exv10w1







Exhibit 10.1




INDEMNIFICATION AGREEMENT




     This
Indemnification Agreement, dated as of _______, is made by and between Furniture Brands
International, Inc., a Delaware corporation (the “Company”)
and _______ (the
“Indemnitee”), an “agent” (as hereinafter defined) of the Company.



R E C I T A L S




     A. The Company recognizes that competent and experienced persons are reluctant to serve as
directors or officers of corporations unless they are protected by comprehensive liability
insurance or indemnification, or both, due to increased exposure to litigation costs and risks
resulting from their service to such corporations, and due to the fact that the exposure frequently
bears no reasonable relationship to the compensation of such directors and officers;



     B. The statutes and judicial decisions regarding the duties of directors and officers are
often difficult to apply, ambiguous, or conflicting, and therefore fail to provide such directors
and officers with adequate, reliable knowledge of legal risks to which they are exposed or
information regarding the proper course of action to take;



     C. The Company and the Indemnitee recognize that plaintiffs often seek damages in such large
amounts and the costs of litigation may be so enormous (whether or not the case is meritorious),
that the defense and/or settlement of such litigation is often beyond the personal resources of
directors and officers;



     D. The Company believes that it is unfair for its directors and officers to assume the risk of
huge judgments and other expenses which may occur in cases in which the director or officer
received no personal profit and in cases where the director or officer was not culpable;



     E. The Company, after reasonable investigation, has determined that the liability insurance
coverage presently available to the Company may be inadequate to cover all possible exposure for
which the Indemnitee should be protected and/or is unreasonably expensive. The Company believes
that the interests of the Company and its shareholders would best be served by a combination of
such insurance and the indemnification by the Company of the directors and officers of the Company;



     F. Section 145 of the General Corporation Law of Delaware (“Section 145”), under which the
Company is organized, empowers the Company to indemnify its officers, directors, employees and
agents by agreement and expressly provides that the indemnification provided by Section 145 is not
exclusive;



     G. The Board of Directors has determined that contractual indemnification as set forth herein
is not only reasonable and prudent but necessary to promote the best interests of the Company and
its shareholders;



     H. The Company desires and has requested the Indemnitee to serve or continue to serve as a
director or officer of the Company free from undue concern for claims for damages arising out of
or related to such services to the Company; and



     I. The Indemnitee is willing to serve, or to continue to serve, the Company, only on the
condition that he or she is furnished the indemnity provided for herein.



A G R E E M E N T




     NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth below, the
parties hereto, intending to be legally bound, hereby agree as follows:



     1. Definitions



     (a) Agent. For purposes of this Agreement, “agent” of the Company means any person who
is or was a director, officer, employee or other agent of the Company, a subsidiary of the Company
or the Company’s Charitable Trust or is or was a director, officer, employee or agent of a foreign
or domestic corporation which was a predecessor corporation of the Company or a subsidiary of the
Company, or 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.



     (b) Expenses. For purposes of this Agreement, “expenses” includes all direct and
indirect costs of any type or nature whatsoever (including, without limitation, all reasonable
attorneys’ fees and related disbursements, other out-of-pocket costs and



 









 







reasonable compensation
for time spent by the Indemnitee for which he or she is not otherwise compensated by the Company or
any third party, provided that the rate of compensation and estimated time involved is approved by
the Board of Directors, which approval
shall not be unreasonably withheld), actually and reasonably incurred by the Indemnitee in
connection with either the investigation, defense or appeal of a proceeding or establishing or
enforcing a right to indemnification under this Agreement, Section 145 or otherwise; provided,
however, that expenses shall not include any judgment, fines, ERISA excise taxes or penalties or
amounts paid in settlements.



     (c) Proceedings. For the purpose of this Agreement, “proceeding” means any threatened,
pending, or completed claim, action, suit or other proceeding, whether civil, criminal,
administrative, investigative or any other type whatsoever.



