EXHIBIT 10.04
INDEMNITY AGREEMENT
(Employee Director or Officer)
This INDEMNITY AGREEMENT ("Agreement") made and entered into September 19,
2005, is by and between ALLIED WASTE INDUSTRIES, INC., a Delaware corporation
("Company"), and XXXXXX X. XXXXX ("Indemnitee").
WHEREAS, highly competent persons are becoming more reluctant to serve
publicly held corporations as directors, officers, or in other capacities unless
they are provided with adequate protection through insurance or adequate
indemnification against inordinate risks of claims and actions against them
arising out of their service to, and activities on behalf of, such corporations;
and
WHEREAS, the current difficulty and expense of obtaining adequate
insurance and the uncertainties relating to indemnification have increased the
difficulty of attracting and retaining such persons; and
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that the inability to attract and retain such persons is detrimental
to the best interests of the Company's stockholders and that the Company should
act to assure such persons that there will be increased certainty of such
protection in the future; and
WHEREAS, it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify such persons to the fullest extent
permitted by applicable law so that they will serve or continue to serve the
Company free from undue concern that they will not be so indemnified; and
WHEREAS, Indemnitee is willing to serve or continue to serve and to take
on additional service for or on behalf of the Company on the condition that he
be so indemnified.
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:
SECTION 1. Services by Indemnitee. Indemnitee agrees to serve as Executive
Vice President, Human Resources and Organizational Development, of the Company.
Indemnitee may at any time and for any reason resign from such position and the
Company may at any time terminate the Indemnitee's service with the Company
(subject to any other contractual obligation or any obligation imposed by
operation of law), in which event the Company shall have no obligation under
this Agreement to continue Indemnitee in such position.
SECTION 2. Indemnification - General. Except as otherwise set forth in or
limited by this Agreement, the Company's Certificate of Incorporation or By-laws
(as either or both may be
amended from time to time), or applicable law, the Company shall indemnify, and
advance Expenses (as hereinafter defined) to Indemnitee, as provided in this
Agreement and to the fullest extent permitted by applicable law in effect on the
date hereof and to such greater extent as applicable law may thereafter from
time to time permit. The rights of Indemnitee provided under the preceding
sentence shall include, but shall not be limited to, the rights set forth in the
other Sections of this Agreement.
SECTION 3. Proceedings Other Than Proceedings by or in the Right of the
Company. Subject to the exceptions set forth in Section 15, Indemnitee shall be
entitled to the rights of indemnification provided in this Section 3 if, by
reason of his Corporate Status (as hereinafter defined) or by reason of anything
done or not done by Indemnitee in any such capacity, he is, or is threatened to
be made, a party to any threatened, pending, or completed Proceeding (as
hereinafter defined), other than a Proceeding by or in the right of the Company.
Pursuant to this Section 3, Indemnitee shall be indemnified by the Company to
the full extent permitted by applicable law against Expenses, judgments,
penalties, fines and amounts paid in settlement (including all interest,
assessments and other charges paid or payable in connection with or in respect
of such Expenses, judgments, fines, penalties or amounts paid in settlement)
actually and reasonably incurred by him or on his behalf in connection with such
Proceeding or any claim, issue or matter therein, if he acted in good faith and
in a manner he 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 conduct was unlawful.
SECTION 4. Proceedings by or in the Right of the Company. Subject to the
exceptions set forth in Section 15, Indemnitee shall be entitled to the rights
of indemnification provided in this Section 4 if, by reason of his Corporate
Status, he is, or is threatened to be made, a party to any threatened, pending
or completed Proceeding brought by or in the right of the Company to procure a
judgment in its favor. Pursuant to this Section 4, Indemnitee shall be
indemnified by the Company to the full extent permitted by applicable law
against Expenses actually and reasonably incurred by him or on his behalf in
connection with such Proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Company. Notwithstanding the foregoing, no indemnification against such Expenses
shall be made in respect of any claim, issue or matter in such Proceeding as to
which Indemnitee shall have been adjudged to be liable to the Company if
applicable law prohibits such indemnification; provided, however, that, if
applicable law so permits, indemnification against Expenses shall nevertheless
be made by the Company in such event if and only to the extent that the Court of
Chancery of the State of Delaware, or the court in which such Proceeding shall
have been brought or is pending, shall determine.
