Exhibit 10.1
WILLIAMS-SONOMA,
INC.
INDEMNIFICATION
AGREEMENT
This Indemnification Agreement (this
“ Agreement ”) is dated as of [ insert
date ], and is between Williams-Sonoma, Inc., a California
corporation (the “ Company ”), and [
insert name of indemnitee ] (“
Indemnitee ”).
RECITALS
A. Indemnitee’s
service to the Company substantially benefits the
Company.
B. Individuals are
reluctant to serve as directors or officers of corporations or in
certain other capacities unless they are provided with adequate
protection through insurance or indemnification against the risks
of claims and actions against them arising out of such
service.
C. Indemnitee
does not regard the protection currently provided by applicable
law, the Company’s governing documents and any insurance as
adequate under the present circumstances, and Indemnitee may not be
willing to serve as a director or officer without additional
protection.
D. In order
to induce Indemnitee to continue to provide services to the
Company, it is reasonable, prudent and necessary for the Company to
contractually obligate itself to indemnify, and to advance expenses
on behalf of, Indemnitee as permitted by applicable law.
E. This
Agreement is a supplement to and in furtherance of the
indemnification provided in the Company’s articles of
incorporation and bylaws, and any resolutions adopted pursuant
thereto, and this Agreement shall not be deemed a substitute
therefor, nor shall this Agreement be deemed to limit, diminish or
abrogate any rights of Indemnitee thereunder.
The parties therefore agree as
follows:
1.
Indemnity in Third-Party Proceedings. The Company shall
indemnify Indemnitee if Indemnitee was or is a party or is
threatened to be made a party to any threatened, pending or
completed action or proceeding, whether civil, criminal,
administrative or investigative (a “ Proceeding
”) (other than an action by or in the right of the Company to
procure a judgment in its favor) by reason of the fact that
Indemnitee is or was a director, officer, employee or other agent
of the Company or by reason of the fact that Indemnitee is or was
serving at the request of the Company as a director, officer,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including
attorneys’ fees), judgments, fines, settlements and other
amounts actually and reasonably incurred by Indemnitee in
connection with the Proceeding if Indemnitee acted in good faith
and in a manner Indemnitee reasonably believed to be in the best
interests of the Company, and, in the case of any criminal
Proceeding, had no reasonable cause to believe Indemnitee’s
conduct was unlawful. The termination of any Proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that (i) Indemnitee did not act in good faith and
in a manner which Indemnitee reasonably believed to be in the best
interests of the Company or (ii) Indemnitee had reasonable
cause to believe that Indemnitee’s conduct was
unlawful.
2.
Indemnity in Proceedings by or in the Right of the Company.
The Company shall indemnify Indemnitee if Indemnitee was or is a
party or is threatened to be made a party to any threatened,
pending or completed action by or in the right of the Company to
procure a judgment in its favor by reason of the fact that
Indemnitee is or was a director, officer, employee or other agent
of the Company or by reason of the fact that Indemnitee is or was
serving at the request of the Company as a director, officer,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including
attorneys’ fees) actually and reasonably incurred by
Indemnitee in connection with the defense or settlement of such
action if Indemnitee acted in good faith, in a manner Indemnitee
believed to be in the best interests of the Company and its
shareholders.
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3.
Indemnification for Expenses of a Party Who is Wholly or Partly
Successful. To the extent that Indemnitee has been successful
on the merits in defense of any Proceeding referred to in
Section 1 or 2 or in defense of any claim, issue or matter
therein, Indemnitee shall be indemnified against expenses actually
and reasonably incurred by Indemnitee in connection
therewith.
4.
Indemnification for Expenses of a Witness. To the extent
that Indemnitee is, by reason of his or her position as a director,
officer, employee or agent of the Company, a witness in any action,
suit or proceeding to which Indemnitee is not a party, he or she
shall be indemnified to the extent permitted by applicable law
against all costs and expenses actually and reasonably incurred by
him or her or on his or her behalf in connection
therewith.
5.
