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EXHIBIT 10.5F
WILLIAMS-SONOMA, INC. EXECUTIVE DEFERRAL PLAN
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EXHIBIT 10.5F: WILLIAMS-SONOMA, INC. EXECUTIVE DEFERRAL PLAN
WILLIAMS-SONOMA, INC.
EXECUTIVE DEFERRAL PLAN
TABLE OF CONTENTS
Page
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ARTICLE I TITLE AND DEFINITIONS................................................................. 1
ARTICLE II PARTICIPATION......................................................................... 5
ARTICLE III DEFERRAL ELECTIONS.................................................................... 6
ARTICLE IV DEFERRAL ACCOUNT...................................................................... 9
ARTICLE V VESTING............................................................................... 10
ARTICLE VI DISTRIBUTIONS......................................................................... 11
ARTICLE VII ADMINISTRATION........................................................................ 15
ARTICLE VIII MISCELLANEOUS......................................................................... 18
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WILLIAMS-SONOMA, INC.
EXECUTIVE DEFERRAL PLAN
WHEREAS, Williams-Sonoma, Inc. (the "Company") desires to establish a
deferred compensation plan to provide supplemental retirement income benefits
for a select group of management and highly compensated employees through
deferrals of salary and bonuses, effective as of July 1, 1995; and
WHEREAS, it is believed that the adoption of this plan providing for
deferred compensation at the election of each executive will be in the best
interests of the Company;
NOW THEREFORE, it is hereby declared as follows:
ARTICLE I
TITLE AND DEFINITIONS
1.1 - Title.
This Plan shall be known as the Williams-Sonoma, Inc. Executive
Deferral Plan.
1.2 - Definitions.
Whenever the following words and phrases are used in this Plan, with
the first letter capitalized, they shall have the meanings specified below.
"Account" shall mean a Participant's Deferral Account.
"Beneficiary" or "Beneficiaries" shall mean the person or persons,
including a trustee, personal representative or other fiduciary, last designated
in writing by a Participant in accordance with procedures established by the
Committee to receive the benefits specified hereunder in the event of the
Participant's death. No beneficiary designation shall become effective until it
is filed with the Committee. If there is no Beneficiary designation in effect,
or if there is no surviving designated Beneficiary, then the Participant's
surviving spouse shall be the Beneficiary. If there is no surviving spouse to
receive any benefits payable in accordance with the preceding sentence, the duly
appointed and currently acting personal representative of the participant's
estate (which shall include either the Participant's probate estate or living
trust) shall be the Beneficiary. In any case where there is no such personal
representative of the Participant's estate duly appointed and acting in that
capacity within 90 days after the Participant's death (or such extended period
as the Committee determines is reasonably necessary to allow such personal
representative to be appointed, but not to exceed 180 days after the
Participant's death), then Beneficiary shall mean the person or persons who can
verify by affidavit or court order to the satisfaction of the Committee that
they are legally entitled to receive the benefits specified hereunder. In the
event any amount is payable under the
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Plan to a minor, payment shall not be made to the minor, but instead be paid (a)
to that person's living parent(s) to act as custodian, (b) if that person's
parents are then divorced, and one parent is the sole custodial parent, to such
custodial parent, or (c) if no parent of that person is then living, to a
custodian selected by the Committee to hold the funds for the minor under the
Uniform Transfers or Gifts to Minors Act in effect in the jurisdiction in which
the minor resides. If no parent is living and the Committee decides not to
select another custodian to hold the funds for the minor, then payments shall be
made to the duly appointed and currently acting guardian of the estate for the
minor or, if no guardian of the estate for the minor is fully appointed and
currently acting within 60 days after the date the amount becomes payable,
payments shall be deposited with the court having jurisdiction over the estate
of the minor.
"Board of Directors" or "Board" shall mean the Board of Directors of
the Company.
"Bonus" shall mean any incentive compensation payable to a Participant
in addition to the Participant's Salary.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Committee" shall mean the Committee appointed by the Board to
administer the Plan in accordance with Article VII.
"Company" shall mean Williams-Sonoma, Inc., any successor corporation
and each corporation which is a member of a controlled group of corporations
(within the meaning of Section 414(b) of the Code) of which Williams-Sonoma,
Inc. is a component member.
"Compensation" shall mean the Salary and Bonus that the Participant is
entitled to for services rendered to the Company.
"Deferral Account" shall mean the bookkeeping account maintained by the
Committee for each Participant that is credited with amounts equal to (1) the
portion of the Participant's Salary that he or she elects to defer, (2) the
portion of the Participant's Bonus that he or she elects to defer, and (3)
interest pursuant to Section 4.1.
"Distributable Amount" shall mean the amount credited to a
Participant's Deferral Account.
"Effective Date" shall mean July 1, 1995.
"Eligible Employee" shall mean each member of a group of select
management or highly compensated employees of the Company who is selected by the
Board to participate in the Plan.
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"Fund" or "Funds" shall mean one or more of the mutual funds or
contracts selected by the Committee pursuant to Section 3.2(b).
"Initial Election Period" for an Eligible Employee shall mean the
30-day period following the later of June 1, 1995 or the Eligible Employee's
date of hire.
"Insurable Participant" shall mean a Participant who satisfies
underwriting standards for the issuance of life insurance determined by the
insurance company selected by the Company to provide the pre-distribution death
benefit described in Article VII.
"Interest Rate" shall mean, for each Fund, an amount equal to the net
rate of gain or loss on the assets of such Fund during each month.
"Participant" shall mean any Eligible Employee who elects to defer
Compensation in accordance with Section 3.1.
"Payment Eligibility Date" shall mean the date specified by the
Participant prior to the Effective Date or, if later, within 30 days of the date
on which such person becomes a Participant, or if no date is so specified, the
first day of the month following the calendar quarter in which a Participant
terminates employment or dies.
"Plan" shall mean the Williams-Sonoma, Inc. Executive Deferral Plan set
forth herein, now in effect, or as amended from time to time.
"Plan Year" shall mean the 12 consecutive month period beginning
January 1, and ending December 31, except that the first Plan Year shall be a
short year beginning July 1, 1995 and ending December 31, 1995.
"Salary" shall mean the Participant's base pay.
ARTICLE II
PARTICIPATION
2.1 - Participation.
An Eligible Employee shall become a Participant in the Plan by electing
to defer all or a portion of his or her Compensation in accordance with Section
3.1, by completing an application for the life insurance benefit described in
Article VII, and complying with various medical underwriting requirements of the
insurance company.
ARTICLE III
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DEFERRAL ELECTIONS
3.1 - Elections to Defer Compensation.
(a) Initial Election Period. Each Eligible Employee may elect to
defer Compensation by filing with the Committee an election that conforms to the
requirements of this Section 3.1, on a form provided by the Committee, no later
than the last day of his or her Initial Election Period.
(b) General Rule. Subject to the limitations set forth in
paragraph (c) below, the amount of Compensation which an Eligible Employee may
elect to defer is as follows:
(1) Any percentage of Salary up to 50%; and/or
(2) Any percentage or dollar amount of Bonus up to 100%;
provided, however, that no election shall be effective to reduce the
Compensation paid to an Eligible Employee for a calendar year to an amount which
is less than the Social Security Wage Base for such calendar year. Until an
Eligible Employee (other than an Eligible Employee who has been determined not
to be an Insurable Participant) completes an application for the death benefit
described in Article VI, any deferral election made by the Eligible Employee
pursuant to Section 3.1 hereof shall be void.
(c) Minimum Deferrals. For each calendar year during which the
Eligible Employee is a Participant, the minimum percentage which may be elected
under paragraph (b)(1) of this Section 3.1 is 5%. This 5% minimum deferral for
any calendar year may be reduced to a lessor percentage (but not below zero
percent) if the Participant deferred any portion of his or her Bonus paid in the
preceding calendar year. The amount of such reduction shall be the number of
percentage points determined by (1) dividing the amount of the bonus deferred in
such preceding calendar year by the amount of the Participant's annual Salary at
the beginning of the calendar year to which the minimum deferral applies and (2)
multiplying by 100.
(d) Effect of Initial Election. An election to defer Compensation
during an Initial Election Period shall be effective with respect to Salary
earned during the first pay period beginning after the Initial Election and to
the Bonus payable for the Company's fiscal year ending within the Plan Year in
which the election is made.
