Form of Indemnity Agreement



 Exhibit 10.1 
 INDEMNITY AGREEMENT 
 THIS INDEMNITY AGREEMENT
(this “Agreement”) dated as of _______________, 2009, is made by and between DIVX, INC. a Delaware corporation (the “Company”), and __________________
(“Indemnitee”). 
 RECITALS 
 A. The Company desires to attract and retain the services of highly qualified individuals as directors, officers, employees and agents.

 B. The Company’s Amended and Restated Bylaws (the “Bylaws”) require that the Company indemnify its
directors and executive officers, and empowers the Company to indemnify its other officers, employees and agents, as authorized by the Delaware General Corporation Law, as amended (the “Code”), under which the Company is
organized and such Bylaws expressly provide that the indemnification provided therein is not exclusive and contemplates that the Company may enter into separate agreements with its directors, officers and other persons to set forth specific
indemnification provisions. 
 C. Indemnitee does not regard the protection currently provided by applicable law, the Company’s
governing documents and available insurance as adequate under the present circumstances, and the Company has determined that Indemnitee and other directors, officers, employees and agents of the Company may not be willing to serve or continue to
serve in such capacities without additional protection. 
 D. The Company desires and has requested Indemnitee to serve or continue to
serve as a director, officer, employee or agent of the Company, as the case may be, and has proffered this Agreement to Indemnitee as an additional inducement to serve in such capacity. 
 E. Indemnitee is willing to serve, or to continue to serve, as a director, officer, employee or agent of the Company, as the case may be, if
Indemnitee is furnished the indemnity provided for herein by the Company. 
 AGREEMENT 
 NOW THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the parties
hereto, intending to be legally bound, hereby agree as follows: 
 1. Definitions. 
 (a) Agent. For purposes of this Agreement, the term “agent” of the Company means any person who: (i) is or was a
director, officer, employee or other fiduciary of the Company or a subsidiary of the Company; or (ii) is or was serving at the request or for the convenience of, or representing the interests of, the Company or a subsidiary of the Company, as a
director, officer, employee or other fiduciary of a foreign or domestic corporation, limited liability company, partnership, joint venture, trust or other enterprise. 







 (b) Expenses. For purposes of this Agreement, the term “expenses”
shall be broadly construed and shall include, without limitation, all direct and indirect costs of any type or nature whatsoever (including, without limitation, all attorneys’, witness, or other professional fees and related disbursements, and
other out-of-pocket costs of whatever nature), actually and reasonably incurred by Indemnitee in connection with the investigation, defense or appeal of a proceeding (as defined below), or establishing or enforcing a right to indemnification under
this Agreement, the Code or otherwise, and amounts paid by or on behalf of Indemnitee in settlement of any proceeding and any judgments, damages, liabilities, losses, penalties, taxes and fines levied against Indemnitee in connection with any
proceeding. The term “expenses” shall also include reasonable compensation for time spent by Indemnitee for which he is not compensated by the Company or any subsidiary or third party: (i) for any period during which Indemnitee is
not an agent of, in the employment of, or providing services for compensation to, the Company or any subsidiary; and (ii) for any period during which Indemnitee is an agent of, in the employment of, or providing services for compensation
to, the Company or any subsidiary, if and to the extent that the rate of compensation and estimated time involved is approved by the directors of the Company who are not parties to any action with respect to which such expenses are incurred.

 (c) Proceedings. For purposes of this Agreement, the term “proceeding” shall be broadly construed
and shall include, without limitation, any threatened, pending, or completed action, suit, arbitration, mediation, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, threatened or completed
proceeding, whether brought by or in the right of the Company or otherwise and whether of a civil, criminal, administrative or investigative nature, and whether formal or informal in any case, in which Indemnitee was, is or will be involved as a
party or witness or other participant or otherwise by reason of: (i) the fact that Indemnitee is or was a director, officer, employee or agent of the Company or any subsidiary; (ii) any action taken or any inaction by Indemnitee, or of any
action on Indemnitee’s part, while acting as director, officer, employee or agent of the Company; or (iii) the fact that Indemnitee is or was serving at the request of the Company as a director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise, and in any such case described above, whether or not serving in any such capacity at the time any liability or expense is incurred
for which indemnification, reimbursement, or advancement of expenses may be provided under this Agreement. 
 (d)
Subsidiary. For purposes of this Agreement, the term “subsidiary” means any entity of which more than 50% of the outstanding voting securities or equity interests are owned, directly or indirectly, by the Company and one or more of
its subsidiaries, and any other corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise of which Indemnitee is or was serving at the request of the Company as a director, officer,
employee, agent or fiduciary. 
 2. Agreement to Serve. Indemnitee will serve, or continue to serve, as a director, officer,
employee or agent of the Company or any subsidiary, as the case may be, faithfully and to the best of his or her ability, at the will of such corporation (or under separate agreement, if such agreement exists), in the capacity Indemnitee currently
serves as an agent of such corporation, so long as Indemnitee is duly appointed or elected and qualified in accordance with the applicable provisions of the Bylaws or other applicable 








