Company shall not within 60 calendar days of
receipt of notice from Indemnitee in fact have employed counsel to assume the
defense of the Proceeding, in each of which cases the fees and expenses of
Indemnitee’s counsel shall be at the expense of the Company. The Company shall
not be entitled to assume the defense of any Proceeding brought by or on behalf
of the Company or as to which Indemnitee shall have made the conclusion
provided for in (ii) above; and


 


(c) If
the Company has assumed the defense of a Proceeding, the Company shall not be
liable to indemnify Indemnitee under this Agreement for any amounts paid in
settlement of any Proceeding effected without the Company’s written consent.
The Company shall not settle any Proceeding in any manner that would impose any
ongoing obligation with respect to Indemnitee without Indemnitee’s written
consent; it being understood that the Company may settle any claim for monetary
relief at its own discretion; provided that the Company may not utilize
insurance proceeds to fund any such settlement unless the settlement contains a
release in favor of the Indemnitee from any further liability in connection
with the matters giving rise to such Proceeding. Neither the Company nor
Indemnitee shall unreasonably withhold its consent to any proposed settlement.


 


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


 

















 


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


 


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


 


17.
Separability; Prior Indemnification Agreements. 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 without
limitation, all portions of any paragraphs of this Agreement containing any
such provision held to be invalid, illegal or unenforceable, that are not by
themselves invalid, illegal or unenforceable) shall not in any way be affected
or impaired thereby, and (b) to the fullest extent possible, the
provisions of this Agreement (including, without limitation, all portions of
any paragraph of this Agreement containing any such provision held to be
invalid, illegal or unenforceable, that are not themselves invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent of the
parties that the Company provide protection to Indemnitee to the fullest
enforceable extent. This Agreement shall supersede and replace any prior
indemnification agreements entered into by and between the Company and
Indemnitee and any such prior agreements shall be terminated upon execution of
this Agreement.


 


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


 

















 


Directors
of the Company covering Indemnitee or any claim made against Indemnitee for
service as a director or officer of the Company and covering the Company for
any indemnification or advancement of Expenses made by the Company to
Indemnitee for any claims made against Indemnitee for service as a director or
officer of the Company.  Without in any
way limiting any other obligation under this Agreement, the Company shall
indemnify Indemnitee for any payment by Indemnitee arising out of the amount of
any deductible or retention and the amount of any excess of the aggregate of
all judgments, penalties, excise taxes, fines, settlements and Expenses
incurred by Indemnitee in connection with a Proceeding over the coverage of any
insurance referred to in the previous sentence.


 


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


 


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


 


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


 


21.
Definitions. For purposes of this Agreement:


 


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


 


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


 


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


 

















 


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


 


(iii) any
stock sale or other transaction or series of related
transactions, whether or not the Company is a party thereto, after giving
effect to which in excess of fifty percent (50%) of the Company’s voting power
is owned directly, or indirectly though one or more entities, by any person and
its “affiliates” or “associates” (as such terms are defined in the rules adopted
by the Securities and Exchange Commission under the Securities Exchange Act of
1934, as amended).


 


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


 


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


 


(d) “Independent
Counsel” means a law firm or a member of a law firm experienced in matters of
corporate law that neither is presently nor in the past five years has been
retained to represent: (i) the Company or Indemnitee in any matter
material to either such party, 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 the Company or Indemnitee in
an action to determine Indemnitee’s right to indemnification under this
Agreement.


 


(e) “Proceeding”
includes any threatened, pending or completed investigation, action, suit or
other proceeding, whether formal or informal and whether brought in the name of
the Company or otherwise, against Indemnitee, whether of a civil, criminal,
administrative, investigative, legislative or other nature, including, but not
limited to, actions, suits or proceedings in which Indemnitee may be or may
have been involved as a party or otherwise, by reason of 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, agent or fiduciary of any other entity, including, but not
limited to, another corporation, partnership, joint venture or trust, or by
reason of anything done or not done by Indemnitee in any such capacity, whether
or not Indemnitee is serving in such capacity at the time any liability or
expense is incurred for which indemnification or reimbursement can be provided
under this Agreement.


 


22.
Other Provisions.


 


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


 


(b) 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 as evidence of the existence of this Agreement.


 


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


 


(d) Upon
a payment to Indemnitee under this Agreement, the Company shall be subrogated
to the extent of such payment to all of the rights of Indemnitee to recover
against any person for such liability, and Indemnitee shall execute all
documents and instruments required and shall take such other actions as may be
necessary to secure such rights, including the execution of such documents as
may be necessary for the Company to bring suit to enforce such rights.


 


(e) No
supplement, modification or amendment of this Agreement shall be binding unless
executed in writing by both 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.


 

















 


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


 


 


	
   

  	
  BROADWIND
  ENERGY, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [Indemnitee]

  



 

















 


ANNEX I


 


FORM OF AFFIRMATION AND UNDERTAKING


 


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


 


As
a condition to receiving advancement of Expenses, Indemnitee hereby (a) affirms
that it is Indemnitee’s good faith belief that the standard of conduct
necessary for indemnification by the Company as authorized by law and by the
Indemnification Agreement has been met and (b) undertakes to reimburse
within 60 days of the Company’s demand any such amounts advanced under the
Indemnification Agreement if it is ultimately determined, after all appeals by
a court of competent jurisdiction, that Indemnitee is not entitled to be
indemnified against such Expenses by the Company as provided by the
Indemnification Agreement or otherwise.


 


This
Agreement shall not affect in any manner rights which Indemnitee may have
against the Company, any insurer or any other person to seek indemnification
for or reimbursement of any expenses referred to herein or any judgment which
may be rendered in any litigation or proceeding.


 


	
   

  	
   

  
	
   

  	
  [Indemnitee]