INDEMNIFICATION
AGREEMENT
THIS INDEMNIFICATION
AGREEMENT (this "Agreement") is made and entered into this
_____ day of ______________, 20___, by and between
[ ]
(the "Indemnitee") and Elizabeth Arden, Inc., a Florida corporation
(the "Corporation").
WITNESSETH
WHEREAS , the Board
of Directors of the Corporation (the "Board of Directors") has
reviewed and analyzed the protection from liability available to
directors or officers of the Corporation (hereinafter, "Directors"
or "Officers") and its subsidiaries under the Corporation's
existing corporate documents and applicable law; and
WHEREAS , it is
essential to the Corporation to attract and retain the most capable
persons available as Directors and/or Officers; and
WHEREAS , the Board
of Directors has determined that highly competent persons will be
difficult to attract and retain as Directors and/or Officers unless
they are adequately protected against liabilities incurred in
performance of their duties in such capacity; and
WHEREAS , the Board
of Directors has determined that the use of indemnification
agreements will allow the Corporation to offer additional
appropriate protection from liability to its Directors or Officers;
and
WHEREAS , the
Indemnitee is a Director and/or Officer; and
WHEREAS, the
indemnification and advancement provisions of Section 607.0850 of
the Florida Business Corporation Act (the "FBCA"), and Article VI
of the Articles of Incorporation of the Corporation (the "Articles
of Incorporation") expressly provide that they are non-exclusive;
and
NOW THEREFORE, in
consideration of the Indemnitee's services to the Corporation, the
mutual agreements and covenants contained herein, and for other
good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties hereto, intending to be
legally bound, hereby agree as follows:
Section 1. Definitions.
For purposes of this Agreement:
(a)
" Change in Control " shall mean, and a Change in
Control shall be deemed to have occurred if, on or after the date
of this Agreement, (i) any "person" (as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the " Act ")), other than (A) a trustee or other fiduciary
holding securities under an employee benefit plan of one or more of
the Corporation, or any of its subsidiaries, as the case may be,
acting in such capacity or (B) a corporation owned directly or
indirectly by the stockholders of the Corporation in substantially
the same proportions as their ownership of stock of the
Corporation, becomes the "beneficial owner" (as defined in Rule
13d-3 under the Act), directly or indirectly, of securities of the
Corporation representing more than thirty-five percent
(35%) of the total voting power represented by the
Corporation's then outstanding Voting Securities (as defined
below), (ii) on the first day that individuals who as of the
Effective Date constitute the Board of Directors and any new
director whose election by the Board of Directors or nomination for
election by the Corporation's stockholders was approved by a vote
of at least a majority of the Directors then still in office who
either were Directors at the Effective Date or whose election or
nomination for election was previously so approved, cease for any
reason to constitute a majority thereof, (iii) the stockholders of
the Corporation approve a merger or consolidation of the
Corporation with any other corporation other than a merger or
consolidation that would result in the Voting Securities of the
Corporation outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted
into Voting Securities of the surviving entity) at least eighty
percent (80%) of the total voting power represented by the Voting
Securities of the Corporation or such surviving entity outstanding
immediately after such merger or consolidation, (iv) the
stockholders of the Corporation approve a plan of complete
liquidation of the Corporation or an agreement for the sale or
disposition by the Corporation of (in one transaction or a series
of related transactions) all or substantially all of the
Corporation's assets, or (v) the Corporation shall file or have
filed against it, and such filing shall not be dismissed, any
bankruptcy, insolvency or dissolution proceedings, or a trustee,
administrator or creditors committee shall be appointed to manage
or supervise the affairs of the Corporation.
(b) " Corporate Status " describes the
status of a person who is serving or has served (i) as a director
or officer of the Corporation, (ii) in any capacity with respect to
any employee benefit plan of the Corporation, or (iii) as a
director, partner, trustee, officer, employee or agent of any other
Entity at the request of the Corporation. For purposes of this
Agreement, an officer or director of the Corporation who is serving
or has served as a director, partner, trustee, officer, employee or
agent of a Subsidiary shall be deemed to be serving at the request
of the Corporation.
(c) " Disinterested Director " means a
director of the Corporation who is not and was not a party to the
Proceeding in respect of which indemnification is sought by
Indemnitee.
(d) " Effective Date " means the date
first listed above.
