INDEMNIFICATION AGREEMENT
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INDEMNIFICATION AGREEMENT (the "Agreement") made this 27th day of January,
2003, between ENERGIZER HOLDINGS, INC., a Missouri corporation (the "Company")
and Xxxx X. Xxxxxxx ("Director").
WHEREAS, Director is a member of the Board of Directors of the Company, and
in such capacity is performing a valuable service for Company; and
WHEREAS, the Company's Articles of Incorporation (the "Articles") permit
the indemnification of directors, officers, employees and certain agents of the
Company, and indemnification is also authorized by Section 351.355 of the
Missouri Revised Statutes 1978, as amended to date (the "Indemnification
Statute"); and
WHEREAS, the Articles and the Indemnification Statute permit full
indemnification of officers absent knowingly fraudulent, deliberately dishonest
or willful misconduct; and
WHEREAS, in order to induce Director to continue to serve as a member of
the Board of Directors of the Company, Company has determined and agreed to
enter into this contract with Director;
NOW THEREFORE, in consideration of Director's continued service as a member
of the Board of Directors after the date hereof, the Company and Director agree
as follows:
1. Indemnity of Director. Company hereby agrees to hold harmless and
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indemnify Director to the full extent authorized or permitted by the provisions
of the Indemnification Statute, or by any amendment thereof, or by any other
statutory provision authorizing or permitting such indemnification which is
adopted after the date hereof.
2. Additional Indemnity. Subject to the exclusions set forth in Section
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3 hereof, Company further agrees to hold harmless and indemnify Director against
any and all expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement, actually and reasonably incurred by Director in connection
with any threatened, pending or completed action, claim, suit or proceeding,
whether civil, criminal, administrative or investigative (including an action by
or in the right of the Company) to which Director is, was or at any time becomes
a party, or is threatened to be made a party, by reason of the fact that
Director is, was or at any time (whether before or after the date of this
Agreement) becomes a director, officer, employee or agent of the Company, or is
or was serving or at any time serves at the request of the Company as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise.
3. Limitations on Additional Indemnity. No indemnity pursuant to
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Section 2 hereof shall be paid by Company:
(a) Except to the extent the aggregate of losses to be indemnified
thereunder exceeds the amount of such losses for which the Director is
indemnified pursuant to Section 1 hereof or pursuant to any insurance policies
or other comparable policies purchased and maintained by the Company;
(b) In respect to remuneration paid to Director if it shall be finally
judicially adjudged that such remuneration was in violation of law;
(c) On account of any suit in which a judgment is rendered against
Officer for an accounting of profits made from the purchase or sale by Director
of securities of the Company pursuant to the provisions of Section 16(b) of the
Securities Exchange Act of 1934, as amended or similar provisions of any state
or local statutory law;
(d) On account of Director's conduct which is finally judicially
adjudged to have been knowingly fraudulent, deliberately dishonest or willful
misconduct;
(e) If it shall be finally judicially adjudged that such
indemnification is not lawful.
Reference in this Agreement to a matter being "finally judicially adjudged"
shall mean that there shall have been a final decision by a court having
jurisdiction in the matter, all appeals having been denied or not have been
taken and the time therefore to have expired.
4. Continuation of Indemnity. All agreements and obligations of
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Company contained herein shall continue during the period Director is a member
of the Board of Directors of Company and shall continue thereafter so long as
Director shall be subject to any possible or threatened, pending or completed
action or claim, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that Director was a member of the Board of
Directors of the Company or was serving in any other capacity referred to
herein.
5. Notification and Defense of Claim. Promptly after receipt by
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Director of notice of the commencement of any action, claim, suit or proceeding
against him by reason of his status as a Director of the Company or any other
capacity referenced herein, Director will notify Company of the commencement
thereof; provided, however, that the omission to so notify Company will not
relieve Company from any liability which it may have to Director under this
Agreement unless and only to the extent that Company's rights are actually
prejudiced by such failure. With respect to any such action, claim, suit or
proceeding as to which Director notifies Company of the commencement thereof:
(a) Company will be entitled to participate therein at its own expense;
and,
(b) Except as otherwise provided below, to the extent that it may wish,
Company jointly with any other party will be entitled to assume the defense
thereof, with counsel satisfactory to Director. After notice from Company to
Director of its election to so assume the defense thereof, Company will not be
liable to Director under this Agreement for any legal or other expenses
subsequently incurred by Director in connection with the defense thereof unless
Director shall have reasonably concluded that there may be a conflict of
interest between Company and Director in the conduct of the defense of such
action, in which case, Company shall not be entitled to assume the defense of
any action, claim, suit or proceeding brought by or on behalf of Company;
(c) Company shall not be liable to indemnify Director under this
Agreement for any amounts paid in settlement of any action or claim effected
without its written consent. Company shall not settle any action or claim in any
manner which would impose any penalty or limitation on Director without
Director's written consent. Neither Company nor Director will unreasonably
withhold their consent to any proposed settlement.
6. Advancement and Repayment of Expenses.
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(a) To the extent that the Company assumes the defense of any action,
claim, suit or proceeding against Director, Director agrees that he will
reimburse Company for all reasonable expenses paid by Company in defending any
such action, claim, suit or proceeding against Director in the event and only to
the extent that it shall be finally judicially adjudged that Director is not
entitled to be indemnified by Company for such expenses under the provisions of
the Indemnification Statute, the Articles, this Agreement or otherwise.
(b) To the extent that the Company does not assume the defense of any
action, claim, suit or proceeding against Director, Company shall advance to
Director all reasonable expenses, including all reasonable attorneys' fees,
retainers, court costs, transcript costs, fees of experts, 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 defending, preparing to defend or
investigating any civil or criminal action, suit or proceeding, within twenty
days after the receipt by Company of a statement or statements from Director
requesting such advance or advances, whether prior to or after final disposition
of such action, suit or proceeding. Such statement or statements shall
reasonably evidence the expenses incurred by Director and shall include or be
preceded or accompanied by an undertaking by or on behalf of Director to repay
all of such expenses advanced if it shall be finally judicially adjudged that
Director is not entitled to be indemnified against such expenses. Any advances
and undertakings to repay pursuant to this paragraph shall be unsecured and
interest free.
7. Enforcement.
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(a) Company expressly confirms and agrees that it has entered into this
Agreement and assumed the obligations imposed on Company hereby in order to
induce Director to continue to serve as a member of the Board of Directors of
Company, and acknowledges that Director is relying upon this Agreement in
continuing in such capacity.
(b) In the event Director is required to bring any action to enforce
rights or to collect moneys due under this Agreement and is successful in such
action, Company shall reimburse Director for all of Director's reasonable fees
and expenses in bringing and pursuing such action.
8. Separability. Each of the provisions of this Agreement is a
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separate and distinct agreement and independent of the others, so that if any
provision hereof 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.
9. Governing Law; Binding Effect; Amendment and Termination.
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(a) This Agreement shall be interpreted and enforced in accordance with
the laws of the State of Missouri.
(b) This Agreement shall be binding upon Director and upon Company, its
successors and assigns, and shall inure to the benefit of Director, his heirs,
personal representatives and assigns, and to the benefit of Company, its
successors and assigns.
(c) No amendment, modification, termination or cancellation of this
Agreement shall be effective unless signed in writing by both parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and
as of the day and year first above written.
DIRECTOR ENERGIZER HOLDINGS, INC.
By:______________________ By:_____________________________
J. Xxxxxxx Xxxxxxx
