exv10w30



 




EXHIBIT 10.30





INDEMNITY AGREEMENT




     This Indemnity Agreement (this “Agreement”) is made as of                     , 2008, by
and between Heritage-Crystal Clean, Inc., a Delaware corporation (the “Company”), and
                     (“Indemnitee”).



RECITALS




     WHEREAS, highly competent persons have become more reluctant to serve publicly-held
corporations as directors 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 the corporation;



     WHEREAS, the Board of Directors of the Company (the “Board”) has determined that, in
order to attract and retain qualified individuals, the Company will attempt to maintain on an
ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and
its subsidiaries from certain liabilities. Although the furnishing of such insurance has been a
customary and widespread practice among United States-based corporations and other business
enterprises, the Company believes that, given current market conditions and trends, such insurance
may be available to it in the future only at higher premiums and with more exclusions. At the same
time, directors, officers, and other persons in service to corporations or business enterprises are
being increasingly subjected to expensive and time-consuming litigation relating to, among other
things, matters that traditionally would have been brought only against the Company or business
enterprise itself. The By-laws of the Company (as amended from time to time, the
“By-laws”) provide for indemnification of the officers and directors of the Company.
Indemnitee may also be entitled to indemnification pursuant to the General Corporation Law of the
State of Delaware (the “DGCL”). The Certificate of Incorporation of the Company (as
amended from time to time, the “Charter”), the By-laws and the DGCL expressly provide that
the indemnification provisions set forth therein are not exclusive, and thereby contemplate that
contracts may be entered into between the Company and its directors and officers with respect to
indemnification;



     WHEREAS, the uncertainties relating to such insurance and to indemnification have increased
the difficulty of attracting and retaining such persons to serve publicly-held corporations as
directors and officers;



     WHEREAS, the Board has determined that the increased difficulty in attracting and retaining
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;



     WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate
itself to indemnify, and to advance expenses on behalf of, 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;




     WHEREAS, this Agreement is a supplement to and in furtherance of the Charter and the By-laws
and any resolutions adopted pursuant thereto and shall not be deemed a substitute therefor, nor to
diminish or abrogate any rights of Indemnitee thereunder; and



     WHEREAS, Indemnitee does not regard the protection available under the Charter and the By-laws
and insurance as adequate in the present circumstances, and may not be willing to serve as a
director or officer without adequate protection, and the Company desires Indemnitee to serve in
such capacity. Indemnitee is willing to serve, continue to serve and to take on additional service
for or on behalf of the Company on the condition that he or she 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:



     1. SERVICES TO THE COMPANY. Indemnitee will serve or continue to serve, at the will
of the Company, as a director or officer of the Company for so long as Indemnitee is duly elected
or appointed or until Indemnitee tenders his or her resignation in writing or is otherwise
terminated or properly removed from office.



          The Company expressly confirms and agrees that (i) it has entered into this agreement and
assumed the obligations imposed on the Company hereby in order to induce Indemnitee to continue to
serve as a Director and/or Officer of the Company and (ii) the obligations imposed on the Company
hereby cover service by Indemnitee during and after the period with respect to Indemnitee’s service
on the Board of Directors, or as an Officer, of the Company, including, specifically, the period
prior to the date of this Agreement. The Company acknowledges that Indemnitee is relying upon this
Agreement in continuing in his or her capacity as a Director and/or Officer of the Company.




     2. DEFINITIONS. As used in this Agreement:



          (a) “Beneficial Owner” shall have the meaning given to such term in Rule l3d-3 under
the Exchange Act (as defined below); provided, however, that Beneficial Owner shall
exclude any Person otherwise becoming a Beneficial Owner by reason of the stockholders of the
Company approving a merger of the Company with another entity.




