Exhibit 10.1


 


INDEMNIFICATION AGREEMENT


 


AGREEMENT,
dated as of                        ,
200  between Yahoo! Inc., a Delaware corporation (the “Company”), and                                     (“Indemnitee”).


 


RECITALS


 


WHEREAS, it is
essential to the Company to retain and attract as directors and officers the
most capable persons available.


 


WHEREAS,
Indemnitee is a director and/or officer of the Company.


 


WHEREAS, both
the Company and Indemnitee recognize the increased risk of litigation and other
claims being asserted against directors and officers of public companies in
today’s environment.


 


WHEREAS, basic
protection against undue risk of personal liability of directors and officers
heretofore has been provided through insurance coverage providing reasonable
protection at reasonable cost, and Indemnitee has relied on the availability of
such coverage; but as a result of substantial changes in the marketplace for
such insurance it has become increasingly more difficult to obtain such
insurance on terms providing reasonable protection at reasonable cost.


 


WHEREAS, the Certificate
of Incorporation and Bylaws of the Company contemplate indemnification and
advancement of expenses to its directors and officers to the fullest extent
permitted by law and the Indemnitee has been serving and continues to serve as
a director and/or officer of the Company in part in reliance on such Certificate
of Incorporation and Bylaws.


 


WHEREAS, the
current difficulty in obtaining adequate director and officer liability
insurance coverage at a reasonable cost and uncertainties as to the
availability of indemnification created by recent court decisions have
increased the risk that the Company will be unable to retain and attract as
directors and officers the most capable persons available.


 


WHEREAS, the
Board of Directors of the Company has determined that the inability of the
Company to retain and attract as directors and officers the most capable
persons would be detrimental to the interests of the Company and that the
Company therefore should seek to assure such persons that indemnification and
insurance coverage will be available in the future.


 


WHEREAS, in
recognition of Indemnitee’s need for substantial protection against personal
liability in order to enhance Indemnitee’s continued service to the Company in
an effective manner, and Indemnitee’s reliance on the Company’s Certificate of
Incorporation and Bylaws, and in part to provide Indemnitee with specific
contractual assurance that the protection promised by such Certificate of
Incorporation or Bylaws will be available to Indemnitee (regardless of, among
other things, any amendment to or revocation of such Certificate of
Incorporation or Bylaws or any change in the


 

















 


composition of the Company’s Board of Directors or acquisition
transaction relating to the Company), the Company wishes to provide in this
Agreement for the indemnification of and the advancing of expenses to
Indemnitee to the fullest extent (whether partial or complete) 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.


 


AGREEMENT


 


In
consideration of the premises and of Indemnitee continuing to serve the Company
directly or, at its request, another enterprise, and intending to be legally
bound hereby, the parties hereto agree as follows:


 


1.                                      Certain Definitions. 
In addition to terms defined elsewhere herein, the following terms have
the following meanings when used in this Agreement:


 


(a)                                 Change in Control: 
shall be deemed to have occurred if (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, is or becomes the “beneficial
owner” (as defined in Rule 13d-3 under said Act), directly or indirectly,
of securities of the Company representing twenty percent (20%) or more of the
total voting power represented by the Company’s then outstanding Voting
Securities, 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 sixty percent (60%) 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)                                 Claim: 
means any threatened, asserted, pending or completed action, suit or
proceeding, or appeal thereof, or any inquiry or investigation, whether
instituted by the Company or any governmental agency or any other party, 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, including any arbitration or other alternative dispute
resolution mechanism.


 


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(c)                                  Expenses: 
include attorneys’ fees and all other costs, expenses and obligations
(including, without limitation, experts’ fees, court costs, retainers,
transcript fees, duplicating, printing and binding costs, as well as
telecommunications, postage and courier charges) paid or incurred in connection
with investigating, defending, being a witness in or participating in, or
preparing to investigate, defend, be a witness in or participate in, any Claim
relating to any Indemnifiable Event.


 


(d)                                 Indemnifiable Amounts: 
means any and all Expenses, damages, judgments, fines, penalties, excise
taxes and amounts paid in settlement (including all interest, assessments and
other charges paid or payable in connection with or in respect of such
Expenses, judgments, fines, penalties, excise taxes or amounts paid in
settlement) arising out of or resulting from any Claim relating to an
Indemnifiable Event.


 


(e)                                  Indemnifiable Event: 
means any event or occurrence, whether occurring before, on or after the
date of this Agreement, related to the fact that Indemnitee is or was a
director and/or officer or fiduciary 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, limited liability company, partnership, joint
venture, employee benefit plan, trust or other entity or enterprise, or by
reason of anything done or not done by Indemnitee in any such capacity.


 


(f)                                   Independent Legal Counsel: 
means an attorney or firm of attorneys, selected in accordance with the
provisions of Section 3 hereof, who is experienced in matters of corporate
law and who shall not have otherwise performed services for the Company or
Indemnitee within the last five years (other than with respect to matters
concerning the rights of Indemnitee under this Agreement, or of other
indemnitees under similar indemnity agreements).


 


(g)                                  Reviewing Party: 
means any appropriate person or body consisting of a member or members
of the Company’s Board of Directors or any other person or body appointed by
the Board who is not a party to the particular Claim for which Indemnitee is
seeking indemnification, or Independent Legal Counsel.


 


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


 


2.                                      Basic Indemnification Arrangement;
Advancement of Expenses.


 


(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 Indemnifiable Amounts.


 


(b)                                 If so requested by Indemnitee, the Company
shall advance (within five (5) business days of such request) any and all
Expenses incurred by Indemnitee (an “Expense Advance”).  The Company shall, in accordance with such
request (but without


 


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duplication), either (i) pay
such Expenses on behalf of Indemnitee, or (ii) reimburse Indemnitee for
such Expenses.  Subject to the
limitations contained in Sections 2(c) and 2(d), Indemnitee’s right to an
Expense Advance is absolute and shall not be subject to any prior determination
by the Reviewing Party or any other person, that the Indemnitee has satisfied
any applicable standard of conduct for indemnification.


 


(c)                                  Notwithstanding anything in this
Agreement to the contrary, Indemnitee shall not be entitled to indemnification
or advancement of Expenses pursuant to this Agreement in connection with any
Claim initiated by Indemnitee unless (i) the Company has joined in or
Company’s Board of Directors has authorized or consented to the initiation of
such Claim or (ii) the Claim is one to enforce Indemnitee’s rights under
this Agreement.


 


(d)                                 Notwithstanding anything in this
Agreement to the contrary, (i) the indemnification obligations of the
Company under Section 2(a) shall be subject to the condition that the
Reviewing Party shall not have determined (in a written opinion, in any case in
which the Independent Legal Counsel referred to in Section 3 hereof is
involved) 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 2(b) shall be subject to the condition
that, if, when and to the extent that the Reviewing Party determines 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 (it being
understood and agreed that the foregoing agreement by Indemnitee shall be
deemed to satisfy any requirement that Indemnitee provide the Company with an
undertaking to repay any Expense Advance if it is ultimately determined that
the Indemnitee is not entitled to indemnification under applicable law); 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 undertaking to repay such Expense Advances shall be
unsecured and interest-free.  If there
has not been a Change in Control, the Reviewing Party shall be selected by the
Company’s Board of Directors, and if there has been such a Change in Control,
the Reviewing Party shall be the Independent Legal Counsel referred to in Section 3
hereof.  If there has been no
determination by the Reviewing Party within thirty days after written demand is
presented to the Company or if the Reviewing Party determines that Indemnitee
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 in the
States of California or Delaware 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 to appear in any such proceeding.  Any determination by the


 


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Reviewing Party
otherwise shall be conclusive and binding on the Company and Indemnitee.