Additional Indemnification Rights. Subject to Section 7
and any other provision of this Agreement that prohibits, limits or
conditions indemnification by the Company, the Company agrees to
indemnify Indemnitee to the fullest extent permitted by law for any
acts, omissions or transactions while acting in the capacity of, or
that are otherwise related to the fact that Indemnitee was or is
serving as, a director, officer, employee or other agent of the
Company or, to the extent Indemnitee is or was serving at the
request of the Company as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, such other corporation, partnership, joint venture,
trust or other enterprise, notwithstanding that such
indemnification is not specifically authorized by the other
provisions of this Agreement, the Company’s articles of
incorporation, the Company’s bylaws or by statute. In the
event of any change, after the date of this Agreement, in any
applicable law, statute or rule that expands the right of a
California corporation to indemnify a director, officer or other
corporate agent beyond that currently permitted under this
Agreement, the applicable changes shall be, ipso facto ,
within the purview of Indemnitee’s rights and Company’s
obligations under this Agreement, subject to the restrictions
expressly set forth herein or therein. In the event of any change
in any applicable law, statute or rule that narrows the right of a
California corporation to indemnify a director, officer or other
corporate agent, such change, to the extent required by such law,
statute or rule to be applied to this Agreement, shall have the
effect on this Agreement and the parties’ rights and
obligations hereunder as is required by such law, statute or
rule.
6.
Partial Indemnification. If Indemnitee is entitled under
this Agreement to indemnification by the Company for some or a
portion of the expenses, judgments, fines, settlements or other
amounts actually and reasonably incurred by Indemnitee in
connection with any Proceeding, but not, however, for the total
amount thereof, the Company shall nevertheless indemnify Indemnitee
for the portion of such expenses, judgments, fines, settlements or
other amounts to which Indemnitee is entitled.
7.
Exceptions. Notwithstanding any provision in this Agreement,
the Company shall not be obligated under this Agreement to make any
indemnity in connection with any Proceeding (or any part of any
Proceeding):
(a) for which
payment has actually been made to or on behalf of Indemnitee under
any statute, insurance policy, indemnity provision, vote or
otherwise, except with respect to any excess beyond the amount
paid;
(b) initiated
by Indemnitee, including any Proceeding (or any part of any
Proceeding) initiated by Indemnitee against the Company or its
directors, officers, employees, agents or other indemnitees, unless
(i) the Company’s board of directors authorized the
Proceeding (or the relevant part of the Proceeding) prior to its
initiation; (ii) the Company provides the indemnification, in
its sole discretion, pursuant to the powers vested in the Company
under applicable law; (iii) indemnification is required
to be made under Section 10(e); (iv) otherwise
required by applicable law; or (v) indemnification is in
connection with actions or Proceedings brought to establish or
enforce a right to indemnification under this Agreement or any
other agreement or insurance policy or under the Company’s
articles of incorporation or bylaws now or hereafter in effect
relating to such Proceeding;
(c) for any
acts or omissions or transactions from which a director may not be
relieved of liability as set forth in the exception to
Section 204(a)(10) of the California General Corporation Law
or as to circumstances in which indemnity is expressly prohibited
by Section 317 of the California General Corporation
Law;
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(d) for an
accounting or disgorgement of profits pursuant to
Section 16(b) of the Securities Exchange Act of 1934, as
amended, or similar provisions of federal, state or local statutory
law or common law, if Indemnitee is held liable therefor (including
pursuant to any settlement arrangements);
(e) for
expenses incurred by Indemnitee with respect to any action in which
Indemnitee acted in bad faith or in a manner opposed to the best
interests of the Company;
(f) for any
reimbursement of the Company by Indemnitee of any bonus or other
incentive-based or equity-based compensation or of any profits
realized by Indemnitee from the sale of securities of the Company,
to the extent required in each case under the Securities Exchange
Act of 1934, as amended (including any such reimbursements that
arise from an accounting restatement of the Company pursuant to
Section 304 of the Sarbanes-Oxley Act of 2002 (the “
Sarbanes-Oxley Act ”), or the payment to the
Company of profits arising from the purchase and sale by Indemnitee
of securities in violation of Section 306 of the
Sarbanes-Oxley Act), if Indemnitee is held liable therefor
(including pursuant to any settlement arrangements); or
(g) if
otherwise prohibited by applicable law.
8.
Advancement of Expenses. The Company shall advance, to the
extent not prohibited by law, all expenses incurred by Indemnitee
in defending any Proceeding referenced in Sections 1 or 2
prior to the final disposition of the Proceeding (but not amounts
actually paid in settlement of any such Proceeding) upon receipt of
a written request therefor (together with documentation reasonably
evidencing such expenses). Advances shall be unsecured and interest
free and made without regard to Indemnitee’s ability to repay
such advances. Indemnitee hereby undertakes to repay such amounts
advanced if it shall be determined ultimately that Indemnitee is
not entitled to be indemnified by the Company as authorized hereby
or by Section 317 of the California General Corporation Law.
