BLUE NILE, INC. INDEMNITY AGREEMENT
EXHIBIT 10.1
BLUE NILE, INC.
INDEMNITY AGREEMENT
This Agreement is made and entered into this __________ day of __________, 2004
by and between __________, a Delaware corporation (the “Corporation”), and __________ (“Agent”).
Recitals
Whereas, Agent performs a valuable service to the Corporation as __________ of the
Corporation;
Whereas, the stockholders of the Corporation have adopted bylaws (the “Bylaws”)
providing for the indemnification of the directors, officers, employees and other agents of the
Corporation, including persons serving at the request of the Corporation in such capacities with
other corporations or enterprises, as authorized by the Delaware General Corporation Law, as
amended (the “Code”);
Whereas, the Bylaws and the Code, by their non-exclusive nature, permit contracts
between the Corporation and its agents, officers, employees and other agents with respect to
indemnification of such persons; and
Whereas, in order to induce Agent to continue to serve as __________ of the
Corporation, the Corporation has determined and agreed to enter into this Agreement with Agent;
Now, Therefore, in consideration of Agent’s continued service as __________ after the
date hereof, the parties hereto agree as follows:
Agreement
1. Services to the Corporation. Agent will serve, at the will of the Corporation or
under separate contract, if any such contract exists, as __________ of the Corporation or as a
director, officer or other fiduciary of an affiliate of the Corporation (including any employee
benefit plan of the Corporation) faithfully and to the best of his ability so long as he is duly
elected and qualified in accordance with the provisions of the Bylaws or other applicable charter
documents of the Corporation or such affiliate; provided, however, that Agent may at any time and
for any reason resign from such position (subject to any contractual obligation that Agent may have
assumed apart from this Agreement) and that the Corporation or any affiliate shall have no
obligation under this Agreement to continue Agent in any such position. The Corporation
acknowledges that it has entered into this Agreement and assumes the obligations imposed on it
hereby, in addition to and separate from its obligations to Agent under the Bylaws, to induce Agent
to serve, or continue to serve, as a director, officer, employee or agent of the Corporation, and
the Corporation acknowledges that Agent is relying upon this Agent in serving as a director,
officer, employee or agent of the Corporation.
2. Indemnity of Agent. The Corporation hereby agrees to hold harmless and indemnify
Agent to the fullest extent authorized or permitted by the provisions of the Bylaws and the Code,
as the same may be amended from time to time (but, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than the Bylaws or the Code permitted
prior to adoption of such amendment).
3. Additional Indemnity. In addition to and not in limitation of the
indemnification otherwise provided for herein, and subject only to the exclusions set forth in
Section 4 hereof, the Corporation hereby further agrees to hold harmless and indemnify Agent:
(a) against any and all expenses (including attorneys’ fees), witness fees, damages,
judgments, fines and amounts paid in settlement and any other amounts that Agent becomes legally
obligated to pay because of any claim or claims made against or by him in connection with any
threatened, pending or completed action, suit or proceeding, whether civil, criminal,
arbitrational, administrative or investigative (including an action by or in the right of the
Corporation) to which Agent is, was or at any time becomes a party, or is threatened to be made a
party, by reason of the fact that Agent is, was or at any time becomes a director, officer,
employee or other agent of Corporation, or is or was serving or at any time serves at the request
of the Corporation as a
director, officer, employee or other agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise, whether or not
serving in any such capacity at the time any liability or expense is incurred for which
indemnification, reimbursement, or advancement of expenses may be provided under this Agreement.
The term “expenses” shall also include reasonable compensation for time spent by Agent for which he
is not compensated by the Corporation or any subsidiary or third party (i) for any period during
which Agent is not an agent, in the employment of, or providing services for compensation to, the
Corporation or any subsidiary; and (ii) if the rate of compensation and estimated time involved is
approved by the directors of the Corporation who are not parties to any action with respect to
which expenses are incurred, for Agent while an agent of, employed by, or providing services for
compensation to, the Corporation or any subsidiary; and
(b) otherwise to the fullest extent as may be provided to Agent by the Corporation
under the non-exclusivity provisions of the Code and Section 41 of the Bylaws.
4. Limitations on Additional Indemnity. No indemnity pursuant to Section 3 hereof
shall be paid by the Corporation:
(a) on account of any claim against Agent solely for an accounting of profits made
from the purchase or sale by Agent of securities of the Corporation pursuant to the provisions of
Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions
of any federal, state or local statutory law;
(b) on account of Agent’s conduct that is established by a final judgment as
knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent’s conduct that is established by a final judgment as
constituting a breach of Agent’s duty of loyalty to the Corporation or resulting in any personal
profit or advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid and collectible
insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in
respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Corporation and
Agent have been advised that the Securities and Exchange Commission believes that indemnification
for liabilities arising under the federal securities laws is against public policy and is,
therefore, unenforceable and that claims for indemnification should be submitted to appropriate
courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Agent, or any
proceeding by Agent against the Corporation or its directors, officers, employees or other agents,
unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was
authorized by the Board of Directors of the Corporation, (iii) such indemnification is provided by
the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the
Code, or (iv) the proceeding is initiated pursuant to Section 9 hereof; or
(g) if indemnification is in violation of any undertaking appearing in and required
by the rules and regulations promulgated under the Securities Act of 1933, as amended (the “Act”),
or in any registration statement filed with the SEC under the Act. Agent acknowledges that
paragraph (h) of Item 512 of Regulation S-K currently generally requires the Corporation to
undertake in connection with any registration statement filed under the Act to submit the issue of
the enforceability of Agent’s rights under this Agreement in connection with any liability under
the Act on public policy grounds to a court of appropriate jurisdiction and to be governed by any
final adjudication of such issue. Agent specifically agrees that any such undertaking shall
supersede the provisions of this Agreement and to be bound by any such undertaking.
5. Continuation of Indemnity. All agreements and obligations of the Corporation
contained herein shall continue during the period Agent is a director, officer, employee or other
agent of the Corporation (or is or was serving at the request of the Corporation as a director,
officer, employee or other agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise) and shall continue thereafter so long as Agent shall be
subject to any possible claim or threatened, pending or completed action, suit or proceeding,
whether civil, criminal, arbitrational, administrative or investigative, by reason of the fact that
Agent was serving in the capacity referred to herein.
6. Partial Indemnification. Agent shall be entitled under this Agreement to
indemnification by the Corporation for a portion of the expenses (including attorneys’ fees),
witness fees, damages, judgments, fines and amounts paid in settlement and any other amounts that
Agent becomes legally obligated to pay in connection with any action, suit or proceeding referred
to in Section 3 hereof even if not entitled hereunder to indemnification for the total amount
thereof, and the Corporation shall indemnify Agent for the portion thereof to which Agent is
entitled.
7. Notification and Defense of Claim. Not later than thirty (30) days after receipt
by Agent of notice of the commencement of any action, suit or proceeding, or of any demand,
judgment or other requirement for payment that Agent reasonably believes to be subject to
indemnification under the terms of this Agreement, Agent will, if a claim in respect thereof is to
be made against the Corporation under this Agreement, notify the Corporation of the commencement
thereof; but the omission so to notify the Corporation will not relieve it from any liability which
it may have to Agent otherwise than under this Agreement. With respect to any such action, suit or
proceeding as to which Agent notifies the Corporation of the commencement thereof:
(a) the Corporation will be entitled to participate therein at its own expense;
(b) except as otherwise provided below, the Corporation may, at its option and
jointly with any other indemnifying party similarly notified and electing to assume such defense,
assume the defense thereof, with counsel reasonably satisfactory to Agent. After notice from the
Corporation to Agent of its election to assume the defense thereof, the Corporation will not be
liable to Agent under this Agreement for any legal or other expenses subsequently incurred by Agent
in connection with the defense thereof except for reasonable costs of investigation or otherwise as
provided below. Agent shall have the right to employ separate counsel in such action, suit or
proceeding but the fees and expenses of such counsel incurred after notice from the Corporation of
its assumption of the defense thereof shall be at the expense of Agent unless (i) the employment of
counsel by Agent has been authorized by the Corporation, (ii) Agent shall have reasonably
concluded, and so notified the Corporation, that there is an actual conflict of interest between
the Corporation and Agent in the conduct of the defense of such action or (iii) the Corporation
shall not in fact have employed counsel to assume the defense of such action within a reasonable
time, in each of which cases the fees and expenses of Agent’s separate counsel shall be at the
expense of the Corporation. The Corporation shall not be entitled to assume the defense of any
action, suit or proceeding brought by or on behalf of the Corporation or as to which Agent shall
have made the conclusion provided for in clause (ii) above; and
(c) the Corporation shall not be liable to indemnify Agent under this Agreement for
any amounts paid in settlement of any action or claim effected without its written consent, which
shall not be unreasonably withheld. The Corporation shall be permitted to settle any action except
that it shall not settle any action or claim in any manner which would impose any penalty or
limitation on Agent without Agent’s written consent, which may be given or withheld in Agent’s sole
discretion.