 


3.                                      Change in Control. 
The Company agrees that if there is a Change in Control of the Company
then with respect to all matters thereafter arising concerning the rights of
Indemnitee to indemnity payments and Expense Advances under this Agreement or
any provision of the Company’s Certificate of Incorporation or Bylaws now or
hereafter in effect, the Company shall seek legal advice only from Independent
Legal Counsel selected by Indemnitee and approved by the Company (which
approval shall not be unreasonably delayed, conditioned or withheld).  Such counsel, among other things, shall
render its written opinion to the Company and Indemnitee as to whether and to
what extent the Indemnitee would be permitted to be indemnified under
applicable law.  The Company agrees to
pay the reasonable fees and disbursements of the Independent Legal Counsel and
to indemnify fully 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.


 


4.                                      Indemnification for Additional
Expenses.  The Company shall indemnify Indemnitee
against any and all Expenses and, if requested by Indemnitee, shall advance
such Expenses to Indemnitee subject to and in accordance with Section 2(b),
which are incurred by Indemnitee in connection with any action brought by
Indemnitee for (i) indemnification or an Expense Advance by the Company
under this Agreement or any provision of the Company’s Certificate of
Incorporation or Bylaws now or hereafter in effect and/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.


 


5.                                      Partial Indemnity, Etc. 
If Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of the Expenses or other
Indemnifiable Amounts in respect 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.  Moreover, notwithstanding any other provision
of this Agreement, to the extent that Indemnitee has been successful on the
merits or otherwise in defense of any or all Claims relating in whole or in
part to an Indemnifiable Event or in defense of any issue or matter therein,
including dismissal without prejudice, Indemnitee shall be indemnified against
all Expenses incurred in connection therewith.


 


6.                                      Burden of Proof. 
In connection with any determination by the Reviewing Party or otherwise
as to whether Indemnitee is entitled to be indemnified hereunder the Reviewing
Party or court shall presume that the Indemnitee has satisfied the applicable
standard of conduct and is entitled to indemnification, and the burden of proof
shall be on the Company to establish, by clear and convincing evidence, that
Indemnitee is not so entitled.


 


7.                                      Reliance as Safe Harbor. 
For purposes of this Agreement, Indemnitee shall be deemed to have acted
in good faith and in a manner he or she reasonably


 


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believed to be in or
not opposed to the best interests of the Company if Indemnitee’s actions or
omissions to act are taken in good faith reliance upon the records of the
Company, including its financial statements, or upon information, opinions,
reports or statements furnished to Indemnitee by the officers or employees of
the Company in the course of their duties, or by committees of the Company’s
Board of Directors, or by any other person (including legal counsel,
accountants, consultants and financial advisors) as to matters Indemnitee
reasonably believes are within such other person’s professional or expert
competence and who has been selected with reasonable care by or on behalf of
the Company.  In addition, the knowledge
and/or actions, or failures to act, of any director, officer, agent or employee
of the Company shall not be imputed to Indemnitee for purposes of determining
the right to indemnity hereunder.


 


8.                                      No Other Presumptions. 
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.


 


9.                                      Nonexclusivity, Etc. 
The rights of the Indemnitee hereunder shall be in addition to any other
rights Indemnitee may have under the Company’s Certificate of Incorporation or Bylaws
or the Delaware General Corporation Law or otherwise.  To the extent that a change in applicable law
(whether by statute or judicial decision) permits greater indemnification by
agreement than would be afforded currently under the Company’s Certificate of
Incorporation or Bylaws or 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.


 


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.                               Period of Limitations. 
No legal action shall be brought and no cause of action shall be
asserted by or in the right of the Company against Indemnitee, Indemnitee’s
spouse, heirs, executors or personal or legal representatives after the expiration
of two years from the date of accrual of such cause of action, and any claim or
cause of action of the Company shall be extinguished and deemed released unless
asserted by the timely filing of a legal action within such two-year period; provided,


 


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however, that if any shorter period of limitations is
otherwise applicable to any such cause of action such shorter period shall
govern.


 


12.                               Amendments, Etc. 
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.


 


13.                               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 reasonably required and shall do
everything that may be reasonably necessary to secure such rights, including
the execution of such documents necessary to enable the Company effectively to
bring suit to enforce such rights.


 


14.                               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, Certificate
of Incorporation or Bylaws provision or otherwise) of the amounts otherwise
indemnifiable hereunder.


 


15.                               Defense of Claims. 
The Company shall be entitled to participate in the defense of any Claim
relating to an Indemnifiable Event or to assume the defense thereof, with
counsel reasonably satisfactory to the Indemnitee; provided
that if Indemnitee believes, after consultation with counsel selected by
Indemnitee, that (i) the use of counsel chosen by the Company to represent
Indemnitee would present such counsel with an actual or potential conflict of
interest, (ii) the named parties in any such Claim (including any
impleaded parties) include both the Company and Indemnitee and Indemnitee
concludes that there may be one or more legal defenses available to him or her
that are different from or in addition to those available to the Company, or (iii) any
such representation by such counsel would be precluded under the applicable
standards of professional conduct then prevailing, then Indemnitee shall be
entitled to retain separate counsel (but not more than one law firm plus, if
applicable, local counsel in respect of any particular Claim) at the Company’s
expense.  The Company shall not be liable
to Indemnitee under this Agreement for any amounts paid in settlement of any
Claim relating to an Indemnifiable Event effected without the Company’s prior
written consent.  The Company shall not,
without the prior written consent of the Indemnitee, effect any settlement of
any Claim relating to an Indemnifiable Event which the Indemnitee is or could
have been a party unless such settlement solely involves the payment of money
and includes a complete and unconditional release of Indemnitee from all
liability on all claims that are the subject matter of such Claim.  Neither the Company nor Indemnitee shall unreasonably
withhold its or his or her consent to any proposed settlement; provided that Indemnitee may withhold consent to any
settlement that does not provide a complete and unconditional release of
Indemnitee.


 


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16.                               Binding Effect, Etc. 
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 and/or assets of the Company),
assigns, spouses, heirs, executors 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 or substantially all of the business and/or assets of the
Company, by written agreement in form and substance satisfactory to Indemnitee
and his or her counsel, 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 an officer and/or director of the Company or of any other
entity or enterprise at the Company’s request.


 


17.                               Security. 
To the extent requested by Indemnitee and approved by the Company’s
Board of Directors, the Company may at any time and from time to time provide
security to Indemnitee for the obligations of the Company hereunder through an
irrevocable bank line of credit, funded trust or other collateral or by other
means.  Any such security, once provided
to Indemnitee, may not be revoked or released without the prior written consent
of such Indemnitee.


 


18.                               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 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.


 


19.                               Specific Performance, Etc. 
The parties recognize that if any provision of this Agreement is
violated by the Company, Indemnitee may be without an adequate remedy at
law.  Accordingly, in the event of any
such violation, Indemnitee shall be entitled, if Indemnitee so elects, to
institute proceedings, either in law or at equity, to obtain damages, to
enforce specific performance, to enjoin such violation, or to obtain any relief
or any combination of the foregoing as Indemnitee may elect to pursue.


 


20.                               Counterparts. 
This Agreement may be executed in counterparts, each of which shall for
all purposes be deemed to be an original but all of which together shall
constitute one and the same agreement. 
Only one such counterpart signed by the party against whom
enforceability is sought needs to be produced to evidence the existence of this
Agreement.


 


21.                               Headings. 
The headings of the sections and paragraphs of this Agreement are
inserted for convenience only and shall not be deemed to constitute part of
this Agreement or to affect the construction or interpretation thereof.


 


22.                               Governing Law. 
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware applicable to contracts


 


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made and to be
performed in such state without giving effect to the principles of conflicts of
laws.


 


23.                               Entire Agreement. 
This Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior understandings
and agreements between the parties, whether written or oral, with respect to
the subject matter hereof.


 


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


 


	
   

  	
  YAHOO!
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Indemnitee

  



 


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