Exhibit 10.3


 


OPENTABLE,
INC.


 


INDEMNIFICATION AGREEMENT


 


This Indemnification
Agreement (“Agreement”) is
effective as of
                        ,
2009, by and between OpenTable, Inc., a Delaware corporation (the “Company”), and                   
(“Indemnitee”).


 


A.            The Company recognizes the continued
difficulty in obtaining liability insurance for its directors, officers,
employees, controlling persons, fiduciaries and other agents and affiliates,
the significant increases in the cost of such insurance and the general
reductions in the coverage of such insurance.


 


B.            The Company further recognizes the
substantial increase in corporate litigation in general, subjecting directors,
officers, employees, controlling persons, fiduciaries and other agents and affiliates
to expensive litigation risks at the same time as the availability and coverage
of liability insurance has been severely limited.


 


C.            The current protection available to
directors, officers, employees, controlling persons, fiduciaries and other agents
and affiliates of the Company may not be adequate under the present
circumstances, and directors, officers, employees, controlling persons,
fiduciaries and other agents and affiliates of the Company (or persons who may
be alleged or deemed to be the same), including the Indemnitee, may not be
willing to continue to serve or be associated with the Company in such
capacities without additional protection.


 


D.            The Company (a) desires to attract
and retain the involvement of highly qualified persons, such as Indemnitee, to
serve and be associated with the Company, and (b) accordingly, wishes to
provide for the indemnification and advancement of expenses to the Indemnitee
to the maximum extent permitted by law.


 


E.             In view of the considerations set forth
above, the Company desires that Indemnitee shall be indemnified and advanced
expenses by the Company as set forth herein.


 


In consideration of the
mutual promises and covenants contained herein, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:


 


1.             Certain Definitions.


 


(a)           “Change
in Control” shall be deemed to have occurred if, on or after the
date of this Agreement, (i) any “person” (as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934,
as amended), other than a trustee or other fiduciary holding securities under
an employee benefit plan of the Company acting in such capacity or a
corporation owned directly or indirectly by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the Company,
becomes the “beneficial owner” (as defined in Rule 13d-3 under said Act),
directly or indirectly, of securities of the Company representing more than
fifty percent (50%) of the total voting power represented by the Company’s then
outstanding Voting Securities (as defined below), (ii) during any period
of two 


 

















 


(2) consecutive years, individuals who at the beginning of such
period constitute the Board of Directors of the Company and any new director
whose election by the Board of Directors or nomination for election by the
Company’s stockholders was approved by a vote of at least two- thirds (2/3) of
the directors then still in office who either were directors at the beginning
of the period or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority thereof, or (iii) the
stockholders of the Company approve a merger or consolidation of the Company
with any other corporation other than a merger or consolidation which would
result in the Voting Securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by being
converted into Voting Securities of the surviving entity) at least eighty
percent (80%) of the total voting power represented by the Voting Securities of
the Company or such surviving entity outstanding immediately after such merger
or consolidation, or (iv) the stockholders of the Company approve a plan
of complete liquidation of the Company or an agreement for the sale or
disposition by the Company of (in one transaction or a series of related
transactions) all or substantially all of the Company’s assets.


 


(b)           “Claim”
shall mean with respect to a Covered Event (as defined below):  any threatened, asserted, pending or
completed action, suit, proceeding or alternative dispute resolution mechanism,
or any hearing, inquiry or investigation that Indemnitee in good faith believes
might lead to the institution of any such action, suit, proceeding or
alternative dispute resolution mechanism, whether civil, criminal,
administrative, investigative or other.


 


(c)           References to the “Company” shall include, in addition to
OpenTable, Inc., any constituent corporation (including any constituent of
a constituent) absorbed in a consolidation or merger to which OpenTable, Inc.
(or any of its wholly owned subsidiaries) is a party, which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, employees, agents or fiduciaries, so that if Indemnitee is
or was a director, officer, employee, agent or fiduciary of such constituent
corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee, agent or fiduciary of another
corporation, partnership, joint venture, employee benefit plan, trust or other
enterprise, Indemnitee shall stand in the same position under the provisions of
this Agreement with respect to the resulting or surviving corporation as
Indemnitee would have with respect to such constituent corporation if its
separate existence had continued.


