Unassociated Document


    CYBERDEFENDER
CORPORATION

    


    INDEMNIFICATION
AGREEMENT

    


    This Indemnification Agreement
(“Agreement”) is made as of July 21, 2009 by and between CyberDefender
Corporation, a California
corporation (the “Company”), and Bennet Van de Bunt (“Indemnitee”).

    


    WHEREAS, the Company desires to attract and
retain the services of highly qualified individuals, such as Indemnitee, to
serve as officers and directors of the Company and to indemnify its officers and
directors so as to provide them with the maximum protection permitted by
law;
and

    


    WHEREAS, the Company is required to enter into
an indemnification agreement with the Indemnitee pursuant to that certain Media
and Marketing Services Agreement (the “Media Services Agreement”), dated as of
March 24, 2009, between the Company and GR Match, LLC;

    


    NOW,
THEREFORE, the Company and
Indemnitee hereby agree
as
follows:

    


    1.
Indemnification.

    


    (a) Third Party
Proceedings. The Company
shall indemnify Indemnitee if Indemnitee is or was 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 threatened, pending or completed action or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the Company) by reason of the fact that Indemnitee is or
was a director, officer, employee or agent of the Company, or any subsidiary of
the Company, by reason of any action or inaction on the part of Indemnitee while
an officer or director or by reason of the fact that Indemnitee is or was
serving at the request of the Company as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys’ fees, expert fees, other
professional fees and court costs, and fees and expenses incurred in connection
with any appeals) (“Expenses”), judgments (including punitive and exemplary
damages), penalties, fines 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 by Indemnitee in connection with such
action or proceeding if Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in the best interests of the Company, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe Indemnitee’s conduct was unlawful. The termination of any action or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
(i) Indemnitee did not act in good faith, (ii) Indemnitee did not act
in a manner which Indemnitee reasonably believed to be in the best interests of
the Company, or (iii) with respect to any criminal action or proceeding,
Indemnitee had reasonable cause to believe that Indemnitee’s conduct was
unlawful.

    


    (b) Proceedings By or
in the Right of the Company. The Company shall indemnify Indemnitee
if Indemnitee was or is 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
threatened, pending or completed action or proceeding by or in the right of the
Company or any subsidiary of the Company to procure a judgment in its favor by
reason of the fact that Indemnitee is or was a director, officer, employee or
agent of the Company, or any subsidiary of the Company, by reason of any action
or inaction on the part of Indemnitee while an officer or director or by reason
of the fact that Indemnitee is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against Expenses and, to the fullest extent
permitted by law, amounts paid in settlement, in each case to the extent
actually and reasonably incurred by Indemnitee in connection with the defense or
settlement of such action or proceeding if Indemnitee acted in good faith and in
a manner Indemnitee reasonably believed to be in the best interests of the
Company and its shareholders, except that no indemnification shall be made in
respect of any claim, issue or matter as to which Indemnitee shall have been
adjudged to be liable to the Company in the performance of Indemnitee’s duty to
the Company and its shareholders unless and only to the extent that the court in
which such action or proceeding is or was pending shall determine upon
application that, in view of all the circumstances of the case, Indemnitee is
fairly and reasonably entitled to indemnity for expenses and then only to the
extent that the court shall determine.

    


    2. Expenses;
Indemnification Procedure.

    


    (a) Advancement of
Expenses. The Company shall
advance all Expenses incurred by Indemnitee in connection with the
investigation, defense, settlement or appeal of any civil or criminal action or
proceeding referenced in Section 1(a) or (b) hereof (but not amounts
actually paid in settlement of any such action or proceeding). Indemnitee hereby
undertakes promptly to repay such amounts advanced only if, and to the extent
that, it shall ultimately be determined by the court (as to which all rights of
appeal therefrom have been exhausted or lapsed) that Indemnitee is not entitled
to be indemnified by the Company as authorized hereby. Indemnitee’s obligation
to repay the Company for any such amounts shall be unsecured and no
interest shall be charged thereon. The advances to be made hereunder shall be
paid by the Company to Indemnitee within five (5) days following delivery of a
written request therefor by Indemnitee to the Company.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (b) Notice/Cooperation
by Indemnitee. Indemnitee
shall give the Company notice in writing as soon as practicable of any claim
made against Indemnitee for which indemnification will or could be sought under
this Agreement; provided, however, that no failure to provide or delay in giving
such notice shall be deemed to reduce or limit the Company’s obligations under
this Agreement unless (and only to the extent) such failure or delay materially
prejudices the Company. Notice to the Company shall be directed to the 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). Notice shall be deemed received three business days after the
date postmarked if sent by domestic certified or registered mail, properly
addressed; otherwise notice shall be deemed received when such notice shall
actually be received by the Company. In addition, Indemnitee shall give the
Company such information and cooperation as it may reasonably require and as
shall be within Indemnitee’s reasonable control.

