EXECUTION COPY
COMPANY INDEMNIFICATION AGREEMENT
THIS COMPANY INDEMNIFICATION AGREEMENT (this "Agreement") is being executed
and delivered to XXXXXX X. XXXXXXXXXXX ("Indemnitee") by SAFETY-KLEEN CORP., a
Delaware corporation ("Safety-Kleen"), effective as of August 8, 2001.
Safety-Kleen has requested Indemnitee to serve as an employee, a director
and the Chairman of the Board, President and Chief Executive Officer of
Safety-Kleen and, as may be agreed to by Executive from time to time, in
appropriate positions with each of Safety-Kleen's subsidiaries (such
subsidiaries and affiliates together with Safety-Kleen being collectively
referred to herein as the "Company"), pursuant to that certain Employment
Agreement between Safety-Kleen and Indemnitee, dated as of August 8, 2001 (the
"Employment Agreement"), and in consideration of, and as a material inducement
for, such service, the Company is hereby agreeing to bind itself to indemnify
Indemnitee personally under the conditions set forth below.
1. OBLIGATION TO INDEMNIFY. Company hereby agrees to indemnify
-------------------------
Indemnitee for, and release, defend and hold Indemnitee harmless from and
against any and all claims, losses, costs, liabilities and other damages of
whatever nature, kind or character, including but not limited to, liabilities
that would not have been incurred had Indemnitee not entered into the Employment
Agreement, or served as an employee, officer and/or director of the Company,
judgements, demands, assessments, interest, liabilities under the Employee
Retirement Income Security Act of 1974, as amended (including excise taxes or
penalties, plan termination, withdrawal and funding liabilities), the value of
time of Indemnitee at the rate of $5,000 a day (or portion thereof),
environmental liabilities, any obligations of the Company for which Indemnitee
is, or is asserted to be, personally liable therefor, liabilities for the
Company's employment taxes and any and all other taxes, penalties, excise and
similar taxes, impositions, fines, settlements, and reasonable expenses,
including, without limitation, attorney fees and Proceedings (as defined below)
in any way related to or arising out of (a) Indemnitee being (and/or having
been) an employee, officer and/or director of the Company or a trustee or a
fiduciary to any benefit plan, including without limitation, any act, omission
or other matter in any way connected therewith, and/or (b) Indemnitee serving
(and/or having served) the Company in any other capacity contemplated by the
Employment Agreement, including, without limitation, any act, omission or other
matter in any way connected therewith (collectively, the "Damages"). Company
acknowledges and agrees that the foregoing terms of this section and the terms
of the other sections of this Agreement are intended to apply REGARDLESS OF THE
TIMING, GROUNDS OR NATURE OF ANY PROCEEDINGS OR DAMAGES, INCLUDING, WITHOUT
LIMITATION, DAMAGES BASED ON INDEMNITEE'S NEGLIGENCE, CONTRACT, STATUTE,
INTENTIONAL TORT, STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT INDEMNITEE
WAS ADVISED OR AWARE OF THE POSSIBILITY OF SUCH DAMAGES, except only to the
extent that the Damages are finally adjudged by a court of competent
jurisdiction, after exhaustion of all appeals therefrom, to have been caused by
the gross negligence or willful misconduct of Indemnitee (and any actions taken
with the approval of the Bankruptcy Court will conclusively be deemed not to
EXECUTION COPY
constitute gross negligence or willful misconduct). The obligations of Company
hereunder shall be applicable to all Proceedings (as defined below) and Damages
as set forth in this Agreement regardless of when Proceedings or Damages
occurred or accrued or such Proceedings are commenced or threatened, or whether
actions or omissions or other events on which they are based, allegedly took
place or failed to occur, before or after the effective date of this Agreement
or the commencement or termination of Indemnitee's service as an employee,
officer, director or in any other capacity for the Company as contemplated in
the Employment Agreement.
2. WITNESS AND OTHER EXPENSES. Company shall be obligated to pay or
-----------------------------
promptly reimburse Indemnitee for reasonable expenses, including, but not
limited to, attorneys' fees and other professional expenses, incurred by him, in
connection with his appearance as a witness or other participation, in any
threatened, pending or completed action, suit, or proceeding, whether civil,
criminal, administrative, arbitrative, or investigative, formal or informal, and
whether or not based on local, state, federal or foreign laws, rules or
regulations, any appeal of such a threatened, pending or completed action, suit
or proceeding, or any inquiry or investigation which could lead to such a
threatened, pending or completed petition, suit, or proceeding (any of the
foregoing being referred to herein as a "Proceeding") because he is or was an
employee, officer and/or director of the Company or because he serves or has
served the Company in any other capacity contemplated by the Employment
Agreement, including, without limitation, any act, omission or other matter in
any way connected therewith.
3. ADVANCEMENT OF EXPENSES. Reasonable expenses, including, but not
-------------------------
limited to, attorney's fees, incurred by Indemnitee in connection with a
Proceeding in which he is, or is threatened to be, named as a defendant or
respondent shall be paid by Indemnitor, or promptly reimbursed, in advance of a
final disposition of the Proceeding, if Indemnitee affirms in writing to
Indemnitor that, in good faith, Indemnitee believes he is entitled to
indemnification under this Agreement and undertakes in writing to repay such
amounts if it is ultimately determined that Indemnitee is not so entitled.
4. ATTORNEY'S FEES. It is the intent of the Company that Indemnitee not
---------------
be required to incur legal fees and the related expenses associated with the
interpretation, enforcement or defense of Indemnitee's rights under this
Agreement by litigation or otherwise because the cost and expense thereof would
substantially detract from the benefits intended to be extended to Indemnitee
hereunder. Consequently, if it should appear in good faith to Indemnitee that
the Company has failed to comply with any of its obligations under this
Agreement or in the event that the Company or any other person takes or
threatens to take any action to declare this Agreement void or unenforceable, or
institutes any litigation or other action or proceeding designed to deny, or to
recover from Indemnitee the benefits provided or intended to be provided to
Indemnitee hereunder, Company irrevocably authorizes Indemnitee from time to
time to retain counsel of Indemnitee's choice, at the expense of Company, to
advise and represent Indemnitee in connection with any such interpretation,
enforcement or defense, including, without limitation, the initiation or defense
of any litigation or other legal action, whether by or against the Company or
EXECUTION COPY
any Director, officer, stockholder, beneficiary or other person affiliated with
the Company, or any other person in any jurisdiction. Without respect to
whether Indemnitee prevails, in whole or in part, in connection with any of the
foregoing, Company will pay and be solely financially responsible for any and
all reasonable attorneys' and related fees and expenses incurred by Indemnitee
in connection with any of the foregoing; provided that a court of competent
jurisdiction has not finally adjudged, after exhaustion of all appeals
therefrom, that in regards to such matters Indemnitee has been grossly negligent
or guilty of intentional misconduct, and such gross negligence or intentional
misconduct caused such matters.
5. CUMULATIVE RIGHT. Nothing herein shall be deemed to diminish or
-----------------
otherwise restrict the right of Indemnitee to indemnification under any
provision of the Certificate of Incorporation or By-laws of the Company or under
Delaware law, or from any other person, entity or otherwise. To the extent that
Indemnitee is, or may be, entitled to indemnification from the Company and any
other persons or entities for the same matters as are covered by this Agreement,
Indemnitee shall be under no obligation to seek indemnification from such other
persons or entities for any obligations of Company hereunder.
6. COVENANT NOT TO XXX. Company hereby covenants and agrees that it
----------------------
shall not institute, reinstitute, maintain, or prosecute any action, claim,
suit, proceeding, or cause of action of any kind whatsoever, in any court,
administrative agency, or other forum, against Indemnitee that arises out of, or
relates in any way to, the matters for which Indemnitee is entitled to
indemnification as contemplated by this Agreement, including but not limited to
any action, claim, suit, proceeding, or cause of action for contribution or
indemnity.
7. GOVERNING LAW. This Agreement shall be governed by and construed in
-------------
accordance with Delaware law.
8. OTHER PARTIES. This Agreement shall be binding upon Indemnitee and
--------------
the Company and shall inure to the benefit of and be binding on their successors
and assigns, heirs, personal representatives and their estates. The Company
shall not assign this Agreement without the prior written consent of Indemnitee,
which consent shall not be unreasonably withheld.
9. CONSIDERATION. This Agreement is being delivered to Indemnitee in
-------------
consideration of Indemnitee's services as an employee, officer and/or director
of the Company. Indemnitee need not execute this Agreement for it to constitute
a binding obligation of the Company, nor shall the death, resignation or removal
from office or employment of Indemnitee after the termination of such service,
or the termination, expiration or failure of the Employment Agreement to become
effective, limit or terminate the obligations of the Company hereunder. The
obligations of the Company hereunder shall be applicable to all Proceedings in
which Indemnitee is named, or threatened to be named, as a defendant or
respondent or with respect to which Indemnitee is a witness or other
participant, regardless of when such actions are commenced or threatened, or
EXECUTION COPY
whether actions or omissions or other events on which they are based, allegedly
took place or failed to occur, before or after the effective date of this
Agreement or the commencement or termination of Indemnitee's service as an
employee, officer, director or in any other official capacity for the Company.
10. SEVERABILITY. If any provision of this Agreement shall be held to
------------
be invalid or unenforceable for any reason, such invalidity or unenforceability
shall not affect the validity or enforceability of the other provisions hereof,
and such provision shall be deemed to be amended or modified to the least extent
necessary to render it valid and enforceable.
11. ENTIRE AGREEMENT. This Agreement contains the entire agreement
-----------------
among the parties hereto with respect to the subject matter herein. No
representations, inducements, promises, or agreements, oral or otherwise with
respect to the subject matter herein, which are not embodied in this Agreement
shall be of any force or effect. No amendment, modification, termination, or
cancellation of this Agreement shall be effective unless in writing signed by
both parties hereto.
IN WITNESS WHEREOF, pursuant to the authorization of its Board of
Directors, Safety-Kleen Corp., on behalf of itself, its subsidiaries and
affiliates, has caused this Agreement to be duly executed, all as of the day and
year first above written.
SAFETY-KLEEN CORP.
By:
--------------------------------
Title:
