FORM OF INDEMNIFICATION AGREEMENT
This Agreement is made and entered into this ____ day of __________,
199_ ("Agreement"), by and between Renaissance Cosmetics, Inc., a Delaware
corporation (the "Company"), and [NAME OF OFFICER/DIRECTOR] ("Indemnitee").
WHEREAS, highly competent persons are becoming more reluctant to serve
publicly-held corporations as directors and/or officers unless they are
provided with adequate protection through insurance or adequate
indemnification against inordinate risks of claims and actions against them
arising out of their service to, and activities on behalf of, the corporation;
WHEREAS, the cost of obtaining adequate insurance and the uncertainties
relating to indemnification have increased the difficulty of attracting and
retaining such persons;
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that it is in the best interests of the Company and the Company's
stockholders to assure such persons that there will be increased certainty of
such protection in the future;
WHEREAS, it is reasonable, prudent and necessary for the Company to
obligate itself contractually to indemnify such persons to the fullest extent
permitted by applicable law so that they will serve or continue to serve the
Company;
WHEREAS, Indemnitee is willing to serve, continue to serve and to take
on additional service for or on behalf of the Company on the condition that
he be so indemnified; and
WHEREAS, the Board has determined that it is in the best interests of
the Company to adopt certain indemnification arrangements in addition to the
indemnification provisions in the Company's Restated Certificate of
Incorporation, as amended (the "Certificate").
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
set forth below.
Section 1. SERVICES BY INDEMNITEE. Indemnitee agrees to serve as a
[DIRECTOR/OFFICER] of the Company and/or of such Other Entity (as defined in
Section 12(b)) as the Company may, at any time and from time to time,
request.
Section 2. INDEMNIFICATION - GENERAL. The Company shall indemnify,
and advance Expenses (as defined in Section 18) to, Indemnitee (a) as
provided in this Agreement, and (b) to the fullest extent permitted by
applicable law in effect on the date hereof and as amended from time to time
("Applicable Law"). The rights of Indemnitee provided under the preceding
sentence shall include, but shall not be limited to, the rights set forth in
the other Sections.
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Section 3. PROCEEDINGS OTHER THAN PROCEEDINGS BY OR IN THE RIGHT OF
THE COMPANY. Indemnitee shall be entitled to the rights of indemnification
provided in this Section 3 if, by reason of his Corporate Status (as defined
in Section 18), he is, or is threatened to be made, a party to any
threatened, pending, or completed Proceeding (as defined in Section 18),
other than a Proceeding by or in the right of the Company. Pursuant to this
Section 3, Indemnitee shall be indemnified against all Expenses, judgments,
penalties, fines and amounts paid in settlement actually and reasonably
incurred by him or on his behalf in connection with such Proceeding or any
claim, issue or matter therein, if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
Company and, with respect to any criminal Proceeding, had no reasonable cause
to believe his conduct was unlawful.
Section 4. PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. Subject
to the condition set forth in this Section 4, Indemnitee shall be entitled to
the rights of indemnification provided in this Section 4 if, by reason of his
Corporate Status, he is, or is threatened to be made, a party to any
threatened, pending or completed Proceeding brought by or in the right of the
Company to procure a judgment in its favor. Pursuant to this Section 4,
Indemnitee shall be indemnified against all Expenses actually and reasonably
incurred by him or on his behalf in connection with such Proceeding if he
acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the Company; PROVIDED, however, that, if
Applicable Law so provides, no indemnification against such Expenses shall be
made in respect of any claim, issue or matter in such Proceeding as to which
Indemnitee shall have been adjudged to be liable to the Company, unless and
to the extent that the Court of Chancery of the State of Delaware (the
"Chancery Court"), or the court in which such Proceeding shall have been
brought or is pending, shall determine that such indemnification may be made.
