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.
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(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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<PAGE>
(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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<PAGE>
(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