(e) Duration of Salary Deferral Election. Any Salary deferral
election made under paragraph (a) or paragraph (g) of this Section 3.1 shall
remain in effect, notwithstanding any change in the Participant's Salary, until
changed or terminated in accordance with the terms of this paragraph (e);
provided, however, that such election shall terminate for any Plan Year for
which the Participant is not an Eligible Employee. Subject to the minimum
deferral requirement of Section 3.1(c) and the limitations of Section 3.1(b), a
Participant may increase, decrease or terminate his or her Salary deferral
election, effective for Salary earned during pay periods beginning after any
January 1, by
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filing a new election, in accordance with the terms of this Section 3.1, with
the Committee on or before the preceding December 1.
(f) Duration of Bonus Deferral Election. Any Bonus deferral
election made under paragraph (a) or paragraph (g) of this Section 3.1 shall be
irrevocable and shall apply only to the Bonus payable with respect to services
performed during the Plan Year for which the election is made. For each
subsequent Plan Year, an Eligible Employee may make a new election, subject to
the limitations set forth in this Section 3.1, to defer a percentage of his or
her Bonus. Such election shall be on forms provided by the Committee and shall
be made on or before the December 1 preceding the Plan Year for which the
election is to apply. Notwithstanding anything in paragraphs (a), (d), (g) or
this paragraph (f) of this Section 3.1 to the contrary, for the first Plan year
only, an Eligible Employee may elect, no later than June 30, 1995, to defer any
Bonus which is subsequently declared and paid for the Company's fiscal year
ending on December 31, 1995.
(g) Elections other than Elections during the Initial Election
Period. Subject to the limitations of paragraph (c) above, any Eligible Employee
who fails to elect to defer compensation during his or her Initial Election
Period may subsequently become a Participant, and any Eligible Employee who has
terminated a prior Salary deferral election may elect to again defer Salary, by
filing an election, on a form provided by the Committee, to defer Compensation
as described in paragraph (b) above. An election to defer Salary and/or Bonus
must be filed on or before December 1 and will be effective for Salary earned
during pay periods beginning after the following January 1 and the Bonus paid
with respect to services performed in the Plan Year beginning on the following
January 1.
3.2 Investment Elections.
(a) At the time of making the deferral elections described in
Section 3.1, the Committee shall provide each Participant with a list of the
types of mutual funds available for hypothetical investment, and the Participant
shall designate, on a form provided by the Committee, one or more of such types
of funds that his or her account will be deemed to be invested in for purposes
of determining the amount of earnings to be credited to that account. The
Committee shall, from time to time, in its sole discretion select a commercially
available fund or contract for each of such types to constitute the Fund
actually selected. The Interest Rate of each such commercially available fund or
contract shall be used to determine the amount of earnings to be credited to
Participants' Accounts under Article IV.
In making the designation pursuant to this Section 3.2, the Participant
may specify that all or any 10% multiple of his or her Deferral Account be
deemed to be invested in one or more of the types of mutual funds offered by the
Committee. Effective as of the end of any calendar quarter, a Participant may
change the designation made under this Section 3.2 by filing an election, on a
form provided by the Committee, at least 30 days prior the end of such quarter.
If a Participants fails to elect a type of fund under this Section 3.2, he or
she shall be deemed to have elected the Money Market Fund.
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The Company may, but need not, acquire investments corresponding to
those designated by the Participants hereunder, and it is not under any
obligation to maintain any investment it may make. Any such investments, if
made, shall be in the name of the Company, and shall be its sole property in
which no Participant shall have any interest.
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ARTICLE IV
DEFERRAL ACCOUNT
4.1 - Deferral Account.
The Committee shall establish and maintain a Deferral Account for each
Participant under the Plan. Each Participant's Deferral Account shall be further
divided into separate subaccounts ("mutual fund subaccounts"), each of which
corresponds to a mutual fund or contract elected by the Participant pursuant to
Section 3.2(a). A Participant's Deferral Account shall be credited as follows:
(a) As of the last day of each month, the committee shall credit
the mutual fund subaccounts of the Participant's Deferral Account with an amount
equal to Salary deferred by the Participant during each pay period ending in
that month in accordance with the Participant's election under Section 3.2(a);
that is, the portion of the Participant's deferred Salary that the Participants
has elected to be deemed to be invested in a certain type of mutual fund shall
be credited to the mutual fund subaccount corresponding to that mutual fund.
(b) As of the last day of the month in which the Bonus or partial
Bonus would have been paid, the Committee shall credit the mutual fund
subaccounts of the Participant's Deferral Account with an amount equal to the
portion of the Bonus deferred by the Participant's election under Section
3.2(a); that is, the portion of the Participant's deferred Bonus that the
Participant has elected to be deemed to be invested in a certain type of mutual
fund shall be credited to the mutual fund subaccount corresponding to that
mutual fund.
(c) As of the last day of each month, each mutual fund subaccount
of a Participant's Deferral Account shall be credited with earnings in an amount
equal to that determined by multiplying the balance credited to such mutual fund
subaccount as of the last day of the preceding month by the Interest Rate for
the corresponding Fund selected by the Company pursuant to Section 3.2(b).
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ARTICLE V
VESTING
5.1 - Deferral Account.
A Participant's Deferral Account shall be 100% vested at all times.
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ARTICLE VI
DISTRIBUTIONS
6.1 - Distribution of Deferred Compensation.
(a) In the case of a Participant, who either (i) terminates
employment with the Company as a result of long-term disability (as defined in
the Company's long-term disability plan for executives), or (ii) who establishes
a Payment Eligibility Date that occurs after the Participant attains 55 years of
age with a minimum of five years of service, the Distributable Amount shall be
paid to the Participant (and after his death to his or her beneficiary) in the
form of substantially equal quarterly installments over 15 years beginning on
his or her Payment Eligibility Date. Notwithstanding the foregoing, a
Participant described in the preceding sentence may elect one of the following
optional forms of distribution provided that his or her election is filed with
the Committee within 30 days prior to the Effective Date or, if later, within 30
days of the date the Eligible Employee first becomes a Participant:
(1) a cash lump sum payable on the Participant's Payment
Eligibility Date, and
(2) substantially equal quarterly installments over five or ten
years beginning on the Participant's Payment Eligibility Date.
Notwithstanding the foregoing, a Participant described above may change
his or her form of distribution to one of the optional forms listed above
provided that his or her election is filed with the Committee at least three
years prior to his or Payment Eligibility Date.
Notwithstanding this subsection, if the Distributable Amount is $10,000
or less, the Distributable Amount shall automatically be distributed in the form
of a cash lump sum on the Participant's Payment Eligibility Date. The
Participant's Accounts shall continue to be credited monthly with earnings
pursuant to Section 4.1 of the Plan until all amounts credited to his or her
Accounts under the Plan have been distributed. For all purposes under this Plan,
a Participant shall not be considered terminated from employment if the
Participant remains employed by a member of the Company's controlled group of
corporations (within the meaning of Section 414(b) of the Code), even if such
member is not a Company. However, if the Employee is employed by a Company or a
member of its controlled group and such entity ceases to be a member of such
controlled group as a result of a sale or other corporate reorganization, such
sale or other corporate reorganization shall be treated as termination of
employment unless immediately following such event and without any break in
employment the Participant remains employed by the Company or another
corporation which is a member of its controlled group of corporations or the
former member of the controlled group assumes liability for the benefits of the
Participant.
(b) In the case of a Participant whose Payment Eligibility Date
occurs prior to the date on which the Participant attains age 55 and a minimum
of 5 years of service and for reasons other than a long term disability or
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death, the Distributable Amount shall be paid to the Participant in the form of
a cash lump sum on the Participant's Payment Eligibility Date.
(c) In the case of a Participant who dies while employed by the
Company, the following benefits shall be provided:
(1) That portion of the death benefit of any life insurance
policy purchased by the Company to insure the life of the Participant (the
"Policy") which is equal to two times the Participant's annual Salary at the
time the Participant dies shall be paid to Participant's beneficiary under the
Policy by the insurance company which issued the Policy. Any such Policy shall
be subject to the conditions set forth in a "Split-Dollar Life Insurance
Agreement" between the Participant and the Company, pursuant to which the
Participant may designate a beneficiary with respect to the portion of the
Policy proceeds described in the preceding sentence in the event the Participant
dies prior to terminating employment with the Company. The Participant shall
have the right to designate and change such beneficiary (which need not be his
Beneficiary as determined under Section 1.2 hereof) at any time on a form
provided by and filed with the insurance company, and the life insurance
proceeds designated in this paragraph (1) shall be paid to such beneficiary.
The benefit payable pursuant to this paragraph (1) shall be paid only
if a Policy has been issued on the Participant's life and is in force at the
time of the Participant's death and any such payment shall be subject to all
conditions and exceptions set forth in the Policy. A Participant who is entitled
to a death benefit pursuant to this paragraph shall not be entitled to any other
Company-paid group term life insurance benefits from the Company under this Plan
or any other Policy provided by the Company. Notwithstanding any provision of
this Plan or any other document to the contrary, the Company shall not have any
obligation to pay the Participant or his Beneficiary any amounts described in
this Section 6.1(c). Any such amounts shall be payable solely from the proceeds
of the Policy, and if no Policy is in force, no payment shall be made.
Furthermore, the Company is not obligated to maintain any Policy; and no death
benefit shall be payable hereunder if the Company has been notified by the
Committee to discontinue the Policy for the Participant. In addition, no Policy
shall be allocated to any Account.
(2) The Distributable Amount shall be paid to the
Participant's Beneficiary in a lump sum.
6.2 - Early Distributions.
Participant shall be permitted to elect to withdraw amounts from their
Accounts prior to termination of employment with the Company ("Early
Distributions"), subject to the following restrictions:
(a) The election to take an Early Distribution shall be made by
filing a form provided by and filed with the Committee prior to the end of any
calendar month.
(b) The amount of the Early Distribution shall in all cases equal
90% of the Distributable Amount as of the end of the calendar month as of which
the distribution is to be made.
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(c) The amount described in subsection (b) above shall be paid in
a single cash lump sum as soon as practicable after the end of the calendar
month in which the Early Distribution election is made.
(d) If a Participant receives an Early Distribution, the remaining
balance of his or her Accounts (10% of the Distribution Amount) shall be
permanently forfeited and the Company shall have no obligation to the
Participant or his Beneficiary with respects to such forfeited amount.
(e) If a Participant receives an Early Distribution, the following
rules will apply for the balance of the Plan Year and for the following Plan
Year: (i) the Participant will be ineligible to Participate in the Plan and (ii)
neither the Participant (nor his Beneficiary or Beneficiaries) shall be entitled
to death benefits under Section 6.1(c)(1) or (2).
(f) A Participant will be limited to a maximum of two Early
Distributions during all of his periods of Plan Participation.
6.3 - Unforeseeable Emergency.
The Committee may, pursuant to rules adopted by it and applied in a
uniform manner, accelerate the date of distribution of a Participant's Account
because of an Unforeseeable Emergency at any time. "Unforeseeable Emergency"
shall mean an unforeseeable, severe financial condition resulting from (a) a
sudden and unexpected illness or accident of the Participant or his dependent
(as defined in Section 152(a) of the Code); (b) loss of the Participant's
property due to casualty; or (c) other similar extraordinary and unforeseeable
circumstances arising as a result of events beyond the control of the
Participant, but which may not be relieved through other available resources of
the Participant, as determined by the Committee in accordance with uniform rules
adopted by it. Distribution pursuant to this subsection of less than the
Participant's entire interest in the Plan shall be made pro rata from his
assumed investments according to the balances in such investments. Subject to
the foregoing, payment of any amount with respect to which a Participant has
filed a request under this subsection shall be made as soon as practicable after
approval of such request by the Committee.
6.4 - Inability To Locate Participant.
In the event that he Committee is unable to locate a Participant or
Beneficiary within two years following the Participant's Payment Eligibility
Date, the amount allocated to the Participant's Deferral Account shall be
forfeited. If, after such forfeiture, the Participant or Beneficiary later
claims such benefit, such benefit shall be reinstated without interest or
earnings.
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ARTICLE VII
ADMINISTRATION
7.1 - Committee.
A Committee shall be appointed by, and serve at the pleasure of, the
Board of Directors. The number of members comprising the committee shall be
determined by the Board which may from time to time vary the number of members.
A member of the Committee may resign by delivering a written notice of
resignation to the Board. The Board may remove any member by delivering a
certified copy of its resolution of removal to such member. Vacancies in the
membership of the Committee shall be filled promptly by the Board.
7.2 - Committee Action.
The Committee shall act at meetings by affirmative vote of a majority
of the members of the Committee. Any action permitted to be taken at a meeting
may be taken without a meeting if, prior to such action, a written consent to
the action is signed by all members of the Committee and such written consent if
filed with the minutes of the proceedings of the Committee. A member of the
Committee shall not vote or act upon any matter which relates solely to himself
or herself as a Participant. The Chairman or any other member or members of the
Committee designated by the Chairman may execute any certificate or other
written direction on behalf of the Committee.
7.3 - Powers and Duties of the Committee.
(a) The Committee, on behalf of the Participants and their
Beneficiaries, shall enforce the Plan in accordance with the terms, shall be
charged with the general administration of the Plan and shall have all powers
necessary to accomplish its purposes, including, but not by way of limitation,
the following:
(1) To select the funds or contracts to be the Funds in
accordance with Section 3.2(b) hereof;
(2) To construe and interpret the terms and provisions of
this Plan;
(3) To compute and certify to the amount and kind of
benefits payable to Participants and their
Beneficiaries;
(4) To maintain all records that may be necessary for the
administration of the Plan;
(5) To provide for the disclosure of all information and
the filing or provision of all reports and statements
to Participants, Beneficiaries or governmental
agencies as shall be required by law;
(6) To make and publish such rules for the regulation of
the Plan and procedures for the administration of the
Plan as are not inconsistent with the terms hereof;
and
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(7) To appoint a plan administrator or any other agent,
and to delegate to them such powers and duties in
connection with the administration of the Plan as the
Committee may from time to time prescribe.
7.4 - Construction and Interpretation.
The Committee shall have full discretion to construe and interpret the
terms and provisions of this Plan, which interpretation or construction shall be
final and binding on all parties, including but not limited to the Company and
any Participant or Beneficiary. The Committee shall administer such terms and
provisions in a uniform and nondiscriminatory manner and in full accordance with
any and all laws applicable to the Plan.
7.5 - Information
To enable the Committee to perform its functions, the Company shall
supply full and timely information to the Committee on all matters relating to
the Compensation of all Participants, their death or other cause of termination,
and such other pertinent facts as the Committee may require.
7.6 - Compensation, Expenses and Indemnity.
(a) The members of the Committee shall serve without compensation for
their services hereunder.
(b) The Committee is authorized at the expense of the Company to employ
such legal counsel as it may deem advisable to assist in the performance of its
duties hereunder. Expenses and fees in connection with the administration of the
Plan shall be paid by the Company.
(c) To the extent permitted by applicable state law, the Company shall
indemnify and save harmless the Committee and each member thereof, the Board of
Directors and any delegate of the Committee who is an employee of the Company
against any and all expenses, liabilities and claims, including legal fees to
defend against such liabilities and claims arising out of their discharge in
good faith of responsibilities under or incident to the Plan, other than
expenses and liabilities arising out of willful misconduct. This indemnity shall
not preclude such further indemnities as may be available under insurance
purchased by the Company or provided by the Company under any bylaw, agreement
or otherwise, as such indemnities are permitted under state law.
7.7 - Quarterly Statements.
Under procedures established by the Committee, a Participant shall
receive a statement with respect to such Participant's Account on a periodic
basis at least once with respect to each Plan Year.
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ARTICLE VIII
MISCELLANEOUS
8.1 - Unsecured General Creditor.
Participants and their Beneficiaries, heirs, successors, and assigns
shall have no legal or equitable rights, claims, or interests in any specific
property or assets of the Company. No assets of the Company shall be held under
any trust, or held in any way as collateral security for the fulfilling of the
obligations of the Company under this Plan. Any and all of the Company's assets
shall be, and remain, the general unpledged, unrestricted assets of the Company.
The Company's obligation under the Plan shall be merely that of an unfunded and
unsecured promise of the Company to pay money in the future, and the rights of
the Participants and Beneficiaries shall be no greater than those of unsecured
general creditors.
8.2 - Restriction Against Assignment.
The Company shall pay all amounts payable hereunder only to the person
or persons designated by the Plan and not to any other person or corporation. No
part of a Participant's Account shall be liable for the debts, contracts, or
engagements of any Participant, his or her Beneficiary, or successors in
interest, nor shall a Participant's Account be subject to execution by levy,
attachment, or garnishment or by any other legal or equitable proceeding, nor
shall any such person have any right to alienate, anticipate, commute, pledge,
encumber, or assign any benefits or payments hereunder in any manner whatsoever.
If any Participant, Beneficiary or successor in interest is adjudicated bankrupt
or purports to anticipate, alienate, sell, transfer, assign, pledge, encumber or
charge any distribution or payment from the Plan, voluntarily or involuntarily,
the Committee, in its discretion, may cancel such distribution or payment (or
any part thereof) to or for the benefit of such Participant, Beneficiary or
successor in interest in such manner as the Committee shall direct.