Section 5. INDEMNIFICATION FOR EXPENSES OF A PARTY WHO IS WHOLLY OR
PARTLY SUCCESSFUL. Notwithstanding any other provision of this Agreement, to
the extent that Indemnitee is, by reason of his Corporate Status, a party to,
and is wholly successful in resolving, any Proceeding, he shall be
indemnified against all Expenses actually and reasonably incurred by him or
on his behalf in connection therewith. If Indemnitee is not wholly
successful in resolving such Proceeding but is successful as to one or more
but less than all claims, issues or matters in such Proceeding, the Company
shall indemnify Indemnitee against all Expenses actually and reasonably
incurred by him or on his behalf in connection with each successfully
resolved claim, issue or matter. For purposes of this Section 5 and without
limitation, the dismissal (with or without prejudice) of any claim, issue or
matter in a Proceeding shall be deemed to be a wholly successful result as to
such claim, issue or matter.
Section 6. INDEMNIFICATION FOR CERTAIN TAXES. Indemnitee shall be
entitled to indemnification for all federal, state and local income taxes
imposed with respect to any income imputed or credited to Indemnitee with
respect to any costs and/or expenses (including reasonable attorneys' fees
and disbursements) incurred by Indemnitee at the request of the Company and
reimbursed by the Company to such Indemnitee as a reasonable and necessary
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deductible business expense, whether or not the Company is able to
successfully sustain the characterization of such expense in connection with
any tax audit of the Company.
Section 7. INDEMNIFICATION FOR EXPENSES OF A WITNESS.
Notwithstanding any other provision of this Agreement, to the extent that
Indemnitee is, by reason of his Corporate Status, a witness in any Proceeding
to which Indemnitee is not a party, he shall be indemnified against all
Expenses actually and reasonably incurred by him, or on his behalf, in
connection therewith.
Section 8. ADVANCEMENT OF EXPENSES. Notwithstanding any other
provision of this Agreement, the Company shall advance all reasonable
Expenses incurred by or on behalf of Indemnitee in connection with any
Proceeding within ten (10) days after the receipt by the Company of a
statement or statements from Indemnitee requesting such advance or advances,
whether prior to or after final disposition of such Proceeding, unless it has
already been determined that Indemnitee is not entitled to be indemnified
against such Expenses. Such statement or statements shall reasonably
evidence the Expenses incurred by Indemnitee and shall include an undertaking
by, or on behalf of, Indemnitee to repay any Expenses advanced if it shall
ultimately be determined that Indemnitee is not entitled to be indemnified
against such Expenses.
Section 9. PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO
INDEMNIFICATION.
(a) To obtain indemnification under this Agreement, Indemnitee
shall submit to the Company a written request, including 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 Company shall, promptly upon receipt of
such a request for indemnification, advise the Board in writing that
Indemnitee has requested indemnification.
(b) Upon written request by Indemnitee for indemnification
pursuant to Section 9(a), a determination with respect to Indemnitee's
entitlement thereto shall be made by the following person, persons or entity
(the "Decisionmaker") in the following cases: (i) if a Change in Control (as
defined in Section 18) shall have occurred, by Independent Counsel (as
defined in Section 18) in a written opinion to the Board, a copy of which
shall be delivered to Indemnitee upon request; or (ii) if a Change of Control
shall not have occurred, (A) by the Board by a majority vote of all of the
Disinterested Directors (as defined in Section 18), or (B) if there are no
Disinterested Director or if a majority of Disinterested Directors so
directs, by Independent Counsel in a written opinion to the Board, a copy of
which shall be delivered to Indemnitee, upon request; or (C) if so directed
by the Board, by the stockholders of the Company; and, if it is so determined
that Indemnitee is entitled to indemnification, payment to Indemnitee (or on
behalf of Indemnitee) shall be made within ten (10) days after such
determination. Indemnitee shall cooperate with the Decisionmaker, including
providing to the Decisionmaker upon reasonable advance request any
documentation or information which is not
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privileged or otherwise protected from disclosure and which is reasonably
available to Indemnitee and reasonably necessary to such determination. Any
costs or expenses (including attorneys' fees and disbursements) incurred by
Indemnitee in so cooperating with the Decisionmaker shall be borne by the
Company (irrespective of the determination as to Indemnitee's entitlement to
indemnification) and the Company hereby indemnifies and agrees to hold
Indemnitee harmless therefrom.