     (d) Subsidiary. For purposes of this Agreement, “subsidiary” means any corporation
(or other entity or enterprise) of which more than 50% of the outstanding voting securities (or
comparable interests) are owned directly or indirectly by the Company, by the Company and one or
more other subsidiaries, or by one or more other subsidiaries.



     (e) Miscellaneous. For purposes of this Agreement, any person who acts in good faith
and in a manner he or she reasonably believes to be in the best interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to
the best interests of the Company” as referred to in this Agreement.



     2. Agreement to Serve. The Indemnitee agrees to serve and/or continue to serve as an
agent of the Company, at its will (or under separate agreement, if such agreement now or hereafter
exists), in the capacity Indemnitee currently serves (or in such other positions which he or she
agrees to assume) as an agent of the Company, so long as he or she is duly appointed or elected and
qualified in accordance with the applicable provisions of the Bylaws of the Company, any subsidiary
of the Company, or until such time as he or she tenders his or her resignation in writing,
provided, however, that nothing contained in this Agreement is intended to create any right to
continued employment by Indemnitee in any capacity.



     3. Indemnity in Third Party Proceedings. The Company shall indemnify the Indemnitee
if the Indemnitee is a party to or threatened to be made a party to or otherwise involved in any
proceeding (other than a proceeding by or in the name of the Company to procure judgment in its
favor) by reason of the fact that the Indemnitee is or was an agent of the Company, or by reason of
any act or inaction by him or her in any such capacity, against any and all expenses and
liabilities of any type whatsoever (including, but not limited to, judgments, settlements, fines
and penalties), actually and reasonably incurred by him or her in connection with the
investigation, defense, settlement or appeal of such proceeding, but only if the Indemnitee acted
in good faith and in a manner he or she reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action or proceeding, had no reasonable
cause to believe his or her conduct was unlawful. The termination of any proceeding by judgment,
order of court, settlement, conviction or on plea of nolo contendere, or its equivalent, shall not,
of itself, create a presumption that Indemnitee did not act in good faith in a manner which he
reasonably believed to be in or not opposed to the best interests of the Company, and with respect
to any criminal proceedings, that such person had reasonable cause to believe that his or her
conduct was unlawful.



     4. Indemnity in Derivative Action. The Company shall indemnify the Indemnitee if the
Indemnitee is a party to or threatened to be made a party to or otherwise involved in any
proceeding by or in the name of the Company to procure a judgment in its favor by reason of the
fact that the Indemnitee is or was an agent of the Company, or by reason of any act or inaction by
him or her in any such capacity, against all expenses actually and reasonably incurred by the
Indemnitee in connection with the investigation, defense, settlement, or appeal of such proceeding,
but only if the Indemnitee acted in good faith and in a manner he or she reasonably believed to be
in or not opposed to the best interests of the Company, except that no indemnification under this
subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall
have been finally adjudged to be liable to the Company by a court of competent jurisdiction unless
and only to the extent that the Court of Chancery or other court in which such proceeding was
brought or another court of competent jurisdiction shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses as such court shall deem proper.



     5. Indemnification of Expenses of Successful Party. Notwithstanding any other
provisions of this Agreement, to the extent that the Indemnitee has been successful on the merits
or otherwise in defense of any proceeding or in defense of any claim, issue or matter therein,
including the dismissal of an action without prejudice, the Company shall indemnify the Indemnitee
against all expenses actually and reasonably incurred in connection with the investigation, defense
or appeal of such proceeding.



     6. Partial Indemnification. If the Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for some or a portion of any expenses or liabilities of
any type whatsoever (including, but not limited to, judgments, fines or penalties), but is not
entitled, however, to indemnification for the total amount thereof, the Company shall nevertheless
indemnify the Indemnitee for the portion thereof to which the Indemnitee is entitled.



