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Exhibit 99.3
Form of Indemnification Agreement
THE YANKEE CANDLE COMPANY, INC.
INDEMNIFICATION
AGREEMENT
This
Agreement is made as of June 2, 2005, by and between The Yankee
Candle Company, Inc., a Massachusetts
corporation (the "Corporation"), and
___________________ ("Indemnitee"), a
director or officer of the Corporation.
WHEREAS,
it is essential to the Corporation to retain and attract as
directors and officers the most capable
persons available, and
WHEREAS,
the threat of corporate litigation subjects directors and
officers to expensive litigation risks
while directors' and officers' liability
insurance has become more expensive and
limited in coverage, and
WHEREAS,
it is the express policy of the Corporation to indemnify its
directors and officers so as to provide
them with the maximum possible
protection permitted by law, and
WHEREAS,
Indemnitee does not regard the protection available under the
Corporation's Articles of Organization and
insurance as adequate in the present
circumstances, and may not be willing to
serve or continue to serve as a
director or officer of the Corporation
without adequate protection, and
WHEREAS,
the Corporation desires Indemnitee to serve, or continue to
serve, as a director or officer of the
Corporation.
NOW
THEREFORE, the Corporation and Indemnitee do hereby agree as
follows:
1.
Agreement to Serve. Indemnitee agrees to serve or continue to serve
as
a director or officer of the Corporation
for so long as Indemnitee is duly
elected or appointed or until such time as
Indemnitee tenders his or her
resignation in writing.
2.
Definitions. As used in this Agreement:
(a) The term "Corporate Status" shall mean the status of a
person
who is or was a director or officer of the
Corporation or who, while a director
or officer of the Corporation, is or was
serving at the Corporation's request as
a director, officer, partner, trustee,
employee or agent of another corporation,
partnership, joint venture, trust, employee
benefit plan or other entity. A
director or officer is considered to be
serving an employee benefit plan at the
Corporation's request if his or her duties
to the Corporation also impose duties
on, or otherwise involve services by, him
or her to the plan or to participants
in or beneficiaries of the plan.
(b) The term "Disinterested Director" shall mean a director of
the
Corporation who, at the time of a vote
referred to in Paragraph 8 of this
Agreement, is not (i) a party to the
Proceeding, or (ii) an individual having a
familial, financial, professional or
employment relationship with Indemnitee,
which relationship would, in the
circumstances, reasonably be expected to exert
an influence on the director's judgment
when voting on the decision being made.
(c) The term "Expenses" shall include, without limitation,
attorneys' fees, retainers, court costs,
transcript costs, fees and expenses of
experts, travel expenses, duplicating
costs, printing and binding costs,
telephone and telecopy charges, postage,
delivery service fees and other
disbursements or
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expenses of the type customarily incurred
in connection with a Proceeding, but
shall not include the amount of judgments,
fines or penalties against Indemnitee
or amounts paid in settlement in connection
with such matters.
(d) The term "Liability" shall mean the obligation to pay a
judgment, settlement, penalty, fine
(including an excise tax assessed with
respect to an employee benefit plan) or
reasonable Expenses incurred with
respect to a Proceeding.
(e) The term "Proceeding" shall mean any threatened, pending or
completed action, suit or proceeding,
whether civil, criminal, administrative,
arbitrative or investigative and whether
formal or informal.
3.
Indemnification.
(a) The Corporation shall indemnify Indemnitee if Indemnitee was,
is
or is threatened to be made a defendant or
respondent in a Proceeding because of
Indemnitee's Corporate Status as a director
of the Corporation against Liability
incurred in the Proceeding if (i) (1)
Indemnitee conducted himself or herself in
good faith, and (2) Indemnitee reasonably
believed that his or her conduct was
in the best interests of the Corporation or
that his or her conduct was at least
not opposed to the best interests of the
Corporation, and (3) in the case of any
criminal proceeding, Indemnitee had no
reasonable cause to believe his or her
conduct was unlawful, or (ii) Indemnitee
engaged in conduct for which Indemnitee
shall not be liable under a provision of
the Corporation's Articles of
Organization authorized by Section
2.02(b)(4) of Chapter 156D of the General
Laws of the Commonwealth of Massachusetts
("Chapter 156D") or any predecessor or
successor provision to such Section. The
Corporation shall indemnify Indemnitee
if Indemnitee was, is or is threatened to
be made a defendant or respondent in a
Proceeding because of Indemnitee's
Corporate Status as an officer of the
Corporation against Liability incurred in
the Proceeding, except for Liability
arising out of acts or omissions not in
good faith or which involve intentional
misconduct or a knowing violation of
law.
(b) Indemnitee's conduct with respect to an employee benefit
plan
for a purpose Indemnitee reasonably
believed to be in the interests of the
participants in, and the beneficiaries of,
the plan is conduct that satisfies
the requirement that Indemnitee's conduct
was at least not opposed to the best
interests of the Corporation.
(c) The termination of a Proceeding by judgment, order,
settlement
or conviction, or upon a plea of nolo
contendere or its equivalent, is not, of
itself, determinative that Indemnitee did
not meet the relevant standard of
conduct described in this Paragraph 3.
4.
Exceptions to Right of Indemnification. Notwithstanding anything to
the
contrary in this Agreement, except as set
forth in Paragraphs 9 and 10, the
Corporation shall not indemnify Indemnitee
in connection with a Proceeding (or
part thereof) initiated by Indemnitee
unless the initiation thereof was approved
by the Board of Directors of the
Corporation (the "Board of Directors").
Notwithstanding anything to the contrary in
this Agreement, the Corporation
shall not indemnify Indemnitee to the
extent Indemnitee is reimbursed from the
proceeds of insurance, and in the event the
Corporation makes any
indemnification payments to Indemnitee and
Indemnitee is subsequently reimbursed
from the proceeds of insurance, Indemnitee
shall promptly refund such
indemnification payments to the Corporation
to the extent of such insurance
reimbursements.
5. Indemnification of
Expenses of Successful Party. Notwithstanding any
other provision of this Agreement, to the
extent that Indemnitee has been wholly
successful, on the merits or otherwise, in
the defense of any Proceeding to
which Indemnitee was a party because of
Indemnitee's Corporate Status,
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Indemnitee shall be indemnified against all
reasonable Expenses incurred by
Indemnitee or on Indemnitee's behalf in
connection therewith. Without limiting
the foregoing, if any Proceeding is
disposed of, on the merits or otherwise
(including a disposition without
prejudice), without (a) the disposition being
adverse to Indemnitee, (b) an adjudication
that Indemnitee was liable to the
Corporation, (c) a plea of guilty or nolo
contendere or its equivalent by
Indemnitee, (d) an adjudication that
Indemnitee did not act in good faith, (e)
with respect to Indemnitee in his or her
Corporate Status as a director of the
Corporation, an adjudication that
Indemnitee did not act in a manner he or she
reasonably believed to be in or not opposed
to the best interests of the
Corporation, (f) with respect to any
criminal proceeding involving Indemnitee in
his or her Corporate Status as a director
of the Corporation, an adjudication
that Indemnitee had reasonable cause to
believe his or her conduct was unlawful,
and (g) with respect to Indemnitee in his
or her Corporate Status as an officer
of the Corporation, an adjudication that
Indemnitee's conduct involved
intentional misconduct or a knowing
violation of law, Indemnitee shall be
considered for the purposes hereof to have
been wholly successful with respect
thereto.
6.
Notification and Defense of Claim. As a condition precedent to
Indemnitee's right to be indemnified,
Indemnitee must notify the Corporation in
writing as soon as practicable of any
Proceeding for which indemnity will or
could be sought by Indemnitee and provide
the Corporation with a copy of any
summons, citation, subpoena, complaint,
indictment, information or other
document relating to such Proceeding with
which Indemnitee is served. With
respect to any Proceeding of which the
Corporation is so notified, the
Corporation will be entitled to participate
therein at its own expense and/or to
assume the defense thereof at its own
expense, with legal counsel reasonably
acceptable to Indemnitee. After notice from
the Corporation to Indemnitee of its
election so to assume such defense, the
Corporation shall not be liable to
Indemnitee for any legal or other expenses
subsequently incurred by Indemnitee
in connection with such claim, other than
as provide
