Exhibit 10.1
INDEMNIFICATION
AGREEMENT dated as of __________________________ , 2008
between
The Williams
Companies, Inc.
(the
“Company”), and _______________________________
(“Indemnitee”)
WHEREAS, the Board of Directors has
determined that the inability to attract and retain qualified
persons as directors and officers is detrimental to the best
interests of the Company’s stockholders and that the Company
should act to assure such persons that there will be adequate
certainty of protection through insurance and indemnification
against risks of claims and actions against them arising out of
their service to and activities on behalf of the Company; and
WHEREAS, the Company has adopted
provisions in its By-laws providing for indemnification of its
officers and directors to the fullest extent permitted by
applicable law, and the Company wishes to clarify and enhance the
rights and obligations of the Company and Indemnitee with respect
to indemnification; and
WHEREAS, in order to induce and
encourage highly experienced and capable persons such as Indemnitee
to serve and continue to serve as directors and officers of the
Company and in any other capacity at the request of the Company,
and to otherwise promote the desirable end that such persons will
resist what they consider unjustified lawsuits and claims made
against them in connection with the good faith performance of their
duties to the Company, with the knowledge that certain costs,
judgments, penalties, fines, liabilities and expenses incurred by
them in their defense of such litigation are to be borne by the
Company and they will receive the maximum protection against such
risks and liabilities as may be afforded by law, the Board of
Directors of the Company has determined that the following
Agreement is reasonable and prudent to promote and ensure the best
interests of the Company and its stockholders; and
WHEREAS, the Company desires to have
Indemnitee continue to serve as a director or officer of the
Company and in such other capacities as the Company may request, as
the case may be, free from undue concern for unpredictable,
inappropriate or unreasonable legal risks and personal liabilities
by reason of Indemnitee acting in good faith in the performance of
Indemnitee’s duties; and Indemnitee desires to continue so to
serve, provided, and on the express condition, that he or she is
furnished with the indemnity set forth hereinafter;
Now, therefore, in consideration of
Indemnitee’s continued service as a director or officer of
the Company, the parties hereto agree as follows:
1. Service by
Indemnitee . Indemnitee will serve and/or continue to serve as
a director or officer of the Company and, if applicable, as a
director or officer (including elected or appointed positions that
are equivalent to director or officer and for all purposes in this
Agreement such positions shall be included within the terms
“director” and “officer”) of another
corporation, partnership, joint venture, trust, or other
enterprise, including service with respect to an employee benefit
plan (collectively, an “Other Enterprise”) faithfully
and to the best of Indemnitee’s ability so long as Indemnitee
is duly elected or appointed and until such time as Indemnitee is
removed as permitted by law or tenders a resignation in
writing.
2. Indemnification .
The Company shall indemnify Indemnitee to the fullest extent
permitted by the Delaware General Corporation law in effect on the
date hereof or as such law may from time to time be amended (but,
in the case of any such amendment, only to the extent that such
amendment permits the Company to provide broader indemnification
rights than said law permitted the Company to provide prior to such
amendment). Without diminishing the scope of the indemnification
provided by this Section, the rights of indemnification of
Indemnitee provided hereunder shall include but shall not be
limited to those rights hereinafter set forth, except that no
indemnification shall be paid to Indemnitee:
(a) to the extent expressly
prohibited by Delaware law or the By-laws of the Company;
(b) for which payment is
actually made to Indemnitee under a valid and collectible insurance
policy or under a valid and enforceable indemnity clause, by-law or
agreement of the Company or an Other Enterprise on whose board or
as an officer Indemnitee serves at the request of the Company,
except in respect of any indemnity exceeding the payment under such
insurance, clause, by-law or agreement;
(c) in connection with an
action, suit or proceeding, or part thereof (including claims and
counterclaims) initiated by Indemnitee, except a judicial
proceeding or arbitration pursuant to Section 10 to enforce
rights under this Agreement, unless the action, suit or proceeding
(or part thereof) was authorized by the Board of Directors of the
Company or an Other Enterprise, as appropriate;
(d) with respect to any
Proceeding brought by or on behalf of the Company against
Indemnitee that is authorized by the Board of Directors of the
Company or an Other Enterprise, as the case may be, except as
provided in Sections 4, 5 and 6 below.
3. Action or Proceedings
Other than an Action by or in the Right of the Company or an Other
Enterprise . Except as limited by Section 2 above,
Indemnitee shall be entitled to the indemnification rights provided
in this Section if Indemnitee is a party or is threatened to be
made a party to any Proceeding (other than an action by or in the
name of the Company or an Other Enterprise) by reason of the fact
that Indemnitee is or was a director, officer, employee or agent of
the Company, or is or was serving at the request of the Company as
a director, officer, employee or agent or fiduciary of an Other
Enterprise); or by reason of anything done or not done by
Indemnitee in any such capacity. Pursuant to this Section,
Indemnitee shall be indemnified against all costs, judgments,
penalties, fines, liabilities, amounts paid in settlement by or on
behalf of Indemnitee, and Expenses (defined below) actually and
reasonably incurred by Indemnitee in connection with such
Proceeding, if Indemnitee acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests
of the Company or such Other Enterprise, as the case may be, and
with respect to any criminal Proceeding, had no reasonable cause to
believe his or her conduct was unlawful.
4. Indemnity in Proceedings
by or in the Name of the Company or an Other Enterprise .
Except as limited by Section 2 above, Indemnitee shall be
entitled to the indemnification rights provided in this Section if
Indemnitee was or is a party or is threatened to be made a party to
any Proceeding brought by or in the name of the Company or an Other
Enterprise to procure a judgment in its favor by reason of the fact
that Indemnitee is or was a director, officer, employee or agent or
fiduciary of the Company or such Other Enterprise, or by reason of
anything done or not done by Indemnitee in any such capacity.
Pursuant to this Section, Indemnitee shall be indemnified against
all costs, judgments, penalties, fines, liabilities, amounts paid
in settlement by or on behalf of Indemnitee, and Expenses actually
and reasonably incurred by Indemnitee in connection with such
Proceeding 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 Company or such Other Enterprise; provided,
however, that no such indemnification shall be made in respect of
any claim, issue, or matter as to which Delaware law expressly
prohibits such indemnification by reason of any adjudication of
liability of Indemnitee to the Company or such Other Enterprise,
unless and only to the extent that the Court of Chancery of the
State of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of
the case, Indemnitee is entitled to indemnification for such costs,
judgments, penalties, fines, liabilities and Expenses as such court
shall deem proper.
5. Indemnification for
Costs, Charges and Expenses of Successful Party .
Notwithstanding the limitations of Section 2(d), 3 and 4
above, to the extent that Indemnitee has been successful, on the
merits or otherwise, in whole or in part, in defense of any action,
suit or proceeding (including an action, suit or proceeding brought
by or on behalf of the Company or an Other Enterprise) or in
defense of any claim, issue or matter therein, including, without
limitation, the dismissal of any action without prejudice, or if it
is ultimately determined by a final adjudication from which there
is no further right to appeal that Indemnitee is otherwise entitled
to be indemnified against Expenses, Indemnitee shall be indemnified
against all Expenses actually and reasonably incurred in connection
therewith.
6. Partial
Indemnification . If Indemnitee is entitled under any provision
of this Agreement to indemnification by the Company for some or a
portion of the costs, judgments, penalties, fines, liabilities or
Expenses actually and reasonably incurred in connection with any
action, suit or proceeding (including an action, suit or proceeding
brought by or on behalf of the Company or an Other Enterprise), but
not, however, for all of the total amount thereof, the Company
shall nevertheless indemnify Indemnitee for the portion of such
costs, judgments, penalties, fines, liabilities and Expenses
actually and reasonably incurred to which Indemnitee is
entitled.
7. Indemnification for
Expenses of a Witness . Notwithstanding any other provision of
this Agreement, to the maximum extent permitted by applicable law,
Indemnitee shall be entitled to indemnification against all
Expenses actually and reasonably incurred or suffered by Indemnitee
or on Indemnitee’s behalf if Indemnitee appears as a witness
or otherwise incurs legal expenses as a result of or related to
Indemnitee’s service as a director or officer of the Company
or an Other Enterprise, in any threatened, pending or completed
legal, administrative, investigative or other proceeding or matter
to which Indemnitee neither is, nor is threatened to be made, a
party.
8. Determination of
Entitlement to Indemnification . Upon written request by
Indemnitee for indemnification pursuant to
Sections 3, 4, 5, 6 or 7, the
entitlement of Indemnitee to indemnification, to the extent not
provided pursuant to the terms of this Agreement, shall be
determined by the following person or persons who shall be
empowered to make such determination: (a) the Board of
Directors of the Company by a majority vote of Disinterested
Directors (defined below), whether or not such majority constitutes
a quorum; (b) a committee of Disinterested Directors
designated by a majority vote of such directors, whether or not
such majority constitutes a quorum; (c) if there are no
Disinterested Directors, or if the Disinterested Directors so
direct, by Independent Counsel (defined below) in a written opinion
to the Board of Directors, a copy of which shall be delivered to
Indemnitee; (d) the stockholders of the Company; or
(e) in the event that a Change in Control (defined below) has
occurred, Independent Counsel in a written opinion to the Board of
Directors, a copy of which shall be delivered to Indemnitee. Such
Independent Counsel shall be selected by the Board of Directors and
approved by Indemnitee, except as noted below. Upon failure of the
Board so to select such Independent Counsel or upon failure of
Indemnitee so to approve, such Independent Counsel shall be
selected upon application to a court of competent jurisdiction.
Notwithstanding the foregoing, if a Change in Control has occurred,
Independent Counsel shall be selected by Indemnitee and approved by
the Company. A determination of entitlement to indemnification
shall be made, and such indemnification shall be paid, not later
than 60 calendar days after receipt by the Company of a written
request for