SECTION 5. Indemnification for Expenses where Indemnitee is Wholly or
Partly Successful. Notwithstanding any other provision of this Agreement, to the
extent that Indemnitee is, by reason of his Corporate Status, a party to and is
successful, on the merits or otherwise, in any Proceeding, he shall be
indemnified against all Expenses actually and reasonably incurred by him or on
his behalf 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, the Company
shall indemnify Indemnitee against all Expenses actually and reasonably incurred
by him or on his behalf in
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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 6. Indemnification for Expenses of a Witness. Notwithstanding any
other provision of this Agreement, to the extent that Indemnitee is, by reason
of his Corporate Status, a witness in any Proceeding to which he is not a party,
he shall be indemnified against all Expenses actually and reasonably incurred by
him or on his behalf in connection therewith.
SECTION 7. Advancement of Expenses. Except as otherwise limited or
prohibited by applicable law, the Company shall advance all reasonable Expenses
incurred by or on behalf of Indemnitee in connection with any Proceeding within
15 days after the receipt by the Company of a statement or statements from
Indemnitee requesting such advance or advances from time to time, whether prior
to or after final disposition of such Proceeding. Such statement or statements
shall reasonably evidence the Expenses incurred by Indemnitee and shall include
or be preceded or accompanied by an undertaking by or on behalf of Indemnitee to
repay any Expenses advanced if it shall ultimately be determined by a court of
competent jurisdiction that Indemnitee is not entitled to be indemnified against
such Expenses; provided, however, that Indemnitee shall not be required to
reimburse Company for any advancement of Expenses until a final judicial
determination is made (as to which all rights of appeal have been exhausted or
lapsed).
SECTION 8. Procedure for Determination of Entitlement to Indemnification.
(a) To obtain indemnification under this Agreement, Indemnitee shall
submit to the Company a written request, including therein or therewith such
documentation and information as is reasonably available to Indemnitee and is
reasonably necessary to determine whether and to what extent Indemnitee is
entitled to indemnification. The Secretary of the Company shall, promptly upon
receipt of such a request for indemnification, advise the Board of Directors in
writing that Indemnitee has requested indemnification.
(b) Upon written request by Indemnitee for indemnification pursuant to the
last sentence of Section 8(a) hereof, a determination, if required by applicable
law, with respect to Indemnitee's entitlement thereto shall be made in the
specific case: (i) if a Change in Control (as hereinafter defined) shall have
occurred, by Independent Counsel (as hereinafter defined) (unless Indemnitee
shall request that such determination be made by the Board of Directors or the
stockholders, in which case by the person or persons or in the manner provided
for in clauses (ii) or (iii) of this Section 8(b)) in a written opinion to the
Board of Directors, a copy of which shall be delivered to Indemnitee; (ii) if a
Change of Control shall not have occurred, (A) by the Board of Directors by a
majority vote of a quorum consisting of Disinterested Directors (as hereinafter
defined), or (B) if a quorum of the Board of Directors consisting of
Disinterested Directors is not obtainable or, even if obtainable, such quorum of
Disinterested Directors so directs, by Independent Counsel in a written opinion
to the Board of Directors, a copy of which shall be delivered to Indemnitee, or
(C) if so directed by the Board of Directors, by the stockholders of the
Company; or (iii) as provided in Section 9(b) of this Agreement; and, if it is
so determined that Indemnitee is entitled to Indemnification, payment to
Indemnitee shall be made within 10 days after such determination. Indemnitee
shall cooperate with the person, persons or entity
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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
costs or Expenses (including attorney's fees and disbursements) incurred by
Indemnitee in so cooperating with the person, persons or entity making such
determination shall be borne by the Company (irrespective of the determination
as to Indemnitee's entitlement to indemnification) and the Company hereby
indemnifies and agrees to hold Indemnitee harmless therefrom.
(c) In the event the determination of entitlement to indemnification is to
be made by Independent Counsel pursuant to Section 8(b) hereof, the Independent
Counsel shall be selected as provided in this Section 8(c). If a Change of
Control shall not have occurred, the Independent Counsel shall be selected by
the Board of Directors, and the Company shall give written notice to Indemnitee
advising him of the identity of the Independent Counsel so selected. If a Change
of Control shall have occurred, the Independent Counsel shall be selected by
Indemnitee (unless Indemnitee shall request that such selection be made by the
Board of Directors, in which event the preceding sentence shall apply), and
Indemnitee shall give written notice to the Company advising it of the identity
of the Independent Counsel so selected. In either event, Indemnitee or the
Company, as the case may be, may, within 7 days after such written notice of
selection shall have been given, deliver to the Company or to Indemnitee, as the
case may be, a written objection to such selection. 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 18 of this
Agreement, and the objection shall set forth with particularity the factual
basis of such assertion. If such written objection is made, the Independent
Counsel so selected may not serve as Independent Counsel unless and until a
court has determined that such objection is without merit. If, within 20 days
after submission by Indemnitee of a written request for indemnification pursuant
to Section 8(a) hereof, no Independent Counsel shall have been selected without
objection, either the Company or Indemnitee may petition the Court of Chancery
of the State of Delaware or other court of competent jurisdiction for resolution
of any objection which shall have been made by the Company 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 an objection is
so resolved or the person so appointed shall act as Independent Counsel under
Section 8(b) hereof. The Company shall pay any and all reasonable fees and
expenses of Independent Counsel incurred by such Independent Counsel in
connection with acting pursuant to Section 8(b) hereof, and the Company shall
pay all reasonable fees and expenses incident to the procedures of this Section
8(c), regardless of the manner in which such Independent Counsel was selected or
appointed. Upon the due commencement of any judicial proceeding or arbitration
pursuant to Section 10(a)(iii) of this Agreement, Independent Counsel shall be
discharged and relieved of any further responsibility in such capacity (subject
to the applicable standards of professional conduct then prevailing).
SECTION 9. Presumptions and Effect of Certain Proceedings.
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(a) In making a determination with respect to entitlement to
indemnification hereunder, the person or persons or entity making such
determination shall presume that Indemnitee is entitled to indemnification under
this Agreement if Indemnitee has submitted a request for indemnification in
accordance with Section 8(a) of this Agreement, and the Company shall 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.
(b) If the person, persons or entity empowered or selected under Section 8
of this Agreement to determine whether Indemnitee is entitled to indemnification
shall not have made a determination within 60 days after receipt by the Company
of the request therefor, the requisite determination of entitlement to
indemnification shall 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 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; and provided, further, that
the foregoing provisions of this Section 9(b) shall not apply (i) if the
determination of entitlement to indemnification is to be made by the
stockholders pursuant to Section 8(b) of this Agreement and if (A) within 15
days after receipt by the Company of the request for such determination the
Board of Directors has resolved to submit such determination to the stockholders
for their consideration at an annual meeting thereof to be held within 75 days
after such receipt and such determination is made thereat, or (B) a special
meeting of stockholders is called within 15 days after such receipt for the
purpose of making such determination, such meeting is held for such purpose
within 60 days after having been so called and such determination is made
thereat, or (ii) if the determination of entitlement to indemnification is to be
made by Independent Counsel pursuant to Section 8(b) of this Agreement.
(c) The failure of the Company to award indemnification or to determine
that indemnification is payable shall not create an adverse presumption that
Indemnitee is not entitled to indemnification under this Agreement. 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 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 his conduct was unlawful.
SECTION 10. Remedies of Indemnitee.
(a) In the event that (i) a determination is made pursuant to Section 8 of
this Agreement that Indemnitee is not entitled to indemnification under this
Agreement, or (ii) advancement of Expenses is not timely made pursuant to
Section 7 of this Agreement, or (iii) the determination of entitlement to
indemnification is to be made by Independent Counsel
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pursuant to Section 8(b) of this Agreement and such determination shall not have
been made and delivered in a written opinion within 90 days after receipt by the
Company of the request for indemnification, or (iv) payment of indemnification
is not made pursuant to Section 6 of this Agreement within 10 days after receipt
by the Company of a written request therefor, or (v) payment of indemnification
is not made within 10 days after a determination has been made that Indemnitee
is entitled to indemnification or such determination is deemed to have been made
pursuant to Sections 8 or 9 of this Agreement, Indemnitee shall be entitled to
an adjudication in an appropriate court of the State of Delaware, or in any
other court of competent jurisdiction, of his entitlement to such
indemnification or advancement of Expenses, and Company hereby consents to
service of process and to appear in any such proceeding. Alternatively,
Indemnitee, at his option, may seek an award in arbitration to be conducted by a
single arbitrator pursuant to the rules of the American Arbitration Association.
