exv10w17



 



Exhibit 10.17


INDEMNIFICATION AGREEMENT



     THIS INDEMNIFICATION AGREEMENT, dated as of                        (this
“Agreement”), is made by and between Laidlaw International, Inc., a Delaware
corporation (the “Company”), and                       (“Indemnitee”).


RECITALS



     A.     It is important to the Company to attract and retain as directors and
officers the most capable persons reasonably available.


     B.     Indemnitee is a director and officer of the Company.


     C.     Both the Company and Indemnitee recognize the increased risk of
litigation and other claims being asserted against directors and officers of
companies in today’s environment.


     D.     The Company’s Certificate of Incorporation (the “Certificate of
Incorporation”) and By-laws (the “By-Laws”) provide that the Company will
indemnify its directors and officers, and Indemnitee’s willingness to serve as
a director and/or officer of the Company is based in part on Indemnitee’s
reliance on such provisions.


     E.     In recognition of Indemnitee’s need for substantial protection against
personal liability in order to enhance Indemnitee’s continued service to the
Company in an effective manner, and Indemnitee’s reliance on the aforesaid
provisions of the Certificate of Incorporation and By-Laws, and to provide
Indemnitee with express contractual indemnification (regardless of, among other
things, any amendment to or revocation of such provisions or any change in the
composition of the Company’s Board of Directors (the “Board”) or any
acquisition or business combination transaction relating to the Company), the
Company wishes to provide in this Agreement for the indemnification of and the
advancement of Expenses (as defined in Section 1(c)) to Indemnitee as set forth
in this Agreement and, to the extent insurance is maintained, for the continued
coverage of Indemnitee under the Company’s directors’ and officers’ liability
insurance policies.


     NOW, THEREFORE, the parties hereby agree as follows:


     1.     Certain Definitions. In addition to terms defined elsewhere herein,
the following terms have the following meanings when used in this Agreement
with initial capital letters:


          (a) “Affiliate” has the meaning given to that term in Rule 405 under the
United States Securities Act of 1933; provided, however, that for purposes of
this Agreement the Company and its subsidiaries will not be deemed to
constitute Affiliates of Indemnitee or the Company.



          (b) “Claim” means any threatened, pending or completed action, suit or
proceeding, or any inquiry or investigation, whether instituted, made or
conducted by the Company or on its behalf or by any other party, including,
without limitation, any governmental entity, that





1






 





Indemnitee determines might lead to the institution of any such action,
suit or proceeding, whether civil, criminal, administrative, arbitrative,
investigative or other.


          (c) “Expenses” includes attorneys’ and experts’ fees, expenses and
charges and all other costs, expenses and obligations paid or incurred in
connection with investigating, defending, being a witness in or participating
in (including on appeal), or preparing to defend, be a witness in or
participate in, any Claim.



          (d) “Indemnifiable Losses” means any and all Expenses, damages, losses,
liabilities, judgments, fines, penalties and amounts paid in settlement
(including, without limitation, all interest, assessments and other charges
paid or payable in connection with or in respect of any of the foregoing)
(collectively, “Losses”) relating to, resulting from, or arising out of, any
act or failure to act by Indemnitee or his or her status as any person referred
to in clause (i) of this sentence, (i) in his or her capacity as a director,
officer, employee or agent of the Company, any of its Affiliates or any other
entity, including another corporation, limited liability company, partnership,
joint venture, trust or employee benefit plan, as to which Indemnitee is or was
serving at the request of the Company as a director, officer, employee, member,
manager, trustee or agent, whether or not for profit, and (ii) in respect of
any business, transaction or other activity of any entity referred to in clause
(i) of this sentence.



     2.     Basic Indemnification Arrangement. The Company will indemnify and hold
harmless Indemnitee, to the fullest extent permitted by the laws of Delaware in
effect on the date hereof or as such laws may from time to time hereafter be
amended to increase the scope of such permitted indemnification, against all
Indemnifiable Losses relating to, resulting from, or arising out, of any Claim
as soon as practicable but in any event no later than 30 days after Indemnitee
has made a written demand therefor. Unless otherwise required by the General
Corporation Law of Delaware, the Certificate of Incorporation or the By-Laws,
the failure by Indemnitee to notify the Company of such Claim, or to request in
writing Indemnification in respect thereof, will not relieve the Company from
any liability hereunder unless, and only to the extent that, the Company did
not otherwise learn of the Claim and such failure results in forfeiture by the
Company of substantial defenses, rights or insurance coverage. Except as
provided in Section 17, however, Indemnitee will not be entitled to
indemnification pursuant to this Agreement in connection with any Claim
initiated by Indemnitee against the Company or any director or officer of the
Company unless the Company has joined in or consented to the initiation of such
Claim. If so requested by Indemnitee by submission of a written request and
undertaking substantially in the form of Exhibit 1 hereto, the Company will
advance within two business days of such written request any and all Expenses
to Indemnitee that Indemnitee determines reasonably likely to be payable;
provided, however, that Indemnitee will return, without interest, any such
advance that remains unspent at the final conclusion of the Claim to which the
advance related.


     3.     Indemnification for Additional Expenses. Without limiting the
generality or effect of the foregoing, the Company will indemnify Indemnitee
against and, if requested by Indemnitee in writing, will within two business
days of such request advance to Indemnitee, any and all Expenses paid or
incurred by Indemnitee in connection with any Claim asserted against or action
brought by Indemnitee for (a) indemnification or advance payment of Expenses by
the Company under this Agreement or any other agreement or under any provisions
of the


2






 


Certificate of Incorporation or By-Laws now or hereafter in effect
relating to Claims for Indemnifiable Losses or (b) recovery under any
directors’ and officers’ liability insurance policies maintained by the
Company, regardless of whether Indemnitee ultimately is determined to be
entitled to such indemnification, advance expense payment or insurance
recovery, as the case may be.


     4.     Partial Indemnity, Etc. If Indemnitee is entitled under any provision
of this Agreement to indemnification by the Company for some or a portion of
any Indemnifiable Loss but not for all of the total amount thereof, the Company
will nevertheless indemnify Indemnitee for the portion thereof to which
Indemnitee is entitled. Moreover, notwithstanding any other provision of this
Agreement, to the extent that Indemnitee has been successful on the merits or
otherwise in defense of any or all Claims relating in whole or in part to an
Indemnifiable Loss or in defense of any issue or matter therein, including,
without limitation, dismissal without prejudice, Indemnitee will be indemnified
against all Expenses incurred in connection therewith. In connection with any
determination as to whether Indemnitee is entitled to be indemnified hereunder,
there will be a presumption that Indemnitee is so entitled, which presumption
the Company may overcome only by its adducing clear and convincing evidence to
the contrary.


     5.     No Other Presumption. For purposes of this Agreement, the termination
of any Claim by judgment, order, settlement (whether with or without court
approval), conviction, or upon a plea of nolo contendere or its equivalent,
will not, of itself, 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 applicable law.


     6.     Non-Exclusivity, Etc. The rights of Indemnitee hereunder will be in
addition to any other rights Indemnitee may have under the Certificate of
Incorporation or By-Laws, or the General Corporation Law of Delaware, any other
contract or otherwise (collectively, “Other Indemnity Provisions”); provided,
however, that (a) to the extent that Indemnitee otherwise would have any
greater right to indemnification under any Other Indemnity Provision,
Indemnitee will be deemed to have such greater right hereunder and (b) to the
extent that any change is made to any Other Indemnity Provision that permits
any greater right to indemnification than that provided under this Agreement as
of the date hereof, Indemnitee will be deemed to have such greater right
hereunder. The Company will not adopt any amendment to the Certificate of
Incorporation or By-Laws the effect of which would be to deny, diminish or
encumber Indemnitee’s right to indemnification under this Agreement or any
Other Indemnity Provision.


     7.     Liability Insurance and Funding. To the extent the Company maintains
an insurance policy or policies providing directors’ and officers’ liability
insurance, Indemnitee will be covered by such policy or policies, in accordance
with its or their terms, to the maximum extent of the coverage available for
any director or officer of the Company. The Company may, but will not be
required to, create a trust fund, grant a security interest or use other means,
including, without limitation, a letter of credit, to ensure the payment of
such amounts as may be necessary to satisfy its obligations to indemnify and
advance expenses pursuant to this Agreement.


3






 


     8.     Subrogation. In the event of payment under this Agreement, the Company
will be subrogated to the extent of such payment to all of the related rights
of recovery of Indemnitee against other persons or entities (other than
Indemnitee’s successors). Indemnitee will execute all papers reasonably
required to evidence such rights (all of Indemnitee’s reasonable Expenses,
including attorneys’ fees and charges, related thereto to be reimbursed by or,
at the option of Indemnitee, advanced by the Company).


     9.     No Duplication of Payments. The Company will not be liable under this
Agreement to make any payment in connection with any Indemnifiable Loss made
against Indemnitee to the extent Indemnitee has otherwise actually received
payment (net of Expenses incurred in connection therewith) under any insurance
policy or Other Indemnity Provisions or otherwise of the amounts otherwise
indemnifiable hereunder.


     10.     Defense of Claims. The Company will be entitled to participate in the
defense of any Claim or to assume (in a prompt and timely manner) the defense
thereof, with counsel reasonably satisfactory to Indemnitee, provided that in
the event that (a) the use of counsel chosen by the Company to represent
Indemnitee would present such counsel with an actual or potential conflict, (b)
the named parties in any such Claim (including any impleaded parties) include
both the Company and Indemnitee and Indemnitee shall conclude that there may be
one or more legal defenses available to him or her that are different from or
in addition to those available to the Company or (c) any such representation by
the Company would be precluded under the applicable standards of professional
conduct then prevailing, then Indemnitee will be entitled to retain separate
counsel (but not more than one law firm plus, if applicable, local counsel in
respect of any particular Claim) at the Company’s expense. The Company will
not, without the prior written consent of Indemnitee, effect any settlement of
any threatened or pending Claim that Indemnitee is or could have been a party
unless such settlement solely involves the payment of money and includes an
unconditional release of Indemnitee from all liability on any claims that are
the subject matter of such Claim.


     11.     Successors and Binding Agreement. (a) The Company will require any
successor (whether direct or indirect, by purchase, merger, consolidation,
reorganization or otherwise) to all or substantially all of the business or
assets of the Company, by agreement in form and substance satisfactory to
Indemnitee and his 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 if no such succession had taken place. This Agreement will
be binding upon and inure to the benefit of the Company and any successor to
the Company, including, without limitation, any person acquiring directly or
indirectly all or substantially all of the business or assets of the Company,
whether by purchase, merger, consolidation, reorganization or otherwise (and
such successor will thereafter be deemed the “Company” for purposes of this
Agreement), but will not otherwise be assignable or delegatable by the Company.


     (b)  This Agreement will inure to the benefit of and be enforceable by
Indemnitee’s personal or legal representatives, executors, administrators,
successors, heirs, distributees or other successors.


     (c)  This Agreement is personal in nature and neither of the parties hereto
will, without the consent of the other, assign or delegate this Agreement or
any rights or obligations


4






 


hereunder except as expressly provided in Sections 11(a) and 11(b).
Without limiting the generality or effect of the foregoing, Indemnitee’s right
to receive payments hereunder will not be assignable, whether by pledge,
creation of a security interest or otherwise, other than by a transfer by
Indemnitee’s will or by the laws of descent and distribution, and, in the event
of any attempted assignment or transfer contrary to this Section 11(c), the
Company will have no liability to pay any amount so attempted to be assigned or
transferred.


     12.     Notices. For all purposes of this Agreement, all communications,
including, without limitation, notices, consents, requests or approvals,
required or permitted to be given hereunder will be in writing and will be
deemed to have been duly given when hand delivered or dispatched by electronic
facsimile transmission (with receipt thereof orally confirmed), or five
business days after having been mailed by United States registered or certified
mail, return receipt requested, postage prepaid or one business day after
having been sent for next-day delivery by a nationally recognized overnight
courier service, addressed to the Company (to the attention of the Secretary of
the Company) and to Indemnitee at the addresses shown on the signature page
hereto, or to such other address as any party may have furnished to the other
in writing and in accordance herewith, except that notices of changes of
address will be effective only upon receipt.


     13.     Governing Law. The validity, interpretation, construction and
performance of this Agreement will be governed by and construed in accordance
with the substantive laws of Delaware without giving effect to the principles
of conflict of laws. Each party consents to non-exclusive jurisdiction of any
jurisdiction in which a Claim is commenced by a third person for purposes of
any action, suit or proceeding hereunder, waives any objection to venue therein
or any defense based on forum non conveniens or similar theories and agrees
that service of process may be effected in any such action, suit or proceeding
by notice given in accordance with Section 12.


     14.     Validity. If any provision of this Agreement or the application of
any provision hereof to any person or circumstance is held invalid,
unenforceable or otherwise illegal, the remainder of this Agreement and the
application of such provision to any other person or circumstance will not be
affected, and the provision so held to be invalid, unenforceable or otherwise
illegal will be reformed to the extent, and only to the extent, necessary to
make it enforceable, valid or legal.


     15.     Miscellaneous. No provision of this Agreement may be waived, modified
or discharged unless such waiver, modification or discharge is agreed to in
writing signed by Indemnitee and the Company. No waiver by either party hereto
at any time of any breach by the other party hereto or compliance with any
condition or provision of this Agreement to be performed by such other party
will be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreements or representations,
oral or otherwise, expressed or implied with respect to the subject matter
hereof have been made by either party that are not set forth expressly in this
Agreement. References to Sections are to references to Sections of this
Agreement.


5






 


     16.     Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original but all of which
together will constitute one and the same agreement.


     17.     Legal Fees and Expenses. It is the intent of the Company that
Indemnitee not be required to incur legal fees and or other 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. Accordingly, without limiting the generality or effect
of any other provision hereof, if Indemnitee determines 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, the Company irrevocably authorizes Indemnitee from time to time to
retain counsel of Indemnitee’s choice, at the expense of the Company as
hereafter provided, 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 any director, officer, stockholder or other person
affiliated with the Company, in any jurisdiction. Notwithstanding any existing
or prior attorney-client relationship between the Company and such counsel, the
Company irrevocably consents to Indemnitee’s entering into an attorney-client
relationship with such counsel and, in connection therewith, the Company and
Indemnitee agree that a confidential relationship shall exist between
Indemnitee and such counsel. Without respect to whether Indemnitee prevails,
in whole or in part, in connection with any of the foregoing, the Company will
pay and be solely financially responsible for any and all attorneys’ and
related fees and expenses incurred by Indemnitee in connection with any of the
foregoing.


     18.     Certain Interpretive Matters. No provision of this Agreement will be
interpreted in favor of, or against, either of the parties hereto by reason of
the extent to which any such party or its counsel participated in the drafting
thereof or by reason of the extent to which any such provision is inconsistent
with any prior draft hereof or thereof.


[signature page follows]




6






 





     IN WITNESS WHEREOF, Indemnitee has executed and the Company has caused its
duly authorized representatives to execute this Agreement as of the date first
above written.



	 	 	 
	 	 	
LAIDLAW INTERNATIONAL, INC.
	 	 	 
	 	 	
By: 
	 	 	


	 	 	
Name: 
	 	 	
Title: 
	 	 	 
	 	 	
 
	 	 	 
	 	 	
 
	 	 	


	 	 	
 



7






 



EXHIBIT 1



Undertaking



	 	 	 	 	 	 	 
	State of	 	 	 	 	)	 
	 	 	
_____________________________	 	 	 	 
	 	 	 	 	 	)ss.	 
	County of	 	_____________________________	 	 	)	 




     I, ______________________________, being first duly sworn, do
depose and say as follows:


     1.     This Undertaking is submitted pursuant to the Indemnification
Agreement, dated ________________, 20____, between Laidlaw International, Inc.
(the “Company”), a Delaware corporation, and the undersigned.


     2.     I am requesting advancement of certain costs, charges and expenses
which I have incurred or will incur in defending a civil or criminal action,
suit, proceeding or claim.


     3.     I hereby undertake to repay this advancement of expenses if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal that I am not entitled to be indemnified by the Company
under the aforesaid Indemnification Agreement or otherwise.


     4.     The costs, charges and expenses for which advance is requested are, in
general, all expenses related to:


___________________________________________________________________________________________________________________________________________.


___________________________________________________________________________________________________________________________________________.



	 	 
	 	_____________________________
	 	Signature



Subscribed and sworn to before me, a Notary Public in and for said County and
State, this ________ day of ________________, 20____.


[Seal]




	 	 	 	 
	 	_____________________________________________________
	 	Notary Public
	 	My commission expires
	 	 	 	
__________________________



Indemnification Agreement - Exhibit 1




8