     7. Advancement of Expenses. Subject to sections 8(a) and 11(a) below, the Company
shall advance all expenses incurred by the Indemnitee in connection with the investigation,
defense, settlement or appeal of any proceeding to which the



 









 







Indemnitee is a party or is threatened
to be made a party by reason of the fact that the Indemnitee is or was an agent of the Company or
by reason of any action taken or not taken by him in such capacity. Indemnitee hereby undertakes
to repay such amounts advanced
only if, and to the extent that, it shall ultimately be finally determined that the Indemnitee
is not entitled to be indemnified by the Company as authorized by this Agreement or otherwise. The
advances to be made hereunder shall be paid by the Company to or on behalf of the Indemnitee
promptly and in any event within thirty (30) days following delivery of a written request therefor
by the Indemnitee to the Company.



     8. Notice and Other Indemnification Procedures.



     (a) Promptly after receipt by the Indemnitee of notice of the commencement of or the threat of
commencement of any proceeding, the Indemnitee shall, if the Indemnitee believes that
indemnification with respect thereto may be sought from the Company under this Agreement, notify
the Company of the commencement or threat of commencement thereof, provided the failure to provide
such notification shall not diminish Indemnitee’s indemnification hereunder, except to the extent
that the Company can demonstrate that it was actually prejudiced as a result thereof.



     (b) The Indemnitee shall be entitled to indemnification under Section 3 and/or 4 hereof and
to receive payment from the Company in accordance with this Agreement no later than forty-five (45)
days after receipt by the Company of the written request of Indemnitee for such indemnification
unless a determination is made within said forty-five (45) day period (i) by the Board of Directors
of the Company by a majority vote of directors who are not parties to such proceedings (even though
less than a quorum), (ii) by a committee of such directors designated by majority vote of such
directors, even though less than quorum, (iii) if there are no such directors, or of such directors
so direct, by independent legal counsel in a written opinion, or (iv) by the stockholders of the
Company, that the Indemnitee has not met the relevant standard for indemnification set forth in
Section 3 and 4 hereof. Any independent legal counsel shall be selected by the Company and
approved by the agent.



     (c) Notwithstanding a determination under Section 8(b) above that the Indemnitee is not
entitled to indemnification with respect to any specific proceeding, the Indemnitee shall have the
right to apply to any court of competent jurisdiction for the purpose of enforcing the Indemnitee’s
right to indemnification pursuant to this Agreement. The burden of proving that the
indemnification or advances are not appropriate shall be on the Company. Neither the failure of the
Company (including its Board of Directors or independent legal counsel) to have made a
determination prior to the commencement of such action that indemnification or advances are proper
in the circumstances because the Indemnitee has met the applicable standard of conduct, nor an
actual determination by the Company (including its Board of Directors or independent legal counsel,
that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the
action or create any presumption that the Indemnitee has not met the applicable standard of
conduct.



     (d) The Company shall indemnify the Indemnitee against all expenses incurred in connection
with any hearing or proceeding under this Section 8 unless a court of competent jurisdiction finds
that each of the claims and/or defenses of the Indemnitee in any such proceeding were frivolous or
in bad faith.



     9. Assumption of Defense. In the event the Company shall be obligated to pay
the expenses of any proceeding against or involving the Indemnitee, the Company, if appropriate,
shall be entitled to assume the defense of such proceeding, with counsel reasonably acceptable to
the Indemnitee, upon the delivery to the Indemnitee of written notice of its election to do so.
After delivery of such notice, approval of such counsel by the Indemnitee and the retention of such
counsel by the Company, the Company will not be liable to the Indemnitee under this Agreement for
any fees of counsel subsequently incurred by the Indemnitee with respect to the same proceeding,
provided that (i) the Indemnitee shall have the right to employ his or her counsel in such
proceeding at the Indemnitee’s expense; and (ii) if (a) the employment of counsel by the Indemnitee
has been previously authorized in writing by the Company, (b) the Indemnitee shall have reasonably
concluded that there may be a conflict of interest between the Company and the Indemnitee in the
conduct of such defense, or (c) the Company shall not, in fact, have employed counsel to assume the
defense of such proceeding, the fees and expenses of the Indemnitee’s counsel shall be at the
expense of the Company.