Indemnitee shall commence such proceeding seeking an adjudication or an award in
arbitration within 180 days following the date on which Indemnitee first has the
right to commence such proceeding pursuant to this Section 10(a); provided,
however, that the foregoing clause shall not apply in respect of a proceeding
brought by an Indemnitee to enforce his rights under Section 5 of the Agreement.
(b) In the event that a determination shall have been made pursuant to
Section 8 of this Agreement that Indemnitee is not entitled to indemnification,
any judicial proceeding or arbitration commenced pursuant to this Section 10
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. If a Change of Control shall have occurred, in any judicial
proceeding or arbitration commenced pursuant to this Section 10 the Company
shall have the burden of proving that Indemnitee is not entitled to
indemnification or advancement of Expenses, as the case may be.
(c) If a determination shall have been made or deemed to have been made
pursuant to Section 8 or 9 of this Agreement that Indemnitee is entitled to
indemnification, the Company shall be bound by such determination in any
judicial proceeding or arbitration commenced pursuant to this Section 10, 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) The Company shall be precluded from asserting in any judicial
proceeding or arbitration commenced to enforce this Agreement, including a
judicial proceeding or arbitration commenced pursuant to this Section 10, that
the procedures and presumptions of this Agreement are not valid, binding and
enforceable or that there is not sufficient consideration for this Agreement and
shall stipulate in any such court or before any such arbitrator that the Company
is bound by all the provisions of this Agreement.
(e) In the event that Indemnitee seeks a judicial adjudication of or an
award in arbitration to enforce his rights under, or to recover damages for
breach of, this Agreement, Indemnitee shall be entitled to recover from the
Company, and shall be indemnified by the Company against, any and all Expenses
actually and reasonably incurred by him in such judicial adjudication or
arbitration, but only if he prevails therein. If it shall be determined in said
judicial
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adjudication or arbitration that Indemnitee is entitled to receive part but not
all of the indemnification or advancement of expenses sought, the expenses
incurred by Indemnitee in connection with such judicial adjudication or
arbitration shall be appropriately prorated.
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SECTION 11. Non-Exclusivity; Insurance, Subrogation; No Duplicate
Payments.
(a) The rights of indemnification and to receive 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 under applicable law, the
Certificate of Incorporation, the By-Laws, any agreement, a vote of stockholders
or a resolution of directors or a committee of directors, or otherwise with
respect to actions to Indemnitee's official capacity as well as actions in any
other capacity as a result of Indemnitee's Corporate Status. No amendment,
alteration or repeal of this Agreement or any provision hereof shall be
effective as to Indemnitee with respect to any action taken or omitted by
Indemnitee in his Corporate Status prior to such amendment, alteration or
repeal.
(b) To the extent that the Company maintains an insurance policy or
policies providing liability insurance for directors, officers, employees,
agents or fiduciaries of the Company or of any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise for which
Indemnitee serves at the request of the Company, Indemnitee shall be covered by
such policy or policies in accordance with its or their terms to the maximum
extent of the coverage available for any such director, officer, employee or
agent under such policy or policies.
(c) In the event of any payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of recovery or
contribution of Indemnitee, who shall execute all papers required and take all
action necessary to secure such rights, including execution of such documents as
are necessary to enable the Company to bring suit to enforce such rights.
(d) The Company shall not be liable under this Agreement to make any
payment of amounts otherwise indemnifiable hereunder if and to the extent that
Indemnitee has otherwise actually received such payment under any insurance
policy, contract, agreement or otherwise.
SECTION 12. Binding Effect - Survival of Rights. This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the parties and
their respective successors, assigns (including any direct or indirect
successors by purchase, merger, consolidation or otherwise to all or
substantially all of the business and/or assets of the Company), spouses, heirs,
executors, administrators, and personal and legal representatives. The Company
shall require and cause any successor (whether direct or indirect by purchase,
merger, consolidation or otherwise) to all, substantially all, or a substantial
part of the business and/or assets of the Company, by written agreement in form
and substance satisfactory to the Indemnitee, expressly to assume and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform if no such succession had taken place. This
Agreement shall continue in effect for the benefit of Indemnitee and his spouse,
heirs, executors, administrators, and personal and legal representatives
regardless of whether Indemnitee continues to have Corporate Status or continues
to serve as an officer or director of the Company or of any other enterprise at
the Company's request.
