{"id":40807,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/indemnification-agreement-goto-com-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"indemnification-agreement-goto-com-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/corporate\/indemnification-agreement-goto-com-inc.html","title":{"rendered":"Indemnification Agreement &#8211; GoTo.com Inc."},"content":{"rendered":"<pre>\n                                 GOTO.COM, INC.\n\n                            INDEMNIFICATION AGREEMENT\n\n        This Indemnification Agreement ('Agreement') is effective as of\n__________, 1999 by and between GoTo.com, Inc., a Delaware corporation (the\n'Company'), and the person whose signature appears on the signature page\nattached hereto ('Indemnitee').\n\n        WHEREAS, the Company desires to attract and retain the services of\nhighly qualified individuals, such as Indemnitee, to serve the Company and its\nrelated entities;\n\n        WHEREAS, in order to induce Indemnitee to continue to provide services\nto the Company, the Company wishes to provide for the indemnification of, and\nthe advancement of expenses to, Indemnitee to the maximum extent permitted by\nlaw;\n\n        WHEREAS, the Company and Indemnitee recognize the continued difficulty\nin obtaining liability insurance for the Company's directors, officers,\nemployees, agents and fiduciaries, the significant increases in the cost of such\ninsurance and the general reductions in the coverage of such insurance;\n\n        WHEREAS, the Company and Indemnitee further recognize the substantial\nincrease in corporate litigation in general, subjecting directors, officers,\nemployees, agents and fiduciaries to expensive litigation risks at the same time\nas the availability and coverage of liability insurance has been severely\nlimited;\n\n        WHEREAS, the Company and Indemnitee desire to continue to have in place\nthe additional protection provided by an indemnification agreement and to\nprovide indemnification and advancement of expenses to the Indemnitee to the\nmaximum extent permitted by Delaware law;\n\n        WHEREAS, the Company and Indemnitee desire to amend and restate any\nprior indemnification agreement between them, if any, in its entirety as set\nforth herein;\n\n        NOW, THEREFORE, the Company and Indemnitee hereby agree as follows:\n\n        1.     Certain Definitions.\n\n               (a)  'Change in Control' shall mean, and shall be deemed to have\noccurred if, on or after the date of this Agreement, (i) any 'person' (as such\nterm is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934,\nas amended), other than a trustee or other fiduciary holding securities under an\nemployee benefit plan of the Company acting in such capacity or a corporation\nowned directly or indirectly by the stockholders of the Company in substantially\nthe same proportions as their ownership of stock of the Company, becomes the\n'beneficial owner' (as defined in Rule 13d-3 under said Act), directly or\nindirectly, of securities of the Company representing more than 50% of the total\nvoting power represented by the Company's then outstanding Voting Securities,\n(ii) during any period of two consecutive years, individuals who at the\nbeginning of such \n\n\n\nperiod constitute the Board of Directors of the Company and any new director\nwhose election by the Board of Directors or nomination for election by the\nCompany's stockholders was approved by a vote of at least two thirds (2\/3) of\nthe directors then still in office who either were directors at the beginning of\nthe period or whose election or nomination for election was previously so\napproved, cease for any reason to constitute a majority thereof, or (iii) the\nstockholders of the Company approve a merger or consolidation of the Company\nwith any other corporation other than a merger or consolidation which would\nresult in the Voting Securities of the Company outstanding immediately prior\nthereto continuing to represent (either by remaining outstanding or by being\nconverted into Voting Securities of the surviving entity) at least 80% of the\ntotal voting power represented by the Voting Securities of the Company or such\nsurviving entity outstanding immediately after such merger or consolidation, or\nthe stockholders of the Company approve a plan of complete liquidation of the\nCompany or an agreement for the sale or disposition by the Company of (in one\ntransaction or a series of related transactions) all or substantially all of the\nCompany's assets.