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. The
articles of incorporation and bylaws of the Company provide that
the Company is authorized to indemnify directors, officers,
employees and other agents of the Company to the fullest extent
permitted by applicable law, and the Company’s articles of
incorporation limit the liability for monetary damages of directors
of the Company to the fullest extent permitted by applicable law.
In addition, Indemnitee may be entitled to indemnification pursuant
to the California General Corporation Law (the “
CGCL ”). The Company’s articles of
incorporation, bylaws and the CGCL expressly provide that the
indemnification provisions set forth therein are not exclusive and
thereby contemplate that contracts may be entered into between the
Company and directors, officers and other persons with respect to
indemnification.
D. Indemnitee
does not regard the protection currently expressly 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.
E. 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 to the extent permitted by applicable
law.
F. 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 (as defined
below), 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 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.
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 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, it is the intent of the parties hereto that the
rights of the parties in effect prior to such change shall remain
in effect to the extent permitted by applicable law.
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 indemnify Indemnitee for such
portion of the Expenses, judgments, fines, settlements or other
amounts to which Indemnitee is entitled in connection with each
successfully resolved matter. For purposes of this section and
without limitation, the termination of any discrete claim, issue or
matter in such a Proceeding by dismissal, with or without
prejudice, shall be deemed to be a successful result as to such
claim, issue or matter.
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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 prior to a Change in Control, , 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;
(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 did not act in good faith and in a manner which
Indemnitee reasonably believed to be in 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 actually and reasonably
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
Sections 204(a)(10) or 317 of the CGCL. The advances to be
made hereunder shall be
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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.
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. Indemnitee shall not settle any
Proceeding (or any part thereof) which would impose any Expense,
judgment, fine, penalty or limitation on the Company without the
Company’s prior written consent, which shall not be
unreasonably withheld.
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(f)
Right to Settle Proceedings. The Company shall not
settle any Proceeding (or any part thereof) which would impose any
Expense, judgment, fine, penalty or limitation on Indemnitee
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.
(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 case by (i) a majority vote of a quorum consisting of
directors who are not parties to the Proceeding; (ii) if such
a quorum of directors is not obtainable, by Independent Legal
Counsel (as defined below) in a written opinion;
(iii) approval by the shareholders in accordance with
Section 153 of the California General Corporation Law, with
the shares owned by Indemnitee not being entitled to vote thereon;
or (iv) the court in which the proceeding is or was pending
upon application made by the corporation or the agent or the
attorney or other person rendering services in connection with the
defense, whether or not the application by the agent, attorney or
other person is opposed by the Company; provided, however,
that if a Change in Control (as defined below) shall have occurred,
by Independent Legal Counsel selected by Indemnitee and approved by
the Company (which approval will not be unreasonably withheld) in a
written opinion to the