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SECTION 13. Limitations Period. No legal action shall be brought and no
cause of action shall be asserted by or in the right of the Company or any
affiliate of the Company against Indemnitee, Indemnitee's spouse, heirs,
executors or personal or legal representatives after the expiration of two years
from the date of accrual of such cause of action, and any claim or cause of
action of the Company or its affiliate shall be extinguished and deemed released
unless asserted by the timely filing of a legal action within such two-year
period; provided, however, that if any shorter period of limitations is
otherwise applicable to any such cause of action such shorter period shall
govern.
SECTION 14. Severability. The provisions of this Agreement are independent
of and severable from each other. If any provision 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, 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 (b) to the fullest extent
possible, the provisions of this Agreement (including, without limitation, 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
by the provision held invalid, illegal or unenforceable.
SECTION 15. Exception to Right of Indemnification or Advancement of
Expenses. Notwithstanding any other provision of this Agreement, Indemnitee
shall not be entitled to indemnification or advancement of Expenses under this
Agreement with respect to any Proceeding, or any claim therein, brought or made
by him against (a) the Company, (b) any person in control of, under the control
of, or in common control with the Company, or (c) any third party unless the
Company has joined in or consented to the initiation of such Proceeding;
provided that the foregoing limitation shall not apply to counterclaims or
affirmative defenses asserted by Indemnitee in an action brought against
Indemnitee. Furthermore, and notwithstanding anything contained in this
Agreement or in the Company's Certificate of Incorporation or By-laws (as either
or both may be amended from time to time) to the contrary, the Company shall not
be obligated to indemnify or hold harmless Indemnitee (i) if and to the extent
that such indemnification shall be prohibited by applicable law; (ii) if and to
the extent that a claim in the Proceeding is decided adversely to Indemnitee
based upon or attributable to Indemnitee gaining in fact any personal profit or
advantage to which Indemnitee was not legally entitled; or (iii) if and to the
extent that the indemnifiable event constituted or arose out of Indemnitee's
knowingly fraudulent or dishonest conduct or willful misconduct or gross
negligence.
SECTION 16. Identical 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. Any
photographic or xerographic copy of this Agreement, with all signatures
reproduced on one or more sets of signatures pages, shall be considered for all
purposes as if it
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were an executed counterpart of this Agreement. Signatures may be given by
facsimile or other electronic transmission, and such signatures shall be fully
binding on the party sending the same.
SECTION 17. Headings. The headings of the paragraphs 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.
SECTION 18. Definitions. For purposes of this Agreement:
(a) "Change in Control" means a change in control of the Company occurring
after the Effective Date of a nature that would be required to be reported in
response to item 6(e) of Schedule 14A of Regulation 14A (or in response to any
similar item on any similar schedule or form) promulgated under the Securities
Exchange Act of 1934 (the "Act"), whether or not the Company is then subject to
such reporting requirement; provided, however, that, without limitation, such a
Change in Control shall be deemed to have occurred if after the Effective Date
(i) any "person" (as such term is used in Section 13(d) and 14(d) of the Act),
together with all "affiliates" and "associates" (as defined under Rule 12b-2
promulgated under the Act) of such person, but excluding (1) a trustee or other
fiduciary holding securities under an employee benefit plan of the Company or
any subsidiary of the Company, (2) a corporation owned, directly or indirectly,
by the stockholders of the Company in substantially the same proportions as
their ownership of the Company, (3) the Company or any subsidiary of the
Company, or (4) Indemnitee, together with all affiliates and associates of
Indemnitee, is or becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Act), directly or indirectly, of securities of the Company representing 50%
or more of the combined voting power of the Company's then outstanding
securities without the prior approval of at least two-thirds of the members of
the Board of Directors in office immediately prior to such person attaining such
percentage interest and who are not affiliates or associates of such person(s);
(ii) the Company is a party to a merger, consolidation, sale of assets, plan of
liquidation, or other reorganization, or a proxy contest (in a single
transaction or series of transactions), as a consequence of which members of the
Board of Directors in office immediately prior to such transaction or event
constitute less than a majority of the Board of Directors thereafter; or (iii)
during any period of two consecutive years, individuals who at the beginning of
such period constituted the Board of Directors (including for this purpose any
new director whose election or nomination for election by the Company's
stockholders was approved by a vote of at least two-thirds of the directors then
still in office who were directors at the beginning of such period) cease for
any reason to constitute at least a majority of the Board of Directors.
(b) "Corporate Status" describes the status of a person who is serving or
has served (i) as a director, officer, employee, partner, trustee, agent or
fiduciary of the Company, (ii) in any capacity with respect to any employee
benefit plan of the Company, or (iii) as a director, officer, employee, partner,
trustee, or agent of any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise which such person is or was serving at
the request of the Company. For purposes of subsection (iii) above, an officer
or director of the Company who is serving or has served as a director, officer,
employee, partner, trustee, or agent of a subsidiary of the Company shall be
deemed to be serving at the request of the Company.
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(c) "Disinterested Director" means a director of the Company who is not
and was not a party to the Proceeding in respect of which indemnification is
sought by Indemnitee.
(d) "Effective Date" means the date of this Agreement.
(e) "Expenses" shall include all reasonable attorneys' fees,
disbursements, retainers, court costs, transcript costs, fees and disbursements
of experts, witness fees and disbursements, fees and disbursements of private
investigators and professional advisors, travel expenses, duplicating costs,
printing and binding costs, telephone charges, postage, delivery service fees,
and all other disbursements or expenses paid or incurred in connection with
prosecuting, defending, preparing to prosecute or defend, investigating, or
being or preparing to be a witness in a Proceeding, including on appeal.
(f) "Independent Counsel" means a law firm, or a member of a law firm,
that is experienced in matters of corporate law and neither presently is, 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 rights under this
Agreement.
(g) "Proceeding" includes any threatened, pending, or completed claim,
action, suit, arbitration, alternate dispute resolution mechanism,
administrative hearing, appeal, inquiry or investigation, whether civil,
criminal, administrative, arbitrative, investigative, or other (whether
instituted by the Company 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 proceeding, whether civil, criminal, administrative,
investigative, or other, including any action, suit, arbitration, alternate
dispute resolution mechanism, administrative hearing, appeal, or any inquiry or
investigation pending on or prior to the Effective Date or initiated by an
Indemnitee to enforce his rights under this Agreement.
SECTION 19. Representations and Warranties of the Company. The Company
hereby represents and warrants to Indemnitee that (a) the Company has all
necessary power and authority to enter into, and be bound by the terms of, this
Agreement, (b) the execution, delivery, and performance of the undertakings
contemplated by this Agreement have been duly authorized by the Company, and (c)
when executed and delivered by the Company in accordance with the provisions
hereof, this Agreement shall be a legal, valid, and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
moratorium, reorganization or similar laws affecting the enforcement of
creditors' rights generally.
SECTION 20. Modification and Waiver. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by both
of the parties hereto. No waiver of any of the provision of this Agreement shall
be deemed or shall constitute a waiver of any other provision hereof (whether or
not similar) nor shall such
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waiver constitute a continuing waiver. No waiver shall be effective unless it is
in writing and is signed by the party asserted to have granted such waiver.
SECTION 21. Notice by Indemnitee. Indemnitee agrees promptly to notify the
Company 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.
SECTION 22. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if (i) delivered by hand and receipted for by the party to whom said
notice or other communication shall have been directed, (ii) delivered by a
nationally recognized courier delivery service providing overnight or "next-day"
delivery, on the next business day after deposit with such service, or (iii)
mailed by certified or registered mail with postage prepaid, on the third
business day after the date on which it is so mailed:
(a) If to Indemnitee, to:
Xxxxxx X. Xxxxx
c/o Allied Waste Industries, Inc.
00000 X. Xxxxxxxx-Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
(b) If to the Company, to:
Allied Waste Industries, Inc.
00000 Xxxxx Xxxxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxx, Executive Vice President and General Counsel
or to such other address as may have been furnished to Indemnitee by the Company
or to the Company by Indemnitee, as the case may be.
SECTION 23. Governing Law. The parties agree that this Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of Delaware.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
ALLIED WASTE INDUSTRIES, INC., INDEMNITEE
a Delaware corporation
By: /s/ Xxxxxx X. Xxxx /s/ Xxxxxx X. Xxxxx
---------------------------------------- -----------------------------
Xxxxxx X. Xxxx, Executive Vice President Xxxxxx X. Xxxxx
and General Counsel
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