          (b) A “Change in Control” shall be deemed to occur upon the earliest to occur after
the date of this Agreement of any of the following events:




               (i) any Person (as defined below) is or becomes the Beneficial Owner (as defined below),
directly or indirectly, of securities of the Company representing thirty percent (30%) or more of
the combined voting power of the Company’s then outstanding voting securities;



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               (ii) individuals who as of                     , 2008 constituted the Board and any new director (other
than a director whose initial assumption of office is in connection with an actual or threatened
election contest, including but not limited to a consent solicitation, relating to the election of
directors of the Company) whose appointment or election by the Board 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 either were directors on such date or whose appointment, election or nomination
for election was previously so approved, cease for any reason to constitute a least a majority of
the directors then serving on the Board;



               (iii) a merger or consolidation of the Company or any direct or indirect subsidiary of the
Company with any other entity, other than a merger or consolidation immediately following which the
individuals who comprise the Board immediately prior thereto constitute at least a majority of the
Board or the board of directors or governing body of the entity surviving such merger or
consolidation or, if the Company or the entity surviving such merger is then a subsidiary, the
ultimate parent thereof;



               (iv) the approval by the stockholders of the Company of a complete liquidation of the Company
or an agreement or series of agreements for the sale or disposition by the Company of all or
substantially all of the Company’s assets, other than a sale or disposition by the Company of all
or substantially all of the Company’s assets to an entity, immediately following which the
individuals who comprise the Board immediately prior thereto constitute at least a majority of the
board of directors of the entity to which such assets are sold or disposed of or, if such entity is
a subsidiary, the ultimate parent thereof; or



               (v) there occurs any other event of a nature that would be required to be reported in response
to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any similar item on any similar
schedule or form) promulgated under the Exchange Act (as defined below), whether or not the Company
is then subject to such reporting requirement.


Notwithstanding the foregoing, a Change in Control shall not be deemed to have occurred by virtue
of the consummation of any transaction or series of integrated transactions immediately following
which individuals who comprise the Board immediately prior thereto constitute at least a majority
of the board of directors of an entity which owns all or substantially all of the assets of the
Company immediately following such transaction or series of transactions.




          (c) “Corporate Status” describes the status of a person who is or was a director,
officer, trustee, general partner, managing member, fiduciary, employee or agent of the Company or
of any other Enterprise (as defined below) which such person is or was serving at the request of
the Company.




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          (d) “Disinterested Director” means a director of the Company who is not and was not a
party to the Proceeding (as defined below) in respect of which indemnification is sought by
Indemnitee.




          (e) “Enterprise” shall mean the Company and any other corporation, limited liability
company, partnership, joint venture, trust, employee benefit plan or other enterprise of which
Indemnitee is or was serving at the request of the Company as a director, officer, trustee, general
partner, managing member, fiduciary, employee or agent.




          (f) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.




          (g) “Expenses” shall include all reasonable attorneys’ fees, retainers, court costs,
transcript costs, fees of experts and accountants, witness fees, travel expenses, duplicating
costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other
disbursements or expenses of the types customarily incurred in connection with prosecuting,
defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in,
or otherwise participating in, a Proceeding. Expenses also shall include costs incurred in
connection with any appeal resulting from any Proceeding, including, without limitation, the
premium, security for, and other costs relating to any cost bond, supersedeas bond, or other appeal
bond or its equivalent. Expenses, however, shall not include amounts paid in settlement by
Indemnitee or the amount of judgments or fines against Indemnitee.




          (h) “Independent Counsel” means a law firm, or a member of a law firm, that is
experienced in matters of corporation 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 (other than with respect to matters concerning Indemnitee under this Agreement, or of other
indemnitees under similar indemnification agreements), 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.




          (i) “Person” shall have the meaning as set forth in Sections 13(d) and 14(d) of the
Exchange Act; provided, however, that Person shall exclude (i) the Company and its
subsidiaries, (ii) any trustee or other fiduciary holding securities under an employee benefit plan
of the Company or any of its subsidiaries, and (iii) any corporation owned, directly or indirectly,
by the stockholders of the Company in substantially the same proportions as their ownership of
stock of the Company.




          (j) The term “Proceeding” shall include any threatened, pending or completed action,
suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, administrative
hearing, appeal or any other actual, threatened or completed



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proceeding, whether brought in the right of the Company or otherwise and whether of a civil,
criminal, administrative or investigative nature, in which Indemnitee was, is or will be involved
as a party or witness or otherwise by reason of the fact that Indemnitee is or was a director or
officer of the Company, by reason of any action taken (or failure to act) by him or her of any
action (or failure to act) on his or her part while acting as director or officer of the Company,
or by reason of the fact that he or she is or was serving at the request of the Company as a
director, officer, trustee, general partner, member, fiduciary, employee or agent of any other
Enterprise, in each case whether or not serving in such capacity at the time any liability or
expense is incurred for which indemnification, reimbursement, or advancement of expenses can be
provided under this Agreement.




