exv10w1



 








EXHIBIT 10.1




INDEMNITY AGREEMENT




     This Indemnity Agreement (the “Agreement”) dated as of    , 2003 by
and between Pier 1 Imports, Inc, a Delaware corporation (the
“Indemnitor”) and       
(the “Indemnitee”).



RECITALS




     The Indemnitee is a director and/or officer of the
Indemnitor and/or an Affiliate Indemnitee (as hereinafter
defined). The Indemnitor and the Indemnitee recognize the
increased risk of litigation and other claims being asserted
against directors and officers in today’s environment.



     The Bylaws of the Indemnitor (the “Bylaws”) require the Indemnitor to
indemnify its directors and officers as currently provided therein, and the
Indemnitee has been serving and continues to serve as a director and/or officer
of the Indemnitor in part in reliance on such provision. The Bylaws of the
Indemnitor and the Delaware General Corporation Law (the “DGCL”) permit the
Indemnitor to purchase and maintain insurance or to furnish similar protection
or make other arrangements (any such insurance, protection or arrangement, an
“Indemnification Arrangement”) on behalf of the Indemnitee against personal
liability (including, but not limited to, providing for Advanced Amounts as
hereinafter defined) asserted against him or incurred by or on behalf of him in
such capacity as a director or officer of the Indemnitor or as an Affiliate
Indemnitee, or arising out of his status as such, whether or not the Indemnitor
would have the power to indemnify him against such liability under the
provisions of this Agreement or under the DGCL, as it may then be in effect.



     In part to provide the Indemnitee with specific contractual assurance of
substantial protection against personal liability (regardless of, among other
things, any amendment to or revocation of the aforementioned provision of the
Indemnitor’s Bylaws or any change in the composition of the Indemnitor’s Board
of Directors or control of the Indemnitor), the Indemnitor desires to enter
into this Agreement. DGCL Section 145(f) expressly recognizes that the
indemnification provisions of the DGCL are not exclusive of any other rights to
which a person seeking indemnification may be entitled under the Certificate of
Incorporation or Bylaws of the Indemnitor, or an agreement providing for
indemnification, or a resolution of stockholders or directors, or otherwise,
and the Bylaws of the Indemnitor expressly recognize that the indemnification
provisions of the Indemnitor’s Bylaws shall not be deemed exclusive of, and
shall not affect, any other rights to which a person seeking indemnification
may be entitled under any agreement, and this Agreement is being entered into
pursuant to the Bylaws of Indemnitor to provide rights in addition to the
Bylaws of the Indemnitor, as permitted by the DGCL.



     In order to induce the Indemnitee to serve as a director and/or officer of
the Indemnitor and in consideration of the Indemnitee’s so serving, the
Indemnitor desires to hold harmless and indemnify the Indemnitee and to make
arrangements pursuant to which the Indemnitee may be advanced or reimbursed
expenses incurred by the Indemnitee in certain proceedings, in every case to
the fullest extent authorized or permitted by the DGCL, or any other applicable
law, or by any amendment thereof or other statutory provisions authorizing or
permitting such indemnification which are adopted after the date hereof (but,
in the case of any such amendment, only to the extent that such amendment
permits the Indemnitor to provide broader indemnification rights than the DGCL,
or other applicable law, permitted the Indemnitor to provide prior to such
amendment).



     NOW THEREFORE, in consideration of the foregoing recitals and of the
Indemnitee’s continuing to serve the Indemnitor as a director and/or officer,
the parties agree as follows:



     1. Indemnification. To the fullest extent allowed by law, the Indemnitor
shall hold harmless and indemnify the Indemnitee, his executors, administrators
or assigns against any and all expenses, liabilities and losses (including,
without limitation, investigation expenses, expert witnesses’ and attorneys’
fees and expenses, judgments, penalties, fines, amounts paid or to be paid in
settlement, any interest, assessments, or other charges imposed thereon and any
federal, state, local or foreign taxes imposed as a result of actual or deemed
receipt of any payment hereunder) actually incurred by the Indemnitee (net of
any related insurance proceeds or other amounts received by the Indemnitee or
paid by or on behalf of an Indemnitor on the Indemnitee’s behalf in
compensation of such expenses, liabilities or losses) in connection with any
actual or threatened action, suit or proceeding, whether civil, criminal,
administrative or investigative or in arbitration, to which the Indemnitee is a
party or participant or is threatened to be made a party or participant (a
“Proceeding”), as a plaintiff, defendant, respondent, witness or otherwise,
based upon, arising from, relating to or by reason of the fact that the
Indemnitee: (a) is, was, shall be or shall have been a director and/or officer
of the