\n\n               (b)  'Claim' shall mean with respect to a Covered Event: any\nthreatened, pending or completed action, suit, proceeding or alternative dispute\nresolution mechanism, or any hearing, inquiry or investigation that Indemnitee\nin good faith believes might lead to the institution of any such action, suit,\nproceeding or alternative dispute resolution mechanism, whether civil, criminal,\nadministrative, investigative or other.\n\n               (c)  References to the 'Company' shall include, in addition to\nGoTo.com, Inc., any constituent corporation (including any constituent of a\nconstituent) absorbed in a consolidation or merger to which GoTo.com, Inc. (or\nany of its wholly owned subsidiaries) is a party which, if its separate\nexistence had continued, would have had power and authority to indemnify its\ndirectors, officers, employees, agents or fiduciaries, so that if Indemnitee is\nor was a director, officer, employee, agent or fiduciary of such constituent\ncorporation, or is or was serving at the request of such constituent corporation\nas a director, officer, employee, agent or fiduciary of another corporation,\npartnership, joint venture, employee benefit plan, trust or other enterprise,\nIndemnitee shall stand in the same position under the provisions of this\nAgreement with respect to the resulting or surviving corporation as Indemnitee\nwould have with respect to such constituent corporation if its separate\nexistence had continued.\n\n               (d)  'Covered Event' shall mean any event or occurrence related \nto the fact that Indemnitee is or was a director, officer, employee, agent or\nfiduciary of the Company, or any subsidiary of the Company, or is or was serving\nat the request of the Company as a director, officer, employee, agent or\nfiduciary of another corporation, partnership, joint venture, trust or other\nenterprise, or by reason of any action or inaction on the part of Indemnitee\nwhile serving in such capacity.\n\n               (e)  'Expenses' shall mean any and all expenses (including \nattorneys' fees and all other costs, expenses and obligations incurred in\nconnection with investigating, defending, being a witness in or participating in\n(including on appeal), or preparing to defend, to be a witness in or to\nparticipate in, any action, suit, proceeding, alternative dispute resolution\nmechanism, hearing, inquiry or investigation), judgments, fines, penalties and\namounts paid in settlement (if such \n\n\n                                      -2-\n\n\nsettlement is approved in advance by the Company, which approval shall not be\nunreasonably withheld), actually and reasonably incurred, of any Claim and any\nfederal, state, local or foreign taxes imposed on the Indemnitee as a result of\nthe actual or deemed receipt of any payments under this Agreement.\n\n               (f)  'Expense Advance' shall mean a payment to Indemnitee \npursuant to Section 3 of Expenses in advance of the settlement of or final\njudgement in any action, suit, proceeding or alternative dispute resolution\nmechanism, hearing, inquiry or investigation which constitutes a Claim.\n\n               (g)  'Independent Legal Counsel' shall mean an attorney or firm \nof attorneys, selected in accordance with the provisions of Section 2(d) hereof,\nwho shall not have otherwise performed services for the Company or Indemnitee\nwithin the last three years (other than with respect to matters concerning the\nrights of Indemnitee under this Agreement, or of other indemnitees under similar\nindemnity agreements).\n\n               (h)  References to 'other enterprises' shall include employee \nbenefit plans; references to 'fines' shall include any excise taxes assessed on\nIndemnitee with respect to an employee benefit plan; and references to 'serving\nat the request of the Company' shall include any service as a director, officer,\nemployee, agent or fiduciary of the Company which imposes duties on, or involves\nservices by, such director, officer, employee, agent or fiduciary with respect\nto an employee benefit plan, its participants or its beneficiaries; and if\nIndemnitee acted in good faith and in a manner Indemnitee reasonably believed to\nbe in the interest of the participants and beneficiaries of an employee benefit\nplan, Indemnitee shall be deemed to have acted in a manner 'not opposed to the\nbest interests of the Company' as referred to in this Agreement.