8. Expenses. As permitted by applicable law, the Corporation shall advance, prior
to the final disposition of any proceeding, promptly following request therefor, all expenses
incurred by Agent in connection with such proceeding upon receipt of an undertaking by or on behalf
of Agent to repay said amounts if it shall be determined ultimately that Agent is not entitled to
be indemnified under the provisions of this Agreement, the Bylaws, the Code or otherwise. Advances
shall be unsecured, interest free and without regard to Agent’s ability to repay the expenses.
Advances shall include any and all expenses actually and reasonably incurred by Agent pursuing an
action to enforce Agent’s right to indemnification under this Agreement, or otherwise and this
right of advancement, including expenses incurred preparing and forwarding statements to the
Corporation to support the advances claimed.
9. Enforcement. Any right to indemnification or advances granted by this Agreement
to Agent shall be enforceable by or on behalf of Agent in any court of competent jurisdiction if
(i) the claim for indemnification or advances is denied, in whole or in part, or (ii) no
disposition of such claim is made within ninety (90) days of request therefor. Agent, in such
enforcement action, if successful in whole or in part, shall be entitled to be paid also the
expense of prosecuting his claim. It shall be a defense to any action for which a claim for
indemnification is made under Section 3 hereof (other than an action brought to enforce a claim for
expenses pursuant to Section 8 hereof, provided that the required undertaking has been tendered to
the Corporation) that Agent is not entitled to indemnification because of the limitations set forth
in Section 4 hereof. In such an enforcement hearing or proceeding, the burden of proof shall be on
the Corporation to prove that indemnification or advancement of expenses to Agent is not required
under this Agreement or permitted by applicable law. Neither the failure of the Corporation
(including its Board of Directors or its stockholders) to have made a determination prior to the
commencement of such enforcement action that indemnification of Agent is proper in the
circumstances, nor an actual determination by the Corporation (including its Board of Directors or
its stockholders) that such indemnification is improper shall be a defense to the action or create
a presumption that Agent is not entitled to indemnification under this Agreement or otherwise.
10. Subrogation. In the event of payment under this Agreement, the Corporation
shall be subrogated to the extent of such payment to all of the rights of recovery of Agent, who
shall execute all documents required and shall do all acts that may be necessary to secure such
rights and to enable the Corporation effectively to bring suit to enforce such rights.
11. Non-Exclusivity of Rights. The rights conferred on Agent by this Agreement
shall not be exclusive of any other right which Agent may have or hereafter acquire under any
statute, provision of the Corporation’s Certificate of Incorporation or Bylaws, agreement, vote of
stockholders or directors, or otherwise, both as to action in his official capacity and as to
action in another capacity while holding office.
12. Survival of Rights.
(a) The rights conferred on Agent by this Agreement shall continue after Agent has
ceased to be a director, officer, employee or other agent of the Corporation or to serve at the
request of the Corporation as a director, officer, employee or other agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise and shall inure to the
benefit of Agent’s heirs, executors and administrators. No legal action shall be brought and no
cause of action shall be asserted by or in the right of the Corporation against an Agent or an
Agent’s estate, spouse, heirs, executors or personal or legal representatives after the expiration
of five (5) years from the date of accrual of such cause of action, and any claim or cause of
action of the Corporation shall be extinguished and deemed released unless asserted by the timely
filing of a legal action within such five-year period; provided, however, that if any shorter
period of limitations is otherwise applicable to such cause of action, such shorter period shall
govern.
(b) The Corporation shall require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets
of the Corporation, expressly to assume and agree to perform this Agreement in the same manner and
to the same extent that the Corporation would be required to perform if no such succession had
taken place.
13. Separability. Each of the provisions of this Agreement is a separate and
distinct agreement and independent of the others, so that if any provision hereof shall be held to
be invalid for any reason, such invalidity or unenforceability shall not affect the validity or
enforceability of the other provisions hereof. Furthermore, if this Agreement shall be invalidated
in its entirety on any ground, then the Corporation shall nevertheless indemnify Agent to the
fullest extent provided by the Bylaws, the Code or any other applicable law.
14. Governing Law. This Agreement shall be interpreted and enforced in accordance
with the laws of the State of Delaware.
15. Amendment and Termination; Waiver.
(a) No amendment, modification, termination or cancellation of this Agreement shall be
effective unless in writing signed by both parties hereto. No waiver of any of the provisions of
this Agreement shall be deemed or shall constitute a waiver of any other provision hereof (whether
or not similar) nor shall such waiver constitute a continuing waiver.
(b) No amendment, alteration or repeal of this Agreement or of any provision hereof shall
limit or restrict any right of Agent under this Agreement in respect of any action taken or omitted
by such Agent in his or her corporate status prior to such amendment, alteration or repeal. To the
extent that a change in the Code, whether by statute or judicial decision, permits greater
indemnification or advancement of expenses than would be afforded currently under the Corporation’s
Certificate of Incorporation, Bylaws and this Agreement, it is the intent of the parties hereto
that Agent shall enjoy by this Agreement the greater benefits so afforded by such change. No right
or remedy herein conferred is intended to be exclusive of any other right or remedy, and every
other right and remedy shall be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, by Agent shall not prevent the
concurrent assertion or employment of any other right or remedy by Agent.
16. Identical Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original but all of which
together shall constitute but one and the same Agreement. Only one such counterpart need be
produced to evidence the existence of this Agreement.
17. Headings. The headings of the sections of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this Agreement or to affect the
construction hereof.
18. Notices. All notices, requests, demands and other communications hereunder
shall be in writing and shall be deemed to have been duly given (i) upon delivery if delivered by
hand to the party to whom such communication was directed or (ii) upon the third business day after
the date on which such communication was mailed if mailed by certified or registered mail with
postage prepaid:
(a) If to Agent, at the address indicated on the signature page hereof.
(b) If to the Corporation, to:
Blue Nile, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or to such other address as may have been furnished to Agent by the Corporation.
19. Insurance. To the extent that the Corporation maintains an insurance policy or
policies providing liability insurance for directors, officers, employees, or agents of the
Corporation or of any subsidiary (“D&O Insurance”), Agent shall be covered by such policy or
policies in accordance with its or their terms to the maximum extent of the coverage available for
any such director, officer, employee or agent under such policy or policies. If, at the time of
the receipt of a notice of a claim pursuant to the terms hereof, the Corporation has D&O Insurance
in effect, the Corporation shall give prompt notice of the commencement of such proceeding to the
insurers in accordance with the procedures set forth in the respective policies. The Corporation
shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of
Agent, all amounts payable as a result of such proceeding in accordance with the terms of such
policies:
In Witness Whereof, the parties hereto have executed this Agreement on and as of the
day and year first above written.
| Blue Nile, Inc. | ||||||||||
| Name (Print): | ||||||||||
| Signature: | ||||||||||
| Title: | ||||||||||
| Agent | ||||||||||
| Name (Print): | ||||||||||
| Signature: | ||||||||||
| Title: | ||||||||||
| Address: | ||||||||||