(e) " Entity " shall mean any corporation,
partnership, limited liability company, joint venture, foundation,
association, organization or other legal entity.
(f) " Expenses " shall mean all fees, costs and
expenses incurred in connection with any Proceeding (as defined
below), including, without limitation, attorneys' fees,
disbursements and retainers, fees and disbursements of expert
witnesses, private investigators and professional advisors
(including, without limitation, accountants and investment
bankers), court costs, transcript costs, fees of experts, travel
expenses, duplicating, printing and binding costs, telephone and
fax transmission charges, postage, delivery services, secretarial
services, and other disbursements and expenses.
(g) " Independent Counsel " means a law firm, or a
member of a law firm, that is experienced in matters of corporate
law and neither presently is, nor in the past five years has been,
retained to represent: (i) the Corporation or Indemnitee in any
matter material to either such party, 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 Corporation or
Indemnitee in an action to determine Indemnitee's rights under this
Agreement.
(h) " Liabilities " shall mean judgments, damages,
liabilities, losses, penalties, excise taxes (including with
respect to employee benefit plans), fines and amounts paid in
settlement.
(i) " Proceeding " includes any threatened, pending
or completed action, suit, arbitration, alternative dispute
resolution mechanism, investigation, inquiry, administrative
hearing or any other proceeding, whether civil, criminal,
administrative or investigative, or formal or informal, including
appeals, except one initiated by an Indemnitee pursuant to Section
10 or Section 13(b) of this Agreement to enforce his rights under
this Agreement.
(j) " Subsidiary " shall mean any Entity of which the
Corporation owns (either directly or through or together with
another Subsidiary of the Corporation) either (i) a general
partnership, managing membership or other similar interest or (ii)
fifty percent (50%) or more of the (A) voting power of the voting
capital equity interests of such Entity, or (B) outstanding voting
capital stock or other voting equity interests of such Entity.
(k) " Voting Securities " means securities of the
Corporation that entitle the holder to vote for the election of
Directors.
Section 2. Services
by Indemnitee . In consideration of the Corporation's covenants
and commitments hereunder, Indemnitee agrees to continue to serve
as a Director or Officer. However, this Agreement shall not impose
any obligation on Indemnitee or the Corporation to continue
Indemnitee's service to the Corporation beyond any period otherwise
required by law or by other agreements or commitments of the
parties, if any.
Section 3.
Agreement to Indemnify . The Corporation agrees to indemnify
Indemnitee as follows:
(a) Subject to the exceptions contained in Section 4 below, if
Indemnitee was or is a party or is threatened to be made a party to
any Proceeding (other than an action by or in the right of the
Corporation) by reason of Indemnitee's Corporate Status, Indemnitee
shall be indemnified by the Corporation against all Expenses and
Liabilities incurred or paid by Indemnitee in connection with such
Proceeding (referred to herein as " Indemnifiable
Expenses " and " Indemnifiable Liabilities ,"
respectively, and collectively as " Indemnifiable
Amounts ") if (i) Indemnitee acted in good faith and in a
manner Indemnitee reasonably believed to be in, or not opposed to,
the best interests of the Corporation, and (ii) with respect to any
criminal action or proceeding, Indemnitee had no reasonable cause
to believe that Indemnitee's conduct was unlawful.
(b) Subject to the exceptions contained in Section 4 below, if
Indemnitee was or is a party or is threatened to be made a party to
any Proceeding by or in the right of the Corporation to procure a
judgment in its favor by reason of Indemnitee's Corporate Status,
Indemnitee shall be indemnified by the Corporation against all
Indemnifiable Expenses and amounts paid in settlement if Indemnitee
acted in good faith and in a manner Indemnitee reasonably believed
to be in, or not opposed to, the best interests of the Corporation,
except that no indemnification shall be made under this subsection
in respect of any claim, issue or matter as to which Indemnitee
shall have been adjudged by a court of competent jurisdiction to be
liable to the Corporation, unless, and only to the extent that, the
court in which such Proceeding was brought or another court of
competent jurisdiction determines upon application that in view of
all the circumstances of the case, Indemnitee is fairly and
reasonably entitled to indemnity for such Indemnifiable Expenses
and amounts paid in settlement, in which case Indemnitee shall then
be entitled to payment in such amount as such court deems
proper.
