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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 EDWARD A. EVANS
("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
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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 ap