\n\n               (i)  'Reviewing Party' shall mean, subject to the provisions of\nSection 2(d), any person or body appointed by the Board of Directors in\naccordance with applicable law to review the Company's obligations hereunder and\nunder applicable law, which may include a member or members of the Company's\nBoard of Directors, Independent Legal Counsel or any other person or body not a\nparty to the particular Claim for which Indemnitee is seeking indemnification.\n\n               (j)  'Section' refers to a section of this Agreement unless \notherwise indicated.\n\n               (k)  'Voting Securities' shall mean any securities of the Company\nthat vote generally in the election of directors.\n\n        2.     Indemnification.\n\n               (a)  Indemnification of Expenses. Subject to the provisions of \nSection 2(b) below, the Company shall indemnify Indemnitee for Expenses to the\nfullest extent permitted by law if Indemnitee was or is or becomes a party to or\nwitness or other participant in, or is threatened to be made a party to or\nwitness or other participant in, any Claim (whether by reason of or arising in\npart out of a Covered Event), including all interest, assessments and other\ncharges paid or payable in connection with or in respect of such Expenses.\n\n\n                                      -3-\n\n\n               (b)  Review of Indemnification Obligations. Notwithstanding the\nforegoing, in the event any Reviewing Party shall have determined (in a written\nopinion, in any case in which Independent Legal Counsel is the Reviewing Party)\nthat Indemnitee is not entitled to be indemnified hereunder under applicable\nlaw, (i) the Company shall have no further obligation under Section 2(a) to make\nany payments to Indemnitee not made prior to such determination by such\nReviewing Party, and (ii) the Company shall be entitled to be reimbursed by\nIndemnitee (who hereby agrees to reimburse the Company) for all Expenses\ntheretofore paid in indemnifying Indemnitee; provided, however, that if\nIndemnitee has commenced or thereafter commences legal proceedings in a court of\ncompetent jurisdiction to secure a determination that Indemnitee is entitled to\nbe indemnified hereunder under applicable law, any determination made by any\nReviewing Party that Indemnitee is not entitled to be indemnified hereunder\nunder applicable law shall not be binding and Indemnitee shall not be required\nto reimburse the Company for any Expenses theretofore paid in indemnifying\nIndemnitee until a final judicial determination is made with respect thereto (as\nto which all rights of appeal therefrom have been exhausted or lapsed).\nIndemnitee's obligation to reimburse the Company for any Expenses shall be\nunsecured and no interest shall be charged thereon.\n\n               (c)  Indemnitee Rights on Unfavorable Determination; Binding \nEffect. If any Reviewing Party determines that Indemnitee substantively is not\nentitled to be indemnified hereunder in whole or in part under applicable law,\nIndemnitee shall have the right to commence litigation seeking an initial\ndetermination by the court or challenging any such determination by such\nReviewing Party or any aspect thereof, including the legal or factual bases\ntherefor, and, subject to the provisions of Section 15, the Company hereby\nconsents to service of process and to appear in any such proceeding. Absent such\nlitigation, any determination by any Reviewing Party shall be conclusive and\nbinding on the Company and Indemnitee.\n\n               (d)  Selection of Reviewing Party; Change in Control. If there \nhas not been a Change in Control, any Reviewing Party shall be selected by the\nBoard of Directors, and if there has been such a Change in Control (other than a\nChange in Control which has been approved by a majority of the Company's Board\nof Directors who were directors immediately prior to such Change in Control),\nany Reviewing Party with respect to all matters thereafter arising concerning\nthe rights of Indemnitee to indemnification of Expenses under this Agreement or\nany other agreement or under the Company's Certificate of Incorporation or\nBylaws as now or hereafter in effect, or under any other applicable law, if\ndesired by Indemnitee, shall be Independent Legal Counsel selected by Indemnitee\nand approved by the Company (which approval shall not be unreasonably withheld).