    


    (c)
Procedure. Any
indemnification provided for in Section 1 shall be paid no later than
five (5) days after receipt of the written
request of Indemnitee. If a claim under this Agreement, under any statute, or
under any provision of the Company’s Articles of Incorporation or Bylaws
providing for indemnification, is not paid in full by the Company within
five (5) days after a written request for
payment thereof has first been received by the Company, Indemnitee may, but need
not, at any time thereafter bring an action against the Company to recover the
unpaid amount of the claim and, subject to Section 14 of this Agreement,
Indemnitee shall also be entitled to be paid for the Expenses of bringing such
action irrespective of the ultimate determination as to Indemnitee’s entitlement
to indemnification. It shall be a defense to any such action that Indemnitee has
not met the standards of conduct which make it permissible under applicable law
for the Company to indemnify Indemnitee for the amount claimed, but the burden
of proving such defense shall be on the Company, and Indemnitee shall be
entitled to receive interim payments of Expenses pursuant to Subsection 2(a)
unless and until such defense may be finally adjudicated by court order or
judgment from which no further right of appeal exists. It is the parties’
intention that if the Company contests Indemnitee’s right to indemnification,
the question of Indemnitee’s right to indemnification shall be for the court to
decide, and neither the failure of the Company (including its Board of
Directors, any committee or subgroup of the Board of Directors, independent
legal counsel, or its shareholders) to have made a determination that
indemnification of Indemnitee is proper in the circumstances because Indemnitee
has met the applicable standard of conduct required by applicable law, nor an
actual determination by the Company (including its Board of Directors, any
committee or subgroup of the Board of Directors, independent legal counsel, or
its shareholders) that Indemnitee has not met such applicable standard of
conduct, shall create a presumption that Indemnitee has or has not met the
applicable standard of conduct.

    


    (d) Notice to
Insurers. If, at the time
of the receipt of a notice of a claim pursuant to Section 2(b) hereof, the
Company has director and officer liability insurance in effect, the Company
shall give notice of such claim to the insurers under any applicable policies in
accordance with the procedures set forth in those 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 under Section 2(a) hereof to pay the expenses of
any proceeding against Indemnitee, the Company, if appropriate, shall be
entitled to assume the defense of such proceeding, with counsel approved in
writing by Indemnitee, which approval shall not be unreasonably withheld, upon
the delivery to Indemnitee of written notice of its election so to do. After
delivery of such notice, written 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 of counsel subsequently incurred by
Indemnitee with respect to the same proceeding (other than the fees of
Indemnitee’s counsel in connection with transitioning the defense of such
proceeding to counsel employed by the Company), provided that
(i) Indemnitee shall have the right to employ his counsel in any such
proceeding at Indemnitee’s expense; and (ii) if (A) the employment of
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, in fact, have employed or shall have
ceased to employ counsel in the defense of such proceeding, then the fees and
expenses of Indemnitee’s counsel shall be at the expense of the Company. Neither
the Company nor the Indemnitee will settle any matter the subject of this
Agreement without the written consent of the other, which will not be
unreasonably withheld.

    


    3. Additional
Indemnification Rights; Nonexclusivity.

    


    (a) Scope. Subject to Section 9 of this
Agreement and any other provision of this Agreement that expressly prohibits,
limits or conditions indemnification by the Company, the Company hereby agrees
to indemnify the Indemnitee to the fullest extent permitted by law,
notwithstanding that such indemnification is not specifically authorized by the
other provisions of this Agreement, the Company’s Articles 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 California corporation to indemnify a member of its board of directors or
an officer, such changes shall be, ipso facto, within the purview of
Indemnitee’s rights and Company’s obligations, under this Agreement. In the
event of any change in any applicable law, statute or rule which narrows the
right of a California corporation to indemnify a member of its Board of
Directors or an officer, such changes, 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.

