Exhibit
10.26
INDEMNIFICATION
AGREEMENT
THIS AGREEMENT (the “Agreement”) is
made on this ___ day of May, 2009 between Prestige Brands Holdings,
Inc., a Delaware corporation (the “ Company ”),
and [Name] (“ Indemnitee ”):
W I T N E S S E T H:
WHEREAS , Indemnitee is an officer the Company and in
such capacity performs a valuable service for the Company;
and
WHEREAS , the Company’s certificate of
incorporation authorizes the Company to indemnify its officers and
directors to the fullest extent authorized by the Delaware General
Corporation Law (the “ Statute ”);
and
WHEREAS , the Statute specifically provides that the
indemnification provided thereunder is not exclusive of any other
rights in respect to indemnification to which those seeking
indemnification may be entitled; and
WHEREAS , the Statute contemplates that agreements may
be entered into between the Company and each of its officers with
respect to indemnification; and
WHEREAS, in order to enhance Indemnitee’s continued
and effective service to the Company, and in order to induce
Indemnitee to provide continued services to the Company as an
officer, the Company wishes to enter into this Agreement relating
to the indemnification of, and the advancement of expenses to,
Indemnitee as well as to provide coverage to Indemnitee under the
Company’s directors’ and officers’ liability
insurance policies (the “ D&O Insurance
”).
NOW, THEREFORE , in consideration of Indemnitee’s
continued service as an officer of the Company, the parties hereby,
agree as follows:
1.
DEFINITIONS . In addition to other terms defined
and used in this Agreement, the following capitalized terms when
used in this Agreement shall have the following
meanings:
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(a)
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“
Affiliate ” of any specified Person means any other
Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified
Person. For the purposes of this definition,
“control,” when used with respect to any specified
Person, means the power to direct the management and policies of
such Person, directly or indirectly, whether through ownership of
voting securities, by contract or otherwise; and the terms
“controlling” and “controlled” have
meanings correlative to the foregoing.
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(b)
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“
Associate ” shall have the meaning ascribed to such
term in Exchange Act Rule 12b-2.
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(c)
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“
Beneficial Owner ” shall have the meaning ascribed to
such term, and be determined in the manner set forth, in Exchange
Act Rule 13d-3.
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(d)
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“
Board ” means the Board of Directors of the
Company.
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(e)
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“
Change in Control ” means the earliest of the
following to occur:
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(1)
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the public
announcement by the Company or by any Person (which shall not
include the Company, any Subsidiary or any employee benefit plan of
the Company or of any Subsidiary) (the “Announcing
Person”) that the Announcing Person, together with the
Acquiring Person’s Affiliates and Associates, is the
Beneficial Owner of fifteen percent (15%) or more of the then
outstanding Voting Securities;
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(2)
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the
commencement of, or after the first public announcement of any
Announcing Person of an intention to commence, a tender or exchange
offer, the consummation of which would result in any Announcing
Person becoming the Beneficial Owner of thirty percent (30%) or
more of the then outstanding Voting Securities;
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(3)
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the
announcement of any transaction relating to the Company that would
be required to be described pursuant to the requirements of Item
5.01 of a Current Report on Form 8-K under the Exchange
Act;
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(4)
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a proposed
change in the membership of the Board such that, during any period
of twenty-four (24) consecutive months, individuals who at the
beginning of such period constitute the Board cease for any reason
to constitute at least a majority thereof, unless the election or
nomination for election by the shareholders of the Company of each
new Director was approved by a vote of at least two-thirds (2/3) of
the Directors then still in office who were members of the Board at
the beginning of the twenty-four (24) month period;
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(5)
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the Company
enters into an agreement of merger, consolidation, share exchange
or similar transaction with any other Person other than a
transaction which could result in the Voting Securities outstanding
immediately prior to the consummation of such transaction
continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving Person) at
least two-thirds of the combined voting power of the
Company’s or such surviving Person’s outstanding voting
stock immediately after such transaction;
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(6)
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the Board
approves a plan of liquidation or dissolution of the Company or an
agreement for the sale or disposition by the Company (in one
transaction or a series of transactions) of all or substantially
all of the Company’s assets to a Person that is not an
Affiliate of the Company; or
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(7)
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any other event
which shall be deemed by a majority of the Board to constitute a
“Change in Control.”
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(f)
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“
Corporate Status ” describes the status of an
individual who is or was a Director (including corresponding
service as an Officer) or an Officer of the Company or a director,
officer, partner, trustee, employee or agent of any other Person at
the request of the Company. For the purposes of this
Agreement, if an Indemnitee serves as a director of a subsidiary,
whether or not wholly-owned, of the Company, he does so at the
request of the Company.
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(g)
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“
Company ” has the meaning ascribed to such term in the
preamble and also includes, without limitation, any Entity that is
the successor entity to the Company by merger, combination,
consolidation, or other transaction in which the separate existence
of the Company ceases.
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(h)
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“
D&O Insurance ” means the directors’ and
officers’ liability insurance issued by the insurers, and
having the policy numbers, amounts and deductibles set forth in
Section 5.1 and any replacement or substitute policy or policies
issued by one or more reputable insurers, providing, in the
aggregate, at all times and in all respects, coverage at least
comparable and in the same amount as that provided under the
policies identified in Section 5.1.
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(i)
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“
Director ” means an individual who is or was a member
of the Board and includes, unless the context requires otherwise,
the estate or personal representative of a Director.
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(j)
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“
Disinterested Director ” means a Director, who at the
time of any vote referred to in Section 8.2, Section 8.3 or Section
9, is not:
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(1)
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A party to the
Proceeding giving rise to the subject matter of the decision being
made; or
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(k)
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“
Entity ” means a corporation (including any
Subsidiary), partnership, limited liability company, joint venture,
joint-stock corporation, trust, employee benefit plan, association,
foundation, organization, or other enterprise or legal entity,
unincorporated organization or government (or any subdivision,
department, commission or agency thereof).
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(l)
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“
Exchange Act ” means the Securities Exchange Act of
1934, as amended.
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(m)
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“
Expenses ” includes, without limitation,
attorneys’ fees and retainers, court costs, transcript costs,
fees of experts and vendors (e.g., electronically stored
information providers), travel expenses, duplicating costs,
printing and binding costs, telephone charges, postage, delivery
service fees and other disbursements or expenses of the
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types
customarily incurred in connection with a Proceeding that are
actually and reasonably incurred by Indemnitee:
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(1)
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by reason of
his being a Party or in connection with the defense or settlement
of a Proceeding;
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(2)
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in connection
with a Proceeding for which Indemnitee is requested or subpoenaed
to appear as a witness;
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(3)
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enforcing his
rights under this Agreement or any other agreement or under
applicable law, the certificate of incorporation or the bylaws of
the Company or any applicable Subsidiary now or hereafter in effect
relating to indemnification for Proceedings and including, without
limitation, claims for payment of Interim Expenses or for
establishing a right to indemnification pursuant to Section 8.6;
or
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(4)
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in connection
with his pursuing a recovery under the D&O
Insurance.
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(n)
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“
Interim Expenses ” means Expenses incurred by
Indemnitee in connection with any Proceeding in advance of the
final disposition of the Proceeding.
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(o)
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“
Loss ” and “ Losses ” means any
amount which Indemnitee incurs or becomes obligated to pay as a
result of any Proceeding, including, without limitation:
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(1)
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all judgments,
penalties and fines, and amounts paid or to be paid in
settlement;
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(2)
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all interest,
assessments and other charges paid or payable in connection
therewith; and
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(3)
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any federal,
state, local or foreign taxes imposed (net of the value to
Indemnitee of any tax benefits resulting from tax deductions or
otherwise as a result of the actual or deemed receipt of any
payments under this Agreement).
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(p)
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“
Officer ” means an individual who is or was an officer
of the Company and/or any Subsidiary. “Officer”
includes, unless the context requires otherwise, the estate or
personal representative of an officer.
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(q)
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“
Party ” includes an individual who was, is, or is
threatened to be made, a named defendant or respondent in a
Proceeding by reason of such individual’s Corporate Status
or, in the case of a Spouse, that person’s status as a spouse
of an Indemnitee.
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(r)
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“
Person ” means any individual or Entity.
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(s)
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Proceeding ” means any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal,
administrative, arbitrative, or investigative, whether formal or
informal, any appeal in such an action, suit, or proceeding,
and
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any inquiry or
investigation that could lead to such an action, suit, or
proceeding, whether formal or informal including, without
limitation, any Proceeding that in any way arises out of or is
related to Indemnitee’s Corporate Status or, in the case of a
Spouse, seeks damages recoverable from marital community property,
jointly-owned property or property purported to have been
transferred from Indemnitee to a Spouse.
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(t)
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“
Special Legal Counsel ” means a law firm or an
attorney that:
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(1)
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neither is nor
in the past five years has been retained to represent in any
material matter the Company, any Subsidiary, Indemnitee, any other
party to the Proceeding, or any of their respective Affiliates or
Associates;
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(2)
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under
applicable standards of professional conduct then prevailing would
not have a conflict of interest in representing either the Company
or Indemnitee in an action to determine Indemnitee’s rights
to indemnification under this Agreement; and
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(3)
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is reasonably
acceptable to the Company and Indemnitee.
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(u)
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“
Spouse ” means any person to whom Indemnitee is
legally married at any time Indemnitee is covered under the
indemnification provided in this Agreement and includes a person to
whom an Indemnitee did not remain married during the entire period
of such coverage.
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(v)
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“
Subsidiary ” of a Person means any Entity at least
fifty percent (50%) of the ownership interests having ordinary
voting power of which shall at the time be owned or controlled,
directly or indirectly, by such Person or by one or more of its
Subsidiaries or by such Person and one or more of its
Subsidiaries. Unless otherwise expressly provided, all
references in this Agreement to a “Subsidiary” shall
mean a Subsidiary of the Company.
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(w)
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“
Trust ” and “ Trustee ” shall have
the respective meanings set forth in Section 9.
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(x)
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“
Voting Securities ” means any securities of the
Company that vote generally in the election of
Directors.
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2.
INDEMNIFICATION . Subject to the exclusions
specified in Section 3 and to the procedure set forth in Sections
8.1 through 8.6 (and in addition to the obligation under Sections
7.1 and 7.2 to pay Interim Expenses), the Company shall indemnify
and hold harmless Indemnitee against:
Notwithstanding
any other provision of this Agreement or otherwise, to the extent
that Indemnitee is a party to (or a participant in) and is
successful, on the merits or otherwise, in the defense of
any
Proceeding or
any claim, issue or matter therein, the Company shall indemnify
Indemnitee against all Expenses and Losses actually and reasonably
incurred by him or on his behalf in connection
therewith. If Indemnitee is entitled under any provision
of this Agreement to indemnification for some or a portion of any
Expense or Loss, but not, however, for the total amount thereof,
the Company nevertheless shall indemnify Indemnitee for the portion
thereof to which he is entitled. For purposes of this
Section 2 and without limitation:
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the termination
of any Proceeding or any claim, issue or matter in a Proceeding by
dismissal, with or without prejudice, shall be deemed to be a
successful result as to such Proceeding, claim, issue or
matter;
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the termination
of a proceeding by a judgment, order, settlement, conviction or
upon a plea of nolo contendere or its equivalent is not, of itself,
determinative that the Indemnitee did not act in good faith, did
not meet a particular standard of conduct, did not have any
particular belief, or that a court has determined that
indemnification is not permitted by applicable law;
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for purposes of
any determination of good faith, the Indemnitee shall be presumed
to have acted in good faith, if he relied on information, opinions,
reports or statements, including financial statements or other
financial data prepared or presented by one or more officers or
employees of the Company whom the Indemnitee reasonably believed to
be reliable and competent in the matters presented or by legal
counsel, public accountants or other persons as to matters the
Indemnitee reasonably believed were within the person’s
professional or expert competence; provided, however, the
Indemnitee shall not be presumed to be acting in good faith, if he
has actual knowledge concerning the matter in question that makes
such reliance unwarranted; and
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the Officer
shall be presumed to be entitled to indemnification, subject to the
Company’s ability to rebut such presumption.
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3.
EXCLUSIONS . The Company shall not be obligated
to indemnify Indemnitee for Expenses or Losses under either Section
2(a) or 2(b):
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(a)
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to the extent
such indemnification would reduce or eliminate any payments to or
on behalf of Indemnitee under any D&O Insurance covering
Indemnitee;
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(b)
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to the extent
of any Expenses or Losses for which Officer is indemnified pursuant
to the certificate of incorporation or bylaws of the Company or any
D&O Insurance carried by the Company;
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(c)
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on account of
any claim against Indemnitee arising out of the trading of the
Company’s securities while possessing material non-public
information or for profits arising from the purchase and sale by
Indemnitee of securities in accordance with the provisions of
§ 16(b) of the Exchange Act or any similar provisions of any
federal or state statutory law;
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(d)
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if a final
judgment or other final adjudication by a court having jurisdiction
in the matter shall determine that such indemnity is not
lawful;
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(e)
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in respect of
any Proceeding initiated by Indemnitee against the Company, any
Subsidiary or any Director or Officer unless
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(1)
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the Company has
joined in or consented to the initiation of such Proceeding;
or
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(2)
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the Proceeding
is for recovery of Expenses described in Section 1(m)(3) or Section
1(m)(4);
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(f)
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for any amounts
paid in settlement of any Proceeding without the Company’s
prior written consent, which consent shall not be unreasonably
withheld or delayed;
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(g)
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in connection
with any Proceeding if it has been finally adjudicated by a court
of competent jurisdiction that, in connection with the
su
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