(c) If Indemnitee, in connection with Indemnitee's Corporate
Status, is compelled or asked to be a witness in connection with
any Proceeding but is not otherwise a party or threatened to be
made a party to such Proceeding, Indemnitee shall be indemnified by
the Corporation against all Indemnifiable Expenses.
(d) Notwithstanding the exceptions listed in Section 4 below, to
the extent that Indemnitee has been successful on the merits or
otherwise in defense of any Proceeding referred to in subsections
3(a) or 3(b), or in defense of any claim, issue, or matter therein,
Indemnitee shall be indemnified by the Corporation against
Indemnifiable Expenses actually and reasonably incurred by
Indemnitee in connection therewith.
(e) If Indemnitee is entitled under any provisions of this
Agreement to indemnification by the Corporation for some or a
portion of Indemnifiable Amounts but not, however, for the total
amount thereof, the Corporation shall nevertheless indemnify
Indemnitee for the portion of such Indemnifiable Amounts to which
Indemnitee is entitled.
(f) Good Faith Definition . For purposes of this Section 3
only, the Indemnitee shall be deemed to have acted in good faith
and in a manner the Indemnitee reasonably believed to be in or not
opposed to the best interests of the Corporation, or, with respect
to any criminal Proceeding, to have had no reasonable cause to
believe the Indemnitee's conduct was unlawful, if such action was
based on a reasonable reliance upon any of the following: (a) the
records or books of the Corporation or applicable Entity, including
financial statements, supplied to the Indemnitee by the officers of
such Entity in the course of their duties; (b) the advice of legal
counsel for the Corporation or the applicable Entity; or (c)
information or records given in reports made to the Corporation or
the applicable Entity by its independent certified public
accountant or by an appraiser or other expert selected with
reasonable care by such entity. The provisions of this Section 3(f)
shall not be deemed to be exclusive or to limit in any way the
other circumstances in which the Indemnitee may be deemed to have
met the applicable standard of conduct set forth in this Section
3.
Section 4.
Exceptions to Indemnification . Indemnitee shall be entitled
to indemnification under Sections 3(a) and 3(b) above in all
circumstances unless it has been determined in accordance with
Section 7 that, in connection with the subject of the Proceeding
out of which the claim for indemnification has arisen, a judgment
or other final adjudication establishes that his or her actions, or
omissions to act, were material to the cause of action so
adjudicated and constitute:
(i)
a violation of the criminal law, unless the Indemnitee had
reasonable cause to believe
his
or her conduct was lawful or had no reasonable cause to believe his
or her conduct
was
unlawful;
(ii)
a transaction from which Indemnitee derived an improper personal
benefit;
(iii)
in the event the Indemnitee is a director, a circumstance under
which the liability
provisions
of Section 607.0834 of the FBCA are applicable; or
(iv)
willful misconduct or a conscious disregard for the best interests
of the Corporation, in
each
case, in a Proceeding by or in the right of the Corporation to
procure a judgment
in
its favor or in a proceeding by or in the right of a
shareholder.
Section 5.
Advancement of Expenses . The Corporation shall advance all
Indemnifiable Expenses within thirty (30) days after the receipt by
the Corporation of a written request from Indemnitee for such
advancement and on a current basis thereafter, whether prior to or
after final disposition of the underlying Proceeding. Such written
request shall be accompanied by evidence of the Indemnifiable
Expenses incurred by Indemnitee and shall include a written
undertaking by or on behalf of Indemnitee to repay any and all
amounts advanced if it shall ultimately be determined that
Indemnitee is not entitled to indemnification by the Corporation
under this Agreement. Indemnitee's
repayment undertaking shall be unsecured and interest-free.
However, advancement of Indemnifiable Expenses shall not be made to
Indemnitee if a judgment or other final adjudication establishes
that his or her actions, or omissions to act, were material to the
cause of action so adjudicated and constitute:
(a)
a violation of the criminal law, unless the Indemnitee had
reasonable cause to believe his or
her conduct was lawful or had no reasonable cause to believe his or
her conduct was unlawful;
(b) a transaction from which Indemnitee derived an improper
personal benefit;
(c) in the event the Indemnitee is a director, a circumstance under
which the liability
provisions of Section 607.0834 of the FBCA are applicable; or
(d) willful misconduct or a conscious disregard for the best
interests of the Corporation in a Proceeding by or in the right of
the Corporation to procure a judgment in its favor or in a
proceeding by or in the right of a shareholder.
Section 6. Defense
of the Underlying Proceeding .
(a) Notice by Indemnitee . Upon being served with any
summons, citation, subpoena, complaint, indictment, information, or
other document relating to any Proceeding which may result in the
payment of Indemnifiable Amounts or the advancement of
Indemnifiable Expenses hereunder, Indemnitee shall notify the
Corporation promptly, but in all events no later than the earlier
of (i) fourteen (14) days after actual receipt or (ii) as soon as
necessary after actual receipt to prevent the Corporation from
being materially and adversely prejudiced by late notice.
(b) Option to Control Defense . Subject to the provisions of
Section 6(c), in the event the Corporation is obligated to advance
Indemnifiable Expenses under Section 5, the Corporation shall have
the right to participate in any Proceeding and, at its option,
assume the defense of any Proceeding with counsel approved by
Indemnitee (which approval shall not be unreasonably withheld or
delayed), upon the delivery to Indemnitee of written notice of its
election to do so. However, the Indemnitee shall have the right to
effectively participate in the defense and/or settlement of such
Proceeding, including receiving copies of all correspondence and
participating in all meetings and teleconferences concerning the
Proceeding. In no event shall the Corporation consent to the entry
of any judgment against Indemnitee or enter into any settlement or
compromise without the prior written consent of the Indemnitee,
which consent shall not be unreasonably withheld or delayed.
(c) Limitation of Obligation to Reimburse Defense Expenses .
In the event the Corporation assumes the defense of any Proceeding
pursuant to Section 6(b), the Corporation will not be liable to
Indemnitee under this Agreement for any fees of counsel
subsequently incurred by Indemnitee with respect to the same
Proceeding; provided that if (i) the employment of counsel by
Indemnitee has been previously authorized by the Corporation, (ii)
Indemnitee shall have reasonably concluded, based on written advice
of counsel, that there may be a conflict of interest between the
Corporation and Indemnitee in the conduct of any such defense, or
(iii) the Corporation shall not continue to retain the approved
counsel to defend such Proceeding, then the fees and expenses of
Indemnitee's counsel shall be at the expense of the Corporation.
Except as otherwise provided by Section 6(d) below, the
Corporation's obligation to indemnify Indemnitee with respect to
legal fees shall be limited to the fees charged by a single counsel
selected by Indemnitee together with all other persons similarly
entitled to indemnification by the Corporation in the same
Proceeding on account of their Corporate Status, which counsel
shall have been approved by the Corporation's director and officer
liability insurer to the extent that claims made in the Proceeding
are insured claims under the Corporation's director and officer
liability insurance policy(ies).
(d) Indemnitee's Right to Individual Counsel .
Notwithstanding the provisions of Section 6(c) above, if in a
Proceeding to which Indemnitee is a party by reason of Indemnitee's
Corporate Status, Indemnitee reasonably concludes, based on the
written advice of counsel, that it may have separate defenses or
counterclaims to assert with respect to any issue which may not be
consistent with the position of other defendants in such
Proceeding, Indemnitee shall be entitled to be represented by
separate legal counsel of Indemnitee's choice at the expense of the
Corporation. In addition, if the Corporation fails to comply with
any of its obligations under this Agreement or in the event that
the Corporation or any other person takes any action to declare all
or any part of this Agreement void or unenforceable, or institutes
any action, suit or proceeding to deny or to recover from
Indemnitee the benefits intended to be provided to Indemnitee
hereunder, Indemnitee shall have the right to retain counsel of
Indemnitee's choice, at the expense of the Corporation, to
represent Indemnitee in connection with any such matter.
Section 7.
Procedure for Determination of Entitlement to
Indemnification .
(a) To obtain indemnification under this Agreement, Indemnitee
shall submit to the Corporation a written request, including
therein or therewith such documentation and information as is
reasonably available to Indemnitee and is reasonably necessary to
determine whether and to what extent Indemnitee is entitled to
indemnification. The Secretary of the Corporation shall, promptly
upon receipt of such a request for indemnification, advise the
Board of Directors in writing that Indemnitee has requested
indemnification.
&nb