8.3 - Withholding.
There shall be deducted from each payment made under the Plan all taxes
which are required to be withheld by the Company in respect to such payment. The
Company shall have the right to reduce any payment by the amount of cash
sufficient to provide the amount of said taxes.
8.4 - Amendment, Modification, Suspension or Termination.
The Company may amend, modify, suspend or terminate the Plan in whole
or in part, except that no amendment, modification, suspension or termination
shall have any retroactive effect to reduce any amounts allocated to a
Participant's Account. In the event that this Plan is terminated, the
disposition of the amounts credited to a Participant's Deferral Account shall
be at the sole discretion of the Committee.
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8.5 - Governing Law.
This Plan shall be construed, governed and administered in accordance
with the laws of the State of California.
8.6 - Receipt or Release.
Any payment to a Participant or the Participant's Beneficiary in
accordance with the provisions of the Plan shall, to the extent thereof, be in
full satisfaction of all claims against the Committee and the Company. The
Committee may require such Participant or Beneficiary, as a condition
precedent to such payment, to execute a receipt and release to such effect.
8.7 - Payments on Behalf of Persons Under Incapacity.
In the event that any amount becomes payable under the Plan to a person
who, in the sole judgment of the Committee, is considered by reason of
physical or mental condition to be unable to give a valid receipt therefore,
the Committee may direct that such payment be made to any person found by the
Committee, in its sole judgment, to have assumed the care of such person. Any
payment made pursuant to such determination shall constitute a full release
and discharge of the Committee and the Company.
8.8 - No Employment Rights
Neither participation in this Plan nor coverage under any Policy shall
confer upon any person any right to be employed by the Company nor any other
right not expressly provided hereunder, under the Policy or under the
Split-Dollar Life Insurance Agreement executed in connection therewith.
8.9 - Headings, etc. Not Part of Agreement.
Headings and subheadings in this Plan are inserted for convenience of
reference only and are not to be considered in the construction of the
provisions hereof.
IN WITNESS WHEREOF, the Company has caused this document to be executed
by its duly authorized officer on this ____________ day of ______________,
1995.
WILLIAMS-SONOMA, INC.
By __________________________________
By __________________________________
15 18
SPLIT-DOLLAR LIFE INSURANCE AGREEMENT
This Agreement is entered into as of __________, 19__ by and between
Williams-Sonoma, Inc., (the "Company") and __________________ ("Employee") in
reference to the following facts:
1. Employee is a valued employee of Williams-Sonoma, Inc.
2. The Company has simultaneously with the execution of this
Agreement caused the AETNA Life Insurance and Annuity Company (the "Insurance
Company") to issue policy number __________________ (the "Policy") on the life
of Employee. The first annual premium has been paid by the Company as of the
date of this Agreement.
3. The Policy is issued in conjunction with the Employee becoming
a Participant in the Williams-Sonoma, Inc. Executive Deferral Plan (the "Plan")
and in order to provide to the beneficiaries of the Employee the death benefit
described in Section 6.1(c)(1) of the Plan. Capitalized terms not defined herein
are defined in accordance with the Plan.
4. For purposes of this Agreement, the Company and its
subsidiaries which have adopted the Plan shall constitute the "Employer." For
this purpose, a subsidiary is a corporation which is a member of a controlled
group of corporations (within the meaning of Section 414(b) of the Internal
Revenue Code of 1986, as amended (the "Code")) of which the Company is a member.
If Employee is employed by a corporation which, as a result of a sale or other
corporate reorganization, ceases to be a member of such controlled group, such
sale or other corporate reorganization shall be treated as a termination of
Employee by Employer unless immediately following the event and without any
break in employment the Employee remains employed by the Company or another
corporation which is a member of its controlled group of corporations that has
adopted the Plan or the former member of the controlled group assumes liability
for Participant's benefits under the Plan.
NOW THEREFORE, in consideration of the facts set forth above and the
various promises and covenants set forth below, the parties to this Agreement
agree as follows:
1. Ownership of Policy.
The Employee acknowledges that the Company is the owner of the Policy
and is entitled to exercise all of its ownership rights granted by the terms of
the Policy, except to the extent that the power of the Company to exercise those
rights is specifically limited by this Agreement. Except as so limited, it is
the expressed intention of the parties to reserve to the Company (as directed by
the Committee) all rights in and to the Policy granted to its owner by the terms
thereof. Employee acknowledges that the Company is not obligated to maintain the
Policy.
2. Premium payments.
Subject to Section 5, so long as the Policy remains in force and
Employee is employed by the Employer, the Company agrees to pay an annual
premium on the Policy on or before the last day of each "policy year" (as such
term is used in the Policy) in an amount equal to the "cost of insurance" (as
defined in the Policy) needed to fund the Employee's death benefit described in
Section 3 below. In addition, the Company may pay as an additional premium under
the policy in any policy year an amount equal to all or part of the Compensation
deferred by Employee under the Plan during the pay periods ending during such
policy year.
3. Death of Employee while employed by Employer.
16 19
(a) Subject to this Section 3 and Section 5, Employee's designated
beneficiary shall be entitled to receive as a death benefit an amount equal to
the amount set forth in Section 6(c)(1) of the Plan, as amended in the sole
discretion of the Company (but not in excess of the total proceeds under the
Policy). As of the date hereof, the death benefit equals two times the Salary in
effect at the time the Participant dies.
The amount described in the preceding sentence shall be paid solely from the
proceeds of the Policy; to the extent that the death benefit under the policy
exceeds the amount payable to Employee's beneficiary, the balance of the death
benefit shall be payable to the Company; to the extent the death benefit under
the Policy is less than the amount payable to Employee's beneficiary, the amount
payable to Employee's beneficiary shall be limited to the total death benefit
payable from the Policy. The designation of beneficiaries under the Policy shall
be in accordance with this Section.
(b) Employee agrees that, during the period of this Agreement,
Employee will obtain and provide to the Company and/or the Insurance Company the
written consent of the spouse of the Employee, in the form attached hereto as
Exhibit B, to any designation by Employee of anyone other than the Employee's
spouse as the beneficiary to receive the benefits under this Section 3.
(c) Employee acknowledges and agrees that if a death benefit is
payable pursuant to Section 6.1(c)(1) of the Plan, Employee's beneficiaries
shall not be entitled to any other group term life insurance benefits from the
Company under this Plan or any other policy provided by the Company.
(d) Employee acknowledges that the Company is not obligated to
maintain the Policy. Employee also acknowledges that no death benefit hereunder
(or under the Policy or Section 6.1(c)(1) of the Plan) is payable under the
circumstances set forth in Section 5.
4. Policy Beneficiary Designation.
Subject to Section 5, the rights to designate and change the
beneficiary (and any settlement options) of the Policy are reserved to the
Employee and the Company with respect to their respective shares of the Policy
death proceeds as determined in Section 3(a) of this Agreement. Employee's
beneficiary designation and incorporation of the amount of his or her share of
the Policy death proceeds by reference, shall be recorded on the appropriate
forms provided by the Insurance Company as an endorsement to the Policy as
provided in Exhibit A to this Agreement. The parties hereto agree to take all
action necessary to cause the beneficiary designation and settlement election
provisions of the Policy to conform to the provisions hereof. The Company shall
not terminate, alter or amend such designation or election of the Employee
without the express written consent of the Employee.
5. Termination of Employee's Rights.
If (1) the employment of Employee with Employer is terminated for a
reason other than death, (2) the Committee discontinues the Policy (which the
Committee may do for any reason), or (3) the Participant is not entitled to a
death benefit because he has taken an early distribution under Section 6.2 of
the Plan, then (a) neither Employee nor his beneficiaries shall have any rights
with respect to the Policy or benefits under the Policy and (b) nor the Company
shall have any obligation to pay any premiums on the Policy. Any death benefits
payable thereafter shall be payable to the Company, until such time, if any,
that Employee again becomes eligible to receive a death benefit under Section
6.1(c)(1) of the Plan and has entered into another split-dollar life insurance
agreement. Employee agrees to execute any and all documents which the Company
deems necessary to provide that Employee is not a beneficiary of the Policy.
6. No Limitation on Company's Rights in Policy.
The Company (as directed by the Committee) may sell, assign, transfer,
surrender, pledge or cancel the
17 20
Policy or borrow or withdraw the proceeds of the Policy without, in any such
case, the consent of the Employee.
7. Tax Withholding.
It is recognized by the parties that the rights of Employee in the
Policy (as modified by the Agreement) may cause Employee to be treated under
certain circumstances as in receipt of gross income. These circumstances may
also impose upon the Company an obligation to deduct and withhold federal, state
or local taxes. Unless Employee otherwise provides the Company the amounts it is
required to withhold, Company may withhold from other compensation due Employee
an amount which is equal to the amount of any federal, state or local taxes
required to be withheld.
8. Amendment and Termination of Agreement.
Except as provided below or in a written instrument signed by the
Company, and Employee, this Agreement may not be canceled, amended, altered, or
modified. The termination of this Agreement shall be the date of the earliest to
occur of any of the following:
(a) Employee's termination of employment with Employer for any
reason other than death.
(b) The death of Employee while employed by Employer, provided
that the Insurance Company shall pay the death benefit to Employee's designated
beneficiary in accordance with this Agreement.
(c) The termination of the Plan by the Company or an amendment to
the Plan by the Company which eliminates the death benefit set forth in Section
6.1(c)(1) of the Plan. Employee acknowledges that the Company has complete
discretion to so terminate the Plan or eliminate or reduce the death benefit set
forth in Section 6.1(c)(1) of the Plan.
9. Notice under Agreement.
Any notice, consent, or demand required or permitted to be given under
the provisions of this Agreement by one party to another shall be in writing,
signed by the party giving or making it, and may be given either by delivering
it to such other party personally or by mailing it, by United States Certified
mail, postage prepaid, to such party, addressed to its last known address as
shown on the records of the Company. The date of such mailing shall be deemed
the date of such mailed notice, consent, or demand.
10. Binding Agreement.
This Agreement shall bind the parties hereto and their respective
successors, heirs, executor, administrators, and transferees, and any Policy
beneficiary.
11. No Employment Rights
Neither execution of this Agreement, participation in the Plan, nor
coverage under any Policy shall confer upon Employee any right to employment
with the Company or any other right not expressly provided under the Agreement,
the Plan, or the Policy.
12. Controlling Law.
To the extent not governed by federal law, this Agreement and the right
to the parties hereunder shall be controlled by the laws of the State of
California.
18 21
13. Execution of Documents.
The Company and Employee agree to execute any and all documents
necessary to effectuate the terms of this Agreement.
WILLIAMS-SONOMA, INC.
By: _____________________________________
Its: ____________________________________
EMPLOYEE
_________________________________________
19</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.5G
<SEQUENCE>3
<DESCRIPTION>WILLIAMS-SONOMA,INC. DEFERRED COMPENSATION PLAN
<TEXT>
1
EXHIBIT 10.5G
WILLIAMS-SONOMA, INC. DEFERRED COMPENSATION PLAN
2
EXHIBIT 10.5G: WILLIAMS-SONOMA, INC. DEFERRED COMPENSATION PLAN
WILLIAMS-SONOMA, INC.
DEFERRED COMPENSATION PLAN
(Effective July 1, 1995)
1. Eligibility
Certain highly compensated employees of Williams-Sonoma, Inc. (the
"Corporation") who are director-level or above, excluding individuals eligible
to participate in the Executive Deferral Plan, shall be eligible to participate
in this Williams-Sonoma, Inc. Deferred Compensation Plan (the "Plan").
2. Definitions
Capitalized terms not otherwise defined in the Plan have the respective
meanings set forth in the Williams-Sonoma, Inc. Employee Profit Sharing and
Stock Incentive Plan.
"Administrator" shall mean the Corporation.
3. Participation
(a) Time and Form of Election. An eligible employee on November 1
of any calendar year may become a Participant in the Plan (a "Participant") as
of the beginning of the next calendar year (or July 1, 1995, if later), by
executing a written notice of election to participate and filing such notice
with Human Resources at least 10 days prior to the beginning of such calendar
year, or July 1, 1995, if applicable. Such notice shall direct that a portion
(determined in accordance with Paragraph 4) of the Participant's Compensation,
be credited to a Deferred Compensation Account maintained under the Plan as an
unfunded book entry stated as a cash balance (the "Participant's Account").
Amounts so credited to the Participant's Account shall constitute "Participant
Deferrals."
(b) Duration of Election. An election to participate in the Plan
shall continue in effect until the Participant elects to terminate such
participation. Such election to terminate may be effective as of any pay period
by filing written notice of termination with the Human Resources at least 15
days prior to the beginning of that pay period. Following such election, a
Participant cannot participate in the Plan again until the beginning of the
following calendar year. A Participant's election to participate in the Plan
shall also be terminated effective as of the first of the month following the
month in which it is determined that the Participant is no longer eligible to
participate in the Plan. Any
1 3
such termination shall be effective only with respect to the Participant's
Compensation payable thereafter. Amounts credited to the Participant's Account
prior to the effective date of termination shall not be effected by such
termination and shall be distributed only in accordance with the terms of the
Plan.
(c) Adjustment of Amount Deferred. By written election filed with
the Administrator at least 10 days prior to the beginning of the next calendar
year, a Participant may elect to change the amount of Compensation to be
credited to the Participant's Account commencing with such date. Amounts
credited to the Participant's Account prior to the effective date of such change
shall not be effected by such change and shall be distributed only in accordance
with the terms of the Plan.
4. Contributions to Participant's Account
(a) Participant Deferrals. A Participant may elect to defer an
amount, equal to a full percentage (from 1% to 6%) of such Participant's
Compensation.
(b) Vesting. Participant Deferrals, and all amounts accrued with
respect thereto in accordance with Paragraph 5, shall be vested at the time such
amounts are credited to the Participant's Account.
2 4
5. The Participant's Account
Participant Deferrals shall be credited to the Participant's Account
under the Plan as unfunded book entries stated as cash balances. The
Administrator shall from time to time select investment funds which any
Participant may designate as hypothetical investments with respect to such
Participant's Account balance. The Administrator shall establish such rules as
the Administrator deems appropriate regarding such hypothetical investments.
Amounts credited to the Participant's Account as Participant Deferrals shall
accrue (or be reduced by) amounts equivalent to the pro rata share of earnings
(or losses) for each of the Plan's investment funds which the Participant has
elected for his account. Such earnings or losses shall be posted quarterly.
Amounts credited to the Participant's Account shall continue to accrue (or be
reduced by) amounts equivalent to earnings (or losses) until distributed in
accordance with the Plan.
6. Distribution Upon Separation from Service
Any cash balance credited to a Participant's Account shall be
distributed to the Participant in one lump sum payment to be paid to the
Participant in cash as soon as practicable based on value as of the quarterly
valuation date immediately preceding the date on which the Participant
terminates his employment with the Corporation, plus any additional Participant
Deferrals since that date.
7. Distribution on Death
If a Participant should die before all amounts credited to the
Participant's Account have been paid, the balance in such Participant's Account
shall be paid in cash as soon as practicable, based on the value as of the
quarterly valuation date immediately preceding the Participant's death, plus any
additional Participant Deferrals since that date, to the beneficiary designated
in a written instrument signed by the Participant and filed with the
Administrator. If (a) no such designation has been made or (b) the designated
beneficiary has predeceased the Participant and no further designation has been
made, then such balance shall be paid to the Participant's spouse, or if no
spouse shall survive the Participant, to the Participant's issue upon the
principle of representation, or if no issue survive the Participant, then to the
estate of the Participant. A Participant may change the designated beneficiary
at any time during the Participant's lifetime by filing a subsequent designation
in writing with the Administrator.
3 5
8. Payment in the Event of Hardship
Upon receipt of a hardship request from a Participant, delivered in
writing, the Administrator may make a distribution to the Participant upon
determination that the participant has suffered an unforeseeable financial
emergency which Participant cannot otherwise meet. The amount distributed to the
Participant for such an unforeseeable financial emergency shall not exceed the
lesser of: (i) the amount needed to satisfy the unforeseeable financial
emergency, or (ii) the value of Participant's Account under the Plan. An
unforeseeable financial emergency is a severe financial hardship to Participant
as determined under the Williams-Sonoma, Inc.
Employee Profit Sharing and Stock Incentive Plan.
9. Miscellaneous
(a) The right of a Participant to receive any amount credited to
the Participant's Account shall not be transferable or assignable by the
Participant. To the extent that any person acquires a right to receive any
amount credited to a Participant's Account hereunder, such right shall be no
greater than that of an unsecured general creditor of the Corporation. Except as
expressly provided herein, any person having an interest in any amount credited
to a Participant's Account under the Plan shall not be entitled to payment until
the date the amount is due and payable. No person shall be entitled to
anticipate any payment by assignment, pledge or transfer in any form or manner
prior to actual receipt thereof.
