Exhibit 10.23
INDEMNIFICATION AGREEMENT
This Agreement is made and entered into this 5th day of February, 2004
(the "Agreement"), by and between The First Years Inc., a Massachusetts
corporation (the "Company," which term shall include, where appropriate, any
Entity (as hereinafter defined) controlled directly or indirectly by the
Company) and ____________ ("Indemnitee").
WHEREAS, it is essential to the Company that it be able to retain and
attract as directors the most capable persons available;
WHEREAS, the substantial increase in corporate litigation has subjected
directors to expensive litigation risks and expenses, and the limitations on the
availability of directors and officers liability insurance have made it
increasingly difficult for the Company to attract and retain such persons;
WHEREAS, the By-laws of the Company require the Company to indemnify and
advance expenses to its directors, and permit it to make other indemnification
arrangements and agreements; and
WHEREAS, Indemnitee is relying upon the rights afforded under this
Agreement in continuing as a director of the Company.
NOW, THEREFORE, in consideration of the promises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:
1. Definitions.
(a) "Corporate Status" describes the status of a person who is
serving or has served (i) as a director of the Company, (ii) in any
capacity with respect to any employee benefit plan at the request of the
Company, or (iii) as a director, officer, employee, or agent of any other
Entity at the request of the Company. For purposes of subsection (iii) of
this Section 1(a), if Indemnitee is serving or has served as a director,
officer, employee or agent of a Subsidiary, Indemnitee shall be deemed to
be serving at the request of the Company.
(b) "Entity" shall mean any corporation, partnership, limited
liability company, joint venture, trust, foundation, association,
organization or other legal entity.
(c) "Expenses" shall mean all fees, costs and expenses incurred by
Indemnitee in connection with any Proceeding (as defined below),
including, without limitation, attorneys' fees, disbursements and
retainers (including, without limitation, any such fees, disbursements and
retainers incurred by Indemnitee pursuant to Sections 10 and 11(c) of this
Agreement), 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.
(d) "Indemnifiable Expenses," "Indemnifiable Liabilities" and
"Indemnifiable Amounts" shall have the meanings ascribed to those terms in
Section 3(a) below.
(e) "Liabilities" shall mean judgments, damages, liabilities,
losses, penalties, excise taxes, fines and amounts paid in settlement.
(f) "Proceeding" shall mean any threatened, pending or completed
claim, action, suit, arbitration, alternate dispute resolution process,
investigation, administrative hearing, appeal, or any other proceeding,
whether civil, criminal, administrative, arbitrative or investigative,
whether formal or informal, including a proceeding initiated by Indemnitee
pursuant to Section 10 of this Agreement to enforce Indemnitee's rights
hereunder.
(g) "Subsidiary" shall mean any corporation, partnership, limited
liability company, joint venture, trust or other Entity of which the
Company owns (either directly or through or together with another
Subsidiary of the Company) either (i) a general partner, managing member
or other similar interest or (ii) (A) 50% or more of the voting power of
the voting capital equity interests of such corporation, partnership,
limited liability company, joint venture or other Entity, or (B) 50% or
more of the outstanding voting capital stock or other voting equity
interests of such corporation, partnership, limited liability company,
joint venture or other Entity.
2. Services of Indemnitee. In consideration of the Company's covenants and
commitments hereunder, Indemnitee agrees to serve or continue to serve as a
director of the Company. However, this Agreement shall not impose any obligation
on Indemnitee or the Company to continue Indemnitee's service to the Company
beyond any period otherwise required by law or by other agreements or
commitments of the parties, if any.
3. Agreement to Indemnify. The Company agrees to indemnify Indemnitee as
follows:
(a) Proceedings Other Than By or In the Right of the Company.
Subject to the exceptions contained in Section 4(a) 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 Company) by reason of
Indemnitee's Corporate Status, Indemnitee shall be indemnified by the
Company 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").
(b) Proceedings By or In the Right of the Company. Subject to the
exceptions contained in Section 4(b) 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 Company by reason of Indemnitee's Corporate Status,
Indemnitee shall be indemnified by the Company against all Indemnifiable
Expenses.
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(c) Conclusive Presumption Regarding Standard of Care. In making any
determination required to be made under Massachusetts law with respect to
entitlement to indemnification hereunder, the person, persons or Entity
making such determination shall presume that Indemnitee is entitled to
indemnification under this Agreement if Indemnitee submitted a request
therefor in accordance with Section 5 of this Agreement, and the Company
shall have the burden of proof to overcome that presumption in connection
with the making by any person, persons or Entity of any determination
contrary to that presumption.