 
charter documents of such corporation, or until such time as Indemnitee tenders his or her resignation in writing; provided, however, that nothing contained
in this Agreement is intended as an employment agreement between Indemnitee and the Company or any of its subsidiaries or to create any right to continued employment of Indemnitee with the Company or any of its subsidiaries in any capacity.

 The Company acknowledges that it has entered into this Agreement and assumes the obligations imposed on it hereby, in addition to and
separate from its obligations to Indemnitee under the Bylaws, to induce Indemnitee to serve, or continue to serve, as a director, officer, employee or agent of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement
in serving as a director, officer, employee or agent of the Company. 
 3. Indemnification. 
 (a) Indemnification in Third Party Proceedings. Subject to Section 10 below, the Company shall indemnify Indemnitee to
the fullest extent permitted by the Code, as the same may be amended from time to time (but, only to the extent that such amendment permits Indemnitee to broader indemnification rights than the Code permitted prior to adoption of such amendment), if
Indemnitee is a party to or threatened to be made a party to or otherwise involved in any proceeding, for any and all expenses, actually and reasonably incurred by Indemnitee in connection with the investigation, defense, settlement or appeal of
such proceeding. 
 (b) Indemnification in Derivative Actions and Direct Actions by the Company. Subject to
Section 10 below, the Company shall indemnify Indemnitee to the fullest extent permitted by the Code, as the same may be amended from time to time (but, only to the extent that such amendment permits Indemnitee to broader indemnification rights
than the Code permitted prior to adoption of such amendment), if Indemnitee is a party to or threatened to be made a party to or otherwise involved in any proceeding by or in the right of the Company to procure a judgment in its favor, for any and
all expenses actually and reasonably incurred by Indemnitee in connection with the investigation, defense, settlement, or appeal of such proceedings. 
 4. Indemnification of Expenses of Successful Party. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee has been successful on the merits or otherwise in defense of any
proceeding or in defense of any claim, issue or matter therein, including the dismissal of any action without prejudice, the Company shall indemnify Indemnitee against all expenses actually and reasonably incurred in connection with the
investigation, defense or appeal of such proceeding. 
 5. Partial Indemnification. 
 (a) If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of any
expenses actually and reasonably incurred by Indemnitee in the investigation, defense, settlement or appeal of a proceeding, but is precluded by applicable law or the specific terms of this Agreement to indemnification for the total amount thereof,
the Company shall nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is entitled. 







 (b) Whether or not the indemnification provided in Section 3 hereof is
available, if Indemnitee is a party to or threatened to be made a party to or otherwise involved in any proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such proceeding), the Company shall pay, in the first
instance, the entire amount of any judgment or settlement of such action, suit or proceeding without requiring Indemnitee to contribute to such payment and the Company hereby waives and relinquishes any right of contribution it may have against
Indemnitee. 
 6. Advancement of Expenses. To the extent not prohibited by law, the Company shall advance the expenses incurred
by Indemnitee in connection with any proceeding, and such advancement shall be made within forty-five (45) days after the receipt by the Company of a statement or statements requesting such advances (which shall include invoices received by
Indemnitee in connection with such expenses but, in the case of invoices in connection with legal services, any references to legal work performed or to expenditures made that would cause Indemnitee to waive any privilege accorded by applicable law
shall not be included with the invoice) and upon request of the Company, an undertaking to repay the advancement of expenses if and to the extent that it is ultimately determined by a court of competent jurisdiction in a final judgment, not subject
to appeal, that Indemnitee is not entitled to be indemnified by the Company. Advances shall be unsecured, interest free and without regard to Indemnitee’s ability to repay the expenses. Advances shall include any and all expenses actually and
reasonably incurred by Indemnitee pursuing an action to enforce Indemnitee’s right to indemnification under this Agreement or otherwise, and to this right of advancement, including expenses incurred preparing and forwarding statements to the
Company to support the advances claimed. Indemnitee acknowledges that the execution and delivery of this Agreement shall constitute an undertaking providing that Indemnitee shall, to the fullest extent required by law, repay any advance if and to
the extent that it is ultimately determined by a court of competent jurisdiction in a final judgment, not subject to appeal, that Indemnitee is not entitled to be indemnified by the Company. The right to advances under this Section shall continue
until final disposition of any proceeding, including any appeal therein. This Section 6 shall not apply to any claim made by Indemnitee for which indemnity is excluded pursuant to Section 10(b). 
 7. Notice and Other Indemnification Procedures. 
 (a) Notification of Proceeding. Indemnitee will notify the Company in writing promptly upon being served with any summons,
citation, subpoena, complaint, indictment, information or other document relating to any proceeding or matter which may be subject to indemnification or advancement of expenses covered hereunder. The failure of Indemnitee to so notify the Company
shall not relieve the Company of any obligation which it may have to Indemnitee under this Agreement or otherwise. 
 (b) Request for Indemnification and Indemnification Payments. Indemnitee shall notify the Company promptly in writing upon receiving notice of any demand, judgment or other requirement for payment that Indemnitee reasonably
believes to be subject to indemnification under the terms of this Agreement, and shall request payment thereof by the Company. 








 
Indemnification payments requested by Indemnitee under Section 3 hereof shall be promptly made by the Company following receipt of the written request
of Indemnitee. Claims for advancement of expenses shall be made under the provisions of Section 6 herein. 
 (c)
Application for Enforcement. In the event the Company fails to make timely payments as set forth in Sections 6 or 7(b) above, Indemnitee shall have the right to apply to any court of competent jurisdiction for the purpose of enforcing
Indemnitee’s right to indemnification or advancement of expenses pursuant to this Agreement. In such an enforcement hearing or proceeding, the burden of proof shall be on the Company to prove that indemnification or advancement of expenses to
Indemnitee is not required under this Agreement or permitted by applicable law. Any determination by the Company (including its Board of Directors (the “Board”), stockholders or independent counsel) that Indemnitee is not
entitled to indemnification hereunder, shall not be a defense by the Company to the action nor create any presumption that Indemnitee is not entitled to indemnification or advancement of expenses hereunder. 
 (d) Indemnification of Certain Expenses. The Company shall indemnify Indemnitee against all expenses incurred in connection
with any hearing or proceeding under Section 7(c) unless the Company prevails in such hearing or proceeding on the merits in all material respects. 
 8. Assumption of Defense. In the event the Company shall be requested by Indemnitee to pay the expenses of any proceeding, the Company, if appropriate, shall be entitled to assume the defense of such
proceeding, or to participate to the extent permissible in such proceeding, with counsel reasonably acceptable to Indemnitee. Upon assumption of the defense by the Company and the retention of such counsel by the Company, the Company shall not be
liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same proceeding, provided that Indemnitee shall have the right to employ separate counsel in such proceeding at
Indemnitee’s sole cost and expense. Notwithstanding the foregoing, if Indemnitee’s counsel delivers a written notice to the Company stating that such counsel has reasonably concluded that there may be a conflict of interest between the
Company and Indemnitee in the conduct of any such defense or the Company shall not, in fact, have employed counsel or otherwise actively pursued the defense of such proceeding within a reasonable time, or thereafter reasonably maintained the defense
of such proceeding, then in any such event the fees and expenses of Indemnitee’s counsel to defend such proceeding shall be subject to the indemnification and advancement of expenses provisions of this Agreement. 
 9. Insurance. To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors,
officers, employees, or agents of the Company or of any subsidiary (“D&O Insurance”), Indemnitee shall be covered by such policy or policies in accordance with its or their terms 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, 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, controlling persons, agents or fiduciaries, if Indemnitee is not an officer or director but is a key employee, agent, control person or fiduciary (or otherwise to the maximum extent of the coverage available for any
such director, officer, employee or agent under such policy or policies). 