(b) The Corporation shall not be required to reserve or otherwise
set aside funds for the payment of its obligations hereunder. However, the
Corporation may, in its sole discretion, establish funds for payment of its
obligations hereunder. Any such funds shall remain assets of the Corporation and
subject to the claims of its general creditors. Such funds, if any, shall not be
deemed to be assets of the Plan.
(c) The Administrator shall have full authority to interpret the
Plan and make all determinations deemed necessary or desirable for the Plan's
implementation.
(d) The Board of Directors of the Corporation may at any time
amend or terminate the Plan. No amendment or termination shall impair the rights
of a Participant with respect to amounts then credited to the Participant's
Account.
(e) The Administrator shall have the discretion to waive or
shorten the notice period provisions of the Plan in appropriate circumstances.
4 6
(f) The establishment of this Plan or any modification hereof
shall not give any Participant or other person the right to remain in the
service of the Corporation or any of it subsidiaries, and all Participants and
other persons shall remain subject to discharge to the same extent as if the
Plan had never been adopted.
(g) The Administrator shall be entitled to withhold from any
payment due under this Plan any and all taxes of any nature required by any
government to be withheld from such payment.
(h) No loans to Participants shall be permitted under this Plan.
(i) This Plan, including any subsequently adopted amendments,
shall constitute the entire agreement or contract between the Corporation and
any Participant regarding this Plan. There are no covenants, promises,
agreements, conditions or understandings, either oral or written, between the
Corporation and any Participant relating to the subject matter hereof, other
than those set forth herein. This Plan and any amendment hereof shall be binding
on the Corporation and the Participants and their respective heirs,
administrators, trustees, successors and assigns, including but not limited to,
any successors of the Corporation by merger, consolidation or otherwise by
operation of law, and on all designated beneficiaries of the Participant.
(j) If any provisions of this Plan shall, to any extent, be
invalid or unenforceable, the remainder of this Plan shall not be affected
thereby, and each provision of this Plan shall be valid and enforceable to the
fullest extent permitted by law.
(k) The administration and interpretation of this Plan shall be
governed by the Employee Retirement Income Security Act of 1974 ("ERISA"), as
amended.
Executed this ____ day of _____________, 1995.
WILLIAMS-SONOMA, INC.
By _________________________________
5</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.6D
<SEQUENCE>4
<DESCRIPTION>SECOND AMENDMENT TO CREDIT AGREEMENT
<TEXT>
1
EXHIBIT 10.6D
SECOND AMENDMENT TO CREDIT AGREEMENT
2
EXHIBIT 10.6D: SECOND AMENDMENT TO CREDIT AGREEMENT
This Amendment dated as of July 11, 1995, is between Bank of
America National Trust and Savings Association (the "Bank") and Williams-Sonoma,
Inc. (the "Borrower").
RECITALS
A. The Bank and the Borrower entered into a certain Amended
and Restated Credit Agreement dated as of October 13, 1994 (as previously
amendment, the "Agreement").
B. The Bank and the Borrower desire to amend the Agreement.
AGREEMENT
1. Definitions. Capitalized terms used but not defined in this
Amendment shall have the meaning given to them in the Agreement.
2. Amendments. The Agreement is hereby amended as follows:
2.1 Paragraph 1.1(a) of the Agreement is amended by
increasing the amount of the Facility 1 Commitment for the period from
the date of this Amendment through December 16, 1995 to Eighty Million
Dollars ($80,000,000).
2.2 The first sentence of Paragraph 2.2 of the
Agreement is amended to read as follows:
The amount of the letters of credit and shipside bonds
outstanding at any one time (including the drawn and
unreimbursed amounts of the letters of credit) may not exceed
Twenty Million Dollars ($20,000,000).
3. Representations and Warranties. When the Borrower signs
this Amendment, the Borrower represents and warrants to the Bank that:
(a) There is no event which is, or with notice or
lapse of time or both would be, an event of default under the
Agreement;
(b) The representations and warranties in the
Agreement are true and correct as of the date of this Amendment as if
made on the date of this Amendment;
(c) This Amendment is within the Borrower's powers,
has been duly authorized, and does not conflict with any of the
Borrower's organizational papers; and
(d) This Amendment does not conflict with any law,
agreement, or obligation by which the Borrower is bound.
4. Effect of Amendment. Except as provided in this Amendment,
all of the terms and conditions of the Agreement shall remain in full force and
effect.
This Amendment is executed as of the date first stated above.
1 3
Bank of America National Williams-Sonoma, Inc.
Trust and Savings Association
By /s/Hagop V. Bouldoukian By /s/ W. Howard Lester
------------------------ --------------------
Hagop V. Bouldoukian W. Howard Lester
Vice President Chairman and Chief
Executive Officer
By /s/ Russell Solt
-----------------
Russell Solt
Senior Vice President
2</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.6E
<SEQUENCE>5
<DESCRIPTION>THIRD AMENDMENT TO CREDIT AGREEMENT
<TEXT>
1
EXHIBIT 10.6E
THIRD AMENDMENT TO CREDIT AGREEMENT
2
EXHIBIT 10.6E: THIRD AMENDMENT TO CREDIT AGREEMENT
This Amendment dated as of August 8, 1995, is between Bank of
America National Trust and Savings Association (the "Bank") and Williams-Sonoma,
Inc. (the "Borrower").
RECITALS
A. The Bank and the Borrower entered into a certain Amended
and Restated Credit Agreement dated as of October 13, 1994 (as previously
amended, the "Agreement").
B. The Bank and the Borrower desire to amend the Agreement.
AGREEMENT
1. Definitions. Capitalized terms used but not defined in this
Amendment shall have the meaning given to them in the Agreement.
2. Amendments. The Agreement is hereby amended as follows:
2.1 Paragraph 1.1(a) of the Agreement is amended by
changing the amount of the Facility 1 Commitment as follows:
Period Commitment Amount
------ -----------------
From the date of this
Amendment through 08/21/95 $83,000,000
08/22/95 through 12/16/95 $80,000,000
12/17/95 through 04/30/96 $45,000,000
05/01/96 through the Expiration Date $65,000,000
2.2 The first sentence of Paragraph 2.2 of the
Agreement is amended to read as follows:
The amount of the letters of credit and shipside bonds
outstanding at any one time (including the drawn and
unreimbursed amounts of the letters of credit) may not exceed
the following: (a) from the date of this Amendment through
August 21, 1995, Seventeen Million Dollars ($17,000,000); (b)
from August 22, 1995 through December 16, 1995, Twenty Million
Dollars ($20,000,000); and (c) thereafter, Twenty Five Million
Dollars ($25,000,000).
2.3 Subparagraph (e) of Paragraph 7.6 ("Other Debts")
is amended to read as follows:
(e) Additional debts and lease obligations
(excluding real property leases) for business purposes;
provided that the portion of such debts and leases which
exceeds the amount of any cash collateral and security
deposits which have been provided to the lender or lessor must
not exceed a total principal amount of Five Million Dollars
($5,000,000) in the aggregate outstanding at any time.
2.4 A new subparagraph (d) is added to Paragraph 7.7
("Other Liens") as follows:
1 3
(d) Cash collateral and security deposits
provided in connection with debts and lease obligations
incurred to finance the acquisition of fixed assets (excluding
real property); provided that the amount of such collateral
and security deposits must not exceed Three Million Dollars
($3,000,000) at any time.
2.5 The address of the Borrower, stated at the end of
the Agreement, is changed to: 3250 Van Ness Avenue, San Francisco, CA
94109.
2.6 New paragraphs 8.14 and 8.15 are added to Article
8 ("Events of Default") as follows:
8.14 Debts of Guarantors. Any guarantor of
the Borrower's obligations under this Agreement has
outstanding or incurs any direct or contingent debts or lease
obligations (except real property leases) (other than those to
the Bank), or becomes liable for the debts of others without
the Bank's written consent, other than:
(a) Acquiring goods, supplies, or
merchandise on normal trade credit.
(b) Endorsing negotiable instruments
received in the usual course of business.
(c) Obtaining surety bonds in the usual
course of business.
(d) Debts, lines of credit and leases
in existence on the date of this Amendment disclosed
in writing to the Bank.
(e) Guaranties by Williams-Sonoma
Stores, Inc.; The Pottery Barn East, Inc.; Gardener's
Eden, Inc.; Hold Everything, Inc.; and Chambers
Catalog Company, Inc., of the obligations of the
Borrower under the privately placed unsecured term
loan referred to in paragraph 7.6(f) (as added in the
first Amendment to the Agreement).
(f) Additional debts and lease
obligations (excluding real property leases) for
business purposes which do not exceed a total
principal amount of Five Million Dollars ($5,000,000)
outstanding at any one time in the aggregate for the
Borrower and all guarantors.
8.15 Other Liens Incurred by Guarantors. Any
guarantor of the Borrower's obligations under this Agreement
creates, assumes, or allows any security interest or lien
securing obligations for borrowed money (or securing a
guaranty of an obligation for borrowed money) on property such
guarantor now or later owns, except:
(a) Liens for taxes not yet due.
(b) Liens outstanding on the date of
this Agreement disclosed in writing to the Bank.
(c) Additional purchase money security
interests in property acquired after the date of this
Agreement.
2 4
3. Conditions Subsequent. The Borrower agrees to provide to
the Bank the following items, in form and content acceptable to the Bank, within
the time limits stated. Any failure to satisfy this condition shall be an event
of default under the Agreement:
(a) No later than August 11, 1995, guaranties signed
by Williams-Sonoma Stores, Inc.; The Pottery Barn East, Inc.;
Gardener's Eden, Inc.; Hold Everything, Inc.; and Chambers Catalog
Company, Inc., each in the amount of One Hundred Twenty Million Dollars
($120,000,000).
4. Representations and Warranties. When the Borrower signs
this Amendment, the Borrower represents and warrants to the Bank that:
(a) There is no event which is, or with notice or
lapse of time or both would be, an event of default under the
Agreement, as hereby amended;
(b) The representations and warranties in the
Agreement are true and correct as of the date of this Amendment as if
made on the date of this Amendment;
(c) This Amendment is within the Borrower's powers,
has been duly authorized, and does not conflict with any of the
Borrower's organizational papers; and
(d) This Amendment does not conflict with any law,
agreement, or obligation by which the Borrower is bound.
5. Effect of Amendment. Except as provided in this Amendment,
all of the terms and conditions of the Agreement shall remain in full force and
effect.
6. Consent of Bank. The Bank hereby consents to the terms and
conditions of the Note Agreement covering the purchase of the Borrower's
$40,000,000 7.20% Senior Notes, and the notes issued thereunder, in the form
which has been provided to the Bank.
This Amendment is executed as of the date first stated above.
Bank of America National Williams-Sonoma, Inc.
Trust and Savings Association
By /s/Hagop V. Bouldoukian By /s/W. Howard Lester
----------------------- -------------------
Hagop V. Bouldoukian W. Howard Lester
Vice President Chairman and Chief Executive Officer
By /s/Russell Solt
---------------
Russell Solt
Senior Vice President
3</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.6F
<SEQUENCE>6
<DESCRIPTION>CONT.GUARANTY FROM THE POTTERY BARN EAST TO B OF A
<TEXT>
1
EXHIBIT 10.6F
CONTINUING GUARANTY FROM THE POTTERY BARN EAST, INC. TO BANK OF AMERICA NT&SA
2
CONTINUING GUARANTY
BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION
BORROWERS: WILLIAMS-SONOMA, INC.
GUARANTORS: THE POTTERY BARN EAST, INC.
(1) For valuable consideration, the undersigned ("Guarantors") jointly and
severally unconditionally guarantee and promise to pay to Bank of America
National Trust and Savings Association ("Bank"), or order, on demand, in lawful
money of the United States, any and all indebtedness of Williams-Sonoma, Inc.
("Borrowers") to Bank. The word "indebtedness" is used herein in its most
comprehensive sense and includes any and all advances, debts, obligations and
liabilities of Borrowers or any one or more of them to Bank, heretofore, now, or
hereafter made, incurred or created, whether voluntary or involuntary and
however arising, whether direct or acquired by Bank by assignment or succession,
whether due or not due, absolute or contingent, liquidated or unliquidated,
determined or undetermined, and whether Borrowers may be liable individually or
jointly with others, or whether recovery upon such indebtedness may be or
hereafter become barred by any statute of limitations, or whether such
indebtedness may be or hereafter become otherwise unenforceable.
(2) The liability of Guarantors under this Guaranty (exclusive of liability
under any other guaranties executed by Guarantors) shall not exceed at any one
time the total of (a) One Hundred Twenty Million Dollars ($120,000,000), for the
principal amount of the indebtedness and (b) all interest, fees, and other costs
and expenses relating to or arising out of the indebtedness or such part of the
indebtedness as shall not exceed the foregoing limitation. Bank may permit the
indebtedness to exceed Guarantors' liability, and may apply any amounts received
from any source, other than from Guarantors, to the unguaranteed portion of the
indebtedness. This is a continuing guaranty relating to any indebtedness,
including that arising under successive transactions which shall either continue
the indebtedness or from time to time renew it after it has been satisfied. Any
payment by Guarantors shall not reduce their maximum obligation hereunder,
unless written notice to that effect be actually received by Bank at or prior to
the time of such payment.
(3) If any Borrower is a partnership and any Guarantor is a general partner
of that partnership, then such Guarantor shall not be liable under this Guaranty
for any indebtedness of such Borrower which is secured by real property;
provided, however, that such Guarantor shall remain liable under partnership law
for all the indebtedness of such Borrower.
(4) The obligations hereunder are joint and several, and independent of the
obligations of Borrowers, and a separate action or actions may be brought and
prosecuted against Guarantors whether action is brought against Borrowers or
whether Borrowers be joined in any such action or actions; and Guarantors waive
the benefit of any statute of limitations affecting their liability hereunder.
(5) Guarantors authorize Bank, without notice or demand and without
affecting their liability hereunder, from time to time, either before or after
revocation hereof, to (a) renew, compromise, extend, accelerate or otherwise
change the time for payment of, or otherwise change the terms of the
indebtedness or any part thereof, including increase or decrease of the rate of
interest thereon; (b) receive and hold security for the payment of this Guaranty
or any of the indebtedness, and exchange, enforce, waive, release, fail to
perfect, sell, or otherwise dispose of any such security; (c) apply such
security and direct the order or manner of sale thereof as Bank in its
discretion may determine; and (d) release or substitute any one or more of the
endorsers or guarantors.
(6) Guarantors waive any right to require Bank to (a) proceed against
Borrowers; (b) proceed against or exhaust any security held from Borrowers; or
(c) pursue any other remedy in Bank's power whatsoever. Guarantors waive any
defense arising by reason of any disability or other defense of Borrowers, or
the cessation from any cause whatsoever of the liability of Borrowers, or any
claim that Guarantors' obligations exceed or are more burdensome than those of
Borrowers. Until the indebtedness shall have been paid in full, even though the
indebtedness is in excess of Guarantors' liability hereunder, Guarantors waive
any right of
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subrogation, reimbursement, indemnification, and contribution (contractual,
statutory or otherwise), including without limitation, any claim or right of
subrogation under the Bankruptcy Code (Title 11 of the U.S. Code) or any
successor statute, arising from the existence or performance of this Guaranty
and Guarantors waive any right to enforce any remedy which Bank now has or may
hereafter have against Borrowers, and waive any benefit of, and any right to
participate in, any security now or hereafter held by Bank. Guarantors waive all
presentments, demands for performance, notices of nonperformance, protests,
notices of protest, notices of dishonor, and notices of acceptance of this
Guaranty and of the existence, creation, or incurring of new or additional
indebtedness.
(7) (a) Guarantors understand and acknowledge that if Bank forecloses,
either by judicial foreclosure or by exercise of power of sale, any deed of
trust securing the indebtedness, that foreclosure could impair or destroy any
ability that Guarantors may have to seek reimbursement, contribution, or
indemnification from Borrowers or others based on any right Guarantors may have
of subrogation, reimbursement, contribution, or indemnification for any amounts
paid by Guarantors under this Guaranty. Guarantors further understand and
acknowledge that in the absence of this paragraph, such potential impairment or
destruction of Guarantors' rights, if any, may entitle Guarantors to assert a
defense to this Guaranty based on Section 580d of the California Code of Civil
Procedure as interpreted in Union Bank v. Gradsky, 265 Cal. App. 2d. 40 (1968).
By executing this Guaranty, Guarantors freely, irrevocably, and unconditionally:
(i) waive and relinquish that defense and agree that Guarantors will be fully
liable under this Guaranty even though Bank may foreclose, either by judicial
foreclosure or by exercise of power of sale, any deed of trust securing the
indebtedness; (ii) agree that Guarantors will not assert that defense in any
action or proceeding which Bank may commence to enforce this Guaranty; (iii)
acknowledge and agree that the rights and defenses waived by Guarantors in this
Guaranty include any right or defense that Guarantors may have or be entitled to
assert based upon or arising out of any one or more of Sections 580a, 580b,
580d, or 726 of the California Code of Civil Procedure or Section 2848 of the
California Civil Code; and (iv) acknowledge and agree that Bank is relying on
this waiver in creating the indebtedness, and that this waiver is a material
part of the consideration which Bank is receiving for creating the indebtedness.
(b) Guarantors waive any rights and defenses available to Guarantors
by reason of Sections 2787 to 2855, inclusive, of the California Civil Code
including, without limitation, (1) any defenses Guarantors may have to
their obligations under this Guaranty by reason of an election of remedies
by Bank and (2) any rights or defenses Guarantors may have by reason or
protection afforded to Borrowers with respect to any of the indebtedness
pursuant to the antideficiency or other laws of California limiting or
discharging any of the indebtedness, including, without limitation,
Sections 580a, 580b, 580d, or 726 of the California Code of Civil
Procedure.
(c) Guarantors waive all rights and defenses arising out of an
election of remedies by Bank, even though that election of remedies, such
as a nonjudicial foreclosure with respect to security for a guaranteed
obligation, has destroyed Guarantors' rights of subrogation and
reimbursement against Borrowers by the operation of Section 580d of the
California Code of Civil Procedure or otherwise.
(d) No provision or waiver in this Guaranty shall be construed as
limiting the generality of any other waiver contained in this Guaranty.
(8) Guarantors acknowledge and agree that they shall have the sole
responsibility for obtaining from Borrowers such information concerning
Borrowers' financial conditions or business operations as Guarantors may
require, and that Bank has no duty at any time to disclose to Guarantors any
information relating to the business operations or financial conditions of
Borrowers.
(9) To secure all of Guarantors' obligations hereunder, Guarantors assign
and grant to Bank a security interest in all moneys, securities and other
property of Guarantors now or hereafter in the possession of Bank, and all
deposit accounts of Guarantors maintained with Bank, and all proceeds thereof.
Upon default or breach of any of Guarantors' obligations to Bank, Bank may apply
any deposit account to reduce the indebtedness, and may foreclose any collateral
as provided in the Uniform Commercial Code and in any security agreements
between Bank and Guarantors.
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(10) Any obligations of Borrowers to Guarantors, now or hereafter existing,
including but not limited to any obligations to Guarantors as subrogees of Bank
or resulting from Guarantors' performance under this Guaranty, are hereby
subordinated to the indebtedness. Such obligations of Borrowers to Guarantors if
Bank so requests shall be enforced and performance received by Guarantors as
trustees for Bank and the proceeds thereof shall be paid over to Bank on account
of the indebtedness, but without reducing or affecting in any manner the
liability of Guarantors under the provisions of this Guaranty.
(11) This Guaranty may be revoked at any time by Guarantors in respect to
future transactions, unless there is a continuing consideration as to such
transactions which Guarantors do not renounce. Such revocation shall be
effective upon actual receipt by Bank at the address shown below of written
notice of revocation. Revocation shall not affect any of Guarantors' obligations
or Bank's rights with respect to transactions which precede Bank's receipt of
such notice, regardless of whether or not the indebtedness related to such
transactions, before or after revocation, has been renewed, compromised,
extended, accelerated, or otherwise changed as to any of its terms, including
time for payment or increase or decrease of the rate of interest thereon, and
regardless of any other act or omission of Bank authorized hereunder. Revocation
by any one or more of Guarantors shall not affect any obligations of any
nonrevoking Guarantors. If this Guaranty is revoked, returned, or canceled, and
subsequently any payment or transfer of any interest in property by Borrowers to
Bank is rescinded or must be returned by Bank to Borrowers, this Guaranty shall
be reinstated with respect to any such payment or transfer, regardless of any
such prior revocation, return, or cancellation.
(12) Where any one or more of Borrowers are corporations or partnerships it
is not necessary for Bank to inquire into the powers of Borrowers or of the
officers, directors, partners or agents acting or purporting to act on their
behalf, and any indebtedness made or created in reliance upon the professed
exercise of such powers shall be guaranteed hereunder.
(13) Bank may, without notice to Guarantors and without affecting
Guarantors' obligations hereunder, assign the indebtedness and this Guaranty, in
whole or in part. Guarantors agree that Bank may disclose to any assignee or
purchaser or any prospective assignee or purchaser, of all or part of the
indebtedness any and all information in Bank's possession concerning Guarantors,
this Guaranty, and any security for this Guaranty.
(14) Guarantors agree to pay all reasonable attorneys' fees, including
allocated costs of Bank's in-house counsel, and all other costs and expenses
which may be incurred by Bank in the enforcement of this Guaranty.
(15) Any married person who signs this Guaranty hereby expressly agrees
that recourse may be had against such person's separate property for all
obligations under this Guaranty.
(16) Where there is but a single Borrower, or where a single Guarantor
executes this Guaranty, then all words used herein in the plural shall be deemed
to have been used in the singular where the context and construction so require;
and when there is more than one Borrower named herein, or when this Guaranty is
executed by more than one Guarantor, the words "Borrowers" and "Guarantors"
respectively shall mean all and any one or more of them.
(17) This Guaranty shall be governed by and construed according to the laws
of the State of California, to the jurisdiction of which the parties hereto
submit.
(18) (a) Any controversy or claim between or among the parties, including
but not limited to those arising out of or relating to this Guaranty or any
agreements or instruments relating hereto or delivered in connection herewith
and any claim based on or arising from an alleged tort, shall at the request of
any party be determined by arbitration. The arbitration shall be conducted in
accordance with the United States Arbitration Act (Title 9, U.S. Code),
notwithstanding any choice of law provision in this Guaranty, and under the
Commercial Rules of the American Arbitration Association ("AAA"). The
arbitrator(s) shall give effect to statutes of limitation in determining any
claim. Any controversy concerning whether an issue is arbitrable shall be
determined by the arbitrator(s). Judgment upon the arbitration award may be
entered in any court having jurisdiction. The institution and maintenance of an
action for judicial relief or pursuit of a provisional or ancillary remedy shall
not constitute a waiver of the right of any party, including the plaintiff, to
submit the controversy or claim to arbitration if any other party contests such
action for judicial relief.
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(b) Notwithstanding the provisions of subparagraph (a), no controversy
or claim shall be submitted to arbitration without the consent of all
parties if, at the time of the proposed submission, such controversy or
claim arises from or relates to an obligation to Bank which is secured by
real property collateral located in California. If all parties do not
consent to submission of such a controversy or claim to arbitration, the
controversy or claim shall be determined as provided in subparagraph (c).
(c) A controversy or claim which is not submitted to arbitration as
provided and limited in subparagraphs (a) and (b) shall, at the request of
any party, be determined by a reference in accordance with California Code
of Civil Procedure Section 638 et seq. If such an election is made, the
parties shall designate to the court a referee or referees selected under
the auspices of the AAA in the same manner as arbitrators are selected in
AAA-sponsored proceedings. The presiding referee of the panel, or the
referee if there is a single referee, shall be an active attorney or
retired judge. Judgment upon the award rendered by such referee or referees
shall be entered in the court in which such proceeding was commenced in
accordance with California Code of Civil Procedure Sections 644 and 645.
(d) No provision of this paragraph shall limit the right of any party
to this Guaranty to exercise self-help remedies such as setoff, to
foreclose against or sell any real or personal property collateral or
security, or to obtain provisional or ancillary remedies from a court of
competent jurisdiction before, after, or during the pendency of any
arbitration or other proceeding. The exercise of a remedy does not waive
the right of either party to resort to arbitration or reference. At Bank's
option, foreclosure under a deed of trust or mortgage may be accomplished
either by exercise of power of sale under the deed of trust or mortgage or
by judicial foreclosure.
Executed this 7th day of August, 1995.
WITNESSED The Pottery Barn East, Inc.
/s/ ALI PARODI /s/ PAT CONNOLLY
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Witness By: Patrick Connolly, President
/s/ RUSSELL SOLT
3250 Van Ness Avenue, San Francisco, CA ---------------------------------
--------------------------------------------------- By: Russell Solt, Secretary
Address 100 North Point Street,
x San Francisco, CA 94133
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Witness
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Address
Address for notices to Bank:
BANK OF AMERICA N.T. & S.A.
San Francisco Commercial Banking Office #01499
345 Montgomery St.
P.O. Box 37001
San Francisco, CA 94137
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