4. Exceptions to Indemnification. Indemnitee shall be entitled to
indemnification under Sections 3(a) and 3(b) above in all circumstances other
than with respect to any specific claim, issue or matter involved in the
Proceeding out of which Indemnitee's claim for indemnification has arisen, as
follows:
(a) Proceedings Other Than By or In the Right of the Company. If
indemnification is requested under Section 3(a) and it has been finally
adjudicated by a court of competent jurisdiction in the Commonwealth of
Massachusetts that, with respect to such specific claim, issue or matter,
Indemnitee (i) did not act in good faith in the reasonable belief that his
or her action was in the best interest of the Company, or such other
Entity, (ii) did not act, to the extent such matter related to service
with respect to an employee benefit plan, in the best interests of the
participants or beneficiaries of such employee benefit plan, or (iii) with
respect to any criminal Proceeding, had no reasonable cause to believe
that his or her conduct was lawful, Indemnitee shall not be entitled to
payment of Indemnifiable Amounts hereunder.
(b) Proceedings By or In the Right of the Company. If
indemnification is requested under Section 3(b) and
(i) it has been finally adjudicated by a court of competent
jurisdiction in the Commonwealth of Massachusetts that, with respect
to such specific claim, issue or matter, Indemnitee did not act (A)
in good faith in the reasonable belief that his or her action was in
the best interest of the Company, or such other Entity, or (B), to
the extent such matter related to service with respect to an
employee benefit plan, in the best interests of the participants or
beneficiaries of such employee benefit plan, Indemnitee shall not be
entitled to payment of Indemnifiable Expenses hereunder; or
(ii) it has been finally adjudicated by a court of competent
jurisdiction in the Commonwealth of Massachusetts that Indemnitee is
liable to the Company with respect to such specific claim,
Indemnitee shall not be entitled to payment of Indemnifiable
Expenses hereunder with respect to such claim, issue or matter,
unless a court of competent jurisdiction in the Commonwealth of
Massachusetts shall determine upon application that, despite the
adjudication of liability, but in view of all the circumstances of
the case, Indemnitee is fairly and reasonably entitled to
indemnification for such Indemnifiable Expenses which such court
shall deem proper; or
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(iii) it has been finally adjudicated by a court of competent
jurisdiction in the Commonwealth of Massachusetts that Indemnitee is
liable to the Company for an accounting of profits made from the
purchase or sale by the Indemnitee of securities of the Company
pursuant to the provisions of Section 16(b) of the Securities
Exchange Act of 1934, the rules and regulations promulgated
thereunder and amendments thereto or similar provisions of any
federal, state or local statutory law, Indemnitee shall not be
entitled to payment of Indemnifiable Expenses hereunder.
(c) Determination of Good Faith. For purposes of determining "good
faith" hereunder, the Indemnitee shall be deemed to have acted in good
faith if Indemnitee's conduct was based primarily on (i) the records or
books of account of the Company or relevant Entity, including financial
statements, (ii) information supplied to Indemnitee by the officers of the
Company or relevant Entity in the course of their duties, (iii) the advice
of legal counsel for the Company or relevant Entity, or (iv) information
or records given or reports made to the Company or relevant Entity by an
independent certified public accountant, by an appraiser or other expert
selected with reasonable care by the Company or relevant Entity. The
provisions of this clause shall not be deemed to be exclusive or to limit
in any way the other circumstances in which Indemnitee may be deemed to
have acted in good faith.
(d) Insurance Proceeds. To the extent payment is actually made to
the Indemnitee under a valid and collectible insurance policy in respect
of Indemnifiable Amounts in connection with such specific claim, issue or
matter, Indemnitee shall not be entitled to payment of Indemnifiable
Amounts hereunder except in respect of any excess beyond the amount of
payment under such insurance.
5. Procedure for Payment of Indemnifiable Amounts. Indemnitee shall submit
to the Company a written request specifying the Indemnifiable Amounts for which
Indemnitee seeks payment under Section 3 of this Agreement and the basis for the
claim. The Company shall pay such Indemnifiable Amounts to Indemnitee promptly,
and in any event within sixty (60) calendar days of receipt of the request. At
the request of the Company, Indemnitee shall furnish such documentation and
information as are reasonably available to Indemnitee and necessary to establish
that Indemnitee is entitled to indemnification hereunder.