     3. INDEMNITY IN THIRD-PARTY PROCEEDINGS. The Company shall indemnify Indemnitee in
accordance with the provisions of this Section 3 if Indemnitee was, is, or is threatened to be
made, a party to or a participant (as a witness or otherwise) or otherwise involved in any
Proceeding, other than a Proceeding by or in the right of the Company to procure a judgment in its
favor. Pursuant to this Section 3, Indemnitee shall be indemnified against all Expenses, judgments,
fines, penalties 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 and amounts paid in settlement) actually and reasonably incurred by Indemnitee or on his
or her behalf in connection with such Proceeding or any claim, issue or matter therein or related
thereto, if Indemnitee acted in good faith and in a manner he or she reasonably believed to be in
or not opposed to the best interests of the Company and, in the case of a criminal Proceeding, had
no reasonable cause to believe that his or her conduct was unlawful. The termination of any such
Proceeding by judgment, order of court, settlement, conviction or upon a plea of nolo contendere,
or its equivalent, shall not, of itself, create a presumption that Indemnitee did not act in good
faith and in a manner which he or she reasonably believed to be in or not opposed to the best
interests of the Company, and with respect to any criminal proceeding, that such person had
reasonable cause to believe that his or her conduct was unlawful.



     4. INDEMNITY IN PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. The Company shall
indemnify Indemnitee in accordance with the provisions of this Section 4 if Indemnitee was, is, or
is threatened to be made, a party to or a participant (as a witness or otherwise) or otherwise
involved in any Proceeding by or in the right of the Company to procure a judgment in its favor.
Pursuant to this Section 4, Indemnitee shall be indemnified against all Expenses actually and
reasonably incurred by him or her or on his or her behalf in connection with the defense or
settlement of such Proceeding or any claim, issue or matter therein or related thereto, if
Indemnitee acted in good faith and in a manner he or she reasonably believed to be in or not
opposed to the best interests of the Company. No indemnification for Expenses shall be made under
this Section 4 in respect of any claim, issue or matter as to which Indemnitee shall have been
finally adjudged by a court to be liable to the Company, unless and only to the extent that any
court in which the Proceeding was brought or the Delaware Court of Chancery (the “Delaware
Court”) shall determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to
indemnification.



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     5. INDEMNIFICATION FOR EXPENSES OF A PARTY WHO IS WHOLLY OR PARTLY SUCCESSFUL.
Notwithstanding any other provisions of this Agreement, to the extent that Indemnitee is a party to
(or a participant in) and is successful, on the merits or otherwise, in any Proceeding or in
defense of any claim, issue or matter therein, in whole or in part, the Company shall indemnify
Indemnitee against all Expenses actually and reasonably incurred by him or her 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 her or on his or her behalf in connection with each successfully resolved claim,
issue or matter. If Indemnitee is not wholly successful in such Proceeding, the Company also shall
indemnify Indemnitee against all Expenses reasonably incurred in connection with a claim, issue or
matter related to any claim, issue, or matter on which Indemnitee was successful. For purposes of
this Section 5 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, provided that there has been no finding that Indemnitee (a)
did not act in good faith, (b) did not act in a manner reasonably believed to be in or not opposed
to the best interests of the Company or (c) with respect to any criminal Proceeding, had reasonable
grounds to believe that his or her conduct was unlawful.



     6. INDEMNIFICATION FOR EXPENSES OF A WITNESS. Notwithstanding any other provision of
this Agreement, to the extent that Indemnitee is, by reason of his or her Corporate Status, a
witness in or otherwise incurs Expenses in connection with any Proceeding to which Indemnitee is
not a party, he or she shall be indemnified against all Expenses actually and reasonably incurred
by him or her or on his or her behalf in connection therewith.



     7. ADDITIONAL INDEMNIFICATION. Notwithstanding any limitation in Sections 3, 4 or 5
of this Agreement, the Company shall indemnify Indemnitee to the fullest extent permitted by
applicable law if Indemnitee is a party to or threatened to be made a party to any Proceeding
(including a Proceeding by or in the right of the Company to procure a judgment in its favor)
against all Expenses, judgments, fines, penalties 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 and amounts paid in settlement) actually and reasonably
incurred by Indemnitee in connection with the Proceeding. No indemnity shall be made under this
Section 7 on account of Indemnitee’s conduct which constitutes a breach of Indemnitee’s duty of
loyalty to the Company or its stockholders or is an act or omission not in good faith or which
involves intentional misconduct or a knowing violation of the law.



     8. EXCLUSIONS. Notwithstanding any provision in this Agreement, the Company shall not
be obligated under this Agreement to make any indemnity in connection with any claim made against
Indemnitee:



          (a) for which payment has actually been received by or on behalf of Indemnitee under any
insurance policy or other indemnity provision, except with respect



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to any excess beyond the amount actually received under any insurance policy or other
indemnity provision; or




          (b) for an accounting of profits made from the purchase and sale (or sale and purchase) by
Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or
similar provisions of state statutory law or common law;




          (c) except as otherwise provided in Section 13(f) hereof, prior to a Change in Control, in
connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including
any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its
directors, officers, employees or other indemnitees, unless (i) the Board of the Company authorized
the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides
the indemnification, in its sole discretion, pursuant to the powers vested in the Company under
applicable law.




     9. ADVANCES OF EXPENSES; DEFENSE OF CLAIM.



          (a) Notwithstanding any provision of this Agreement to the contrary, to the fullest extent
permitted by applicable law, the Company shall advance Expenses incurred by Indemnitee in
connection with any Proceeding within ten (10) days after the receipt by the Company of a statement
or statements requesting such advances from time to time, whether prior to or after final
disposition of any Proceeding. Advances shall be unsecured and interest free. Advances shall be
made without regard to Indemnitee’s ability to repay such Expenses and without regard to
Indemnitee’s ultimate entitlement to indemnification under the other provisions of this Agreement.
Advances shall include any and all reasonable Expenses incurred pursuing a Proceeding to enforce
this right of advancement, including Expenses incurred preparing and forwarding statements to the
Company to support the advances claimed. Notwithstanding any provision of this Agreement to the
contrary, the Indemnitee shall be entitled to advances of Expenses incurred by him or her or on his
or her behalf in connection with a Proceeding that Indemnitee claims is covered by Sections 3 and 4
hereof, prior to a final determination of eligibility for indemnification and prior to the final
disposition of the Proceeding, upon the execution and delivery to the Company of an undertaking by
or on behalf of the Indemnitee providing that the Indemnitee will repay such advances to the extent
that it ultimately is determined that Indemnitee is not entitled to be indemnified by the Company.
Indemnitee shall qualify for advances, to the fullest extent permitted by applicable law, solely
upon the execution and delivery to the Company of an undertaking providing that Indemnitee
undertakes to repay the advance to the extent that it is ultimately determined that Indemnitee is
not entitled to be indemnified by the Company hereunder or under the Charter, the By-laws,
applicable law or otherwise. This Section 9(a) shall not apply to any claim made by Indemnitee for
which indemnity is excluded pursuant to Section 8 hereof.




          (b) The Company will be entitled to participate in the Proceeding at its own expense.




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          (c) The Company shall not settle any action, claim or Proceeding (in whole or in part) which
would impose any Expense, judgment, fine, penalty or limitation on Indemnitee without Indemnitee’s
prior written consent.




     10. PROCEDURE FOR NOTIFICATION AND APPLICATION FOR INDEMNIFICATION.



          (a) Within sixty (60) days after the actual receipt by Indemnitee of notice that he or she is
a party to or a participant (as a witness or otherwise) or otherwise involved in any Proceeding,
Indemnitee shall submit to the Company a written notice identifying the Proceeding. The failure by
Indemnitee to so notify the Company will not relieve the Company from any liability which it may
have to Indemnitee under this Agreement or otherwise, except to the extent the Company can
establish that such failure to notify resulted in actual prejudice to the Company.




          (b) Indemnitee shall thereafter deliver to the Company a written application to indemnify
Indemnitee in accordance with this Agreement. Such application(s) may be delivered from time to
time and at such time(s) as Indemnitee deems appropriate in his or her sole discretion. Following
such a written application for indemnification by Indemnitee, Indemnitee’s entitlement to
indemnification shall be determined promptly according to Section 11(a) of this Agreement.




     11. PROCEDURE UPON APPLICATION FOR INDEMNIFICATION.



          (a) Upon written request by Indemnitee for indemnification pursuant to Section 10(b) of this
Agreement, a prompt determination, if required by applicable law, with respect to Indemnitee’s
entitlement thereto shall be made in the specific case by one of the following methods: (i) by a
majority vote of the Disinterested Directors, even though less than a quorum of the Board or (ii)
by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to
Indemnitee. The Company shall promptly advise Indemnitee in writing with respect to any
determination that Indemnitee is or is not entitled to indemnification, including a description of
any reason or basis for which indemnification has been denied. If it is so determined that
Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days
after such determination. Indemnitee shall reasonably cooperate with the person, persons or entity
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
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.




          (b) In the event the determination of entitlement to indemnification or advancement of
Expenses is to be made by Independent Counsel pursuant to Section




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11(a) hereof, the Independent Counsel shall be selected as provided in this Section 11(b). If
a Change in Control shall not have occurred, the Independent Counsel shall be selected by the
Board, and the Company shall give written notice to Indemnitee advising him or her of the identity
of the Independent Counsel so selected. If a Change in Control shall have occurred, the
Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such
selection be made by the Board, 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 and certifying that the Independent Counsel so selected meets the requirements of
“Independent Counsel” as defined in Section 2 of this Agreement. In either event, Indemnitee or
the Company, as the case may be, may, within ten (10) days after such written notice of selection
shall have been received, deliver to the Company or to Indemnitee, as the case may be, a written
objection to such selection; provided, however, that 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 2 of this Agreement, and the objection shall set forth
with particularity the factual basis of such assertion. Absent a proper and timely objection, the
person so selected shall act as Independent Counsel. If such written objection is so made and
substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and
until such objection is withdrawn or a court of competent jurisdiction has determined that such
objection is without merit. If, within twenty (20) days after submission by Indemnitee of a written
request for advancement of Expenses or indemnification pursuant to Section 10(b) hereof, no
Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee
may petition the Delaware Court 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 Delaware Court, and the person with respect to whom
all objections are so resolved or the person so appointed shall act as Independent Counsel under
Section 11(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant
to Section 13(a) 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).




          (c) The Company agrees to pay the reasonable fees of Independent Counsel and to fully
indemnify such Independent Counsel against any and all Expenses, claims, liabilities and damages
arising out of or relating to this Agreement or its engagement pursuant hereto.




     12. PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS.



          (a) In making a determination with respect to entitlement to indemnification or advancement of
Expenses hereunder, the person or persons or entity making such determination shall presume that
Indemnitee is entitled to indemnification or advancement of Expenses under this Agreement if
Indemnitee has submitted a request for indemnification in accordance with Section 10(b) 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



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presumption. Neither the failure of the Company (including by its directors or Independent
Counsel) to have made a determination prior to the commencement of any action pursuant to this
Agreement that indemnification is proper in the circumstances because Indemnitee has met the
applicable standard of conduct, nor an actual determination by the Company (including by its
directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that Indemnitee has not met the applicable
standard of conduct.




          (b) If the person, persons or entity empowered or selected under Section 11 of this Agreement
to determine whether Indemnitee is entitled to indemnification or advancement of Expenses shall not
have made a determination within sixty (60) days after receipt by the Company of the request
therefor, the requisite determination of entitlement to indemnification or advancement of Expenses
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 advancement of Expenses, or (ii) a prohibition of such indemnification under
applicable law; provided, however, that such sixty (60)-day period may be extended
for a reasonable time, not to exceed an additional thirty (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.




          (c) 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 or she 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 or her conduct was unlawful.




          (d) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted
in good faith if Indemnitee’s action or failure to act is based on the records or books of account
of the Enterprise, including financial statements, or on information supplied to Indemnitee by the
directors or officers of the Enterprise in the course of their duties, or on the advice of legal
counsel for the Enterprise or on information or records given or reports made to the Enterprise by
an independent certified public accountant or by an appraiser or other expert selected by the
Enterprise. The provisions of this Section 12(d) shall not be deemed to be exclusive or to limit
in any way the other circumstances in which Indemnitee may be deemed or found to have met the
applicable standard of conduct set forth in this Agreement.




          (e) The knowledge and/or actions, or failure to act, of any other director, trustee, partner,
member, fiduciary, officer, agent or employee of the Enterprise



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shall not be imputed to Indemnitee for purposes of determining the right to indemnification
under this Agreement.




     13. REMEDIES OF INDEMNITEE.



          (a) In the event that (i) a determination is made pursuant to Section 11 of this Agreement
that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of
Expenses is not timely made pursuant to Section 9 of this Agreement, (iii) no determination of
entitlement to indemnification shall have been made pursuant to Section 11(a) of this Agreement
within forty-five (45) days after receipt by the Company of the request for indemnification, (iv)
payment of indemnification is not made pursuant to Section 5, 6, 7 or the last sentence of Section
11(a) of this Agreement within ten (10) days after receipt by the Company of a written request
therefor, (v) payment of indemnification pursuant to Section 3 or 4 of this Agreement is not made
within ten (10) days after a determination has been made that Indemnitee is entitled to
indemnification, or (vi) a contribution payment is not made in a timely manner pursuant to Section
21 of this Agreement, Indemnitee shall be entitled to an adjudication by the Delaware Court of his
or her entitlement to such indemnification, advancement or contribution. Alternatively,
Indemnitee, at his or her option, may seek an award in arbitration to be conducted by a single
arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association.
Except as set forth herein, the provisions of Delaware law (without regard to its conflict of laws)
shall apply to any such arbitration. The Company shall not oppose Indemnitee’s right to seek any
such adjudication or award in arbitration.




          (b) In the event that a determination shall have been made pursuant to Section 11(a) of this
Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding or
arbitration commenced pursuant to this Section 13 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. In any judicial proceeding or arbitration commenced pursuant to this Section
13, Indemnitee shall be presumed to be entitled to indemnification or advancement of Expenses, as
the case may be, and the Company shall have the burden of proving Indemnitee is not entitled to
indemnification or advancement of Expenses, as the case may be, and the Company may not refer to or
introduce into evidence any determination pursuant to Section 11(a) of this Agreement adverse to
Indemnitee for any purpose. If Indemnitee commences a judicial proceeding or arbitration pursuant
to this Section 13, Indemnitee shall not be required to reimburse the Company for any advances
pursuant to Section 9 of this Agreement until a final determination is made with respect to
Indemnitee’s entitlement to indemnification (as to which all rights of appeal have been exhausted
or lapsed).




          (c) If a determination shall have been made pursuant to Section 11(a) 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 13, 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



11









 






misleading, in connection with the request for indemnification, or (ii) a prohibition of such
indemnification under applicable law.




          (d) In the event that Indemnitee, pursuant to this Section 13, seeks a judicial adjudication
of or an award in arbitration to enforce his or her 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 or
her in such judicial adjudication or arbitration. If it shall be determined in said judicial
adjudication or arbitration that Indemnitee is entitled to receive part but not all of the
indemnification or advancement of Expenses sought, Indemnitee shall be entitled to recover from the
Company, and shall be indemnified by the Company against, any and all Expenses reasonably incurred
by Indemnitee in connection with such judicial adjudication or arbitration.




          (e) The Company shall be precluded from asserting in any judicial proceeding or arbitration
commenced pursuant to this Section 13 that the procedures and presumptions of this Agreement are
not valid, binding and enforceable and shall stipulate in any such court or before any such
arbitrator that the Company is bound by all the provisions of this Agreement.




          (f) The Company shall indemnify Indemnitee to the fullest extent permitted by applicable law
against all Expenses and, if requested by Indemnitee, shall (within ten (10) days after the
Company’s receipt of such written request) advance to Indemnitee, to the fullest extent permitted
by applicable law, such Expenses which are incurred by Indemnitee in connection with any judicial
proceeding or arbitration brought by Indemnitee (i) to enforce his or her rights under, or to
recover damages for breach of, this Agreement or any other indemnification agreement or provision
of the Charter or the By-laws now or hereafter in effect or (ii) for recovery or advances under any
insurance policy maintained by any person or the Company for the benefit of Indemnitee, regardless
of whether Indemnitee ultimately is determined to be entitled to such indemnification, advance or
insurance recovery, as the case may be.




     14. NON-EXCLUSIVITY; SURVIVAL OF RIGHTS; INSURANCE; SUBROGATION.



          (a) The rights of Indemnitee 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
Company’s Certificate of Incorporation, the By-laws, any agreement, a vote of stockholders or a
resolution of directors, or otherwise. No amendment, alteration or repeal of this Agreement or of
any provision hereof shall limit or restrict any right of Indemnitee under this Agreement in
respect of any action taken or omitted by such Indemnitee in his or her Corporate Status prior to
such amendment, alteration or repeal. To the extent that a change in applicable law, whether by
statute or judicial decision, permits greater rights than would be afforded currently under the
Charter, the By-laws or this Agreement, it is the intent of the parties hereto that Indemnitee
shall enjoy by this Agreement the greater benefits so afforded by such change. No right or remedy
herein conferred is intended to be exclusive of any other right



12









 






or remedy, and every other right and remedy shall be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other right or remedy.




          (b) To the extent that the Company maintains an insurance policy or policies providing
liability insurance for directors, officers, trustees, partners, managing members, fiduciaries,
employees, or agents of the Company or of any other Enterprise which such person 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, trustee,
partner, managing member, fiduciary, officer, employee or agent under such policy or policies. If,
at the time the Company receives notice from any source of a Proceeding as to which Indemnitee is a
party or a participant (as a witness or otherwise), the Company has director and officer liability
insurance in effect, the Company shall give prompt notice 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 Indemnitee, all
amounts payable as a result of such Proceeding in accordance with the terms of such 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 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 pay any amounts otherwise
indemnifiable hereunder (or for which advancement is provided hereunder) if and to the extent that
Indemnitee has otherwise actually received such payment under any insurance policy, contract,
agreement or otherwise.




          (e) The Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee who is
or was serving at the request of the Company as a director, officer, trustee, partner, managing
member, fiduciary, employee or agent of any other Enterprise shall be reduced by any amount
Indemnitee has actually received as indemnification or advancement of Expenses from such
Enterprise.




     15. DURATION OF AGREEMENT. This Agreement shall continue until and terminate upon the
later of: (a) six (6) years after the date that Indemnitee shall have ceased to serve as a director
or officer of the Company or as a director, officer, trustee, partner, managing member, fiduciary,
employee or agent of any other corporation, partnership, joint venture, trust, employee benefit
plan or other Enterprise which Indemnitee served at the request of the Company, and (b) one (1)
year after the final termination of any Proceeding (including any rights of appeal thereto) then
pending in respect of which Indemnitee is granted rights of indemnification or advancement of
Expenses hereunder and of any Proceeding commenced by Indemnitee pursuant to Section 13 of this
Agreement relating thereto (including any rights of appeal of any such



13









 




Proceeding). This Agreement shall be binding upon the Company and its respective successors
and assigns and shall inure to the benefit of Indemnitee and his or her heirs, executors and
administrators. The Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation, reorganization or otherwise) and any acquiror of all or substantially all of
the business or assets of the Company by agreement in form and substance reasonably satisfactory to
Indemnitee and/or his or her counsel, expressly to assume and agree to perform this Agreement in
the same manner and to the same extent the Company would be required to perform it if no such
succession had taken place.




     16. SEVERABILITY. If any provision or provisions 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 shall remain enforceable to the fullest extent permitted by law;
(b) such provision or provisions shall be deemed reformed to the extent necessary to conform to
applicable law and to give the maximum effect to the intent of the parties hereto; and (c) to the
fullest extent possible, the provisions of this Agreement (including, without limitation, each
portion of any section, paragraph or sentence 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 thereby.



     17. ENFORCEMENT AND BINDING EFFECT.



          (a) The Company expressly confirms and agrees that it has entered into this Agreement and
assumed the obligations imposed on it hereby in order to induce Indemnitee to serve, or continue to
serve, as a director or officer of the Company, and the Company acknowledges that Indemnitee is
relying upon this Agreement in serving, or continuing to serve, as a director or officer of the
Company.




          (b) Without limiting any rights of Indemnitee under the Charter or the By-laws, this Agreement
constitutes the entire agreement between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings, oral, written and implied, between
the parties hereto with respect to the subject matter hereof.




          (c) The rights to indemnification and advancement of Expenses provided by, or granted pursuant
to, this Agreement shall continue as to an Indemnitee who has ceased to be a director or officer of
the Company and shall inure to the benefit of Indemnitee and his or her spouse, assigns, heirs,
devisees, executors, administrators and other legal representatives.




     18. MODIFICATION AND WAIVER. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by the parties hereto. No waiver of any of
the provisions of this Agreement shall be deemed or shall



14









 




constitute a waiver of any other provisions of this Agreement nor shall any waiver constitute
a continuing waiver.




     19. 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 hereunder. The failure of Indemnitee to so notify the Company shall not
relieve the Company of any obligation which it may have to Indemnitee under this Agreement or
otherwise.



     20. NOTICES. All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given if delivered by hand and
receipted for by the party to whom said notice or other communication shall have been directed, or
mailed by certified or registered mail with postage prepaid, on the third (3rd) business day after
the date on which it is so mailed:



          (a) If to Indemnitee, at the address indicated on the signature page of this Agreement, or
such other address as Indemnitee shall provide in writing to the Company.




          (b) If to the Company to:



Heritage-Crystal Clean, Inc.

2175 Point Boulevard, Suite 375

Elgin, IL 60123

Attention: Chief Financial Officer



or to any other address as may have been furnished to Indemnitee in writing by the Company.




     21. CONTRIBUTION. To the fullest extent permissible under applicable law, if the
indemnification rights provided for in this Agreement are unavailable to Indemnitee in whole or in
part for any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute
to the amount incurred by Indemnitee, whether for judgments, fines, penalties, amounts paid or to
be paid in settlement and/or for Expenses, in connection with any Proceeding relating to an
indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable in
light of all of the circumstances of such Proceeding in order to reflect (a) the relative benefits
received by the Company and Indemnitee as a result of the event(s) and/or transaction(s) giving
rise to such Proceeding and/or (b) the relative fault of the Company (and its directors, officers,
employees and agents) and Indemnitee in connection with such event(s) and/or transaction(s).



     22. APPLICABLE LAW AND CONSENT TO JURISDICTION. This Agreement and the legal
relations among the parties shall be governed by, and construed and enforced in accordance with,
the laws of the State of Delaware, without regard to its conflict of laws rules. Except with
respect to any arbitration commenced by Indemnitee pursuant to Section 13(a) of this Agreement, the
Company and Indemnitee hereby



15









 




irrevocably and unconditionally (a) agree that any action or proceeding arising out of or in
connection with this Agreement shall be brought only in the Delaware Court, and not in any other
state or federal court in the United States of America or any court in any other country, (b)
consent to submit to the exclusive jurisdiction of the Delaware Court for purposes of any action or
proceeding arising out of or in connection with this Agreement, (c) waive any objection to the
laying of venue of any such action or proceeding in the Delaware Court, and (d) waive, and agree
not to plead or to make, any claim that any such action or proceeding brought in the Delaware Court
has been brought in an improper or inconvenient forum or is subject (in whole or in part) to any
trial by jury.




     23. 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.



     24. MISCELLANEOUS. The headings of the sections 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.



[Signatures appear on the next page.]





16









 








          IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the day and year
first above written.




	 	 	 	 	 
	 	INDEMNITEE:

 	 
	 	
 	 
	 	Name:  	 	 
	 	Address: 	 
	 
	 	HERITAGE-CRYSTAL CLEAN, INC.

 	 
	 	By:  	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 



[Signature Page to Indemnity Agreement]