 
If, at the time of the receipt of a notice of a claim pursuant to the terms hereof, the Company has D&O Insurance in effect, the Company shall give
prompt notice of the commencement of such proceeding 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 Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such policies. 
 10.
Exceptions. 
 (a) Certain Matters. Any provision herein to the contrary notwithstanding, the Company
shall not be obligated pursuant to the terms of this Agreement to indemnify Indemnitee on account of any proceeding (i) with respect to remuneration paid to or received by Indemnitee if it is determined by a final judgment or other final
adjudication from a court of competent jurisdiction, not subject to appeal, that such remuneration was in violation of law; (ii) resulting in a final judgment or other final adjudication from a court of competent jurisdiction, not subject to
appeal, rendered against Indemnitee for an accounting, disgorgement or repayment of profits made from the purchase or sale by Indemnitee of securities of the Company, pursuant to the provisions of Section 16(b) of the Securities Exchange Act of
1934, as amended, or other provisions of any federal, state or local statute or rules and regulations thereunder, or resulting in a settlement by or on behalf of Indemnitee to the extent it is acknowledged by Indemnitee and the Company that such
amount paid in settlement resulted from Indemnitee’s conduct from which Indemnitee received monetary personal profit; or (iii) resulting in a final judgment or other final adjudication from a court of competent jurisdiction, not subject to
appeal, that Indemnitee’s conduct was in bad faith, knowingly fraudulent or deliberately dishonest or constituted willful misconduct (but only to the extent of such specific determination); or (iv) on account of conduct that is established
by a final judgment or other final adjudication from a court of competent jurisdiction, not subject to appeal, as constituting a breach of Indemnitee’s duty of loyalty to the Company or resulting in any personal profit or advantage to which
Indemnitee is not legally entitled. For purposes of the foregoing sentence, a final judgment or other adjudication may be reached in either the underlying proceeding or action in connection with which indemnification is sought or a separate
proceeding or action to establish rights and liabilities under this Agreement. 
 (b) Claims Initiated by
Indemnitee. Any provision herein to the contrary notwithstanding, the Company shall not be obligated to indemnify or advance expenses to Indemnitee with respect to proceedings or claims initiated or brought by Indemnitee against the Company or
its directors, officers, employees or other agents and not by way of defense, except (i) with respect to proceedings brought to establish or enforce a right to indemnification under this Agreement or under any other agreement, provision in the
Bylaws or the Company’s Amended and Restated Certificate of Incorporation (“Certificate of Incorporation”) or applicable law, or (ii) with respect to any other proceeding initiated by Indemnitee that is either
approved by the Board or Indemnitee’s participation is required by applicable law. However, indemnification or advancement of expenses may be provided by the Company in specific cases if the Board determines it to be appropriate. 







 (c) Unauthorized Settlements. Any provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of this Agreement to indemnify Indemnitee under this Agreement for any amounts paid in settlement of a proceeding effected without the Company’s written consent. Further,
the Company shall not, without the prior written consent of the Indemnitee, effect any settlement of: (i) any proceeding if the Indemnitee is or could have been a party or (ii) any proceeding in which the Company is jointly liable with
Indemnitee (or would be if joined in such proceeding) pursuant to Section 5(b) above unless such settlement solely involves the payment of money and includes a complete and unconditional release of the Indemnitee from all liability on any
claims that are the subject matter of such proceeding. Neither the Company nor Indemnitee shall unreasonably withhold, delay or condition consent to any proposed settlement; provided, however, that: (i) the Company may in any event decline to
consent to (or to otherwise admit or agree to any liability for indemnification hereunder in respect of) any proposed settlement if the Company is also a party in such proceeding and determines in good faith that such settlement is not in the best
interests of the Company and its stockholders and (ii) Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee or requires Indemnitee to take any action other than executing a
release of parties providing a release of Indemnitee. 
 (d) Securities Act Liabilities. Any provision herein to
the contrary notwithstanding, the Company shall not be obligated pursuant to the terms of this Agreement to indemnify Indemnitee or otherwise act in violation of any undertaking appearing in and required by the rules and regulations promulgated
under the Securities Act of 1933, as amended (the “Act”), or in any registration statement filed with the SEC under the Act. Indemnitee acknowledges that paragraph (h) of Item 512 of Regulation S-K currently
generally requires the Company to undertake in connection with any registration statement filed under the Act to submit the issue of the enforceability of Indemnitee’s rights under this Agreement in connection with any liability under the Act
on public policy grounds to a court of appropriate jurisdiction and to be governed by any final adjudication of such issue. Indemnitee specifically agrees that any such undertaking shall supersede the provisions of this Agreement and that Indemnitee
shall be bound by any such undertaking. 
 11. Nonexclusivity and Survival of Rights. The provisions for indemnification and
advancement of expenses set forth in this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled under any provision of applicable law, the Certificate of Incorporation, Bylaws or other
agreements, both as to action in Indemnitee’s official capacity and Indemnitee’s action as an agent of the Company, in any court in which a proceeding is brought, and Indemnitee’s rights hereunder shall continue after Indemnitee has
ceased acting as an agent of the Company and shall inure to the benefit of the heirs, executors, administrators and assigns of Indemnitee. The obligations and duties of the Company to Indemnitee under this Agreement shall be binding on the Company
and its successors and assigns until terminated in accordance with its terms. The Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets
of the Company, 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. 







 No amendment, alteration or repeal of this Agreement or of any provision hereof shall limit or restrict
any right of Indemnitee under this Agreement in respect of any action taken or omitted by such Indemnitee in his or her corporate status prior to such amendment, alteration or repeal. To the extent that a change in the Code, whether by statute or
judicial decision, permits greater indemnification or advancement of expenses than would be afforded currently under the Certificate of Incorporation, Bylaws 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. No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, by Indemnitee shall not prevent the concurrent assertion or employment of any other
right or remedy by Indemnitee. 
 12. 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, at the request and expense of the Company, shall execute all papers 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. 
 13. Interpretation of Agreement. It is understood that the parties hereto intend this Agreement to be interpreted and enforced so as to provide indemnification to Indemnitee to the fullest extent now or hereafter permitted by
law. 
 14. Severability. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable for any
reason whatsoever, (a) the validity, legality and enforceability of the remaining provisions of the Agreement (including without limitation, all portions of any paragraphs of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that are not themselves invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby; and (b) to the fullest extent possible, the provisions of this Agreement (including, without limitation,
all portions of any paragraph of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that are not themselves invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable and to give effect to Section 14 hereof. 
 15. Amendment and
Waiver. No supplement, modification, amendment, or cancellation of this Agreement shall be binding unless executed in writing by the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a
waiver of any other provision hereof (whether or not similar) nor shall such waiver constitute a continuing waiver. 
 16.
Notice. Except as otherwise provided herein, any notice or demand which, by the provisions hereof, is required or which may be given to or served upon the parties hereto shall be in writing and, if by telegram, telecopy or telex, shall be
deemed to have been validly served, given or delivered when sent, if by overnight delivery, courier or personal delivery, shall be deemed to have been validly served, given or delivered upon actual delivery and, if mailed, shall be deemed to have
been validly served, given or delivered three (3) business days after deposit in the United States mail, as registered or certified mail, with proper postage prepaid and 








 
addressed to the party or parties to be notified at the addresses set forth on the signature page of this Agreement (or such other address(es) as a party may
designate for itself by like notice). If to the Company, notices and demands shall be delivered to the attention of the Secretary of the Company. 
 17. Governing Law. This Agreement shall be governed exclusively by and construed according to the laws of the State of Delaware, as applied to contracts between Delaware residents entered into and to be performed entirely
within Delaware. 
 18. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall for all
purposes be deemed to be an original but all of which together shall constitute but one and the same Agreement. Only one such counterpart need be produced to evidence the existence of this Agreement. 
 19. Headings. The headings of the sections of this Agreement are inserted for convenience only and shall not be deemed to constitute part
of this Agreement or to affect the construction hereof. 
 20. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements, understandings and negotiations, written and oral, between the parties with respect to the subject matter of this Agreement; provided,
however, that this Agreement is a supplement to and in furtherance of the Certificate of Incorporation, Bylaws, the Code and any other applicable law, and shall not be deemed a substitute therefor, and does not diminish or abrogate any
rights of Indemnitee thereunder. 
 21. Further Assurance. Each party agrees to cooperate fully with the other
party, to take such actions, to execute such further instruments, documents and agreements, and to give such further written assurances, as may be reasonably requested by the other party to evidence and reflect the transactions described herein and
contemplated hereby, and to carry into effect the intents and purposes of this Agreement. 







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

			
	COMPANY:
	
	DIVX, INC.
		
	By:	 	 
		 	 Kevin Hell 
 Chief Executive Officer




  

			
	Address:	 	 4780 Eastgate Mall
 San Diego, California
92121



  

			
	INDEMNITEE:
		
	 	 	 
	[NAME]	 	
		
	Address: