EX-10.1



 






Exhibit 10.1




FORM OF INDEMNIFICATION AGREEMENT




               This
AGREEMENT is made and entered into this ___ day of ___________, by and
between OpenTV Corp., a corporation organized under the laws of the British Virgin Islands (the
“Company”), and ___(“Indemnitee”).



               WHEREAS, the Company desires to attract and retain the services of highly qualified
individuals, such as Indemnitee, to serve the Company and its related entities;



               WHEREAS, both the Company and Indemnitee recognize the increased risk of litigation and other
claims routinely being asserted against directors and officers of public companies in today’s
environment, and the attendant costs of defending even wholly frivolous claims;



               WHEREAS, it has become increasingly difficult to obtain insurance against the risk of personal
liability of officers and directors on terms providing reasonable protection at reasonable cost;
and



               WHEREAS, in recognition of Indemnitee’s need for substantial protection against personal
liability in order to enhance Indemnitee’s service to the Company in an effective manner, the
increasing difficulty in obtaining and maintaining satisfactory insurance coverage, the Company
wishes to provide in this Agreement for the indemnification of and the advancing of expenses
(whether partial or complete) to Indemnitee to the fullest extent permitted by law and as set forth
in this Agreement, and, to the extent insurance is maintained, for the continued coverage of
Indemnitee under the Company’s directors’ and officers’ liability insurance policies.



               NOW, THEREFORE, in consideration of the premises, the mutual covenants and agreements
contained herein 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 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 prior to such corporation’s becoming
a “beneficial owner” (as defined below) of 20% or more of the Voting Securities of the
Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under such Act),
directly or indirectly, of securities of the Company representing 20% or more of the total
voting power represented by the Company’s then outstanding Voting Securities (other than any
such person or any affiliate thereof, singly or collectively, that is such a 20% beneficial
owner as of the date hereof), or (ii) during any period of two 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
50% 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 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
transactions) all or substantially all the Company’s assets.



 









 






               (b) Charter Documents: the Articles of Association of the Company and
Memorandum of Association of the Company.




               (c) Claim: any threatened, pending or completed action, suit or
proceeding, including any alternative dispute resolution mechanism, whether instituted by or
in right of the Company or by any other party, or any inquiry or investigation that
Indemnitee in good faith believes might lead to the institution of any such action, suit or
proceeding, whether civil, criminal, administrative, investigative or other.




               (d) Expenses: include attorneys’ fees and all other costs, expenses
and obligations paid or incurred in connection with investigating, defending, being a
witness in or participating in (including on appeal), or preparing for an investigation or
preparing to defend, be a witness in or participate in any Claim relating to any
Indemnifiable Event and any federal, state, local or foreign taxes imposed as a result of
the actual or deemed receipt of any payments under the Agreement.




               (e) Expense Advance: a payment to Indemnitee pursuant to Section 3 of
Expenses in advance of the settlement of or final judgment in any Claim.




               (f) Indemnifiable Event: 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, trustee, agent or fiduciary of another corporation,
partnership, joint venture, employee benefit plan, trust or other enterprise, or by reason
of anything done or not done by Indemnitee in any such capacity.




               (g) Independent Legal Counsel: an attorney or firm of attorneys,
selected in accordance with the provisions of Section 4, who shall not have otherwise
performed services for the Company or Indemnitee within the last three years (other than
with respect to matters concerning the rights of indemnity under this Agreement, or of other
indemnities under similar indemnification agreements or under the Charter Documents).




               (h) Reviewing Party: any appropriate person or body consisting of a
member or members of the Board of Directors of the Company or any other independent and
impartial person or body appointed by the Board of Directors of the Company, and approved by
Indemnitee (which approval shall not be unreasonably withheld or delayed) who is not a party
to the particular Claim for which Indemnitee is seeking indemnification, or Independent
Legal Counsel.




               (i) Voting Securities: any securities of the Company which vote
generally in the election of directors.



               2. Basic Indemnification Arrangement.




               (a) In the event Indemnitee was, 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, a
Claim by reason of (or arising in part out of) an Indemnifiable Event, the Company shall
indemnify Indemnitee to the fullest extent permitted by law as soon as practicable but in
any event no later than thirty days after written demand is presented to the Company,
against any and all Expenses, judgments, fines, penalties and amounts paid or payable in
settlement (including all interest, assessments and other charges paid or payable in
connection with or in respect of such Expenses) related to such Claim.




               (b) Notwithstanding the foregoing, (i) the obligations of the Company under
Section 2(a) shall be subject to the condition that the Reviewing Party shall not have
determined, which determination shall, in all cases, be in a written opinion specifying in
reasonable detail the reasons therefor, that Indemnitee would not be permitted to be
indemnified under applicable law, and (ii) the obligation of the Company to make an Expense
Advance pursuant to Section 3(a) shall be subject to the condition that,



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if, when and to the extent that the Reviewing Party determines by rendering such
written opinion that Indemnitee would not be permitted to be so indemnified under applicable
law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to
reimburse the Company) for all such amounts theretofore paid; provided,
however, that if Indemnitee has commenced or thereafter commences legal proceedings
in a court of competent jurisdiction to secure a determination that Indemnitee should be
indemnified under applicable law, any determination made by the Reviewing Party that
Indemnitee would not be permitted to be indemnified under applicable law shall not be
binding and Indemnitee shall not be required to reimburse the Company for any Expense
Advance 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 shall not accrue interest
thereon in any respect.




               (c) If there has not been a Change in Control, the Reviewing Party shall be
selected by the Board of Directors of the Company and approved by Indemnitee (which approval
shall not be unreasonably withheld or delayed). If there has been such a Change in Control
(other than a Change in Control which has been approved by a majority of the Board of
Directors of the Company who were directors immediately prior to such Change in Control),
the Reviewing Party shall be the Independent Legal Counsel referred to in Section 4 hereof.
If there has been no determination by the Reviewing Party or if the Reviewing Party
determines that Indemnitee substantively would not be permitted to be indemnified in whole
or in part under applicable law, Indemnitee shall have the right to commence litigation in
any court having subject matter jurisdiction thereof and in which venue is proper seeking an
initial determination by the court or challenging any such determination by the Reviewing
Party or any aspect thereof, including the legal or factual bases therefor, and the Company
hereby consents to service of process and agrees to appear in any such proceeding and hereby
waives any objection that venue in any court is not proper. Any determination by the
Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.




               (d) Notwithstanding any other provision of this Agreement other than Section
11 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 against all Expenses incurred by Indemnitee in
connection therewith.



               3. Expense Advances.




               (a) Upon receipt of a written undertaking by or on behalf of Indemnitee to
repay such amounts if it shall ultimately be determined that Indemnitee is not entitled to
be indemnified therefore by the Company hereunder under applicable law, the Company shall
make Expense Advances to Indemnitee.




               (b) Any obligation to repay any Expense Advances hereunder pursuant to a
written undertaking by Indemnitee shall be unsecured and no interest shall be charged
thereon.



               4. Change in Control. The Company agrees that if there is a Change in
Control of the Company (other than a Change in Control which has been approved by a majority of the
Board of Directors of the Company who were directors immediately prior to such Change in Control)
then with respect to all matters thereafter arising concerning the rights of Indemnitee to
indemnity payments and Expense Advances under this Agreement or any other agreement or Charter
Document now or hereafter in effect relating to Claims for Indemnifiable Events, the Company shall
seek and obtain legal advice with respect thereto and such legal advice shall be duly obtained from
Independent Legal Counsel selected by Indemnitee and approved by the Company (which approval shall
not be unreasonably withheld or delayed). 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
permitted to be indemnified under applicable law. The Company agrees to pay the reasonable fees,
disbursements and other charges of the Independent Legal Counsel referred to above and to fully
indemnify such counsel against any and all expenses (including attorneys’ fees, disbursements and
other charges), claims, liabilities and damages arising out of or relating to this Agreement or its
engagement pursuant hereto.



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               5. Indemnification for Additional Expenses. The Company shall, subject to
Section 11, indemnify Indemnitee against any and all expenses (including attorneys’ fees,
disbursements and other charges) and, if requested by Indemnitee, shall (within ten business days
of such request) advance such expenses to Indemnitee, which are incurred by Indemnitee in
connection with any action brought by Indemnitee for (i) indemnification or Expense Advance by the
Company under this Agreement or any other agreement or Charter Document now or hereafter in effect
relating to Claims for Indemnifiable Events or (ii) recovery under any directors’ and officers’
liability insurance policies maintained by the Company, regardless of whether Indemnitee ultimately
is determined to be entitled to such indemnification, Expense Advance or insurance recovery, as the
case may be. The Company acknowledges that the right of recovery of Indemnitee under any
director’s and officers’ liability insurance policies are personal to Indemnitee and shall not be
considered assets of the Company’s estate under applicable bankruptcy laws and in no event shall
the Company seek to interfere with, or otherwise adversely affect, Indemnitee’s right of recovery,
if any, under any such policy. If, and to the extent that, the Company determines to change its
domicile or jurisdiction of incorporation, the Company shall take such actions, in connection
therewith, to preserve, in all respects, the indemnity protections and benefits provided to
Indemnitee hereunder to the fullest extent permitted under the laws of such new domicile or
jurisdiction of incorporation.



               6. Indemnification Procedures.




               (a) All indemnity payments and payments of Expenses (including without
limitation Expense Advances) by the Company to 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 thirty (30)
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 ten (10) business days after such
written demand by Indemnitee is presented to the Company.




               (b) Indemnitee shall give the Company notice in accordance with Section 12 of
this Agreement as soon as practicable of any Claim made against Indemnitee for which
indemnification and/or Expense Advances, will or could be sought under this Agreement;
provided, however, that the failure to so notify the Company shall not
relieve the Company of its obligations hereunder except to the extent such failure has
materially prejudiced the Company. In addition, each of Indemnitee and the Company shall
give the other party such information related to the claim and cooperation as the other
party may reasonably require and as shall be within such party’s power.




               (c) If, at the time of the receipt by the Company of a notice of a Claim
pursuant to Section 6(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 use commercially reasonable efforts to cause such insurers to pay,
on behalf of Indemnitee, all amounts payable as a result of such Claim in accordance with
the terms of such policies.




               (d) For purposes of this Agreement, the termination of any claim, action,
suit or proceeding, 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 is not permitted by
applicable law. In addition, neither the failure of the 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 the 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 under 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 the Reviewing Party or
otherwise as to whether Indemnitee is entitled to be indemnified hereunder, the burden of
proof shall be on the Company to establish that Indemnitee is not so entitled.



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               (e) In the event the Company shall be obligated hereunder to provide
indemnification 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 retained by or on behalf of Indemnitee with
respect to the same Claim; provided, that Indemnitee shall have the right to employ
Indemnitee’s separate counsel in any such Claim at Indemnitee’s expense if (A) the
employment of separate counsel by Indemnitee has been previously authorized by the Company,
(B) counsel for the 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, and shall
have indicated the basis for such determination to the Company, subject to matters of
attorney-client privilege or (C) the Company shall not continue to retain such counsel to
defend such Claim, then the reasonable fees and expenses of Indemnitee’s separate counsel
shall be Expenses for which Indemnitee may receive indemnification or Expense Advances
hereunder.



               7. Nonexclusivity; Subsequent Change in Law. The rights of Indemnitee
hereunder shall be in addition to any other rights Indemnitee may have from time to time under the
Charter Documents or the laws of the British Virgin Islands or otherwise, and nothing contained in
this Agreement shall derogate or limit Indemnitee’s rights to indemnification as provided under the
Charter Documents or under applicable law. To the extent that a change in the laws of the British
Virgin Islands (whether by statute or judicial decision) permits greater indemnification by
agreement than would be afforded currently under the Charter Documents and this Agreement, it is
the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits
so afforded by such change. In the event of any change in any applicable law, statute or rule that
narrows the right of a corporation organized under the laws of the British Virgin Islands to
indemnify 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 11(a) hereof. If, and to the extent that, the Company determines to
change its domicile or jurisdiction of incorporation, the Company shall take such actions, in
connection therewith, to preserve, in all respects, the indemnity protections and benefits provided
to Indemnitee hereunder to the fullest extent permitted under the laws of such new domicile or
jurisdiction of incorporation.



               8. 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, Charter Document or
otherwise) of the amounts otherwise indemnifiable hereunder.



               9. Partial Indemnity. If Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for some or a portion of the Expenses, judgments,
fines, penalties and amounts paid in settlement of a Claim but not, however, for all of the total
amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion thereof to
which Indemnitee is entitled.



               10. Liability Insurance. To the extent the Company maintains an insurance
policy or policies providing directors’ and officers’ liability insurance, Indemnitee shall be
covered by such policy or policies, in accordance with its or their terms, to the maximum extent of
the coverage available for any Company director or officer.



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




               (a) To indemnify or make Expense Advances to Indemnitee with respect to
Claims arising out of acts, omissions or transactions for which Indemnitee is prohibited
from receiving indemnification under applicable law.



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               (b) To indemnify or make Expense Advances to Indemnitee with respect to
Claims initiated or brought voluntarily by Indemnitee and not by way of defense,
counterclaim or crossclaim, except (i) with respect to actions or proceedings brought to
establish or enforce a right to indemnification under this Agreement or any other agreement
or insurance policy or under the Charter Documents now or hereafter in effect relating to
Claims for Indemnifiable Events, (ii) in specific cases if the Board of Directors of the
Company has approved the initiation or bringing of such Claim, or (iii) as otherwise
required under the laws of the British Virgin Islands, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification, Expense Advances, or
insurance recovery, as the case may be.




               (c) To indemnify Indemnitee for any Expenses incurred by 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 that each of the material
assertions made by 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 that each of the material
defenses asserted by Indemnitee in such action was made in bad faith or was frivolous.




               (d) To indemnify Indemnitee for Expenses, judgments, fines, penalties 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.



               12. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given (i) upon delivery if
delivered by hand to the party to whom such communication was directed or sent via facsimile, with
confirmation of receipt, or (ii) upon the third business day after the date on which such
communication was mailed if mailed by certified or registered mail with postage prepaid.




               (a) If to Indemnitee, at the address indicated on the signature page hereof.




               (b) If to the Company, to:



OpenTV Corp.

275 Sacramento Street

San Francisco, CA 94111

Attn: General Counsel




               or to such other address as may have been furnished to Indemnitee by the Company.



               13. Amendments; Waiver. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of
any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other
provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.



               14. Subrogation. In the event of payment under this Agreement, the Company
shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee,
who shall execute all papers required and shall do everything that may be necessary to secure such
rights, including the execution of such documents necessary to enable the Company effectively to
bring suit to enforce such rights; provided however, that the Company shall not enforce any of such
rights in any manner or at any time as would prevent or delay payment to Indemnitee of all amounts
owing to him or prevent Indemnitee from making an assignment of such rights for the benefit of
creditors of the Company in connection with a bankruptcy filing.



               15. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective successors (including any
direct or indirect successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business or assets of the Company),



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assigns, spouses, heirs, executors and personal and legal representatives, and any such
successor shall expressly assume, in written agreement in form and substance reasonably
satisfactory to Indemnitee, all of the Company’s obligations hereunder to the same extent, and in
substantially the same manner, as the Company prior to such succession. This Agreement shall
continue in effect regardless of whether Indemnitee continues to serve as a director or officer of
the Company or of any other enterprise at the Company’s request.



               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) is held by a court of competent jurisdiction to be invalid, void or
otherwise unenforceable in any respect, and the validity and enforceability of any such provision
in every other respect and of the remaining provisions hereof shall not be in any way impaired and
shall remain enforceable to the fullest extent permitted by law.



               17. Effective Date. This Agreement shall be effective as of the date hereof
and shall apply to any claim for indemnification by Indemnitee on or after such date.



               18. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the British Virgin Islands applicable to contracts made and
to be performed in such state without giving effect to the principles of conflicts of laws thereof.
The Company and Indemnitee each hereby irrevocably consent to the jurisdiction of the courts of
the State of California, County of San Francisco for all purposes in connection with any action or
proceeding which arises out of or relates to this Agreement.



               19. 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.



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



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               IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date set forth
above.



OPENTV CORP.



By:_______________________________

Name:

Title:



INDEMNITEE:



By:_______________________________

Name:



SIGNATURE PAGE TO INDEMNIFICATION AGREEMENT




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