 


(d)           “Covered
Event” shall mean any event or occurrence related to the fact that
Indemnitee is or was a director, officer, employee, agent or fiduciary of the
Company, or any subsidiary of the Company, or is or was serving at the request
of the Company as a director, officer, employee, agent or fiduciary of another
corporation, partnership, joint venture, trust or other enterprise, or by reason
of any action or inaction on the part of Indemnitee while serving in such
capacity.


 


(e)           “Expenses”
shall mean any and all direct and indirect costs, losses, claims, damages,
fees, expenses and liabilities, joint or several (including attorneys’ fees and
all other costs, expenses and obligations incurred in connection with
investigating, defending, being a witness in or participating in (including on
appeal), or preparing to defend, to be a witness in or to participate in, any
action, suit, proceeding, alternative dispute resolution mechanism, hearing,
inquiry or investigation), judgments, fines, penalties and amounts paid in
settlement (if such 


 

















 


settlement is approved in advance by the Company, which approval shall
not be unreasonably withheld) actually and reasonably incurred, of any Claim
and any federal, state, local or foreign taxes imposed on the Indemnitee as a
result of the actual or deemed receipt of any payments under this Agreement.


 


(f)            “Expense
Advance” shall mean a payment to Indemnitee pursuant to Section 3
of Expenses in advance of the settlement of or final judgement in any action,
suit, proceeding or alternative dispute resolution mechanism, hearing, inquiry
or investigation, which constitutes a Claim.


 


(g)           “Independent
Legal Counsel” shall mean an attorney or firm of attorneys, selected
in accordance with the provisions of Section 2(d) hereof, who shall
not have otherwise performed services for the Company or Indemnitee within the
last three (3) years (other than with respect to matters concerning the
rights of Indemnitee under this Agreement, or of other indemnitees under
similar indemnity agreements).


 


(h)           References to “other enterprises” shall include employee benefit plans;
references to “fines” shall include any excise taxes assessed on Indemnitee with
respect to an employee benefit plan; and references to “serving at the request of the Company”
shall include any service as a director, officer, employee, agent or fiduciary
of the Company which imposes duties on, or involves services by, such director,
officer, employee, agent or fiduciary with respect to an employee benefit plan,
its participants or its beneficiaries; and if Indemnitee acted in good faith
and in a manner Indemnitee reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan, Indemnitee shall be deemed to
have acted in a manner “not opposed to the
best interests of the Company” as referred to in this Agreement.


 


(i)            “Reviewing
Party” shall mean, subject to the provisions of Section 2(d),
any person or body appointed by the Board of Directors in accordance with
applicable law to review the Company’s obligations hereunder and under
applicable law, which may include a member or members of the Company’s Board of
Directors, Independent Legal Counsel or any other person or body not a party to
the particular Claim for which Indemnitee is seeking indemnification,
exoneration or hold harmless rights.


 


(j)            “Section”
refers to a section of this Agreement unless otherwise indicated.


 


(k)           “Voting
Securities” shall mean any securities of the Company that vote
generally in the election of directors.


 


2.             Indemnification.


 


(a)           Indemnification of Expenses. 
Subject to the provisions of Section 2(b) below, the Company
shall indemnify, exonerate or hold harmless Indemnitee for Expenses to the
fullest extent permitted by law if Indemnitee was or is or becomes a party to
or witness or other participant in, or is threatened to be made a party to or
witness or other participant in, any Claim (whether by reason of or arising in
part out of a Covered Event), including all interest, assessments and other
charges incurred in connection with or in respect of such Expenses.


 

















 