6. Indemnification for Expenses of a Party Who is Wholly or Partly
Successful. Notwithstanding any other provision of this Agreement, and without
limiting any such provision, to the extent that Indemnitee is, by reason of
Indemnitee's Corporate Status, a party to and is successful, on the merits or
otherwise, in any Proceeding, Indemnitee shall be indemnified against all
Expenses reasonably incurred by Indemnitee or on Indemnitee's behalf in
connection therewith. If Indemnitee is not wholly successful in such Proceeding
but is successful, on the merits or otherwise, as to one or more but less than
all claims, issues or matters in such Proceeding, the Company shall indemnify
Indemnitee against all Expenses reasonably incurred by Indemnitee or on
Indemnitee's behalf in connection with each successfully resolved claim, issue
or matter. For purposes of this Agreement, the termination of any claim, issue
or matter in such a Proceeding by dismissal, with or without prejudice, by
reason of settlement, judgment, order or otherwise, shall be deemed to be a
successful result as to such claim, issue or matter.
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7. Effect of Certain Resolutions. Neither the settlement or termination of
any Proceeding nor the failure of the Company to award indemnification or to
determine that indemnification is payable shall create a presumption that
Indemnitee is not entitled to indemnification hereunder. In addition, the
termination of any proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent shall not create a presumption
that Indemnitee did not act in good faith in the reasonable belief that his or
her action was in the best interests of the Company or, to the extent that such
matter relates to service with respect to an employee benefit plan, in the best
interests of the participants or beneficiaries of such employee benefit plan,
and in a manner which Indemnitee reasonably believed to be in or not opposed to
the best interests of the Company or, with respect to any criminal Proceeding,
had reasonable cause to believe that Indemnitee's conduct was unlawful.
8. Agreement to Advance Expenses; Undertaking. The Company shall advance
all Expenses incurred by or on behalf of Indemnitee in connection with any
Proceeding, including a Proceeding by or in the right of the Company, in which
Indemnitee is involved by reason of such Indemnitee's Corporate Status, whether
prior to or after final disposition of such Proceeding. To the extent required
by Massachusetts law, Indemnitee hereby undertakes to repay any and all of the
amount of Indemnifiable Expenses paid to Indemnitee if it is finally determined
by a court of competent jurisdiction in the Commonwealth of Massachusetts that
Indemnitee is not entitled under this Agreement to indemnification with respect
to such Expenses. This undertaking is an unlimited general obligation of
Indemnitee.
9. Procedure for Advance Payment of Expenses. Indemnitee shall submit to
the Company a written request specifying the Indemnifiable Expenses for which
Indemnitee seeks an advancement under Section 8 of this Agreement, together with
documentation evidencing that Indemnitee has incurred such Indemnifiable
Expenses. Payment of Indemnifiable Expenses under Section 8 shall be made no
later than thirty (30) calendar days after the Company's receipt of such
request.
10. Remedies of Indemnitee.
(a) Right to Petition Court. In the event that Indemnitee makes a
request for payment of Indemnifiable Amounts under Sections 3 and 5 above
or a request for an advancement of Indemnifiable Expenses under Sections 8
and 9 above and the Company fails to make such payment or advancement in a
timely manner pursuant to the terms of this Agreement, Indemnitee may
petition any court of competent jurisdiction in the Commonwealth of
Massachusetts to enforce the Company's obligations under this Agreement.
(b) Burden of Proof. In any judicial proceeding brought under
Section 10(a) above, the Company shall have the burden of proving that
Indemnitee is not entitled to payment of Indemnifiable Amounts hereunder.
(c) Expenses. The Company agrees to reimburse Indemnitee in full for
any Expenses incurred by Indemnitee in connection with investigating,
preparing for, litigating, defending or settling any action brought by
Indemnitee under Section 10(a) above, or in connection with any claim or
counterclaim brought by the Company in
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connection therewith, whether or not Indemnitee is successful in whole or
in part in connection with any such action.
(d) Failure to Act Not a Defense. The failure of the Company
(including its Board of Directors or any committee thereof, independent
legal counsel, or stockholders) to make a determination concerning the
permissibility of the payment of Indemnifiable Amounts or the advancement
of Indemnifiable Expenses under this Agreement shall not be a defense in
any action brought under Section 10(a) above, and shall not create a
presumption that such payment or advancement is not permissible.
11. Defense of the Underlying Proceeding.
(a) Notice by Indemnitee. Indemnitee agrees to notify the Company
promptly 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; provided, however, that
the failure to give any such notice shall not disqualify Indemnitee from
the right, or otherwise affect in any manner any right of Indemnitee, to
receive payments of Indemnifiable Amounts or advancements of Indemnifiable
Expenses unless the Company's ability to defend in such Proceeding is
materially and adversely prejudiced thereby.
(b) Defense by Company. Subject to the provisions of the last
sentence of this Section 11(b) and of Section 11(c) below, the Company
shall have the right to defend Indemnitee in any Proceeding which may give
rise to the payment of Indemnifiable Amounts hereunder with counsel chosen
by the Company with the consent of the Indemnitee (which consent shall not
be unreasonably withheld); provided, however that the Company shall notify
Indemnitee of any such decision to defend within ten (10) calendar days of
receipt of notice of any such Proceeding under Section 11(a) above. The
Company shall not, without the prior written consent of Indemnitee,
consent to the entry of any judgment against Indemnitee or enter into any
settlement or compromise which (i) includes an admission of fault of
Indemnitee or (ii) does not include, as an unconditional term thereof, the
full release of Indemnitee from all liability in respect of such
Proceeding, which release shall be in form and substance reasonably
satisfactory to Indemnitee. This Section 11(b) shall not apply to a
Proceeding brought by Indemnitee under Section 10(a) above or pursuant to
Section 19 below.
(c) Indemnitee's Right to Counsel. Notwithstanding the provisions of
Section 11(b) above, if in a Proceeding to which Indemnitee is a party by
reason of Indemnitee's Corporate Status, (i) Indemnitee reasonably
concludes that he or she 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, (ii) a conflict of
interest or potential conflict of interest exists between Indemnitee and
the Company, or (iii) if the Company fails to assume the defense of such
Proceeding in a timely manner, Indemnitee shall be entitled to be
represented by separate legal counsel of Indemnitee's choice at the
expense of the Company. In addition, if the Company fails to comply with
any of its obligations under this Agreement or in the event that the
Company or any other person takes any action to declare this Agreement
void or unenforceable, or institutes any
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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 Company, to represent Indemnitee in connection with any such matter.
12. Representations and Warranties of the Company. The Company hereby
represents and warrants to Indemnitee as follows:
(a) Authority. The Company has all necessary power and authority to
enter into, and be bound by the terms of, this Agreement, and the
execution, delivery and performance of the undertakings contemplated by
this Agreement have been duly authorized by the Company.
(b) Enforceability. This Agreement, when executed and delivered by
the Company in accordance with the provisions hereof, shall be a legal,
valid and binding obligation of the Company, enforceable against the
Company and its successors in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
moratorium, reorganization or similar laws affecting the enforcement of
creditors' rights generally.
13. Insurance. Nothing contained in this Agreement shall be deemed to
prohibit the Company from purchasing and maintaining insurance, at its expense,
to protect itself or the Indemnitee against any expense, liability or loss
incurred by it or the Indemnitee in any such capacity, or arising out of the
Indemnitee's Corporate Status as such, whether or not the Indemnitee would be
indemnifiable against such expense, liability or loss under this Agreement;
provided that the Company shall not be liable under this Agreement to make any
payment of amounts otherwise identifiable hereunder if and to the extent that
the Indemnitee has otherwise actually received such payment under any insurance
policy, contract, agreement or otherwise.
14. Contract Rights Not Exclusive. The rights to payment of Indemnifiable
Amounts and advancement of Indemnifiable Expenses provided by this Agreement
shall be in addition to, but not exclusive of, any other rights which Indemnitee
may have at any time under applicable law, the Company's Restated Articles of
Organization or By-laws, or any other agreement, vote of stockholders or
directors (or a committee of directors), or otherwise, both as to action in
Indemnitee's official capacity and as to action in any other capacity as a
result of Indemnitee's Corporate Status.
