INDEMNIFICATION AGREEMENT
Exhibit
10.2
THIS
INDEMNIFICATION
AGREEMENT
is
entered into as of August 1, 2006, by and between Waste Connections, Inc.,
a
Delaware corporation (the “Company”),
and
______________________________ (“Indemnitee”).
RECITALS
A. The
Company is aware that because of the increased exposure to litigation costs,
talented and experienced persons are increasingly reluctant to serve or continue
serving as directors and officers of corporations unless they are protected
by
comprehensive liability insurance and indemnification.
B. The
statutes and judicial decisions regarding the duties of directors and officers
are often difficult to apply, ambiguous, or conflicting, and therefore often
fail to provide such directors and officers with adequate guidance regarding
the
proper course of action.
C. The
Board
of Directors of the Company (the “Board”),
has
concluded that, in order to retain and attract talented and experienced
individuals to serve as officers and directors of the Company and its
subsidiaries and to encourage such individuals to take the business risks
necessary for the success of the Company and its subsidiaries, the Company
should contractually indemnify its officers and directors, and the officers
and
directors of its subsidiaries, in connection with claims against such officers
and directors relating to their services to the Company and its subsidiaries,
and has further concluded that the failure to provide such contractual
indemnification could be detrimental to the Company, its subsidiaries and
stockholders.
D. Indemnitee’s
willingness to serve as a director or officer of the Company is predicated,
in
substantial part, upon the Company’s willingness to indemnify Indemnitee in
accordance with the principles reflected above, to the fullest extent permitted
by the laws of the state of Delaware, and upon the other undertakings set
forth
in this Agreement.
NOW,
THEREFORE,
in
consideration of the promises and as an inducement to Indemnitee to serve
as a
director or officer of the Company, the parties, intending to be legally
bound, hereby agree as follows:
1. Definitions.
(a) Agent.
“Agent”
with
respect to the Company means any person who is or was a director, officer,
employee or other agent of the Company or a Subsidiary of the Company; or
is or
was serving at the request of, for the convenience of, or to represent the
interests of, the Company or a Subsidiary of the Company as a director, officer,
employee or agent of another Corporation, partnership, joint venture, trust
or
other enterprise (including without limitation any employee benefit plan
whether
or not subject to the Employee Retirement Income Security Act of 1974, as
amended (“ERISA”));
or
was a director, officer, employee or agent of a predecessor corporation (or
other predecessor entity or enterprise) of the Company or a Subsidiary of
the
Company, or was a director, officer, employee or agent of another corporation,
partnership, joint
venture,
trust or other enterprise (including without limitation any employee benefit
plan whether or not subject to the ERISA) at the request of, for the convenience
of, or to represent the interests of such predecessor.
(b) Change
in Control.
“Change
in Control”
shall
mean, and shall be deemed to have occurred if, on or after the date of this
Agreement: (i) any “person” (as such term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended) or group acting
in
concert, other than a trustee or other fiduciary holding securities under
an
employee benefit plan of the Company acting in such capacity or a corporation
owned directly or indirectly by the stockholders of the Company in substantially
the same proportions as their ownership of stock of the Company, becomes
the
“beneficial owner” (as defined in Rule 13d-3 under said Act), directly or
indirectly, of securities of the Company representing more than 50% of the
total
voting power represented by the Company's then outstanding Voting Securities;
(ii) during any period of two (2) consecutive years, individuals who at the
beginning of such period constitute the Board of Directors of the Company
and
any new director whose election by the Board of Directors or nomination for
election by the Company's stockholders was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who either were directors
at the beginning of the period or whose election or nomination for election
was
previously so approved, cease for any reason to constitute a majority thereof;
(iii) the stockholders of the Company approve a merger or consolidation of
the
Company with any other corporation other than a merger or consolidation which
would result in the Voting Securities of the Company outstanding immediately
prior thereto continuing to represent (either by remaining outstanding or
by
being converted into Voting Securities of the surviving entity) at least
eighty
percent (80%) of the total voting power represented by the Voting Securities
of
the Company or such surviving entity outstanding immediately after such merger
or consolidation; or (iv) the stockholders of the Company approve a plan
of
complete liquidation of the Company or an agreement for the sale or disposition
by the Company of (in one transaction or a series of related transactions)
all
or substantially all of the Company's assets.