    


    (b)
Nonexclusivity. The
indemnification provided by this Agreement shall not be deemed exclusive of any
rights to which Indemnitee may be entitled under the Company’s Articles of
Incorporation, its Bylaws, any agreement, any vote of shareholders or
disinterested directors, the General Corporation Law of the State of California,
or otherwise, both as to action in Indemnitee’s official capacity and as to
action in another capacity while holding such office. The indemnification
provided under this Agreement shall continue as to Indemnitee for any action
taken or not taken while serving in an indemnified capacity even though he may
have ceased to serve in such capacity at the time of any action or other covered
proceeding.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    4. Partial
Indemnification. 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 or
penalties actually or reasonably incurred by him in the investigation, defense,
appeal or settlement of any civil or criminal action or proceeding, but not,
however, for the total amount thereof, the Company shall nevertheless indemnify
Indemnitee for the portion of such Expenses, judgments, fines or penalties to
which Indemnitee is entitled.

    


    5.
Contribution. If the
indemnification provided for in this Agreement is unavailable to Indemnitee for
any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, shall
contribute to the amount incurred by Indemnitee, whether for judgments, fines,
penalties, excise taxes, amounts paid or to be paid in settlement and/or for
Expenses, in connection with any claim relating to an indemnifiable event, in
such proportion as is deemed fair and reasonable in light of all circumstances
of such action by the court before which such action was brought in order to
reflect (i) the relative benefits received by the Company and Indemnitee as
a result of the event(s) and/or transaction(s) giving cause to such action;
and/or (ii) the relative fault of the Company (and its other directors,
officers, employees and agents) and Indemnitee in connection with such event(s)
and/or transaction(s). Indemnitee’s right to contribution under this
Section 5 shall be determined in accordance with, pursuant to and in the
same manner as, the provisions in Section 1 hereof relating to Indemnitee’s
right to indemnification under this Agreement.

    


    6. Mutual
Acknowledgment. Both the
Company and Indemnitee acknowledge that in certain instances, Federal law or
applicable public policy may prohibit the Company from indemnifying its
directors and officers 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 to a court in certain circumstances for a determination of the
Company’s right under public policy to indemnify Indemnitee.

    


    7. Directors’ and
Officers’ Liability Insurance. The Company agrees to maintain director’s and
officer’s liability insurance to the extent required pursuant to Section 9 of
the Media Services Agreement.  In all policies of directors’ and
officers’ liability insurance, Indemnitee shall be named as an insured in such a
manner as to provide Indemnitee the same rights and benefits as are accorded to
the most favorably insured of the Company’s directors or officers if Indemnitee
is a director; or of the Company’s officers, if Indemnitee is an officer; or of
the Company’s key employees, if Indemnitee is not an officer or director but is
a key employee.

    


    8.
Severability. Nothing in
this Agreement is intended to require or shall be construed as requiring the
Company to do or fail to do any act in violation of applicable law. If any term
or provision of the Agreement is determined to be invalid, illegal or
unenforceable in whole or in part for any reason, such illegal, unenforceable,
or invalid provisions or part thereof shall be stricken from this Agreement, and
such provision shall not affect the legality, enforceability, or validity of the
remainder of this Agreement. If any provision or part of this Agreement is
stricken in accordance with the provisions of this section, then this stricken
provision shall be replaced, to the extent possible, with a legal, enforceable,
and valid provision that is as similar in tenor to the stricken provision as is
legally possible.