(b)           Review of Indemnification Obligations. 
Notwithstanding the foregoing, in the event any Reviewing Party shall
have determined (in a written opinion, in any case in which Independent Legal
Counsel is the Reviewing Party) that Indemnitee is not entitled to be
indemnified, exonerated or held harmless hereunder under applicable law, (i) the
Company shall have no further obligation under Section 2(a) to make
any payments to Indemnitee not made prior to such determination by such
Reviewing Party and (ii) the Company shall be entitled to be reimbursed by
Indemnitee (who hereby agrees to reimburse the Company) for all Expenses
theretofore paid in indemnifying, exonerating or holding harmless Indemnitee
(within thirty (30) days after such determination); provided,
however, that if Indemnitee has commenced or thereafter commences
legal proceedings in a court of competent jurisdiction to secure a
determination that Indemnitee is entitled to be indemnified, exonerated or held
harmless hereunder under applicable law, any determination made by any
Reviewing Party that Indemnitee is not entitled to be indemnified hereunder
under applicable law shall not be binding and Indemnitee shall not be required
to reimburse the Company for any Expenses theretofore paid in indemnifying,
exonerating or holding harmless Indemnitee until a final judicial determination
is made with respect thereto (as to which all rights of appeal therefrom have
been exhausted or lapsed).  Indemnitee’s
obligation to reimburse the Company for any Expenses shall be unsecured and no
interest shall be charged thereon.


 


(c)           Indemnitee Rights on Unfavorable
Determination; Binding Effect.  If any
Reviewing Party determines that Indemnitee substantively is not entitled to be
indemnified, exonerated or held harmless hereunder in whole or in part under
applicable law, Indemnitee shall have the right to commence litigation seeking
an initial determination by the court or challenging any such determination by
such Reviewing Party or any aspect thereof, including the legal or factual
bases therefor, and, subject to the provisions of Section 15, the Company
hereby consents to service of process and to appear in any such
proceeding.  Absent such litigation, any
determination by any Reviewing Party shall be conclusive and binding on the
Company and Indemnitee.


 


(d)           Selection of Reviewing Party; Change in
Control.  If there has not been a Change in Control,
any Reviewing Party shall be selected by the Board of Directors, and if there
has been such a Change in Control (other than a Change in Control which has
been approved by a majority of the Company’s Board of Directors who were
directors immediately prior to such Change in Control), any Reviewing Party
with respect to all matters thereafter arising concerning Indemnitee’s
indemnification, exoneration or hold harmless rights for Expenses under this Agreement
or any other agreement or under the Company’s Certificate of Incorporation or
bylaws as now or hereafter in effect, or under any other applicable law, if
desired by Indemnitee, shall be Independent Legal Counsel selected by the
Indemnitee and approved by Company (which approval shall not be unreasonably
withheld). Such counsel, among other things, shall render its written opinion
to the Company and Indemnitee as to whether and to what extent Indemnitee would
be entitled to be indemnified, exonerated or held harmless hereunder under
applicable law and the Company agrees to abide by such opinion.  The Company agrees to pay the reasonable fees
of the Independent Legal Counsel referred to above and to fully indemnify,
exonerate and hold harmless such counsel against any and all expenses
(including attorneys’ fees), claims, liabilities and damages arising out of or
relating to this Agreement or its engagement pursuant hereto.  Notwithstanding any other provision of this
Agreement, the Company shall not be required to pay Expenses of more than one
Independent Legal Counsel in 


 

















 


connection with all matters concerning a single Indemnitee, and such
Independent Legal Counsel shall be the Independent Legal Counsel for any or all
other Indemnitees unless (i) the Company otherwise determines or (ii) any
Indemnitee shall provide a written statement setting forth in detail a
reasonable objection to such Independent Legal Counsel representing other
Indemnitees.


 


(e)           Mandatory Payment of Expenses. 
Notwithstanding any other provision of this Agreement other than Section 10
hereof, to the extent that Indemnitee has been successful on the merits or
otherwise, including, without limitation, the dismissal of an action without
prejudice, in defense of any Claim, Indemnitee shall be indemnified, exonerated
and held harmless against all Expenses incurred by Indemnitee in connection
therewith.


 


(f)            Contribution. 
If the indemnification, exoneration or hold harmless rights provided for
in this Agreement is for any reason held by a court of competent jurisdiction
to be unavailable to an Indemnitee, then in lieu of indemnifying, exonerating
or holding harmless Indemnitee thereunder, the Company shall contribute to the
amount paid or payable by Indemnitee as a result of such Expenses (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company and Indemnitee, or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company and Indemnitee in connection with the
action or inaction which resulted in such Expenses, as well as any other
relevant equitable considerations.  In
connection with the registration of the Company’s securities, the relative
benefits received by the Company and Indemnitee shall be deemed to be in the
same respective proportions that the net proceeds from the offering (before
deducting expenses) received by the Company and Indemnitee, in each case as set
forth in the table on the cover page of the applicable prospectus, bear to
the aggregate public offering price of the securities so offered.  The relative fault of the Company and
Indemnitee shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company or Indemnitee and the parties’ relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission.


 


The Company and Indemnitee agree that it would not be
just and equitable if contribution pursuant to this Section 2(f) were
determined by pro rata or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately
preceding paragraph.  In connection with
the registration of the Company’s securities, in no event shall Indemnitee be
required to contribute any amount under this Section 2(f) in excess
of the net proceeds received by Indemnitee from its sale of securities under
such registration statement.  No person
found guilty of fraudulent misrepresentation (within the meaning of Section 11(1) of
the Securities Act) shall be entitled to contribution from any person who was
not found guilty of such fraudulent misrepresentation.


 


3.             Expense Advances.


 


(a)           Obligation to Make Expense Advances. 
The Company shall make Expense Advances to Indemnitee upon receipt of a
written undertaking by or on behalf of the 


 

















 


Indemnitee to repay such amounts if it shall ultimately be determined
that the Indemnitee is not entitled to be indemnified, exonerated or held
harmless therefor by the Company.


 


(b)           Form of Undertaking. 
Any written undertaking by the Indemnitee to repay any Expense Advances
hereunder shall be unsecured and no interest shall be charged thereon.


 


4.             Procedures for
Indemnification and Expense Advances.


 


(a)           Timing of Payments. 
All payments of Expenses (including without limitation Expense Advances)
by the Company to the Indemnitee pursuant to this Agreement shall be made to
the fullest extent permitted by law as soon as practicable after written demand
by Indemnitee therefor is presented to the Company, but in no event later than
forty-five (45) days after such written demand by Indemnitee is presented to
the Company, except in the case of Expense Advances, which shall be made no
later than twenty (20) days after such written demand by Indemnitee is
presented to the Company.


 


(b)           Notice/Cooperation by Indemnitee. 
Indemnitee shall, as a condition precedent to Indemnitee’s right to be
indemnified, exonerated or held harmless or Indemnitee’s right to receive
Expense Advances under this Agreement, give the Company notice in writing as
soon as practicable of any Claim made against Indemnitee for which
indemnification, exoneration or hold harmless right will or could be sought
under this Agreement.  Notice to the
Company shall be directed to the President or Chief Executive Officer of the
Company at the address shown on the signature page of this Agreement (or
such other address as the Company shall designate in writing to
Indemnitee).  In addition, Indemnitee
shall give the Company such information and cooperation as it may reasonably
require and as shall be within Indemnitee’s power.


 


(c)           No Presumptions; Burden of Proof. 
For purposes of this Agreement, the termination of any Claim by
judgment, order, settlement (whether with or without court approval) or
conviction, or upon a plea of nolo contendere,
or its equivalent, shall not create a presumption that Indemnitee did not meet
any particular standard of conduct or have any particular belief or that a
court has determined that indemnification, exoneration or hold harmless right
is not permitted by this Agreement or applicable law.  In addition, neither the failure of any
Reviewing Party to have made a determination as to whether Indemnitee has met
any particular standard of conduct or had any particular belief, nor an actual
determination by any Reviewing Party that Indemnitee has not met such standard
of conduct or did not have such belief, prior to the commencement of legal
proceedings by Indemnitee to secure a judicial determination that Indemnitee
should be indemnified, exonerated or held harmless under this Agreement or
applicable law, shall be a defense to Indemnitee’s claim or create a
presumption that Indemnitee has not met any particular standard of conduct or
did not have any particular belief.  In
connection with any determination by any Reviewing Party or otherwise as to
whether the Indemnitee is entitled to be indemnified, exonerated or held
harmless hereunder, the burden of proof shall be on the Company to establish
that Indemnitee is not so entitled.


 


(d)           Notice to Insurers. 
If, at the time of the receipt by the Company of a notice of a Claim
pursuant to Section 4(b) hereof, the Company has liability insurance
in effect 


 

















 


which may cover such Claim, the Company shall give prompt notice of the
commencement of such Claim to the insurers in accordance with the procedures
set forth in the respective policies. 
The Company shall thereafter take all necessary or desirable action to
cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as
a result of such Claim in accordance with the terms of such policies.