(c) For purposes of this Section 9, the Independent Counsel shall
be selected by the Board. If, within twenty (20) days after submission by
Indemnitee of a written request for indemnification pursuant to Section 9(a),
no Independent Counsel shall have been selected by the Board, Indemnitee may
petition the Chancery Court or other court of competent jurisdiction for
appointment of an Independent Counsel, and the person so appointed shall act
as Independent Counsel under Section 9(b). The Company shall pay any and all
reasonable fees expenses incurred by Independent Counsel in connection with
acting pursuant to Section 9(b), and the Company shall pay all reasonable
fees and expenses incident to the procedures of this Section 9(c), regardless
of the manner in which such Independent Counsel was selected or appointed.
Upon the due commencement of any judicial proceeding or arbitration pursuant
to Section 11(a)(iii), Independent Counsel shall be discharged and relieved
of any further responsibility in such capacity.
(d) The Company shall not be required to obtain the consent of the
Indemnitee to the settlement of any Proceeding which the Company has
undertaken to defend if the Company assumes full and sole responsibility for
such settlement and the settlement grants the Indemnitee a complete and
unqualified release in respect of the potential liability. The Company shall
not be liable for any amount paid by the Indemnitee in settlement of any
Proceeding that is not defended by the Company, unless the Company has
consented to such settlement, which consent shall not be unreasonably
withheld.
Section 10. PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS.
(a) If a Change of Control shall have occurred, the Decisionmaker
shall presume that Indemnitee is entitled to indemnification under this
Agreement if Indemnitee has submitted a request for indemnification in
accordance with Section 9(a), and the Company shall have the burden of proof
to overcome that presumption in connection with any determination by the
Decisionmaker contrary to that presumption.
(b) If the Decisionmaker shall not have made a determination
within sixty (60) days after receipt by the Company of the request therefor,
the requisite determination of entitlement shall be deemed to have been made
and the Indemnitee shall be entitled to such indemnification, absent (i) a
misstatement by Indemnitee of a material fact, or an omission of a material
fact necessary to make Indemnitee's statement not materially misleading, in
connection with the request for indemnification, or (ii) a prohibition of
such indemnification
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under Applicable Law; provided, however, that the sixty (60) day period may
be extended for up to an additional thirty (30) days (a total of ninety (90)
days) if the Decisionmaker in good faith requires such additional time in
rendering his/its decision; and provided further that the foregoing
provisions of this Section 10(b) shall not apply if (i) the determination of
entitlement to indemnification is to be made by the stockholders and if (A)
within fifteen (15) days after receipt by the Company of the request for
indemnification, the Board has resolved to submit such determination to the
stockholders for their consideration at an annual meeting of stockholders to
be held within seventy-five (75) days thereafter or (B) a special meeting of
stockholders is called within fifteen days (15) after such receipt for the
purpose of making such determination, such meeting is held within sixty (60)
days after being called and such determination is made at such meeting or
(ii) if the determination of entitlement to indemnification is to made by
Independent Counsel pursuant to Section 9(b).
(c) The termination of any Proceeding or of any claim, issue or
matter therein, by judgment, order, settlement or conviction, or upon a plea
of NOLO CONTENDERE or its equivalent, shall not (except as otherwise
expressly provided in this Agreement) of itself adversely affect the right of
Indemnitee to indemnification or create a presumption that Indemnitee did not
act in good faith and in a manner which he reasonably believed to be in, or
not opposed to, the best interests of the Company or, with respect to any
criminal Proceeding, that Indemnitee had reasonable cause to believe that his
conduct was unlawful.
(d) Indemnitee shall be deemed to have acted in good faith if
Indemnitee's action is based on the records or books of account of the
Company, including financial statements, or on information supplied to
Indemnitee by the officers of the Company in the course of their duties, or
on the advice of legal counsel for the Company or on information or records
given or reports made to the Company by an independent certified public
accountant, an appraiser or other expert selected with reasonable care by the
Company. The provisions of this Section 10(d) shall not be deemed to be
exclusive or to limit in any way the circumstances in which the Indemnitee
may be deemed to have met the applicable standard of conduct set forth in
this Agreement.
Section 11. REMEDIES OF INDEMNITEE.
(a) In the event that (i) a determination is made pursuant to
Section 9 that Indemnitee is not entitled to indemnification hereunder, (ii)
advancement of Expenses is not timely made pursuant to Section 8, (iii) no
determination of entitlement to indemnification shall have been made pursuant
to Section 9(b) within ninety days after receipt by the Company of the
request for indemnification, (iv) payment of indemnification is not made
pursuant to Sections 5 or 7 or the last sentence of Section 9(b) within ten
(10) days after receipt by the Company of a written request therefor, or (v)
payment of indemnification pursuant to Sections 3 or 4 is not made within ten
(10) days after a determination has been made that Indemnitee is entitled to
indemnification, Indemnitee shall be entitled to an adjudication by the
Chancery Court of his
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entitlement to such indemnification or advancement of Expenses.
Alternatively, Indemnitee, at his option, may seek an award in arbitration to
be conducted by a single arbitrator pursuant to the Commercial Arbitration
Rules of the American Arbitration Association. Indemnitee shall commence
such proceeding seeking an adjudication or an award in arbitration within
ninety (90) days following the date on which Indemnitee first has the right
to commence such proceeding pursuant to this Section 11(a); provided,
however, that the foregoing clause shall not apply in respect of a proceeding
brought by Indemnitee to enforce his rights under Section 5.
(b) In the event that a determination shall have been made
pursuant to Section 9(b) that Indemnitee is not entitled to indemnification,
any judicial proceeding or arbitration commenced pursuant to this Section 11
shall be conducted in all respects as a DE NOVO trial, or arbitration, on the
merits, and Indemnitee shall not be prejudiced by reason of that adverse
determination.
(c) If a determination shall have been made pursuant to Section
9(b) that Indemnitee is entitled to indemnification, the Company shall be
bound by such determination in any judicial proceeding or arbitration
commenced pursuant to this Section 11, absent (i) a misstatement by
Indemnitee of a material fact, or an omission of a material fact necessary to
make Indemnitee's statement not materially misleading, in connection with the
request for indemnification, or (ii) a prohibition of such indemnification
under Applicable Law.
(d) In the event that Indemnitee, pursuant to this Section 11,
seeks a judicial adjudication of or an award in arbitration to enforce his
rights under, or to recover damages for breach of, this Agreement, Indemnitee
shall be entitled to recover from the Company, and shall be indemnified by
the Company against, any and all expenses (of the types described in the
definition of Expenses in Section 18) actually and reasonably incurred by him
in such judicial adjudication or arbitration, but only if he prevails
therein. If it shall be determined in said judicial adjudication or
arbitration that Indemnitee is entitled to receive part but not all of the
indemnification or advancement of Expenses sought, the expenses incurred by
Indemnitee in connection with such judicial adjudication or arbitration shall
be appropriately prorated.
Section 12. NON-EXCLUSIVITY; SURVIVAL OF RIGHTS; INSURANCE; SUBROGATION.
(a) The rights of indemnification and to receive advancement of
Expenses as provided by this Agreement shall not be deemed exclusive of any
other rights to which Indemnitee may at any time be entitled under Applicable
Law, the Certificate, any agreement, a vote of stockholders, a resolution of the
Board or otherwise. No amendment, alteration or repeal of this Agreement or of
any provision hereof shall limit or restrict any right of Indemnitee under this
Agreement in respect of any action taken or omitted by such Indemnitee in his
Corporate Status prior to such amendment, alteration or repeal. To the extent
that a change in the General Corporation Law of the State of Delaware, whether
by statute or caselaw, permits greater indemnification or advancement of
Expenses than would be permitted currently under
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the Company's Certificate or this Agreement, it is the intent of the parties
hereto that Indemnitee shall enjoy by this Agreement the greater benefits so
afforded. No right or remedy herein conferred is intended to be exclusive of
any other right or remedy, and every other right and remedy shall be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity. The assertion or employment
of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other right or remedy.
(b) To the extent that the Company maintains an insurance policy or
policies providing liability insurance for directors and/or officers of the
Company or of any other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise which such person serves at the request of the
Company ("Other Entity"), Indemnitee shall be covered by such policy or policies
in accordance with its or their terms to the maximum extent of the coverage
maintained for any such director/officer under such policy or policies.
(c) In the event of any payment under this Agreement, the Company
shall be subrogated to the extent of such payment to all of the rights of
recovery of Indemnitee, who shall execute all papers required and take all
action necessary to secure such rights, including execution of such documents as
are necessary to enable the Company to bring suit to enforce such rights.
(d) The Company shall not be liable under this Agreement to make any
payment of amounts otherwise indemnifiable hereunder if and to the extent that
Indemnitee has otherwise actually received such payment under any insurance
policy, contract, agreement or otherwise.
(e) The Company's obligation to indemnify or advance Expenses
hereunder to Indemnitee who is or was serving at the request of the Company as a
director, officer, employee or agent of any Other Entity shall be reduced by any
amount the Indemnitee actually receives as indemnification or advancement of
Expenses from such Other Entity.
Section 13. DURATION OF AGREEMENT. This Agreement shall continue until
and terminate upon the later of: (a) ten (10) years after the date that
Indemnitee shall have ceased to serve as a director, officer, employee, or agent
of the Company or of any Other Entity which Indemnitee served at the request of
the Company; or (b) the final termination of any Proceeding then pending in
respect of which Indemnitee is granted rights of indemnification or advancement
of expenses hereunder and of any arbitration commenced by Indemnitee pursuant to
Section 11 relating thereto. This Agreement shall be binding upon the Company
and its successors and assigns and shall inure to the benefit of Indemnitee and
his heirs, executors and administrators.
Section 14. SEVERABILITY. If any provision or provisions of this
Agreement shall be held to be invalid, illegal or unenforceable: (a) the
validity, legality and enforceability of the
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remaining provisions of this Agreement (including each portion of any Section
containing any such provision held to be invalid, illegal or unenforceable,
that is not itself invalid, illegal or unenforceable) shall not in any way be
affected or impaired thereby; and (b) to the fullest extent possible, the
provisions of this Agreement (including each portion of any Section
containing any such provision held to be invalid, illegal or unenforceable,
that is not itself invalid, illegal or unenforceable) shall be construed so
as to give effect to the intent manifested thereby.
Section 15. EXCEPTION TO RIGHT OF INDEMNIFICATION OR ADVANCEMENT OF
EXPENSES. Notwithstanding any other provision of this Agreement, but subject to
Section 11(d), Indemnitee shall not be entitled to indemnification or
advancement of Expenses under this Agreement with respect to any Proceeding
brought by Indemnitee, or any claim therein, unless such Proceeding or such
claim shall have been approved by the Board.
Section 16. IDENTICAL COUNTERPARTS. This Agreement may be executed
in one or more counterparts, each of which shall for all purposes be deemed
to be an original but all of which together shall constitute one and the same
Agreement.
Section 17. HEADINGS. The headings here are inserted for convenience
only and shall not be deemed to affect the construction thereof.
Section 18. DEFINITIONS. For purposes of this Agreement:
(a) "Change in Control" means a "change in control" as defined in
that certain Indenture, dated as of February 7, 1997, by and between the
Company and United States Trust Company of New York, as trustee, whether or
not such Indenture is in effect at the time of the Change of Control.
(b) "Corporate Status" means the status of a person who is or was
a director or officer of the Company or of any Other Entity to the extent
such person is or was serving in such position at the request of the Company.
(c) "Disinterested Director" means a director of the Company who
is not and was not a party to the Proceeding in respect of which
indemnification is sought by Indemnitee.
(d) "Expenses" shall include 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 prosecuting,
defending, preparing to prosecute or defend, investigating, or being or
preparing to be a witness in a Proceeding.
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(e) "Independent Counsel" means a law firm, or a member of a law
firm, that is experienced in matters of corporation law and neither presently
is, nor in the past five years has been, retained to represent: (i) the Company
or Indemnitee, (ii) any other party to the Proceeding giving rise to a claim for
indemnification hereunder or (iii) any other person who, under the applicable
standards of professional conduct then prevailing, would have a conflict of
interest in representing either the Company or Indemnitee in an action to
determine Indemnitee's rights under this Agreement.
(f) "Proceeding" includes any action, suit, arbitration, alternate
dispute resolution mechanism, investigation, administrative hearing or any other
proceeding, whether civil, criminal, administrative or investigative, except one
initiated by an Indemnitee pursuant to Section 11 to enforce his rights under
this Agreement.
(g) "Section" means a section of this Agreement, unless clearly
indicated otherwise.
Section 19. MODIFICATION AND WAIVER. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by both
of the parties hereto. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provisions hereof
(whether or not similar) nor shall such waiver constitute a continuing waiver.
Section 20. NOTICE BY INDEMNITEE. Indemnitee agrees promptly to notify
the Company in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any Proceeding
or matter which may be subject to indemnification or advancement of Expenses
covered hereunder. The failure of Indemnitee to so notify the Company shall not
relieve the Company of any obligation which it may have to the Indemnitee
hereunder or otherwise, except to the extent the Company is materially
prejudiced by such failure.
Section 21. NOTICES. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if (i) delivered by hand and receipted for by the party to whom said
notice or other communication shall have been directed, or (ii) mailed by
certified or registered mail with postage prepaid, on the third business day
after the date on which it is so mailed or (iii) received by reputable overnight
delivery/courier service on the second day after the date on which it is
delivered to the delivery/courier service:
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(a) If to Indemnitee, to:
_________________________
_________________________
_________________________
_________________________
(b) If to the Company to:
Renaissance Cosmetics, Inc.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
with a copy to:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇▇▇ Hyatt ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
or to such other address as may have been furnished to Indemnitee by the Company
or to the Company by Indemnitee, as the case may be.
Section 22. GOVERNING LAW. The parties agree that this Agreement shall
be governed by, and construed and enforced in accordance with, the laws of the
State of Delaware, without regard to its conflicts of laws rules. Except with
respect to arbitration commenced by the Indemnitee pursuant to Section 11(a),
the Company and Indemnitee hereby irrevocably and unconditionally (i) agree that
any action brought or proceeding arising out of or in connection with this
Agreement shall be brought only in the Chancery Court and not in any other
federal or state court, (ii) consent to submit to the exclusive jurisdiction of
the Chancery Court for purposes of any action or proceeding arising out of or in
connection with this Agreement, (iii) appoint, to the extent such party is not a
resident of the State of Delaware, irrevocably RL&F Service Corp., One ▇▇▇▇▇▇
Square, 10th Floor, 10th and ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as such
party's agent in the State of Delaware for acceptance of service of process in
connection with any such action or proceeding against such party with the same
legal force and effect as if served upon such party personally within the State
of Delaware, (iv) waive any objection to the laying of venue of any such action
or proceeding in the Chancery Court and (v) waive, and agree not to plead or to
make, any claim that any such action or proceeding brought
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in the Chancery Court has been brought in an improper or otherwise
inconvenient forum.
SECTION 23. CONTRIBUTION. To the fullest extent permissible under
Applicable Law, if the indemnification provided for in this Agreement is
unavailable for any reason, the Company, in lieu of indemnifying Indemnitee,
shall contribute to the amount incurred by Indemnitee, whether for judgment,
fines, penalties, excise taxes, amounts paid or to be paid in settlement
and/or Expenses, in connection with any claim relating to an indemnifiable
event under this Agreement, in such proportion as is deemed fair and
reasonable in light of all of the circumstances of such Proceeding in order
to reflect (i) the relative benefits received by the Company and Indemnitee
as a result of the event(s) and/or transaction(s) giving rise to such
Proceeding, and/or (ii) the relative fault of the Company (and its directors,
officers, employees and agents) and Indemnitee in connection with such
event(s) and/or transaction(s).
Section 24. MISCELLANEOUS. Use of the masculine pronoun shall be
deemed to include the feminine pronoun, where appropriate.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
COMPANY
RENAISSANCE COSMETICS, INC.
By:
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Name:
--------------------------
Title:
--------------------------
[INSERT INDEMNITEE NAME]
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Address: Renaissance Cosmetics, Inc.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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