The advances to be made hereunder shall be made as soon as
reasonably practicable, but in any event no later than 30 days,
after the receipt by the Company of a written statement or
statements requesting such advances from time to time (which shall
include invoices received by Indemnitee in connection with such
expenses but, in the case of invoices in connection with legal
services, any references to legal work performed or to expenditure
made that would cause Indemnitee to waive any privilege accorded by
applicable law shall not be included with the invoice). This
Section 8 shall not apply to any claim for which indemnity is
not permitted under this Agreement or applicable law.
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9.
Procedures for Notification and Defense of a
Claim.
(a)
Notice. Indemnitee shall notify the Company in
writing of any matter with respect to which Indemnitee intends to
seek indemnification or advancement of expenses as soon as
reasonably practicable following the receipt by Indemnitee of
notice thereof. The written notification to the Company shall
include, in reasonable detail, a description of the nature of the
Proceeding and the facts underlying the Proceeding. The failure by
Indemnitee to notify the Company will not relieve the Company from
any liability which it may have to Indemnitee hereunder or
otherwise, and any delay in so notifying the Company shall not
constitute a waiver by Indemnitee of any rights, except to the
extent that such failure or delay materially prejudices the
Company.
(b)
Notice to Insurers. If, at the time of the receipt of
a notice of a Proceeding pursuant to the terms hereof, the Company
has directors’ and officers’ liability insurance in
effect, the Company shall give prompt notice of the commencement of
the Proceeding to the insurers in accordance with the procedures
set forth in the applicable policies. The Company shall thereafter
take all commercially-reasonable action to cause such insurers to
pay, on behalf of Indemnitee, all amounts payable as a result of
such Proceeding in accordance with the terms of such policies;
provided, however, that nothing in this subsection (b) shall
relieve the Company of its obligations hereunder (or allow the
Company to delay in its performance of its obligations hereunder)
to provide indemnification for or advance any expenses with respect
to any Proceeding referenced in Sections 1 or 2, between the
time that it so notifies its insurers and the time that its
insurers actually pay any such amounts payable as a result of any
such Proceeding to the Company.
(c)
Selection of Counsel. The Company shall be entitled
to assume the defense of the Proceeding at its own expense.
Indemnitee agrees to consult with the Company and to consider in
good faith the advisability and appropriateness of joint
representation in the event that either the Company or other
indemnitees in addition to Indemnitee require representation in
connection with any Proceeding. The Company will not be liable to
Indemnitee for any fees or expenses of separate counsel
subsequently employed by or on behalf of Indemnitee with respect to
the same Proceeding; provided, however, that (i) Indemnitee
shall have the right to employ Indemnitee’s separate counsel
in any such Proceeding at Indemnitee’s expense, and
(ii) if (A) the employment of separate counsel by
Indemnitee has been previously authorized by the Company,
(B) Indemnitee shall have reasonably concluded that there may
be a conflict of interest between the Company and Indemnitee in the
conduct of any such defense, or (C) the Company shall not
continue to retain counsel to defend such Proceeding, then the fees
and expenses of Indemnitee’s separate counsel will be
expenses for which Indemnitee may receive indemnification or
advancement of expenses.
(d)
Cooperation by Indemnitee. Indemnitee shall give the
Company such information and cooperation in connection with the
Proceeding as may be reasonably appropriate.
(e)
Settlements. The Company shall not be liable to
indemnify Indemnitee for any settlement of any Proceeding (or any
part thereof) without the Company’s prior written consent,
which shall not be unreasonably withheld.
(f)
Right to Settle Proceedings. The Company shall not
settle any Proceeding (or any part thereof) without
Indemnitee’s prior written consent, which shall not be
unreasonably withheld.
10.
Procedures upon Application for Indemnification.
(a)
Notice. To obtain indemnification, Indemnitee shall
submit to the Company a written request, including therein or
therewith such documentation and information as is reasonably
available to Indemnitee and as is reasonably necessary to determine
whether and to what extent Indemnitee is entitled to
indemnification following the final disposition of the Proceeding.
The Company shall, as soon as reasonably practicable after receipt
of such a request for indemnification, advise the board of
directors that Indemnitee has requested indemnification. Any delay
in providing the request will not relieve the Company from its
obligations under this Agreement.
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(b)
Determination . Following a written request by
Indemnitee for indemnification pursuant to Section 10(a), a
determination, if required by applicable law, with respect to
Indemnitee’s entitlement thereto shall be made in the
specific c