 


(e)           Selection of Counsel. 
In the event the Company shall be obligated hereunder to provide
indemnification, exoneration or hold harmless rights for or make any Expense
Advances with respect to the Expenses of any Claim, the Company, if
appropriate, shall be entitled to assume the defense of such Claim with counsel
approved by Indemnitee (which approval shall not be unreasonably withheld) upon
the delivery to Indemnitee of written notice of the Company’s election to do
so.  After delivery of such notice,
approval of such counsel by Indemnitee and the retention of such counsel by the
Company, the Company will not be liable to Indemnitee under this Agreement for
any fees or expenses of separate counsel subsequently employed by or on behalf
of Indemnitee with respect to the same Claim; provided,
however, that (i) Indemnitee shall have the right to employ
Indemnitee’s separate counsel in any such Claim at Indemnitee’s expense and (ii) if
(A) the employment of separate counsel by Indemnitee has been previously
authorized by the Company, (B) Indemnitee shall have reasonably concluded
that there may be a conflict of interest between the Company and Indemnitee in
the conduct of any such defense, or (C) the Company shall not continue to
retain such counsel to defend such Claim, then the fees and expenses of
Indemnitee’s separate counsel shall be Expenses for which Indemnitee may
receive indemnification, exoneration or hold harmless rights or Expense
Advances hereunder.  The Company shall
have the right to conduct such defense as it sees fit in its sole discretion,
including the right to settle any claim, action or proceeding against Indemnitee
without the consent of Indemnitee, provided that the terms of such settlement
include either: (i) a full release of Indemnitee by the claimant from all
liabilities or potential liabilities under such claim; or (ii), in the event
such full release is not obtained, the terms of such settlement do not limit
any indemnification, exoneration or hold harmless right Indemnitee may now, or
hereafter, be entitled to under this Agreement, the Company’s Certificate of
Incorporation, bylaws, any agreement, any vote of stockholders or disinterested
directors, the General Corporation Law of the State of Delaware (the “DGCL”) or
otherwise.


 


5.             Additional Indemnification
Rights; Nonexclusivity.


 


(a)           Scope.  The Company
hereby agrees to indemnify, exonerate and hold harmless the Indemnitee to the
fullest extent permitted by law, notwithstanding that such indemnification,
exoneration or hold harmless right is not specifically authorized by the other
provisions of this Agreement, the Company’s Certificate of Incorporation, the
Company’s bylaws or by statute.  In the
event of any change after the date of this Agreement in any applicable law,
statute or rule which expands the right of a Delaware corporation to
indemnify, exonerate or hold harmless a member of its board of directors or an
officer, employee, agent or fiduciary, it is the intent of the parties hereto
that Indemnitee shall enjoy by this Agreement the greater benefits afforded by
such change.  In the event of any change
in any applicable law, statute or rule which narrows the right of a
Delaware corporation to indemnify, exonerate or hold harmless a member of its
board of directors or an officer, employee, agent or fiduciary, such change, to
the extent not otherwise required by such law, statute or rule to be
applied to this 


 

















 


Agreement, shall have no effect on this Agreement or the parties’
rights and obligations hereunder except as set forth in Section 10(a) hereof.


 


(b)           Nonexclusivity. 
The indemnification, exoneration or hold harmless rights and the payment
of Expense Advances provided by this Agreement shall be in addition to any
rights to which Indemnitee may be entitled under the Company’s Certificate of
Incorporation, its bylaws, any other agreement, any vote of stockholders or
disinterested directors, the DGCL, or otherwise.  The indemnification, exoneration or hold
harmless rights and the payment of Expense Advances provided under this
Agreement shall continue as to Indemnitee for any action taken or not taken
while serving in an indemnified, exonerated or held harmless capacity even
though subsequent thereto Indemnitee may have ceased to serve in such capacity.


 


6.             No Duplication of Payments.  The Company
shall not be liable under this Agreement to make any payment in connection with
any Claim made against Indemnitee to the extent Indemnitee has otherwise
actually received payment (under any insurance policy, provision of the Company’s
Certificate of Incorporation, bylaws or otherwise) of the amounts otherwise
payable hereunder, except as provided in Section 18 below.