    


    9.
Exceptions. Any other
provision herein to the contrary notwithstanding, the Company shall not be
obligated pursuant to the terms of this Agreement:

    


    (a) Excluded
Acts. To indemnify
Indemnitee for (i) any acts or omissions or transactions from which a
director may not be relieved of liability under the California Corporations Code; or (ii) for breach of any duty to
the Company or its shareholders as to circumstances in which indemnity is
expressly prohibited by Section 317 of the California Corporations Code; or

    


    (b) Claims Initiated by
Indemnitee. To indemnify or
advance Expenses to Indemnitee with respect to proceedings or claims initiated
or brought voluntarily by Indemnitee and not by way of defense, except with
respect to proceedings or claims brought to establish or enforce a right to
indemnification under this Agreement or under any other statute or law or
otherwise as required under Section 317 of the California Corporations Code, but such indemnification or
advancement of Expenses may be provided by the Company in specific cases if the
Board of Directors has approved the initiation or bringing of such proceeding or
claim; or

    


    (c) Lack of Good
Faith. To indemnify
Indemnitee for any Expenses incurred by the Indemnitee with respect to any
proceeding instituted by Indemnitee to enforce or interpret this Agreement, if a
court of competent jurisdiction determines that each of the material assertions
made by the Indemnitee in such proceeding was not made in good faith or was
frivolous; or

    


    (d) Insured
Claims. To indemnify
Indemnitee for Expenses or liabilities of any type whatsoever (including, but
not limited to, judgments, fines, ERISA excise taxes or penalties, and amounts
paid in settlement) which have been paid directly to Indemnitee by an insurance
carrier under a policy of directors’ and officers’ liability insurance
maintained by the Company; or

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (e) Claims Under
Section 16(b). To
indemnify 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.

    


    10. Effectiveness of
Agreement. To the extent
that the indemnification permitted under the terms of certain provisions of this
Agreement exceeds the scope of the indemnification provided for in the
California Corporations
Code, such provisions shall
not be effective unless and until the Company’s Articles of Incorporation
authorize such additional rights of indemnification. In all other respects, the
balance of this Agreement shall be effective as of the date set forth on the
first page and may apply to acts or omissions of Indemnitee which occurred prior
to such date if Indemnitee was an officer, director, employee or other agent of
the Company, or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, at the time such act or omission occurred. All of the
Company’s obligations under this Agreement will continue as long as Indemnitee
is subject to any actual or possible matter which is the subject of this
Agreement, notwithstanding Indemnitee’s termination of service as an officer or
director of the Company.

    


    11. Construction of
Certain Phrases.

    


    (a) For purposes of this Agreement,
references to the “Company” shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, employees or agents, so that if Indemnitee is or was a
director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
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.

    


    (b) For purposes of this Agreement,
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 or
agent of the Company which imposes duties on, or involves services by, such
director, officer, employee or agent with respect to an employee benefit plan,
its participants, or beneficiaries.

    


    12.
Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall
constitute an original.

    


    13. Successors and
Assigns. This Agreement
shall be binding upon the Company and its successors (whether direct or
indirect, voluntary or involuntary by purchase, merger or otherwise) and
assigns, and shall inure to the benefit of Indemnitee and Indemnitee’s estate,
heirs, legal representatives and assigns. Any such assumption will not release
the Company from its obligations under this Agreement.

    


    14. Attorneys’
Fees. In the event that any
action is instituted or any mediation is commenced by Indemnitee under this
Agreement to enforce or interpret any of the terms hereof, Indemnitee shall be
entitled to be paid all costs and expenses, including reasonable attorneys’
fees, incurred by Indemnitee with respect to such action or mediation, unless as
a part of such action or mediation, the court of competent jurisdiction or
mediator determines (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 or mediation was not made in good faith or was
frivolous. In the event of an action instituted or mediation commenced by or in
the name of the Company under this Agreement or to enforce or interpret any of
the terms of this Agreement, Indemnitee shall be entitled to be paid all costs
and expenses, including attorneys’ fees, incurred by Indemnitee in defense of
such action or mediation (including with respect to Indemnitee’s counterclaims
and cross-claims made in such action or mediation), unless as a part of such
action or mediation the court or mediator determines (as to which all rights of
appeal therefrom have been exhausted or lapsed) that each of Indemnitee’s
material defenses to such action or mediation was made in bad faith or were
frivolous.

    


    15. Notice. 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 receipted for by the party
addressee, on the date of such receipt, or (ii) if mailed by domestic
certified or registered mail with postage prepaid, on the third business day
after the date postmarked,
or (iii) if delivered by a nationally recognized overnight courier service, such
as FedEx or DHL, on the date of delivery. Addresses for notice to either party
are as shown on the signature page of this Agreement, or as subsequently
modified by written notice.

    


    16. Consent to
Jurisdiction, Venue.

    


    A dispute or claim arising out of or
relating to this Agreement (“Dispute”) shall be resolved in the following
manner:

     

    (a) A Dispute may be submitted to JAMS
for non-binding mediation either prior to or at the same time that any civil
action with respect to such Dispute is commenced. Either party may commence
mediation by providing to JAMS and the other party a written request for
mediation, setting forth the subject of the dispute and the relief requested.
The parties will cooperate with JAMS and with one another in selecting a
mediator from JAMS panel of neutrals, and in scheduling the mediation
proceedings. The parties covenant that they will participate in the mediation in
good faith. All offers, promises, conduct and statements, whether oral or
written, made in the course of the mediation by any of the parties, their
agents, employees, experts and attorneys, and by the mediator and any JAMS
employees, are confidential, privileged and inadmissible for any purpose,
including impeachment, in any litigation or other proceeding involving the
parties, provided that evidence that is otherwise admissible or discoverable
shall not be rendered inadmissible or non-discoverable as a result of its use in
the mediation. The provisions of this Section may be enforced by any court of
competent jurisdiction.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (b) Any civil action with respect to a
Dispute may be brought only in the United States District Court for the
Central District of California (Western Division) or in any court of the State of
California sitting in the
City of Los Angeles. Each
party waives, to the fullest extent permitted by law, any objection which such
party may now or later have to the laying of venue of any legal action or
proceeding arising out of or relating to this Agreement as described in this
Section, and any claim that any action or proceeding brought in any such court
has been brought in an inconvenient forum. Both parties hereby authorize and
accept service of process sufficient for personal jurisdiction in any action
against such party as contemplated by this Section by registered or certified
mail, return receipt requested, postage prepaid, to the party’s address for the
giving of notices as set forth in this Agreement. Any final judgment rendered
against either party in any action or proceeding shall be conclusive as to the
subject of such final judgment and may be enforced in other jurisdictions in any
manner provided by law.

    


    17.
Amendments. Any repeal or
modification of Company’s Articles of Incorporation or Bylaws or any repeal or
modification of the relevant provisions of any applicable law will not in any
way diminish any of Indemnitee’s rights or the Company’s obligations under this
Agreement. This Agreement cannot be amended except with the written consent of
the Company and Indemnitee. No waiver of any provision of this Agreement shall
be binding on either party unless it is in writing and signed by both the
Company and Indemnitee.

    


    18. Choice of
Law. This Agreement shall
be governed by and its provisions construed in accordance with the laws of the
State of California as applied to contracts between California residents entered
into and to be performed entirely within California.

    


    19.
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 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.

    


    20. Integration and
Entire Agreement. This
Agreement (i) sets forth the entire understanding between the parties in
respect to the subject matter hereof, (ii) supersedes all previous written
or oral negotiations, commitments, understandings, and agreements relating to
the subject matter hereof and (iii) merges all prior and contemporaneous
discussion between the parties.

    


    [SIGNATURES FOLLOW]

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

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

     

    
      
        
          	 	
                  

                    CyberDefender
      Corporation

                  

                	 
	 	 	 	 
	
                	
                  By:
      

                	/s/
      Gary Guseinov	 
	 	Its:	Gary
      Guseinov, 	 
	 	 	Chief
      Executive Officer	 


        

      

      
         

        
          
            
              	 	Address: 	617
      West 7th Street, Suite
401	 
	
                    	
                    	Los Angeles, CA 90017	 


            

          

           

          

            
              	

                      AGREED TO AND ACCEPTED BY
      INDEMNITEE:

                    	 	 	 	 
	 	 	 	 	 
	
                      

                        /s/ Bennet Van De
      Bunt

                      

                    	 	 	
                    	 
	
                      

                        Bennet Van de
      Bunt

                      

                    	 	 	
                    	 


            

             

            
              	Address:  	c/o GR Match
      LLC	 	 	
                    	 
	 	3340 Ocean Park
    Blvd.	 	 	 	 
	 	Suite 3000	 	 	 	 
	 	Santa Monica, CA
      90405