(c) Company.
References to the “Company” shall include, in addition to Waste Connections,
Inc., any constituent corporation (including any constituent of a constituent)
absorbed in a consolidation or merger to which Waste Connections, Inc. (or
any
of its wholly owned subsidiaries) is a party which, if its separate existence
had continued, would have had power and authority to indemnify its directors,
officers, employees, agents or fiduciaries, so that if Indemnitee is or was
a
director, officer, employee, agent or fiduciary of such constituent corporation,
or is or was serving at the request of such constituent corporation as a
director, officer, employee, agent or fiduciary of another corporation,
partnership, joint venture, employee benefit plan, trust or other enterprise,
Indemnitee shall stand in the same position under the provisions of this
Agreement with respect to the resulting or surviving corporation as Indemnitee
would have with respect to such constituent corporation if its separate
existence had continued.
(d) Expenses.
“Expenses”
means
all direct and indirect costs of any type or nature whatsoever (including,
without limitation, all attorneys’ and experts’ fees, costs of investigation and
related disbursements) incurred by the Indemnitee in connection with the
investigation (whether formal or informal), settlement, defense or appeal
of a
Proceeding covered hereby or the establishment or enforcement of a right
to
indemnification under this
Agreement,
including without limitation in the case of an appeal the premium for, and
other
costs relating to, any costs bond or supercedes bond or other appeal bond
or its
equivalent.
(e) Independent
Legal Counsel.
“Independent
Legal Counsel”
shall
mean an attorney or firm of attorneys, selected in accordance with the
provisions of Section 3(h) hereof, who shall not have otherwise performed
services for the Company or Indemnitee within the last three years (other
than
with respect to matters concerning the rights of Indemnitee under this
Agreement, or of other Indemnitees under similar indemnity agreements).
(f) Other
References.
References to “other
enterprises”
shall
include employee benefit plans; references to “fines”
shall
include any excise taxes assessed on Indemnitee with respect to an employee
benefit plan; and references to “serving
at the request of the Company”
shall
include any service as a director, officer, employee, agent or fiduciary
of the
Company which imposes duties on, or involves services by, such director,
officer, employee, agent or fiduciary with respect to an employee benefit
plan,
its participants or its beneficiaries; and if Indemnitee acted in good faith
and
in a manner Indemnitee reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan, Indemnitee shall
be
deemed to have acted in a manner “not opposed to the best interests of the
Company” as referred to in this Agreement.
(g) Proceeding.
“Proceeding”
means
any threatened, pending, or completed claim, suit, action, proceeding or
alternative dispute resolution mechanism, or any hearing or investigation,
whether civil, criminal, administrative, investigative or otherwise, including
without limitation any situation which the Indemnitee believes in good faith
might lead to the institution of any such proceeding.
(h) Reviewing
Party.
“Reviewing
Party”
shall
mean, subject to the provisions of Section 3(f), any person or body
appointed by the Board of Directors in accordance with applicable law to
review
the Company's obligations hereunder and under applicable law, which may include
a member or members of the Company's Board of Directors, Independent Legal
Counsel or any other person or body not a party to the particular Proceeding
for
which Indemnitee is seeking indemnification.
(i) Subsidiary.
“Subsidiary”
means
any corporation or other entity of which more than ten percent (10%) of the
outstanding voting securities or other voting interests is owned directly
or
indirectly by the Company, and one or more other Subsidiaries, taken as a
whole.
2. Maintenance
of Liability Insurance.
(a) The
Company hereby covenants and agrees with Indemnitee that, subject to Section
2(b), the Company shall obtain and maintain in full force and effect directors’
and officers’ liability insurance (“D&O
Insurance”),
in
reasonable amounts as the Board of Directors shall determine from established
and reputable insurers with an AM Best rating of X.XX or better, but no less
than the amounts in effect upon initial procurement of the D&O Insurance. In
all policies of D&O Insurance, Indemnitee shall be named as an insured.
(b) Notwithstanding
the foregoing, the Company shall have no obligation to obtain or maintain
D&O Insurance if the Company determines in good faith that the premium costs
for such insurance are (i) disproportionate to the amount of coverage provided
after giving effect to exclusions, and (ii) substantially more burdensome
to the
Company than the premiums charged to the Company for its initial D&O
Insurance.
(c) To
the
extent the Company maintains liability insurance applicable to directors,
officers, employees, agents or fiduciaries, Indemnitee shall be covered by
such
policies in such a manner as to provide Indemnitee the same rights and benefits
as are provided to the most favorably insured of the Company's directors,
if
Indemnitee is a director; or of the Company's officers, if Indemnitee is
not a
director of the Company but is an officer; or of the Company's key employees,
agents or fiduciaries, if Indemnitee is not an officer or director but is
a key
employee, agent or fiduciary.
3. Mandatory
Indemnification.
The
Company shall defend, indemnify and hold harmless Indemnitee to the fullest
extent permitted by law:
(a) Third
Party Actions.
If
Indemnitee was or is a party, or is threatened to be made a party, to any
Proceeding (other than an action by or in the right of the Company) by reason
of
the fact that Indemnitee is or was or is claimed to be an Agent of the Company,
or by reason of anything done or not done by Indemnitee in any such capacity,
or
by reason of the fact that Indemnitee personally guaranteed any obligation
of
the Company at any time, against any and all Expenses and liabilities of
any
type whatsoever (including, but not limited to, legal fees, judgments, fines,
ERISA excise taxes or penalties, and amounts paid in settlement) incurred
by
Indemnitee in connection with the investigation, defense, settlement or appeal
of such Proceeding, if the Indemnitee acted in good faith and in a manner
the
Indemnitee reasonably believed to be in or not opposed to the best interests
of
the Company, or, with respect to any criminal action or Proceeding, had no
reasonable cause to believe such persons conduct was unlawful. The termination
of any action, suit or proceeding by judgment, order, settlement, conviction,
or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create
a
presumption that the Indemnitee did not act in good faith and in a manner
which
the Indemnitee reasonably believed to be in or not opposed to the best interests
of the Company, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that the Indemnitee’s conduct was unlawful.
(b) Derivative
Actions.
If
Indemnitee was or is a party, or is threatened to be made a party, to any
Proceeding by or in the right of the Company by reason of the fact that
Indemnitee is or was an Agent of the Company, or by reason of anything done
or
not done by Indemnitee in any such capacity, against any and all Expenses
and
liabilities of any type whatsoever (including, but not limited to, legal
fees,
judgments, fines, ERISA excise taxes or penalties, and amounts paid in
settlement) incurred by Indemnitee in connection with the investigation,
defense, settlement or appeal of such Proceeding, if the 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; except that no indemnification
under this subsection shall be made, and Indemnitee shall repay all amounts
previously advanced by the Company, in respect of any claim, issue or matter
for
which the Indemnitee is judged in a final, non-appealable decision to be
liable
to the Company by a court of competent jurisdiction due to willful misconduct
in
the
performance
of Indemnitee’s duties to the Company, unless and only to the extent that the
court in which such Proceeding was brought or the Court of Chancery of Delaware
shall determine that, despite the adjudication of liability but in view of
all
of the circumstances of the case, the Indemnitee is fairly and reasonably
entitled to indemnity. The termination of any action, suit or proceeding
by
judgment, order, settlement, conviction, or upon a plea of nolo contendere
or
its equivalent, shall not, of itself, create a presumption that the Indemnitee
did not act in good faith and in a manner which the Indemnitee reasonably
believed to be in or not opposed to the best interests of the Company, and,
with
respect to any criminal action or proceeding, had reasonable cause to believe
that the Indemnitee’s conduct was unlawful.
(c) Presumptions;
Burden of Proof.
In
making any determination concerning Indemnitee’s right to indemnification, there
shall be a presumption that Indemnitee has satisfied the applicable standard
of
conduct, and the Company may overcome such presumption only by its adducing
clear and convincing evidence to the contrary. For purposes of this Agreement,
the termination of any Proceeding by judgment, order, settlement (whether
with
or without court approval) or conviction, or upon a plea of nolo contendere,
or
its equivalent, shall not create a presumption that Indemnitee did not meet
any
particular standard of conduct or have any particular belief or that a court
has
determined that indemnification is not permitted by this Agreement or applicable
law. In addition, neither the failure of any Reviewing Party to have made
a
determination as to whether Indemnitee has met any particular standard of
conduct or had any particular belief, nor an actual determination by any
Reviewing Party that Indemnitee has not met such standard of conduct or did
not
have such belief, prior to the commencement of legal proceedings by Indemnitee
to secure a judicial determination that Indemnitee should be indemnified
under
this Agreement under applicable law, shall be a defense to Indemnitee's claim
or
create a presumption that Indemnitee has not met any particular standard
of
conduct or did not have any particular belief. Any determination concerning
Indemnitee’s right to indemnification that is adverse to Indemnitee may be
challenged by the Indemnitee in the Court of Chancery of the State of Delaware.
No determination by the Company (including without limitation by its directors
or any Independent Legal Counsel) that Indemnitee has not satisfied any
applicable standard of conduct shall be a defense to any claim by Indemnitee
for
indemnification or reimbursement or advance payment of Expenses by the Company
hereunder or create a presumption that Indemnitee has not met any applicable
standard of conduct.
(d) Actions
Where Indemnitee Is Deceased.
If
Indemnitee was or is a party, or is threatened to be made a party, to any
Proceeding by reason of the fact that Indemnitee is or was an Agent of the
Company, or by reason of anything done or not done by Indemnitee in any such
capacity, and prior to, during the pendency of, or after completion of, such
Proceeding, the Indemnitee shall die, then the Company shall defend, indemnify
and hold harmless the estate, heirs and legatees of the Indemnitee against
any
and all Expenses and liabilities incurred by or for such persons or entities
in
connection with the investigation, defense, settlement or appeal of such
Proceeding on the same basis as provided for the Indemnitee in
Sections 3(a) and 3(b) above.
(e) Extent
of Insurance.
The
Expenses and liabilities covered hereby shall be net of any payments made
by
D&O Insurance carriers or others.
(f) Review
of Indemnification Obligations.
Notwithstanding the foregoing, in the event any Reviewing Party shall have
determined (in a written opinion, in any case in which Independent Legal
Counsel
is the Reviewing Party) that Indemnitee is not entitled to be indemnified
hereunder under applicable law: (i) the Company shall have no further obligation
under Section 3(a) or 3(b) to make any payments to Indemnitee not made
prior to such determination by such Reviewing Party; and (ii) the Company
shall
be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse
the
Company) for all Expenses theretofore paid to Indemnitee to which Indemnitee
is
not entitled hereunder under applicable law; provided,
however,
that if
Indemnitee has commenced or thereafter commences legal proceedings in a court
of
competent jurisdiction to secure a determination that Indemnitee is entitled
to
be indemnified hereunder under applicable law, any determination made by
any
Reviewing Party that Indemnitee is not entitled to be indemnified hereunder
under applicable law shall not be binding and Indemnitee shall not be required
to reimburse the Company for any Expenses theretofore paid in indemnifying
Indemnitee until a final judicial determination is made with respect thereto
(as
to which all rights of appeal therefrom have been exhausted or lapsed).
Indemnitee's obligation to reimburse the Company for any Expenses shall be
unsecured and no interest shall be charged thereon.
(g) Indemnitee
Rights on Unfavorable Determination; Binding Effect.
If any
Reviewing Party determines that Indemnitee substantively is not entitled
to be
indemnified hereunder in whole or in part under applicable law, Indemnitee
shall
have the right to commence litigation seeking an initial determination by
the
court or challenging any such determination by such Reviewing Party or any
aspect thereof, including the legal or factual bases therefor, and the Company
hereby consents to service of process and to appear in any such proceeding.
Absent such litigation, any determination by any Reviewing Party shall be
conclusive and binding on the Company and Indemnitee.
(h) Selection
of Reviewing Party; Change in Control.
A
determination, if required by applicable law, with respect to Indemnitee’s
entitlement to indemnification shall be made in accordance with the provisions
of this paragraph (h). If there has not been a Change in Control, a
Reviewing Party shall be selected by the Board of Directors, and if there
has
been such a Change in Control (other than a Change in Control which has been
approved by a majority of the Company's Board of Directors who were directors
immediately prior to such Change in Control), any Reviewing Party with respect
to all matters thereafter arising concerning the rights of Indemnitee to
indemnification of Expenses under this Agreement or any other agreement or
under
the Company's Certificate of Incorporation or Bylaws as now or hereafter
in
effect, or under any other applicable law, if desired by Indemnitee, shall
be
Independent Legal Counsel selected by Indemnitee and approved by the Company
(which approval shall not be unreasonably withheld). Such counsel, among
other
things, shall render its written opinion to the Company and Indemnitee as
to
whether and to what extent Indemnitee would be entitled to be indemnified
hereunder under applicable law and the Company agrees to abide by such opinion.
The Company agrees to pay the reasonable fees of the Independent Legal Counsel
referred to above and to indemnify fully such counsel against any and all
expenses (including attorneys' fees), claims, liabilities and damages arising
out of or relating to this Agreement or its engagement pursuant hereto.
Notwithstanding any other provision of this Agreement, the Company shall
not be
required to pay Expenses of more than one Independent Legal Counsel in
connection with all matters concerning a single Indemnitee, and such Independent
Legal Counsel
shall
be
the Independent Legal Counsel for any or all other Indemnitees unless: (i)
the
employment of separate counsel by one or more Indemnitees has been previously
authorized by the Company in writing; or (ii) an Indemnitee shall have provided
to the Company a written statement that such Indemnitee has reasonably concluded
that there may be a conflict of interest between such Indemnitee and the
other
Indemnitees with respect to the matters arising under this Agreement.
4. Partial
Indemnification.
If
Indemnitee is found under Sections 3, 6 or 9 hereof not to be entitled to
indemnification for all of the Expenses relating to a Proceeding, the Company
shall indemnify the Indemnitee for any portion of such Expenses not specifically
precluded by the operation of such Sections 3, 6 or 9.
5. Indemnification
Procedures; Mandatory Advancement of Expenses.
(a) Promptly
after receipt by Indemnitee of notice to him or her of the commencement or
threat of any Proceeding covered hereby, Indemnitee shall notify the Company
of
the commencement or threat thereof, provided that any failure to so notify
shall
not relieve the Company of any of its obligations hereunder.
(b) If,
at
the time of the receipt of a notice pursuant to Section 5(a) above, the Company
has D&O Insurance in effect, the Company shall give prompt notice of the
Proceeding or claim to its insurers in accordance with the procedures set
forth
in the applicable policies. The Company shall thereafter take all necessary
or
desirable action to cause such insurers to pay all amounts payable as a result
of such Proceeding in accordance with the terms of such policies.
(c) Indemnitee
shall be entitled to retain one or more counsel from time to time selected
by
Indemnitee in Indemnitee’s sole discretion to act as its counsel in and for the
investigation, defense, settlement or appeal of each Proceeding. The Company
shall not waive any privilege or right available to Indemnitee in any such
Proceeding.
(d) The
Company shall bear all fees and Expenses (including invoices for advance
retainers) of such counsel, and all fees and Expenses invoiced by other persons
or entities, in connection with the investigation, defense, settlement or
appeal
of each such Proceeding. Such fees and Expenses are referred to herein as
“Covered
Expenses.”
(e) Until
a
determination to the contrary under Section 6 hereof is made, the Company
shall
advance all Covered Expenses in connection with each Proceeding. The Indemnitee
shall qualify for advances upon the execution and delivery to the Company
of
this Agreement which shall constitute an undertaking providing that the
Indemnitee undertakes to the fullest extent permitted by law to repay the
advance if and to the extent that it is ultimately determined by a court
of
competent jurisdiction in a final judgment, not subject to appeal, that
Indemnitee is not entitled to be indemnified by the Company. No other form
of
undertaking shall be required other than the execution of this Agreement.
Advances shall be unsecured and interest free. Advances shall be made without
regard to Indemnitee's ability to repay the expenses and without regard to
Indemnitee's ultimate entitlement to indemnification under the other provisions
of this Agreement.
(f) Each
advance to be made hereunder shall be paid by the Company to Indemnitee within
ten (10) days following delivery of a written request therefor by Indemnitee
to
the Company.
(g) The
Company acknowledges the potentially severe damage to Indemnitee should the
Company fail timely to make such advances to Indemnitee.
(h) The
Company shall not settle any proceeding if a result of such settlement, fine
or
obligation is imposed on Indemnitee without the Indemnitee’s prior written
consent.
(i) If
the
Indemnitee is the subject of or is implicated in any way during any proceeding,
the Company will share with Indemnitee any information it has turned over
to any
third parties concerning the investigation.
(j) The
knowledge and/or actions, or failure to act, of any director, officer, agent
or
employee of the Company or the Company itself shall not be imputed to Indemnitee
for purposes of determining the right to indemnification under this Agreement.
(k) For
purposes of any determination of good faith, Indemnitee shall be deemed to
have
acted in good faith if Indemnitee's action is based on the records or books
of
account of the Company, including financial statements, or on information
supplied to Indemnitee by the officers of the Company (other than the
Indemnitee) in the course of their duties, or on the advice of legal counsel
for
the Company or the Board or counsel selected by any committee of the Board
or on
information or records given or reports made to the Company by an independent
certified public accountant or by an appraiser, investment banker, compensation
consultant, or other expert selected with reasonable care by the Company
or the
Board or any committee of the Board. The provisions of this Section 5(k)
shall not be deemed to be exclusive or to limit in any way the other
circumstances in which the Indemnitee may be deemed to have met the applicable
standard of conduct.
(l) Notice
to Insurers.
If, at
the time of the receipt by the Company of a notice of a Proceeding subject
to
Section 3(a) or 3(b) hereof, the Company has D&O Insurance or other
liability insurance in effect which may cover such Proceeding, the Company
shall
give prompt notice of the commencement of such Proceeding to the insurers
in
accordance with the procedures set forth in the respective policies. The
Company
shall thereafter take all necessary or desirable action to cause such insurers
to pay, on behalf of the Indemnitee, all amounts payable as a result of such
Proceeding in accordance with the terms of such policies.
(m) Selection
of Counsel.
In the
event the Company shall be obligated hereunder to provide indemnification
for or
make any advancement of Expenses with respect to the Expenses of any Proceeding,
the Company, if appropriate, shall be entitled to assume the defense of such
Proceeding with counsel approved by Indemnitee (which approval shall not
be
unreasonably withheld) upon the delivery to Indemnitee of written notice
of the
Company's election to do so. After delivery of such notice, approval of such
counsel by Indemnitee and the retention of such counsel by the Company, the
Company will not be liable to Indemnitee under this Agreement for any fees
or
expenses of separate counsel subsequently retained by or on behalf of Indemnitee
with respect to the same Proceeding; provided that: (i) Indemnitee
shall
have
the
right to employ Indemnitee's separate counsel in any such Proceeding at
Indemnitee's expense; and (ii) if (A) the employment of separate
counsel by Indemnitee has been previously authorized by the Company,
(B) Indemnitee shall have reasonably concluded that there may be a conflict
of interest between the Company and Indemnitee in the conduct of any such
defense, or (C) the Company shall not continue to retain such counsel to
defend such Proceeding, then the fees and expenses of Indemnitee's separate
counsel shall be Expenses for which Indemnitee may receive indemnification
or
advancement of Expenses hereunder.
6. Determination
of Right to Indemnification.
(a) To
the
extent Indemnitee has been successful on the merits or otherwise in defense
of
any Proceeding, claim, issue or matter covered hereby, Indemnitee need not
repay
any of the Expenses advanced in connection with the investigation, defense
or
appeal of such Proceeding.
(b) Indemnitee
shall have the right to advancement by the Company prior to the final
disposition of any Proceeding of any and all Expenses relating to, arising
out
of or resulting from any Proceeding paid or incurred by Indemnitee or which
Indemnitee determines are reasonably likely to be paid or incurred by
Indemnitee.
(c) Subject
to the provisions of Section 3(f), notwithstanding a determination by a
Reviewing Party or a court that Indemnitee is not entitled to indemnification
with respect to a specific Proceeding, Indemnitee shall have the right to
apply
to the Court of Chancery of Delaware for the purpose of enforcing Indemnitee’s
right to indemnification pursuant to this Agreement.
(d) Subject
to the provisions of Section 3(h), the Company shall indemnify Indemnitee
against all Expenses incurred by Indemnitee in connection with any Proceeding
under Sections 6(b) or 6(c) and against all Expenses incurred by Indemnitee
in
connection with any other Proceeding between the Company and Indemnitee
involving the interpretation or enforcement of the rights of Indemnitee under
this Agreement unless a court of competent jurisdiction finds that each of
the
material claims and/or defenses of Indemnitee in any such Proceeding were
frivolous or made in bad faith.
(e) The
Company hereby agrees to indemnify the Indemnitee to the fullest extent
permitted by law, notwithstanding that such indemnification is not specifically
authorized by the other provisions of this Agreement, the Company's Certificate
of Incorporation, the Company's Bylaws or by statute. In the event of any
change
after the date of this Agreement in any applicable law, statute or rule which
expands the right of a Delaware corporation to indemnify a member of its
board
of directors or an officer, employee, agent or fiduciary, it is the intent
of
the parties hereto that Indemnitee shall enjoy by this Agreement the greater
benefits afforded by such change. In the event of any change in any applicable
law, statute or rule which narrows the right of a Delaware corporation to
indemnify a member of its board of directors or an officer, employee, agent
or
fiduciary, such change, to the extent not otherwise required by such law,
statute or rule to be applied to this Agreement, shall have no effect on
this
Agreement or the parties' rights and obligations hereunder except as set
forth
in Section 9 hereof.
(f) Nonexclusivity.
The
indemnification and the payment of Expense advances provided by this Agreement
shall be in addition to any rights to which Indemnitee may be entitled under
the
Company's Certificate of Incorporation, its Bylaws, any other agreement,
any
vote of stockholders or disinterested directors, the General Corporation
Law of
the State of Delaware, or otherwise. The indemnification and the payment
or
advancement of Expenses provided under this Agreement shall continue as to
Indemnitee for any action taken or not taken while serving in an indemnified
capacity even though subsequent thereto Indemnitee may have ceased to serve
in
such capacity.
(g) No
Duplication of Payments.
The
Company shall not be liable under this Agreement to make any payment in
connection with any Proceeding to the extent Indemnitee has otherwise actually
received payment (under any insurance policy, provision of the Company's
Certificate of Incorporation, Bylaws or otherwise) of the amounts otherwise
payable hereunder.
(h) Partial
Indemnification.
If
Indemnitee is entitled under any provision of this Agreement to indemnification
by the Company for some or a portion of Expenses incurred in connection with
any
Proceeding, but not, however, for all of the total amount thereof, the Company
shall nevertheless indemnify Indemnitee for the portion of such Expenses
to
which Indemnitee is entitled.
7. Certificate
of Incorporation and By-Laws.
The
Company agrees that the Company’s Certificate of Incorporation and By-laws in
effect on the date hereof shall not be amended to reduce, limit, hinder or
delay
(a) the rights of Indemnitee granted hereby, or (b) the ability of the Company
to indemnify Indemnitee as required hereby. The Company further agrees that
it
shall exercise the powers granted to it under its Certificate of Incorporation,
its By-laws and by applicable law to indemnify Indemnitee to the fullest
extent
possible as required hereby.
8. Witness
Expenses.
The
Company agrees to compensate Indemnitee for the reasonable value of Indemnitee’s
time spent, and to reimburse Indemnitee for all Expenses (including attorneys’
fees and travel costs) incurred by Indemnitee, in connection with being a
witness, or if Indemnitee is threatened to be made a witness, with respect
to
any Proceeding, by reason of Indemnitee serving or having served as an Agent
of
the Company.
9. Exceptions.
Notwithstanding any other provision hereunder to the contrary, the Company
shall
not be obligated pursuant to the terms of this Agreement:
(a) Claims
Initiated by Indemnitee.
To
indemnify or advance Expenses to Indemnitee with respect to Proceedings or
claims initiated or brought voluntarily by Indemnitee and not by way of defense
(other than: (i) Proceedings under Sections 6(b) or 6(c); (ii) proceedings
brought to establish or enforce a right to indemnification under this Agreement
or the provisions of the Company’s Certificate of Incorporation or By-laws
unless a court of competent jurisdiction determines that each of the material
assertions made by Indemnitee in such Proceeding were not made in good faith
or
were frivolous; or (iii) proceedings or claims instituted by Indemnitee with
the
approval by the Board); or
INDEMNIFICATION
AGREEMENT: ______________
Page 10
of 13
(b) Unauthorized
Settlements.
To
indemnify Indemnitee under this Agreement for any amounts paid in settlement
of
a Proceeding covered hereby without the prior written consent of the Company
to
such settlement, which consent will not be unreasonably withheld provided
that
the Company’s consent is not required if the Company is refusing to indemnify or
advance Expenses to the Indemnitee.
10. Non-exclusivity.
This
Agreement is not the exclusive arrangement between the Company and Indemnitee
regarding the subject matter hereof and shall not diminish or affect any
other
rights which Indemnitee may have under any provision of law, the Company’s
Certificate of Incorporation or By-laws, under other agreements, or otherwise.
11. Continuation
After Term; Binding Effect.
Indemnitee’s rights hereunder shall continue after the Indemnitee has ceased
acting an Agent of the Company and the benefits hereof shall inure to the
benefit of the heirs, executors and administrators of Indemnitee. 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.
12. Interpretation
of Agreement.
This
Agreement shall be interpreted and enforced so as to provide indemnification
to
Indemnitee to the fullest extent now or hereafter permitted by law.
13. Severability.
If any
provision or provisions of this Agreement shall be held to be invalid, illegal
or unenforceable, provisions of the Agreement shall not in any way be affected
or impaired thereby, and to the fullest extent possible, the provisions of
this
Agreement shall be construed or altered by the court so as to remain enforceable
and to provide Indemnitee with as many of the benefits contemplated hereby
as
are permitted under law.
14. Counterparts,
Modification and Waiver.
This
Agreement may be signed in counterparts. This Agreement constitutes a separate
agreement between the Company and Indemnitee and may be supplemented or amended
as to Indemnitee only by a written instrument signed by the Company and
Indemnitee, with such amendment binding only the Company and Indemnitee.
All
waivers must be in a written document signed by the party to be charged.
No
waiver of any of the provisions of this Agreement shall be implied by the
conduct of the parties. A waiver of any right hereunder shall not constitute
a
waiver of any other right hereunder.
INDEMNIFICATION
AGREEMENT: ______________
Page 11
of 13
15. Notices.
All
notices, demands, consents, requests, approvals and other communications
required or permitted hereunder shall be in writing and shall be deemed to
have
been properly given if hand delivered (effective upon receipt or when refused),
or if sent by a courier freight prepaid (effective upon receipt or when
refused), in the case of the Company, at the addresses listed below, or to
such
other addresses as the parties may notify each other in writing.
|
To
Company:
|
Waste
Connections, Inc.
00
Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx,
Xxxxxxxxxx 00000
Attention:
President
|
|
To
Indemnitee:
|
At
the Indemnitee’s residence address and facsimile number on the records of
the Company from time to time.
|
16. Evidence
of Coverage.
Upon
request by Indemnitee, the Company shall provide evidence of the liability
insurance coverage required by this Agreement. The Company shall promptly
notify
Indemnitee of any change in the Company’s D&O Insurance coverage.
17. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of Delaware.
18. Consent
to Jurisdiction.
The
Company and Indemnitee each hereby irrevocably consent to the jurisdiction
of
the courts of the State of Delaware for all purposes in connection with any
action or proceeding which arises out of or relates to this Agreement
and
agree that any action instituted under this Agreement shall be commenced,
prosecuted and continued only in the Court of Chancery of the State of Delaware
in and for New Castle County, which shall be the exclusive and only proper
forum
for adjudicating such a claim.
19. No
Construction as Employment Agreement.
Nothing
contained in this Agreement shall be construed as giving Indemnitee any right
to
be retained in the employ of the Company or any of its subsidiaries or
affiliated entities.
[Signatures
appear on the following page.]
INDEMNIFICATION
AGREEMENT: ______________
Page 12
of 13
IN
WITNESS WHEREOF,
the
parties hereto have entered into this Indemnification Agreement effective
as of
the date first above written.
|
WASTE
CONNECTIONS, INC.
By: ________________________________
Xxxxxx X. Xxxxxxxxxxxx, President and
Chief Executive Officer
|
|
|
INDEMNITEE:
______________________________________
Printed
Name: ________________________________
|
INDEMNIFICATION
AGREEMENT:
______________
S-1