 


7.             Partial Indemnification.  If Indemnitee
is entitled under any provision of this Agreement to indemnification,
exoneration or hold harmless rights by the Company for some or a portion of
Expenses incurred in connection with any Claim, but not, however, for the total
amount thereof, the Company shall nevertheless indemnify, exonerate or hold
harmless Indemnitee for the portion of such Expenses to which Indemnitee is
entitled.


 


8.             Mutual Acknowledgment.  Both the
Company and Indemnitee acknowledge that in certain instances, federal law or
applicable public policy may prohibit the Company from indemnifying,
exonerating or holding harmless its directors, officers, employees, agents or
fiduciaries under this Agreement or otherwise. 
Indemnitee understands and acknowledges that the Company may be required
in the future to undertake with the Securities and Exchange Commission to
submit the question of indemnification, exoneration or hold harmless rights to
a court in certain circumstances for a determination of the Company’s right
under public policy to indemnify, exonerate or hold harmless Indemnitee.


 


9.             Liability Insurance.  To the extent
the Company maintains liability insurance applicable to directors, officers,
employees, agents or fiduciaries, Indemnitee shall be covered by such policies
in such a manner as to provide Indemnitee the same rights and benefits as are
provided to the most favorably insured of the Company’s directors, if
Indemnitee is a director; or of the Company’s officers, if Indemnitee is not a
director of the Company but is an officer; or of the Company’s key employees,
agents or fiduciaries, if Indemnitee is not an officer or director but is a key
employee, agent or fiduciary.


 


10.          Exceptions. 
Notwithstanding any other provision of this Agreement, the Company shall
not be obligated pursuant to the terms of this Agreement:


 


(a)           Excluded Action or Omissions. 
To indemnify, exonerate or hold harmless Indemnitee for Expenses
resulting from acts, omissions or transactions for which Indemnitee is
prohibited from receiving indemnification, exoneration or hold harmless rights
under this 


 

















 


Agreement or applicable law; provided, however,
that notwithstanding any limitation set forth in this Section 10(a) regarding
the Company’s obligation to provide indemnification, exoneration or hold
harmless rights to Indemnitee shall be entitled under Section 3 to receive
Expense Advances hereunder with respect to any such Claim unless and until a
court having jurisdiction over the Claim shall have made a final judicial
determination (as to which all rights of appeal therefrom have been exhausted
or lapsed) that Indemnitee has engaged in acts, omissions or transactions for
which Indemnitee is prohibited from receiving indemnification under this
Agreement or applicable law.


 


(b)           Claims Initiated by Indemnitee. 
To indemnify, exonerate or hold harmless or make Expense Advances to
Indemnitee with respect to Claims initiated or brought voluntarily by
Indemnitee and not by way of defense, counterclaim or cross claim, except (i) with
respect to actions or proceedings brought to establish or enforce an
indemnification, exoneration or hold harmless right under this Agreement or any
other agreement or insurance policy or under the Company’s Certificate of
Incorporation or bylaws now or hereafter in effect relating to Claims for
Covered Events, (ii) in specific cases if the Board of Directors has
approved the initiation or bringing of such Claim, or (iii) as otherwise
required under Section 145 of the DGCL, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification, exoneration,
hold harmless right, Expense Advances or insurance recovery, as the case may
be.


 


(c)           Lack of Good Faith. 
To indemnify, exonerate or hold harmless Indemnitee for any Expenses
incurred by the Indemnitee with respect to any action instituted (i) by
Indemnitee to enforce or interpret this Agreement, if a court having
jurisdiction over such action determines as provided in Section 13 that
each of the material assertions made by the Indemnitee as a basis for such
action was not made in good faith or was frivolous, or (ii) by or in the
name of the Company to enforce or interpret this Agreement, if a court having
jurisdiction over such action determines as provided in Section 13 that
each of the material defenses asserted by Indemnitee in such action was made in
bad faith or was frivolous.


 


(d)           Claims Under Section 16(b). 
To indemnify, exonerate or hold harmless Indemnitee for expenses and the
payment of profits arising from the purchase and sale by Indemnitee of
securities in violation of Section 16(b) of the Securities Exchange
Act of 1934, as amended, or any similar successor statute; provided,
however, that notwithstanding any limitation set forth in this Section 10(d) regarding
the Company’s obligation to provide indemnification or exoneration or hold
harmless, Indemnitee shall be entitled under Section 3 to receive Expense
Advances hereunder with respect to any such Claim unless and until a court
having jurisdiction over the Claim shall have made a final judicial
determination (as to which all rights of appeal therefrom have been exhausted
or lapsed) that Indemnitee has violated said statute.


 


11.          Counterparts.  This Agreement
may be executed in counterparts and by facsimile or electronic transmission,
each of which shall constitute an original and all of which, together, shall
constitute one instrument.


 


12.          Binding Effect; Successors and
Assigns.  This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their
respective successors, assigns, including any direct or indirect successor by
purchase, merger, consolidation 


 

















 


or otherwise to all or substantially all of the business and/or assets
of the Company, spouses, heirs, and personal and legal representatives.  The Company shall require and cause any
successor (whether direct or indirect by purchase, merger, consolidation or
otherwise) to all, substantially all, or a substantial part, of the business
and/or assets of the Company, by written agreement in form and substance
satisfactory to Indemnitee, expressly to assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform if no such succession had taken place.  This Agreement shall continue in effect
regardless of whether Indemnitee continues to serve as a director, officer,
employee, agent or fiduciary (as applicable) of the Company or of any other
enterprise at the Company’s request.  The
Company and Indemnitee agree that the Fund Indemnitors are express third party
beneficiaries of this Agreement.


 


13.          Expenses Incurred in Action Relating
to Enforcement or Interpretation.  In the event that any action is instituted by
Indemnitee under this Agreement or under any liability insurance policies
maintained by the Company to enforce or interpret any of the terms hereof or
thereof, Indemnitee shall be entitled to be indemnified for all Expenses
incurred by Indemnitee with respect to such action (including without
limitation attorneys’ fees), regardless of whether Indemnitee is ultimately
successful in such action, unless as a part of such action a court having
jurisdiction over such action makes a final judicial determination (as to which
all rights of appeal therefrom have been exhausted or lapsed) that each of the
material assertions made by Indemnitee as a basis for such action was not made
in good faith or was frivolous; provided, however,
that until such final judicial determination is made, Indemnitee shall be
entitled under Section 3 to receive payment of Expense Advances hereunder
with respect to such action.  In the
event of an action instituted by or in the name of the Company under this
Agreement to enforce or interpret any of the terms of this Agreement,
Indemnitee shall be entitled to be indemnified, exonerated or held harmless for
all Expenses incurred by Indemnitee in defense of such action (including
without limitation costs and expenses incurred with respect to Indemnitee’s
counterclaims and cross-claims made in such action), unless as a part of such
action a court having jurisdiction over such action makes a final judicial
determination (as to which all rights of appeal therefrom have been exhausted
or lapsed) that each of the material defenses asserted by Indemnitee in such
action was made in bad faith or was frivolous; provided,
however, that until such final judicial determination is made,
Indemnitee shall be entitled under Section 3 to receive payment of Expense
Advances hereunder with respect to such action.


 


14.          Notices.  All notices,
requests, demands and other communications under this Agreement shall be in
writing and shall be deemed duly given (i) if delivered by hand and signed
for by the party addressed, on the date of such delivery, or (ii) if
mailed by domestic certified or registered mail with postage prepaid, on the
third business day after the date postmarked. 
Addresses for notice to either party are as shown on the signature page of
this Agreement or as subsequently modified by written notice.


 


15.          Consent to Jurisdiction.  The Company
and Indemnitee each hereby irrevocably consent to the jurisdiction of the
courts of the State of Delaware for all purposes in connection with any action
or proceeding which arises out of or relates to this Agreement and agree that
any action instituted under this Agreement shall be commenced, prosecuted and
continued only in the Court of Chancery of the State of Delaware in and for
Kent County, which shall be the exclusive and only proper forum for
adjudicating such a claim.


 














 


16.          Severability.  The provisions
of this Agreement shall be severable in the event that any of the provisions
hereof (including any provision within a single section, paragraph or sentence)
are held by a court of competent jurisdiction to be invalid, void or otherwise
unenforceable, and the remaining provisions shall remain enforceable to the
fullest extent permitted by law. 
Furthermore, to the fullest extent possible, the provisions of this
Agreement (including without limitation each portion of this Agreement
containing any provision held to be invalid, void or otherwise unenforceable,
that is not itself invalid, void or unenforceable) shall be construed so as to
give effect to the intent manifested by the provision held invalid, illegal or
unenforceable.


 


17.          Choice of Law.  This
Agreement, and all rights, remedies, liabilities, powers and duties of the
parties to this Agreement, shall be governed by and construed in accordance
with the laws of the State of Delaware without regard to principles of conflicts
of laws.


 


18.          Fund Indemnitors; Subrogation.


 


(a)           The Company hereby acknowledges that Indemnitee has
certain indemnification, exoneration, hold harmless or Expense advancement
rights and/or insurance provided by [NAME OF FUND] and certain of its affiliates
(collectively, the “Fund Indemnitors”).  The Company hereby agrees (i) that it is
the indemnitor of first resort (i.e., its obligations to Indemnitee are primary
and any obligation of the Fund Indemnitors to advance Expenses or to provide
indemnification, exoneration or hold harmless rights for the same Expenses
incurred by Indemnitee are secondary), (ii) that it shall be required to
advance the full amount of Expenses incurred by Indemnitee and shall be liable
for the full amount of all Expenses, to the extent legally permitted and as
required by the Certificate of Incorporation or bylaws of the Company (or any
agreement between the Company and Indemnitee), without regard to any rights
Indemnitee may have against the Fund Indemnitors, and (iii)  that it
irrevocably waives, relinquishes and releases the Fund Indemnitors from any and
all claims against the Fund Indemnitors for contribution, subrogation or any
other recovery of any kind in respect thereof. 
The Company further agrees that no advancement or payment by the Fund
Indemnitors on behalf of Indemnitee with respect to any Claim for which
Indemnitee has sought indemnification, exoneration or hold harmless rights from
the Company shall affect the foregoing and the Fund Indemnitors shall have a right
to receive from the Company, contribution and/or be subrogated, to the extent
of such advancement or payment to all of the rights of recovery of Indemnitee
against the Company.


 


(b)           Except as provided in Section 18(a) above,
in the event of payment under this Agreement, the Company shall be subrogated
to the extent of such payment to all of the rights of recovery of Indemnitee
(other than against Fund Indemnitors) from any insurance policy purchase by the
Company, who shall execute all documents required and shall do all acts that
may be necessary to secure such rights and to enable the Company effectively to
bring suit to enforce such rights.  In no
event, however, shall the Company or any other person have any right of
recovery, through subrogation or otherwise, against (i) Indemnitee, (ii) any
Fund Indemnitor, or (iii) any insurance policy purchased or maintained by
Indemnitee or any Fund Indemnitor.


 

















 


19.          Amendment and Termination. 
No amendment, modification, termination or cancellation of this Agreement
shall be effective unless it is in writing signed by both the parties
hereto.  No waiver of any of the
provisions of this Agreement shall be deemed to be or shall constitute a waiver
of any other provisions hereof (whether or not similar), nor shall such waiver
constitute a continuing waiver.


 


20.          Integration and Entire Agreement.  This Agreement
sets forth the entire understanding between the parties hereto and supersedes
and merges all previous written and oral negotiations, commitments,
understandings and agreements relating to the subject matter hereof between the
parties hereto.


 


21.          No Construction as
Employment Agreement.  Nothing contained in this Agreement shall
be construed as giving Indemnitee any right to employment by the Company or any
of its subsidiaries or affiliated entities.


 


22.          Additional Acts.  If for the validation of any of the
provisions in this Agreement any act, resolution, approval or other procedure
is required, the Company undertakes to cause such act, resolution, approval or
other procedure to be affected or adopted in a manner that will enable the
Company to fulfill its obligations under this Agreement.


 


(The remainder of this page is
intentionally left blank.)


 

















 


IN WITNESS WHEREOF, the parties hereto have executed this
Indemnification Agreement as of the date first above written.


 


 




	
   

  	
   

  	
  OPENTABLE,
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
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  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
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  AGREED TO AND ACCEPTED BY:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  INDEMNITEE:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
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  Address: