INDEMNIFICATION AGREEMENT
Exhibit
10
INDEMNIFICATION AGREEMENT (the "Agreement")
made this 3rd day of November, 2008, between ENERGIZER HOLDINGS, INC., a
Missouri corporation (the "Company") and Xx. Xxxx X. Xxxxx
("Director").
WHEREAS, Director
is a member of the Board of Directors of the Company and Chief Executive Officer
of the Company, and in such capacities 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 and as an officer of the Company after the date hereof, the Company
and Director agree as follows:
1. Indemnity of
Director. Company hereby agrees to hold harmless and 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 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 becomes (whether before or after the date of this Agreement) 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 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 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 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.
(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.
(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 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.
(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:_____________________________
Xxxx X.
Xxxxx J.
Xxxxxxx Xxxxxxx
Chairman of the Board
of Directors