15. Successors. This Agreement shall be (a) binding upon all successors
and assigns of the Company (including any transferee of all or a substantial
portion of the business, stock and/or assets of the Company and any direct or
indirect successor by merger or consolidation or otherwise by operation of law)
and (b) binding on and shall inure to the benefit of the heirs, personal
representatives, executors and administrators of Indemnitee. This Agreement
shall continue for the benefit of Indemnitee and such heirs, personal
representatives, executors and administrators after Indemnitee has ceased to
have Corporate Status.
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16. Subrogation. In the event of any payment of Indemnifiable Amounts
under this Agreement, the Company shall be subrogated to the extent of such
payment to all of the rights of contribution or recovery of Indemnitee against
other persons, and Indemnitee shall take, at the request of the Company, all
reasonable action necessary to secure such rights, including the execution of
such documents as are necessary to enable the Company to bring suit to enforce
such rights.
17. Change in Law. To the extent that a change in Massachusetts law
(whether by statute or judicial decision) shall permit broader indemnification
or advancement of expenses than is provided under the terms of the By-laws and
this Agreement, Indemnitee shall be entitled to such broader indemnification and
advancements, and this Agreement shall be deemed to be amended to such extent.
18. Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Agreement, or any clause thereof,
shall be determined by a court of competent jurisdiction to be illegal, invalid
or unenforceable, in whole or in part, such provision or clause shall be limited
or modified in its application to the minimum extent necessary to make such
provision or clause valid, legal and enforceable, and the remaining provisions
and clauses of this Agreement shall remain fully enforceable and binding on the
parties.
19. Indemnitee as Plaintiff. Except as provided in Sections 10(a) and (c)
of this Agreement and in the next sentence, Indemnitee shall not be entitled to
payment of Indemnifiable Amounts or advancement of Indemnifiable Expenses with
respect to any Proceeding brought by Indemnitee against the Company, any Entity
which it controls, any director or officer thereof, or any third party, unless
the Board of Directors of the Company has consented to the initiation of such
Proceeding. This Section shall not apply to counterclaims or affirmative
defenses asserted by Indemnitee in an action brought against Indemnitee.
20. Modifications and Waiver. Except as provided in Section 17 above with
respect to changes in Massachusetts law which broaden the right of Indemnitee to
be indemnified by the Company, no supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by each 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 of this Agreement (whether or
not similar), nor shall such waiver constitute a continuing waiver.
21. General Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given (a) when delivered by hand, (b) when transmitted by facsimile and
receipt is acknowledged, or (c) if mailed by certified or registered mail with
postage prepaid, on the third business day after the date on which it is so
mailed:
(i) If to Indemnitee, to:
______________________
______________________
______________________
______________________
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(ii) If to the Company, to:
The First Years Inc.
One Kiddie Drive
Avon, Massachusetts 02322
or to such other address as may have been furnished in the same manner by any
party to the other.
22. Governing Law; Consent to Jurisdiction; Service of Process. This
Agreement shall be governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts without regard to its rules of conflict of laws.
Each of the Company and the Indemnitee hereby irrevocably and unconditionally
consents to submit to the exclusive jurisdiction of any court of competent
jurisdiction in the Commonwealth of Massachusetts (the "Massachusetts Courts")
for any litigation arising out of or relating to this Agreement and the
transactions contemplated hereby (and agrees not to commence any litigation
relating thereto except in such courts), waives any objection to the laying of
venue of any such litigation in the Massachusetts Courts and agrees not to plead
or claim in any Massachusetts Court that such litigation brought therein has
been brought in an inconvenient forum. Each of the parties hereto agrees, (a) to
the extent such party is not otherwise subject to service of process in the
Commonwealth of Massachusetts, to appoint and maintain an agent in the
Commonwealth of Massachusetts as such party's agent for acceptance of legal
process, and (b) that service of process may also be made on such party by
prepaid certified mail with a proof of mailing receipt validated by the United
States Postal Service constituting evidence of valid service. Service made
pursuant to (a) or (b) above shall have the same legal force and effect as if
served upon such party personally within the Commonwealth of Massachusetts. For
purposes of implementing the parties' agreement to appoint and maintain an agent
for service of process in the Commonwealth of Massachusetts, each such party
does hereby appoint CT Corporation, 101 Federal Street, Boston, Massachusetts,
02110, as such agent and each such party hereby agrees to complete all actions
necessary for such appointment.
[Signature Page Follows Next]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
THE FIRST YEARS INC.
By:
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INDEMNITEE
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