\nSuch counsel, among other things, shall render its written opinion to the\nCompany and Indemnitee as to whether and to what extent Indemnitee would be\nentitled to be indemnified hereunder under applicable law and the Company agrees\nto abide by such opinion. The Company agrees to pay the reasonable fees of the\nIndependent Legal Counsel referred to above and to indemnify fully such counsel\nagainst any and all expenses (including attorneys' fees), claims, liabilities\nand damages arising out of or relating to this Agreement or its engagement\npursuant hereto. Notwithstanding any other provision of this Agreement, the\nCompany shall not be required to pay Expenses of more than one Independent Legal\nCounsel in connection with all matters concerning a single Indemnitee, and such\nIndependent Legal Counsel shall be the Independent Legal Counsel for any or all\nother Indemnitees unless (i) the Company otherwise determines or (ii) any\nIndemnitee shall provide a \n\n\n                                      -4-\n\n\nwritten statement setting forth in detail a reasonable objection to such\nIndependent Legal Counsel representing other Indemnitees.\n\n               (e)  Mandatory Payment of Expenses. Notwithstanding any other\nprovision of this Agreement other than Section 10 hereof, to the extent that\nIndemnitee has been successful on the merits or otherwise, including, without\nlimitation, the dismissal of an action without prejudice, in defense of any\nClaim, Indemnitee shall be indemnified against all Expenses incurred by\nIndemnitee in connection therewith.\n\n        3.     Expense Advances.\n\n               (a)  Obligation to Make Expense Advances. Upon receipt of a \nwritten undertaking by or on behalf of the Indemnitee to repay such amounts if\nit shall ultimately be determined that the Indemnitee is not entitled to be\nindemnified therefor by the Company, the Company shall make Expense Advances to\nIndemnitee.\n\n               (b)  Form of Undertaking. Any written undertaking by the \nIndemnitee to repay any Expense Advances hereunder shall be unsecured and no\ninterest shall be charged thereon.\n\n               (c)  Determination of Reasonable Expense Advances. The parties \nagree that for the purposes of any Expense Advance for which Indemnitee has made\nwritten demand to the Company in accordance with this Agreement, all Expenses\nincluded in such Expense Advance that are certified by affidavit of Indemnitee's\ncounsel as being reasonable shall be presumed conclusively to be reasonable.\n\n        4.     Procedures for Indemnification and Expense Advances.\n\n               (a)  Timing of Payments. All payments of Expenses (including \nwithout limitation Expense Advances) by the Company to the Indemnitee pursuant\nto this Agreement shall be made to the fullest extent permitted by law as soon\nas practicable after written demand by Indemnitee therefor is presented to the\nCompany, but in no event later than forty-five (45) business days after such\nwritten demand by Indemnitee is presented to the Company, except in the case of\nExpense Advances, which shall be made no later than twenty (20) business days\nafter such written demand by Indemnitee is presented to the Company.\n\n               (b)  Notice\/Cooperation by Indemnitee. Indemnitee shall, as a\ncondition precedent to Indemnitee's right to be indemnified or Indemnitee's\nright to receive Expense Advances under this Agreement, give the Company notice\nin writing as soon as practicable of any Claim made against Indemnitee for which\nindemnification will or could be sought under this Agreement. Notice to the\nCompany shall be directed to the Chief Executive Officer of the Company at the\naddress shown on the signature page of this Agreement (or such other address as\nthe Company shall designate in writing to Indemnitee). In addition, Indemnitee\nshall give the Company such information and cooperation as it may reasonably\nrequire and as shall be within Indemnitee's power.\n\n\n                                      -5-\n\n\n               (c)  No Presumptions; Burden of Proof. For purposes of this \nAgreement, the termination of any Claim by judgment, order, settlement (whether\nwith or without court approval) or conviction, or upon a plea of nolo\ncontendere, or its equivalent, shall not create a presumption that Indemnitee\ndid not meet any particular standard of conduct or have any particular belief or\nthat a court has determined that indemnification is not permitted by this\nAgreement or applicable law. In addition, neither the failure of any Reviewing\nParty to have made a determination as to whether Indemnitee has met any\nparticular standard of conduct or had any particular belief, nor an actual\ndetermination by any Reviewing Party that Indemnitee has not met such standard\nof conduct or did not have such belief, prior to the commencement of legal\nproceedings by Indemnitee to secure a judicial determination that Indemnitee\nshould be indemnified under this Agreement or applicable law, shall be a defense\nto Indemnitee's claim or create a presumption that Indemnitee has not met any\nparticular standard of conduct or did not have any particular belief. In\nconnection with any determination by any Reviewing Party or otherwise as to\nwhether the Indemnitee is entitled to be indemnified hereunder, the burden of\nproof shall be on the Company to establish that Indemnitee is not so entitled.\n\n               (d)  Notice to Insurers. If, at the time of the receipt by the \nCompany of a notice of a Claim pursuant to Section 4(b) hereof, the Company has\nliability insurance in effect which may cover such Claim, the Company shall give\nprompt notice of the commencement of such Claim to the insurers in accordance\nwith the procedures set forth in the respective policies. The Company shall\nthereafter take all necessary or desirable action to cause such insurers to pay,\non behalf of the Indemnitee, all amounts payable as a result of such Claim in\naccordance with the terms of such policies.\n\n               (e)  Selection of Counsel. In the event the Company shall be \nobligated hereunder to provide indemnification for or make any Expense Advances\nwith respect to the Expenses of any Claim, the Company, if appropriate, shall be\nentitled to assume the defense of such Claim with counsel approved by Indemnitee\n(which approval shall not be unreasonably withheld) upon the delivery to\nIndemnitee of written notice of the Company's election to do so. After delivery\nof such notice, approval of such counsel by Indemnitee and the retention of such\ncounsel by the Company, the Company will not be liable to Indemnitee under this\nAgreement for any fees or expenses of separate counsel subsequently employed by\nor on behalf of Indemnitee with respect to the same Claim; provided that, (i)\nIndemnitee shall have the right to employ Indemnitee's separate counsel in any\nsuch Claim at Indemnitee's expense and (ii) if (A) the employment of separate\ncounsel by Indemnitee has been previously authorized by the Company, (B)\nIndemnitee shall have reasonably concluded that there may be a conflict of\ninterest between the Company and Indemnitee in the conduct of any such defense,\nor (C) the Company shall not continue to retain such counsel to defend such\nClaim, then the fees and expenses of Indemnitee's separate counsel shall be\nExpenses for which Indemnitee may receive indemnification or Expense Advances\nhereunder.\n\n        5.     Additional Indemnification Rights; Nonexclusivity.\n\n               (a)  Scope. The Company hereby agrees to indemnify the Indemnitee\nto the fullest extent permitted by law, notwithstanding that such\nindemnification is not specifically authorized by \n\n\n                                      -6-\n\n\nthe other provisions of this Agreement, the Company's Certificate of\nIncorporation, the Company's Bylaws or by statute. In the event of any change\nafter the date of this Agreement in any applicable law, statute or rule which\nexpands the right of a Delaware corporation to indemnify a member of its board\nof directors or an officer, employee, agent or fiduciary, it is the intent of\nthe parties hereto that Indemnitee shall enjoy by this Agreement the greater\nbenefits afforded by such change. In the event of any change in any applicable\nlaw, statute or rule which narrows the right of a Delaware corporation to\nindemnify a member of its board of directors or an officer, employee, agent or\nfiduciary, such change, to the extent not otherwise required by such law,\nstatute or rule to be applied to this Agreement, shall have no effect on this\nAgreement or the parties' rights and obligations hereunder except as set forth\nin Section 10(a) hereof.\n\n               (b)  Nonexclusivity. The indemnification and the payment of \nExpense Advances provided by this Agreement shall be in addition to any rights\nto which Indemnitee may be entitled under the Company's Certificate of\nIncorporation, its Bylaws, any other agreement, any vote of stockholders or\ndisinterested directors, the General Corporation Law of the State of Delaware,\nor otherwise. The indemnification and the payment of Expense Advances provided\nunder this Agreement shall continue as to Indemnitee for any action taken or not\ntaken while serving in an indemnified capacity even though subsequent thereto\nIndemnitee may have ceased to serve in such capacity.\n\n        6.     No Duplication of Payments. The Company shall not be liable under\nthis Agreement to make any payment in connection with any Claim made against\nIndemnitee to the extent Indemnitee has otherwise actually received payment\n(under any insurance policy, provision of the Company's Certificate of\nIncorporation, Bylaws or otherwise) of the amounts otherwise payable hereunder.\n\n        7.     Partial Indemnification. If Indemnitee is entitled under any \nprovision of this Agreement to indemnification by the Company for some or a\nportion of Expenses incurred in connection with any Claim, but not, however, for\nall of the total amount thereof, the Company shall nevertheless indemnify\nIndemnitee for the portion of such Expenses to which Indemnitee is entitled.\n\n        8.     Mutual Acknowledgement. Both the Company and Indemnitee \nacknowledge that in certain instances, federal law or applicable public policy\nmay prohibit the Company from indemnifying its directors, officers, employees,\nagents or fiduciaries under this Agreement or otherwise. Indemnitee understands\nand acknowledges that the Company has undertaken or may be required in the\nfuture to undertake with the Securities and Exchange Commission to submit the\nquestion of indemnification to a court in certain circumstances for a\ndetermination of the Company's right under public policy to indemnify\nIndemnitee.\n\n        9.     Liability Insurance. To the extent the Company maintains \nliability insurance applicable to directors, officers, employees, agents or\nfiduciaries, Indemnitee shall be covered by such policies in such a manner as to\nprovide Indemnitee the same rights and benefits as are provided to the most\nfavorably insured of the Company's directors, if Indemnitee is a director; or of\nthe Company's officers, if Indemnitee is not a director of the Company but is an\nofficer; or of the Company's \n\n\n                                      -7-\n\n\nkey employees, agents or fiduciaries, if Indemnitee is not an officer or\ndirector but is a key employee, agent or fiduciary.\n\n        10.    Exceptions.  Notwithstanding any other provision of this \nAgreement, the Company shall not be obligated pursuant to the terms of this\nAgreement:\n\n               (a)  Excluded Action or Omissions. To indemnify Indemnitee for\nExpenses resulting from acts, omissions or transactions for which Indemnitee is\nprohibited from receiving indemnification under this Agreement or applicable\nlaw; provided, however, that notwithstanding any limitation set forth in this\nSection 10(a) regarding the Company's obligation to provide indemnification,\nIndemnitee shall be entitled under Section 3 to receive Expense Advances\nhereunder with respect to any such Claim unless and until a court having\njurisdiction over the Claim shall have made a final judicial determination (as\nto which all rights of appeal therefrom have been exhausted or lapsed) that\nIndemnitee has engaged in acts, omissions or transactions for which Indemnitee\nis prohibited from receiving indemnification under this Agreement or applicable\nlaw.\n\n               (b)  Claims Initiated by Indemnitee. To indemnify or make Expense\nAdvances to Indemnitee with respect to Claims initiated or brought voluntarily\nby Indemnitee and not by way of defense, counterclaim or crossclaim, except (i)\nwith respect to actions or proceedings brought to establish or enforce a right\nto indemnification under this Agreement or any other agreement or insurance\npolicy or under the Company's Certificate of Incorporation or Bylaws now or\nhereafter in effect relating to Claims for Covered Events, (ii) in specific\ncases if the Board of Directors has approved the initiation or bringing of such\nClaim, or (iii) as otherwise required under Section 145 of the Delaware General\nCorporation Law, regardless of whether Indemnitee ultimately is determined to be\nentitled to such indemnification or insurance recovery, as the case may be.\n\n               (c)  Lack of Good Faith. To indemnify Indemnitee for any Expenses\nincurred by the Indemnitee with respect to any action instituted (i) by\nIndemnitee to enforce or interpret this Agreement, if a court having\njurisdiction over such action determines as provided in Section 13 that each of\nthe material assertions made by the Indemnitee as a basis for such action was\nnot made in good faith or was frivolous, or (ii) by or in the name of the\nCompany to enforce or interpret this Agreement, if a court having jurisdiction\nover such action determines as provided in Section 13 that each of the material\ndefenses asserted by Indemnitee in such action was made in bad faith or was\nfrivolous.\n\n               (d)  Claims Under Section 16(b). To indemnify Indemnitee for \nexpenses and the payment of profits arising from the purchase and sale by\nIndemnitee of securities in violation of Section 16(b) of the Securities\nExchange Act of 1934, as amended, or any similar successor statute; provided,\nhowever, that notwithstanding any limitation set forth in this Section 10(d)\nregarding the Company's obligation to provide indemnification, Indemnitee shall\nbe entitled under Section 3 to receive Expense Advances hereunder with respect\nto any such Claim unless and until a court having jurisdiction over the Claim\nshall have made a final judicial determination (as to which all rights of appeal\ntherefrom have been exhausted or lapsed) that Indemnitee has violated said\nstatute.\n\n\n                                      -8-\n\n\n        11.    Counterparts.  This Agreement may be executed in one or more \ncounterparts, each of which shall constitute an original.\n\n        12.    Binding Effect; Successors and Assigns. This Agreement shall be \nbinding upon and inure to the benefit of and be enforceable by the parties\nhereto and their respective successors, assigns (including any direct or\nindirect successor by purchase, merger, consolidation or otherwise to all or\nsubstantially all of the business or assets of the Company), spouses, heirs and\npersonal and legal representatives. The Company shall require and cause any\nsuccessor (whether direct or indirect, and whether by purchase, merger,\nconsolidation or otherwise) to all, substantially all, or a substantial part, of\nthe business or assets of the Company, by written agreement in form and\nsubstance satisfactory to Indemnitee, expressly to assume and agree to perform\nthis Agreement in the same manner and to the same extent that the Company would\nbe required to perform if no such succession had taken place. This Agreement\nshall continue in effect regardless of whether Indemnitee continues to serve as\na director, officer, employee, agent or fiduciary (as applicable) of the Company\nor of any other enterprise at the Company's request.\n\n        13.    Expenses Incurred in Action Relating to Enforcement or \nInterpretation. In the event that any action is instituted by Indemnitee under\nthis Agreement or under any liability insurance policies maintained by the\nCompany to enforce or interpret any of the terms hereof or thereof, Indemnitee\nshall be entitled to be indemnified for all Expenses incurred by Indemnitee with\nrespect to such action (including without limitation attorneys' fees),\nregardless of whether Indemnitee is ultimately successful in such action, unless\nas a part of such action a court having jurisdiction over such action makes a\nfinal judicial determination (as to which all rights of appeal therefrom have\nbeen exhausted or lapsed) that each of the material assertions made by\nIndemnitee as a basis for such action was not made in good faith or was\nfrivolous; provided, however, that until such final judicial determination is\nmade, Indemnitee shall be entitled under Section 3 to receive payment of Expense\nAdvances hereunder with respect to such action. In the event of an action\ninstituted by or in the name of the Company under this Agreement to enforce or\ninterpret any of the terms of this Agreement, Indemnitee shall be entitled to be\nindemnified for all Expenses incurred by Indemnitee in defense of such action\n(including without limitation costs and expenses incurred with respect to\nIndemnitee's counterclaims and cross-claims made in such action), unless as a\npart of such action a court having jurisdiction over such action makes a final\njudicial determination (as to which all rights of appeal therefrom have been\nexhausted or lapsed) that each of the material defenses asserted by Indemnitee\nin such action was made in bad faith or was frivolous; provided, however, that\nuntil such final judicial determination is made, Indemnitee shall be entitled\nunder Section 3 to receive payment of Expense Advances hereunder with respect to\nsuch action.\n\n        14.    Notice. All notices, requests, demands and other communications \nunder this Agreement shall be in writing and shall be deemed duly given (i) if\ndelivered by hand and signed for by the party addressed, on the date of such\ndelivery, or (ii) if mailed by domestic certified or registered mail with\npostage prepaid, on the third business day after the date postmarked. Addresses\nfor notice to either party are as shown on the signature page of this Agreement,\nor as subsequently modified by written notice.\n\n\n                                      -9-\n\n\n        15.    Consent to Jurisdiction. The Company and Indemnitee each hereby\nirrevocably consent to the jurisdiction of the courts of the State of Delaware\nfor all purposes in connection with any action or proceeding which arises out of\nor relates to this Agreement and agree that any action instituted under this\nAgreement shall be commenced, prosecuted and continued only in the Court of\nChancery of the State of Delaware in and for New Castle County, which shall be\nthe exclusive and only proper forum for adjudicating such a claim.\n\n        16.    Severability. The provisions of this Agreement shall be severable\nin the event that any of the provisions hereof (including any provision within a\nsingle section, paragraph or sentence) are held by a court of competent\njurisdiction to be invalid, void or otherwise unenforceable, and the remaining\nprovisions shall remain enforceable to the fullest extent permitted by law.\nFurthermore, to the fullest extent possible, the provisions of this Agreement\n(including without limitation each portion of this Agreement containing any\nprovision held to be invalid, void or otherwise unenforceable, that is not\nitself invalid, void or unenforceable) shall be construed so as to give effect\nto the intent manifested by the provision held invalid, illegal or\nunenforceable.\n\n        17.    Choice of Law. This Agreement, and all rights, remedies, \nliabilities, powers and duties of the parties to this Agreement, shall be\ngoverned by and construed in accordance with the laws of the State of Delaware\nwithout regard to principles of conflicts of laws.\n\n        18.    Subrogation. In the event of payment under this Agreement, the \nCompany shall be subrogated to the extent of such payment to all of the rights\nof recovery of Indemnitee, who shall execute all documents required and shall do\nall acts that may be necessary to secure such rights and to enable the Company\neffectively to bring suit to enforce such rights.\n\n        19.    Amendment and Termination. No amendment, modification, \ntermination or cancellation of this Agreement shall be effective unless it is in\nwriting signed by both the parties hereto. No waiver of any of the provisions of\nthis Agreement shall be deemed to be or shall constitute a waiver of any other\nprovisions hereof (whether or not similar), nor shall such waiver constitute a\ncontinuing waiver.\n\n        20.    Integration and Entire Agreement. This Agreement sets forth the \nentire understanding between the parties hereto and supersedes and merges all\nprevious written and oral negotiations, commitments, understandings and\nagreements relating to the subject matter hereof between the parties hereto.\nThis Agreement shall supersede any prior Indemnification Agreement between the\nparties hereto, and all such prior agreements shall hereafter be void and of no\nforce and effect with respect to matters occurring after the date hereof.\n\n        21.    No Construction as Employment Agreement. Nothing contained in \nthis Agreement shall be construed as giving Indemnitee any right to be retained\nin the employ of the Company or any of its subsidiaries or affiliated entities.\n\n\n                                      -10-\n\n\n        IN WITNESS WHEREOF, the parties hereto have executed this\nIndemnification Agreement as of the date first above written.\n\n\nGOTO.COM, INC.\n\n\n\nBy:_____________________________________\n\nName:___________________________________\n\nTitle:__________________________________\n\nAddress:   GoTo.com, Inc.\n           140 West Union Street\n           Pasadena, California  91103\n\n                                      AGREED TO AND ACCEPTED by Indemnitee\n\n                                      By:_____________________________\n\n                                      Print Name:_____________________\n\n\n\n                                      -11-\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7665],"corporate_contracts_industries":[],"corporate_contracts_types":[9553,9557],"class_list":["post-40807","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-gotocom-inc","corporate_contracts_types-corporate","corporate_contracts_types-corporate__indemn"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40807","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40807"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40807"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40807"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40807"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}