EXHIBIT 10.26
INDEMNITY AGREEMENT
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This Agreement is made this day, April 18, 1995, by and between
Eastern Environmental Services, Inc., a Delaware corporation (the "Company"),
and Xxxxxxx X. Xxxxx ("Indemnitee"), a director and/or officer of the Company.
To encourage Indemnitee to remain a director and/or officer of the
Company and in consideration of the promises and agreements set forth in this
Agreement, the Company and Indemnitee agree as follows:
1. Agreement to Serve. Indemnitee agrees to serve or continue to
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serve as a director and/or officer of the Company at the will of the Board of
Directors of the Company or under separate contract, as the case may be, for as
long as Indemnitee is duly elected or appointed or until such time as Indemnitee
tenders his or her resignation in writing.
2. Definitions. As used in the Agreement:
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a. The term "Proceeding" includes any threatened, pending or
completed action, suit or proceeding, or appeal thereof, whether brought in the
name of the Company or otherwise and whether of civil, criminal, administrative
or investigative nature (including actions, suits or proceedings brought under
or predicated upon the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, the Resource Conservation and Recovery Act, as
amended, the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of
1986 or otherwise, their respective state counterparts or any rule or regulation
promulgated thereunder) in which Indemnitee may be or may have been involved as
a party or otherwise, by reason of any action or inaction of Indemnitee while
acting as such director or officer or by reason of the fact that Indemnitee is
or was serving at the request of the Company as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, 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.
b. The term "Expenses" includes expenses of Proceedings, amounts paid
in settlement by or on behalf of Indemnitee, attorneys' fees and disbursements
and any expenses of establishing a right to indemnification under this
Agreement, and the amount of judgments, fines or penalties levied against
Indemnitee.
3. Indemnity in Third Party Proceedings. The Company shall indemnify
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Indemnitee in accordance with the provisions of this section if Indemnitee is a
party or threatened to be made a
party to or otherwise involved in any Proceeding (other than a Proceeding by the
Company to procure a judgment in its favor), by reason of the fact that
Indemnitee is or was a director or officer of the Company or is or was serving
at the request of the Company as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against all Expenses actually and reasonably incurred by Indemnitee in
connection with the defense or settlement of such Proceeding, provided it is
determined pursuant to Paragraph 7 of this Agreement or by the court before
which such action was brought that Indemnitee (i) acted in good faith, (ii)
acted in a manner which Indemnitee reasonably believed to be not opposed to the
best interests of the Company and (iii) in the case of a criminal proceeding,
had no reasonable cause to believe that Indemnitee's conduct was unlawful. The
termination of any such Proceeding by judgment, order of court, settlement,
conviction, plea of nolo contendere, or the equivalent, shall not, of itself,
create a presumption that Indemnitee did not act in the best interest of the
Company, or, with respect to any criminal proceeding, that Indemnitee had
reasonable cause to believe that Indemnitee's conduct was unlawful.
4. Indemnity in Proceedings by the Company. The Company shall
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indemnify Indemnitee in accordance with the provisions of this section if
Indemnitee is a party to or threatened to be made a party to or otherwise
involved in any Proceeding by the Company to procure a judgment in its favor by
reason of the fact that Indemnitee was or is a director or officer of the
Company or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against all Expenses actually and reasonably incurred
by Indemnitee in connection with the defense or settlement of such Proceeding,
but only if Indemnitee acted in good faith and in a manner which Indemnitee
reasonably believed to be not opposed to the best interests of the Company,
except that no indemnification for Expenses shall be made under this Paragraph 4
in respect of any claim, issue or matter as to which Indemnitee shall have been
adjudged to be liable to the Company, unless and only to the extent that any
court in which such Proceeding is brought shall determine upon application that,
despite the adjudication of liability, in view of all the circumstances of the
case, Indemnitee is fairly and reasonably entitled to indemnity for such
Expenses as such court shall deem proper.
5. Indemnification of Expenses of Successful Party. Notwithstanding
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any other provisions of this Agreement, to the extent that Indemnitee has been
successful on the merits or otherwise in defense of any Proceeding or in defense
of any claim, issue or matter therein, including dismissal of an action without
prejudice, Indemnitee shall be indemnified against all Expenses incurred in
connection therewith.
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6. Advancement of Expenses. The Expenses incurred by Indemnitee
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pursuant to Paragraphs 3 and 4 in any Proceeding shall be paid by the Company in
advance at the written request of the Indemnitee, if Indemnitee shall undertake
to repay such amount to the extent that it is ultimately determined that
Indemnitee is not entitled to indemnification. No requirement for security,
bond, third-party guarantee or similar assurance of such undertaking shall be
required by the Company.
7. Right of Indemnitee to Indemnification Upon Application; Procedure
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Upon Application. The Company agrees that it will use its best efforts for the
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Board of Directors to meet within 30 days after written application by
Indemnitee for indemnification or advance under Paragraphs 3, 4 or 6 hereof for
the purpose of determining, by a majority vote of a quorum of the Board
consisting of directors who were not parties to such Proceedings, whether the
Indemnitee has met the relevant standards for indemnification. If no such
quorum exists, the Company shall use its best efforts to obtain, as promptly as
reasonably practicable, a written opinion of independent legal counsel as to
whether the Indemnitee has met the relevant standards for indemnification.
8. Enforcement. The right to indemnification or advances set forth
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in this Agreement shall be enforceable by Indemnitee in any court of competent
jurisdiction. The burden of proving that indemnification or advances are not
appropriate shall be on the Company. Indemnitee's Expenses incurred in
connection with successfully establishing his or her right to indemnification or
advances, in whole or in part, in any such Proceeding shall also be indemnified
by the Company.
9. Non-Exclusivity. The indemnification provided by this Agreement
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shall not derogate, amend, waive or replace any other rights to which Indemnitee
may be entitled under the Company's Certificate of Incorporation or bylaws, any
agreement, any vote of shareholders or disinterested directors, the General
Corporation Law of the State of Delaware, or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
10. Continuing Nature. The indemnification under this Agreement
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shall continue as to Indemnitee even though Indemnitee may have ceased to be a
director or officer and shall inure to the benefit of the heirs and personal
representatives of Indemnitee.
11. Partial Indemnification. If Indemnitee is entitled by this
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Agreement to indemnification by the Company for a portion of the Expenses
incurred in the investigation, defense, appeal or settlement of any Proceeding,
but not for the total amount thereof, the Company shall nevertheless indemnify
Indemnitee for the portion
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of such Expenses, judgments, fines or penalties to which Indemnitee is entitled.
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12. Governing Law. This Agreement shall be governed by the internal
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law of Delaware and federal law applicable to transactions in Delaware.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date set forth above.
EASTERN ENVIRONMENTAL SERVICES, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
Vice President and Chief
Financial Officer
INDEMNITEE:
XXXXXXX X. XXXXX
/s/ Xxxxxxx X. Xxxxx
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