     10. Insurance. The Company may, but is not obligated to, obtain directors’ and
officers’ liability insurance (“D&O Insurance”) as may be or become available in reasonable
amounts from established and reputable insurers with respect to which the Indemnitee is named as an
insured. Notwithstanding any other provision of the Agreement, the Company shall not be obligated
to indemnify the Indemnitee for expenses, judgments, fines or penalties, which have been paid
directly to or on behalf of the Indemnitee by D&O Insurance. If the Company has D&O Insurance in
effect at the time the Company receives from the Indemnitee any notice of the commencement of a
proceeding, the Company shall give prompt notice of the commencement of such proceeding to the
insurer in accordance with the procedures set forth in the policy. The Company shall thereafter
take all necessary or desirable action to cause such insurers to pay, to or on behalf of the
Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such
policy.



     11. Exceptions. Any other provision herein or in the Company’s certificate of
incorporation or bylaws to the contrary notwithstanding, the Company shall not be obligated
pursuant to the terms of this Agreement:



     (a) Claims Initiated by Indemnitee. To indemnify or advance expenses to the Indemnitee
with respect to proceedings or



 









 







claims initiated or brought voluntarily by the Indemnitee and not by
way of defense, except with respect to proceedings brought to establish or enforce a right to
indemnification under this Agreement or any other statute or law or otherwise as required under
Section
145, but such indemnification or advancement of expenses may be provided by the Company in
specific cases if the Board of Directors finds it to be appropriate; or



     (b) Lack of Good Faith. To indemnify the Indemnitee for any expenses incurred
by the Indemnitee with respect to any proceeding instituted by the Indemnitee to enforce or
interpret this Agreement, if a court of competent jurisdiction determines that each of the material
assertions made by the Indemnitee in such proceeding was not made in good faith or was frivolous;
or



     (c) Unauthorized Settlements. To indemnify the Indemnitee under this Agreement for
any amounts paid in settlement of a proceeding effected without the Company’s written consent; or



     (d) Willful Misconduct. To indemnify or advance expenses to the Indemnitee under this
Agreement for any expenses incurred by the Indemnitee with respect to any proceeding or claim
brought by the Company against the Indemnitee for willful misconduct, unless a court of competent
jurisdiction determines that each of such claims was not made in good faith or was frivolous; or



     (e) Non-compete and Non-disclosure. To indemnify the Indemnitee in connection
with proceedings or claims involving the enforcement of non-compete and/or non-disclosure
agreements or the non-compete and/or non-disclosure provisions of employment, consulting or similar
agreements the Indemnitee may be a party to with the Company or any subsidiary of the Company; or



     (f) Certain Matters. To indemnify the Indemnitee on account of any
proceeding (i) with respect to remuneration paid to Indemnitee if it is determined by final
judgment or other final adjudication that such remuneration was in violation of law, (ii) which
final judgment is rendered against the Indemnitee for an accounting of profits made by the purchase
or sale by Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of
the Securities Exchange Act of 1934, as amended, or similar provisions of any federal, state or
local statute, or (iii) which it is determined by final judgment or other final adjudication that
the Indemnitee’s conduct was knowingly fraudulent or dishonest or constitutes willful misconduct.



     12. Nonexclusivity. The provisions for indemnification and advancement of expenses
set forth in this Agreement shall not be deemed exclusive of any other rights which the
Indemnitee may have under any provision of law, the Company’s Certificate of Incorporation or
Bylaws, in any court in which a proceeding is brought, the vote of the Company’s shareholders or
disinterested directors, other agreements or otherwise, both as to action in his or her official
capacity and to action in another capacity while occupying his or her position as an agent of the
Company, and the Indemnitee’s rights hereunder shall continue after the Indemnitee has ceased
acting as an agent of the Company and shall inure to the benefit of the heirs, executors and
administrators of the Indemnitee.



     13. Settlement. The Company shall not settle any proceeding without the Indemnitee’s
written consent unless such settlement solely involves the payment of money and includes an
unconditional release of the Indemnitee from all liability on any claims that are the subject
matter of such claim. Neither the Company nor Indemnitee will unreasonably withhold consent to any
proposed settlement.



     14. Subrogation. In the event of payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee, who
shall execute all papers required and shall do everything that may reasonably be necessary to
secure such rights, including the execution of such documents necessary to enable the Company
effectively to bring suit to enforce such rights. The Company shall pay or reimburse all expenses
incurred by Indemnitee in connection with such subrogation.



     15. Interpretation of Agreement. It is understood that the parties hereto intend
this Agreement to be interpreted and enforced so as to provide indemnification to the Indemnitee to
the fullest extent now or hereafter permitted by law.



     16. Severability. If any provision or provisions of this Agreement shall be held to
be invalid, illegal or unenforceable for any reason whatsoever, (i) the validity, legality and
enforceability of the remaining provisions of the Agreement (including without limitation, all
portions of any paragraphs of this Agreement containing any such provision held to be
invalid, illegal or unenforceable, that are not themselves invalid, illegal or unenforceable) shall
not in any way be affected or impaired thereby, and (ii) to the fullest extent possible, the
provisions of this Agreement (including, without limitation, all portions of any paragraph of this
Agreement containing any such provision held to be invalid, illegal or unenforceable, that are not
themselves invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby,
and (iii) to the fullest extent possible, the provisions of this Agreement (including, without
limitation, all portions of any paragraph of this Agreement containing any such provision held to
be invalid, illegal or unenforceable, that are not themselves invalid, illegal or unenforceable)
shall be construed so as to give effect to the intent manifested by the provision held invalid,
illegal or unenforceable and to give effect to Section 15 hereof.



 









 





     17. Modification and Waiver. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of
any of the provisions to 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.




     18. Successor and Assigns. The terms of this Agreement shall bind, and shall inure
to the benefit of, the successor and assigns of the parties hereto.



     19. Notice. All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed duly given (i) if delivered by hand and receipted
for by the party addressee, (ii) if mailed by certified or registered mail with postage prepaid, on
the third business day after the mailing date, or (iii) if transmitted electronically by a means by
which receipt thereof can be demonstrated. Addresses for notice to either party are set out on the
signature page hereof and may be subsequently modified by written notice.



     20. Supersedes Prior Agreement. This Agreement supersedes any prior indemnification
agreement between Indemnitee and the Company or its predecessors.



     21. Service of Process and Venue. For purposes of any claims or proceeding to
enforce this agreement, the Company and the Indemnitee consents to the jurisdiction and venue of
any federal or state court of competent jurisdiction in the states of Delaware and Missouri, and
waives and agrees not to raise any defense that any such court is an inconvenient forum or any
similar claim.



     22. Governing Law. This Agreement shall be governed exclusively by and construed
according to the laws of the State of Delaware, as applied to contracts between Delaware residents
entered into and to be performed entirely within Delaware. If a court of competent jurisdiction
shall make a final determination that the provisions of the law of any state other than Delaware
govern indemnification by the Company of its officers and directors, then the indemnification
provided under this Agreement shall in all instances be enforceable to the fullest extent permitted
under such law, notwithstanding any provision of this Agreement to the contrary.



     The parties hereto have entered into this Indemnity Agreement effective as of the date first
above written.



	 	 	 	 	 
	 	FURNITURE BRANDS INTERNATIONAL, INC.

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Indemnitee:




	 	 	 	 	 
	 	 	 
	 	By  	
 	 
	 	 	Name:  	 	 
	 	 	Address: