Exhibit 10.1


 


INDEMNIFICATION AGREEMENT


 


This
Agreement made and entered into this             
day of                       ,
2008, (the “Agreement”), by and between Deckers Outdoor Corporation, a
Delaware corporation (the “Company,” which term shall include, where
appropriate, any Entity (as hereinafter defined) controlled directly or
indirectly by the Company) and                                           
(the “Indemnitee”):


 


WHEREAS,
it is essential to the Company that it be able to retain and attract as
directors and executive officers the most capable persons available;


 


WHEREAS,
increased corporate litigation has subjected directors and executive officers
to 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 Company’s Certificate of Incorporation (the “Certificate of
Incorporation”) and Bylaws (the “Bylaws”) require it to indemnify
its directors to the fullest extent permitted by law and permit it to make
other indemnification arrangements and agreements;


 


WHEREAS,
the Company desires to provide Indemnitee with specific contractual assurance
of Indemnitee’s rights to full indemnification against litigation risks and
expenses (regardless, among other things, of any amendment to or revocation of
the Certificate of Incorporation or Bylaws or any change in the ownership of
the Company or the composition of its Board of Directors);


 


WHEREAS,
the Company intends that this Agreement provide Indemnitee with greater
protection than that which is provided by the Company’s Certificate of
Incorporation or Bylaws; and


 


WHEREAS,
Indemnitee is relying upon the rights afforded under this Agreement in [becoming][continuing as] a director or
executive officer 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) as an executive officer of the Company, (iii) in
any capacity with respect to any employee benefit plan of the Company, or (iv) as
a director, partner, trustee, officer, employee, or agent of any other Entity
at the request of the Company. For purposes of subsection (iv) of this Section 1(a),
if Indemnitee is serving or has served as a director, partner, trustee,
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 11 and 12(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, 


 


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duplicating,
printing and binding costs, telephone and fax transmission charges, postage,
delivery services, secretarial services, and other disbursements and expenses.


 


(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 11
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 or executive officer 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.


 


(c)      Conclusive
Presumption Regarding Standard of Care. In making any
determination required to be made under Delaware 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.


 


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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 that, in connection with such specific claim,
issue or matter, Indemnitee failed to act (i) in good faith and (ii) in
a manner Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company, or, with respect to any criminal Proceeding,
Indemnitee had reasonable cause to believe that Indemnitee’s conduct was
unlawful, 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 that, in connection
with such specific claim, issue or matter, Indemnitee failed to act (A) in
good faith and (B) in a manner Indemnitee reasonably believed to be in or
not opposed to the best interests of the Company, Indemnitee shall not be
entitled to payment of Indemnifiable Expenses hereunder; or


 


(ii)           it has been
finally adjudicated by a court of competent jurisdiction 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 which such
Proceeding was brought 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


 


(iii)          it has been
finally adjudicated by a court of competent jurisdiction 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)      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 upon receipt of its request. At the request of the Company, Indemnitee
shall furnish such documentation and information as are reasonably available to
Indemnitee and necessary to establish that Indemnitee is entitled to
indemnification hereunder.


 


6.  Indemnification
for Expenses of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provision of this Agreement, and without limiting any
such provision, to


 


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the
extent that Indemnitee is, by reason of Indemnitee’s Corporate Status, a party
to and is successful, on the merits or otherwise, in any Proceeding, Indemnitee
shall be indemnified against all Expenses reasonably incurred by Indemnitee or
on Indemnitee’s behalf in connection therewith. If Indemnitee is not wholly
successful in such Proceeding but is successful, on the merits or otherwise, as
to one or more but less than all claims, issues or matters in such Proceeding,
the Company shall indemnify Indemnitee against all Expenses reasonably incurred
by Indemnitee or on Indemnitee’s behalf in connection with each successfully
resolved claim, issue or matter. For purposes of this Agreement, the
termination of any claim, issue or matter in such a Proceeding by dismissal,
with or without prejudice, by reason of settlement, judgment, order or
otherwise, shall be deemed to be a successful result as to such claim, issue or
matter.


 


7.  Effect of
Certain Resolutions. Neither the settlement or termination of any
Proceeding nor the failure of the Company to award indemnification or to
determine that indemnification is payable shall create a presumption that Indemnitee
is not entitled to indemnification hereunder. In addition, the termination of
any proceeding by judgment, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent shall not create a presumption that
Indemnitee did not act in good faith and in a manner which Indemnitee
reasonably believed to be in or not opposed to the best interests of the
Company or, with respect to any criminal Proceeding, had reasonable cause to
believe that Indemnitee’s action was unlawful.


 


8.  Advancement of
Expenses; Undertaking. The Company shall advance all Expenses
incurred by or on behalf of Indemnitee in connection with any Proceeding,
including a Proceeding by or in the right of the Company, in which Indemnitee
is involved by reason of such Indemnitee’s Corporate Status within ten (10) calendar
days after the receipt by the Company of a written statement from Indemnitee
requesting such advance or advances from time to time, whether prior to or
after final disposition of such Proceeding. To the extent required by Delaware
law, Indemnitee hereby undertakes to repay any and all of the amount of
Indemnifiable Expenses paid to Indemnitee if it is finally determined by a
court of competent jurisdiction that Indemnitee is not entitled under this
Agreement to indemnification with respect to such Expenses. This undertaking is
an unlimited general obligation of Indemnitee.


 


9.  Procedure for
Advance Payment of Expenses. Indemnitee shall submit to
the Company a written request specifying the Indemnifiable Expenses for which
Indemnitee seeks an advancement under Section 8 of this Agreement,
together with documentation evidencing that Indemnitee has incurred such
Indemnifiable Expenses. Payment of Indemnifiable Expenses under Section 8
shall be made no later than ten (10) calendar days after the Company’s
receipt of such request.


 


10.                Indemnification
for Expenses of a Witness. Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee is, by reason of his Corporate Status,
a witness in any Proceeding to which Indemnitee is not a party, he shall be
indemnified against all Expenses actually and reasonably incurred by him or on
his behalf in connection therewith.


 


11.                Remedies of
Indemnitee.


 


(a)      Right to
Petition Court. In the event that Indemnitee makes a request for
payment of Indemnifiable Amounts under Sections 3 and 5 above or a request
for an advancement of Indemnifiable Expenses under Sections 8 and 9 above
and the Company fails to make such payment or advancement in a timely manner
pursuant to the terms of this Agreement, Indemnitee may petition a court of
competent jurisdiction to enforce the Company’s obligations under this
Agreement.


 


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(b)     Burden of Proof. In any
judicial proceeding brought under Section 11(a) above, the Company
shall have the burden of proving that Indemnitee is not entitled to payment of
Indemnifiable Amounts hereunder.


 


(c)      Expenses. The Company
agrees to reimburse Indemnitee in full for any Expenses incurred by Indemnitee
in connection with investigating, preparing for, litigating, defending or
settling any action brought by Indemnitee under Section 11(a) above,
or in connection with any claim or counterclaim brought by the Company in
connection therewith, whether or not Indemnitee is successful in whole or in
part in connection with any such action.


 


(d)     Failure to Act
Not a Defense. The failure of the Company (including its Board of
Directors or any committee thereof, independent legal counsel, or stockholders)
to make a determination concerning the permissibility of the payment of
Indemnifiable Amounts or the advancement of Indemnifiable Expenses under this
Agreement shall not be a defense in any action brought under Section 11(a) above,
and shall not create a presumption that such payment or advancement is not
permissible.


 


12.                Defense of the
Underlying Proceeding.


 


(a)      Notice by
Indemnitee. Indemnitee agrees to notify the Company promptly
upon being served with any summons, citation, subpoena, complaint, indictment,
information, or other document relating to any Proceeding which may result in
the payment of Indemnifiable Amounts or the advancement of Indemnifiable
Expenses hereunder; provided, however, that the failure to give any such notice
shall not disqualify Indemnitee from the right, or otherwise affect in any
manner any right of Indemnitee, to receive payments of Indemnifiable Amounts or
advancements of Indemnifiable Expenses unless the Company’s ability to defend
in such Proceeding is materially and adversely prejudiced thereby.


 


(b)     Defense by
Company. Subject to the provisions of the last sentence of this Section 12(b) and
of Section 12(c) below, the Company shall have the right to defend
Indemnitee in any Proceeding which may give rise to the payment of Indemnifiable
Amounts hereunder; provided, however that the Company shall notify Indemnitee
of any such decision to defend within ten (10) calendar days of receipt of
notice of any such Proceeding under Section 12(a) above. The Company
shall not, without the prior written consent of Indemnitee, consent to the
entry of any judgment against Indemnitee or enter into any settlement or
compromise which (i) includes an admission of fault of Indemnitee or (ii) does
not include, as an unconditional term thereof, the full release of Indemnitee
from all liability in respect of such Proceeding, which release shall be in
form and substance reasonably satisfactory to Indemnitee. This Section 12(b) shall
not apply to a Proceeding brought by Indemnitee under Section 11(a) above
or pursuant to Section 20 below.


 


(c)      Indemnitee’s
Right to Counsel. Notwithstanding the provisions of Section 12(b) above,
if in a Proceeding to which Indemnitee is a party by reason of Indemnitee’s
Corporate Status, (i) Indemnitee reasonably concludes that he or she may
have separate defenses or counterclaims to assert with respect to any issue
which may not be consistent with the position of other defendants in such
Proceeding, (ii) a conflict of interest or potential conflict of interest
exists between Indemnitee and the Company, or (iii) if the Company fails
to assume the defense of such proceeding in a timely manner, Indemnitee shall
be entitled to be represented by separate legal counsel of Indemnitee’s choice
at the expense of the Company. In addition, if the Company fails to comply with
any of its obligations under this Agreement or in the event that the Company or
any other person takes any action to declare this Agreement void or
unenforceable, or institutes any action, suit or proceeding to deny or to
recover from Indemnitee the benefits intended to be provided to Indemnitee
hereunder, 


 


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Indemnitee
shall have the right to retain counsel of Indemnitee’s choice, at the expense
of the Company, to represent Indemnitee in connection with any such matter.


 


13.                Representations
and Warranties of the Company. The Company hereby
represents and warrants to Indemnitee as follows:


 


(a)      Authority. The Company
has all necessary power and authority to enter into, and be bound by the terms
of, this Agreement, and the execution, delivery and performance of the
undertakings contemplated by this Agreement have been duly authorized by the
Company.


 


(b)     Enforceability. This
Agreement, when executed and delivered by the Company in accordance with the
provisions hereof, shall be a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except
as such enforceability may be limited by applicable bankruptcy, insolvency,
moratorium, reorganization or similar laws affecting the enforcement of
creditors’ rights generally.


 


14.                Insurance. The Company
shall, from time to time, make the good faith determination whether or not it
is practicable for the Company to obtain and maintain a policy or policies of
insurance with a reputable insurance company providing the Indemnitee with
coverage for losses from wrongful acts. For so long as Indemnitee shall remain
a director or executive officer of the Company and with respect to any such
prior service, in all policies of director and officer liability insurance,
Indemnitee shall be named as an insured in such a manner as to provide
Indemnitee the same rights and benefits as are accorded to the most favorably
insured of the Company’s officers and directors. Notwithstanding the foregoing,
the Company shall have no obligation to obtain or maintain such insurance if
the Company determines in good faith that such insurance is not reasonably
available, if the premium costs for such insurance are disproportionate to the
amount of coverage provided, or if the coverage provided by such insurance is
limited by exclusions so as to provide an insufficient benefit. The Company
shall promptly notify Indemnitee of any good faith determination not to provide
such coverage.


 


15.                Contract Rights
Not Exclusive. The rights to payment of Indemnifiable Amounts and
advancement of Indemnifiable Expenses provided by this Agreement shall be in
addition to, but not exclusive of, any other rights which Indemnitee may have
at any time under applicable law, the Company’s Certificate of Incorporation or
Bylaws, or any other agreement, vote of stockholders or directors (or a
committee of directors), or otherwise, both as to action in Indemnitee’s
official capacity and as to action in any other capacity as a result of
Indemnitee’s serving as a director or executive officer of the Company.


 


16.                Successors. This
Agreement shall be (a) binding upon all successors and assigns of the
Company (including any transferee of all or a substantial portion of the
business, stock and/or assets of the Company and any direct or indirect
successor by merger or consolidation or otherwise by operation of law) and (b) binding
on and shall inure to the benefit of the heirs, personal representatives,
executors and administrators of Indemnitee. This Agreement shall continue for
the benefit of Indemnitee and such heirs, personal representatives, executors
and administrators after Indemnitee has ceased to have Corporate Status.


 


17.                Subrogation. In the event
of any payment of Indemnifiable Amounts under this Agreement, the Company shall
be subrogated to the extent of such payment to all of the rights of
contribution or recovery of Indemnitee against other persons, and Indemnitee
shall take, at the request of the Company, all reasonable action necessary to
secure such rights, including the 


 


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execution
of such documents as are necessary to enable the Company to bring suit to
enforce such rights.


 


18.                Change in Law. To the extent
that a change in Delaware law (whether by statute or judicial decision) shall
permit broader indemnification or advancement of expenses than is provided
under the terms of the Bylaws and this Agreement, Indemnitee shall be entitled
to such broader indemnification and advancements, and this Agreement shall be
deemed to be amended to such extent.


 


19.                Severability. Whenever
possible, each provision of this Agreement shall be interpreted in such a
manner as to be effective and valid under applicable law, but if any provision
of this Agreement, or any clause thereof, shall be determined by a court of
competent jurisdiction to be illegal, invalid or unenforceable, in whole or in
part, such provision or clause shall be limited or modified in its application
to the minimum extent necessary to make such provision or clause valid, legal
and enforceable, and the remaining provisions and clauses of this Agreement
shall remain fully enforceable and binding on the parties.


 


20.                Indemnitee as Plaintiff. Except as
provided in Section 11(c) of this Agreement and in the next sentence,
Indemnitee shall not be entitled to payment of Indemnifiable Amounts or
advancement of Indemnifiable Expenses with respect to any Proceeding brought by
Indemnitee against the Company, any Entity which it controls, any director or
officer thereof, or any third party, unless the Board of Directors of the
Company has consented to the initiation of such Proceeding. This Section shall
not apply to counterclaims or affirmative defenses asserted by Indemnitee in an
action brought against Indemnitee.


 


21.                Modifications
and Waiver. Except as provided in Section 18 above with
respect to changes in Delaware law which broaden the right of Indemnitee to be
indemnified by the Company, no supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by each of the parties
hereto. No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provisions of this Agreement (whether or
not similar), nor shall such waiver constitute a continuing waiver.


 


22.                General Notices. All notices,
requests, demands and other communications hereunder shall be in writing and
shall be deemed to have been duly given (a) when delivered by hand, (b) when
transmitted by facsimile and receipt is acknowledged, or (c) if mailed by
certified or registered mail with postage prepaid, on the third business day
after the date on which it is so mailed:


 


	
   

  	
   

  	
   

  
	
  (a)

  	
  If
  to Indemnitee, to:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (b)

  	
  If
  to the Company, to:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Deckers
  Outdoor Corporation

  	
   

  
	
   

  	
  495-A
  South Fairview Avenue

  	
   

  
	
   

  	
  Goleta,
  CA 93117

  	
   

  
	
   

  	
  Attention:
  

  	
   

  



 


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or
to such other address as may have been furnished in the same manner by any
party to the others.


 


23.                Governing Law. This
Agreement shall be governed by and construed in accordance with the laws of the
State of Delaware without regard to its rules of conflict of laws.


 


[Signature Page Follows]


 


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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.


 


	
   

  	
   

  	
   

  
	
   

  	
  DECKERS
  OUTDOOR

  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  INDEMNITEE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  



 


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