 









 




Indemnitor; or
(b) is or was serving, shall serve, or shall have served at the request of the
Indemnitor as a director, officer, partner, trustee, fiduciary, employee or
agent (“Affiliate Indemnitee”) of another foreign or domestic corporation or
non-profit corporation, cooperative, partnership, joint venture, trust,
employee benefit plan, or other incorporated or unincorporated enterprise
(each, a “Company Affiliate”); or arising from or relating to any action or
omission to act taken by the Indemnitee in any of the foregoing capacities;
provided, however, that, except as provided in Section 9(b) hereof, the
Indemnitor shall indemnify the Indemnitee in connection with a Proceeding
initiated by the Indemnitee only if such proceeding (or part thereof) was
authorized by a two-thirds vote of the Board of Directors of the Indemnitor.




     The Indemnitee shall be presumed to be entitled to such indemnification
under this Agreement upon submission of a written claim pursuant to Section 4
hereof. Thereafter, the Indemnitor shall have the burden of proof to overcome
the presumption that the Indemnitee is so entitled. Such presumption shall
only be overcome by a judgment or other final adjudication, after all appeals
and all time for appeals has expired (“Final Determination”), which is adverse
to the Indemnitee and which establishes (i) that his acts were committed in bad
faith, or were the result of active and deliberate dishonesty, and were
material to the cause of action so adjudicated and (ii) that the Indemnitee in
fact personally gained a financial profit or other advantage to which he was
not legally entitled. If the Indemnitee is not wholly successful in any
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 Indemnitor
agrees to indemnify the Indemnitee to the maximum extent permitted by law
against all losses and expenses incurred by the Indemnitee in connection with
each successfully resolved claim, issue or matter. Neither the failure of the
Indemnitor (including its Board of Directors, its legal counsel or its
stockholders) to have made a determination prior to the commencement of such
Proceeding that indemnification of the Indemnitee is proper in the
circumstances because such person has met the applicable standard of conduct
set forth in the DGCL, nor an actual determination by the Indemnitor (including
its Board of Directors, its legal counsel or its stockholders) that the
Indemnitee has not met the applicable standard of conduct, shall be a defense
to the action or create a presumption that the Indemnitee has not met the
applicable standard of conduct. The purchase, establishment or maintenance of
any Indemnification Arrangement shall not in any way diminish, restrict, limit
or adversely affect the rights and obligations of the Indemnitor or of the
Indemnitee under this Agreement, except as expressly provided herein, and the
execution and delivery of this Agreement by the Indemnitor and the Indemnitee
shall not in any way diminish, restrict, limit or adversely affect the
Indemnitee’s right to indemnification from the Indemnitor or any other party or
parties under any other Indemnification Arrangement, the Certificate of
Incorporation or Bylaws of the Indemnitor, or the DGCL.



     2. Period of Limitations. No legal action shall be brought and no cause
of action shall be asserted by or on behalf of the Indemnitor or any affiliate
of the Indemnitor against the Indemnitee, Indemnitee’s spouse, heirs,
executors, or personal or legal representatives after the expiration of two
years from the date of accrual of such cause of action, or such longer period
as may be required by applicable law under the circumstances. Any claim or
cause of action of the Indemnitor or its affiliates shall be extinguished and
deemed released unless asserted by the timely filing of a legal action within
such period; provided, however, that if any shorter period of limitations is
otherwise applicable to any such cause of action the shorter period shall
govern.



     3. Insurance. Subject only to the provisions of this Section 3, as long
as the Indemnitee shall continue to serve as a director and/or officer of the
Indemnitor (or shall continue at the request of the Indemnitor to serve as an
Affiliate Indemnitee) and, thereafter, as long as the Indemnitee shall be
subject to any possible Proceeding by reason of the fact that the Indemnitee
was a director and/or officer of the Indemnitor (or served in any of said other
capacities), the Indemnitor shall, unless no such policies are available in any
market, purchase and maintain in effect for the benefit of the Indemnitee one
or more valid, binding and enforceable policies (the “Insurance Policies”) of
directors’ and officers’ liability insurance (“D&O Insurance”) providing
adequate liability coverage for the Indemnitee’s acts as a director and/or
officer of the Indemnitor or as an Affiliate Indemnitee. The Indemnitor shall
promptly notify the Indemnitee of any lapse, amendment or failure to renew said
policy or policies or any provision thereof relating to the extent or nature of
coverage provided thereunder. In the event the Indemnitor does not purchase
and maintain in effect said policy or policies of D&O Insurance pursuant to the
provisions of this Section 3, the Indemnitor shall, in addition to and not in
limitation of the other rights granted the Indemnitee under this Agreement,
hold harmless and indemnify the Indemnitee to the full extent of coverage which
would otherwise have been provided for the benefit of the Indemnitee pursuant
to the Insurance Policies.



     4. Claims for Payments. The Indemnitee shall have the right to receive
from the Indemnitor on demand or, at his option, to have the Indemnitor pay
promptly on his behalf, in advance of the Final Determination of a Proceeding,
all amounts payable by the Indemnitor pursuant to the terms of this Agreement
as corresponding amounts are expended or incurred by the Indemnitee in
connection with any Proceeding or otherwise (such amounts so expended or
incurred being referred to as “Advanced Amounts”). In making any claim for
payment by the Indemnitor of any amount, including any Advanced Amount,
pursuant to this Agreement, the Indemnitee shall submit to the Indemnitor a
written request for



 









 




payment (a “Claim”) which includes a schedule setting forth in reasonable
detail the dollar amount expended (or incurred or expected to be expended or
incurred). Each item on such schedule shall be supported by the bill,
agreement, or other documentation relating thereto, a copy of which shall be
appended to the schedule as an exhibit.




     Where the Indemnitee is requesting Advanced Amounts, the Indemnitee must
also provide an undertaking to repay such Advanced Amounts if a Final
Determination is made that the Indemnitee is not entitled to indemnification
hereunder.



     5. Section 16(b) Liability. No Indemnitor shall be liable under this
Agreement to make any payment in connection with any claim made against the
Indemnitee for an accounting of profits made from the purchase or sale by the
Indemnitee of securities of the Indemnitor within the meaning of Section 16(b)
of the Securities Exchange Act of 1934, and amendments thereto, or similar
provisions of any state statutory law or common law.



     6. Continuation of Indemnity. All agreements and obligations of the
Indemnitor contained herein shall continue during the period the Indemnitee is
a director and/or officer of the Indemnitor (or is serving at the request of
the Indemnitor as an Affiliate Indemnitee) and shall continue thereafter so
long as the Indemnitee shall be subject to any possible Proceeding by reason of
the fact that the Indemnitee was a director or officer of the Indemnitor or
served as such an Affiliate Indemnitee.



     7. Successors; Binding Agreement. This Agreement shall be binding on, and
shall inure to the benefit of and be enforceable by, the Indemnitor’s
successors and assigns and by the Indemnitee’s personal or legal
representatives, executors, administrators, successors, heirs, distributees,
divisees and legatees. The Indemnitor shall require any successor or assignee
(whether direct or indirect, by purchase, merger, consolidation or otherwise)
to all or substantially all of the business and/or assets of the Indemnitor, by
written agreement in form and substance reasonably satisfactory to the
Indemnitor and to the Indemnitee, expressly to assume and agree to perform this
Agreement in the same manner and to the same extent that the Indemnitor would
be required to perform if no such succession or assignment had taken place.



     8. Notification and Defense of Claim. Promptly after receipt by the
Indemnitee of notice of the commencement of any Proceeding, the Indemnitee
shall, if a claim in respect thereof is to be made against the Indemnitor under
this Agreement, notify the Indemnitor of the commencement thereof, but the
failure to so notify the Indemnitor will not relieve the Indemnitor from any
liability which it may have to the Indemnitee. With respect to any such
Proceeding:



     (i) The Indemnitor shall be entitled to participate therein at its own
expense;



     (ii) Except with prior written consent of the Indemnitee, the Indemnitor
shall not be entitled to assume the defense of any Proceeding; and



     (iii) The Indemnitor shall not settle any Proceeding in any manner which
would impose any penalty or limitation on the Indemnitee without the
Indemnitee’s prior written consent.



     The Indemnitee shall not settle any Proceeding with respect to which the
Indemnitee has received indemnified amounts or Advanced Amounts without the
Indemnitor’s prior written consent, nor will the Indemnitee unreasonably
withhold consent to any proposed settlement.



     9. Enforcement. (a) The Indemnitor has entered into this Agreement and
assumed the obligations imposed on the Indemnitor hereby in order to induce the
Indemnitee to act as a director and/or officer of the Indemnitor or as an
Affiliate Indemnitee and acknowledges that the Indemnitee is relying upon this
Agreement in continuing in such capacity.



          (b) All expenses incurred by the Indemnitee in connection with the
preparation and submission of the Indemnitee’s request for indemnification
hereunder shall be borne by the Indemnitor. In the event the Indemnitee has
requested payment of any amount under this Agreement and has not received
payment thereof within thirty (30) days of such request, the Indemnitee may
bring any action to enforce rights or collect moneys due under this Agreement,
and, if the Indemnitee is successful in such action, the Indemnitor shall
reimburse the Indemnitee for all of the Indemnitee’s fees and expenses in
bringing and pursuing such action. If it is determined that the Indemnitee is
entitled to indemnification for part (but not all) of the indemnification so
requested, expenses incurred in seeking enforcement of such partial
indemnification shall be reasonably prorated among the claims, issues or
matters for which the Indemnitee is not so entitled. The Indemnitee shall be
entitled to the advancement of such amounts to the full extent contemplated by
Section 4 hereof in connection with such Proceeding.



     10. 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 this



 









 




Agreement (including, without limitation, all portions of any sections or
subsections of this Agreement containing any such provision held to be invalid,
illegal or unenforceable) shall not in any way be affected or impaired thereby,
and (ii) to the fullest extent possible, the provisions of any section or
subsections of this Agreement containing any such provisions held to be
invalid, illegal or unenforceable shall be construed so as to give effect to
the intent of the parties that the Indemnitor provide protection to the
Indemnitee to the fullest extent enforceable.




     11. Miscellaneous. No provisions of this Agreement may be modified,
waived or discharged unless such modification, waiver or discharge is agreed to
in writing signed by the Indemnitee and an officer of the Indemnitor designated
by the Board of Directors of the Indemnitor. No waiver by either party at any
time of any breach by the other party of, or of compliance with, any condition
or provision of this Agreement to be performed by such other party shall be
deemed a waiver of similar or dissimilar provisions or conditions at the same
time or at any prior or subsequent time. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of Delaware, without giving effect to the principles of conflicts of
laws thereof. The Indemnitee may bring an action seeking resolution of
disputes or controversies arising under, or in any way related to, this
Agreement in the state or federal court jurisdiction in which the Indemnitee
resides or in which his place of business is located and in any related
appellate courts, and the Indemnitor hereby consents to the jurisdiction of
such courts and to such venue. All terms and words used in this Agreement
(including personal pronouns) regardless of gender shall be deemed and
construed to include any other gender as the context shall require.



     12. Notices. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, as follows:



	 	 	 	 	 
	If to the Indemnitee:

	 	

	 	 
	

	 	
	 	 
	

	 	
	 	 
	 
	 	 	 	 
	If to the Indemnitor:

	 	Pier 1 Imports, Inc.	 	 
	

	 	301 Commerce Street, Suite 600	 	 
	

	 	Fort Worth, Texas 76102	 	 
	

	 	Attn: General Counsel	 	 






or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.




     13. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.



     14. Effectiveness. This Agreement shall be effective as of the day and
year first above written.



 









 





     IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed as of the day and year first above written.



	 	 	 	 	 	 	 
	 	 	PIER 1 IMPORTS, INC.
	 
	 	 	 	 	 	 
	

	 	By:	 	 	 	 
	

	 	 	
 
	

	 	Name:	 	 	 	 
	

	 	 	 	
 
	


	 	Title:	 	 	 
	

	 	 	 	
 
	 
	 	 	 	 	 	 
	 	 	INDEMNITEE
	 
	 	 	 	 	 	 
	 	 	
 
	

	 	Name:	 	 	 
	

	 	 	 	
 
	

	 	Title: