INDEMNIFICATION
AGREEMENT
This Agreement is
made as of
, 2006, between LoopNet, Inc., a Delaware corporation (the
“Company”), and
(the “Indemnitee”).
Both the Company
and Indemnitee recognize that highly competent persons have become
more reluctant to serve publicly-held corporations as directors or
in other capacities unless they are provided with adequate
protection through insurance or adequate indemnification against
inordinate risks of claims and actions against them arising out of
their service to and activities on behalf of the
corporation.
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 provisions of the Company’s Certificate of
Incorporation (“Certificate of Incorporation”) and the
Company’s Bylaws (the “Bylaws”) requiring
indemnification of the Indemnitee to the fullest extent permitted
by law, and in part to provide Indemnitee with specific contractual
assurance that the protection promised by such Certificate of
Incorporation and 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.
The Certificate of
Incorporation, the Bylaws and the General Corporation Law of the
State of Delaware (“DGCL”) expressly provide that the
indemnification provisions set forth therein are not exclusive and
thereby contemplate that contracts may be entered into between the
Company and members of the board of directors, officers and other
persons with respect to indemnification.
It is reasonable,
prudent and necessary for the Company contractually to obligate
itself to indemnify, and to advance expenses on behalf of, such
persons to the fullest extent permitted by applicable law so that
they will serve or continue to serve the Company free from undue
concern that they will not be so indemnified.
This Agreement is
a supplement to and in furtherance of the Certificate of
Incorporation and Bylaws and any resolutions adopted pursuant
thereto and shall not be deemed a substitute therefor, nor to
diminish or abrogate any rights of Indemnitee
thereunder.
In consideration
of the premises and of Indemnitee agreeing to serve or continuing
to serve the Company directly or, at its request, with another
enterprise, and intending to be legally
bound hereby,
the parties hereto agree as follows:
1.
Basic Indemnification Agreement .
(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 (as defined in
Section 9(b)) by reason of (or arising in part out of) an
Indemnifiable Event (as defined in Section 9(d)), the Company
shall indemnify Indemnitee to the fullest extent permitted by law
as soon as practicable but in any event no later than 30 days
after written demand is presented to the Company, against any and
all Expenses (as defined in Section 9(c)), judgments, fines,
penalties and amounts paid in settlement (including all interest,
assessments and other charges paid or payable in connection
therewith) of such Claim actually and reasonably incurred by or on
behalf of Indemnitee in connection with such Claim and any federal,
state, local or foreign taxes imposed on Indemnitee as a result of
the actual or deemed receipt of any payments under this Agreement.
If requested by Indemnitee in writing, the Company shall advance
(within ten business days of such written request) any and all
Expenses to Indemnitee (an “Expense Advance”).
Notwithstanding anything in this Agreement to the contrary, prior
to a Change of Control (as defined in Section 9(a)) and except as
set forth in Sections 1(b), 3 and 7, Indemnitee shall not be
entitled to indemnification pursuant to this Agreement in
connection with any Claim (i) initiated by Indemnitee against
the Company or any director or officer of the Company unless the
Company has joined in or consented to the initiation of such Claim;
(ii) made on account of Indemnitee’s conduct which
constitutes a breach of Indemnitee’s duty of loyalty to the
Company or its stockholders or is an act or omission not in good
faith or which involves intentional misconduct or a knowing
violation of the law; or (iii) 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 (the
“Exchange Act”).
(b) Notwithstanding
the foregoing, (i) the indemnification obligations of the
Company under Section 1(a) shall not be applicable if the Reviewing
Party (as defined in Section 9(f)) has determined (in a
written opinion, in any case in which the special independent
counsel referred to in Section 2 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 1(a) shall be subject to the condition that the
Company receives an undertaking 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;
provided, however, that if Indemnitee has commenced legal
proceedings in the Court of Chancery of the State of Delaware (the
“Delaware Court”) 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 Expense
Advances shall be unsecured and no interest shall be charged
thereon. If there has not been a Change in Control, the Reviewing
Party shall be selected by the Board of Directors, and if there has
been such a Change in Control, the
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Reviewing Party
shall be the special independent counsel referred to in
Section 2. 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 the Delaware Court seeking an initial
determination by the court or challenging any such determination by
the Reviewing Party or any aspect thereof and the Company hereby
consents to service of process and to appear in any such
proceeding. Any determination by the Reviewing Party otherwise
shall be conclusive and binding on the Company and Indemnitee. The
Company shall indemnify Indemnitee for Expenses incurred by
Indemnitee in connection with the successful establishment or
enforcement, in whole or in part, by Indemnitee of
Indemnitee’s right to indemnification or advances.
2.
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 two-thirds or more of the
Company’s Board of Directors 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, the Bylaws or Certificate of Incorporation now or
hereafter in effect relating to Claims for Indemnifiable Events,
the Company shall seek legal advice only from special independent
counsel selected by Indemnitee and approved by the Company (which
approval shall not be unreasonably withheld or delayed) and who has
not otherwise performed services for the Company within the last
five years (other than in connection with such matters) or for
Indemnitee. In the event that Indemnitee and the Company are unable
to agree on the selection of the special independent counsel, such
special independent counsel shall be selected by lot from among at
least five law firms with offices in the State of Delaware having
more than fifty attorneys, having a rating of “av” or
better in the then current Martindale Hubbell Law Directory and
having attorneys which specialize in corporate law. Such selection
shall be made in the presence of Indemnitee (and his legal counsel
or either of them, as Indemnitee may elect). Such counsel, among
other things, shall, within 90 days of its retention, 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
of the special independent counsel referred to above and to fully
indemnify 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.
3.
Indemnification for Additional Expenses . The Company
shall indemnify Indemnitee against any and all expenses (including
attorneys’ fees) and, if requested by Indemnitee in writing,
shall (within ten business days of such written request) advance
such expenses to Indemnitee, which are incurred by Indemnitee in
connection with any Claim asserted against or action brought by
Indemnitee for (i) indemnification or advance payment of
Expenses by the Company under this Agreement or any other
agreement, the Bylaws or Certificate of Incorporation now or
hereafter in effect relating to Claims for Indemnifiable Events
and/or (ii) recovery under any directors’ and
officers’ liability insurance policies maintained by the
Company, regardless of whether the Company believes that Indemnitee
is entitled to such indemnification, advance expense payment or
insurance recovery, as the case may be. The Indemnitee shall
qualify for advances solely upon the execution and delivery to the
Company of
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an undertaking
providing that the Indemnitee undertakes to repay the advance to
the extent that it is ultimately determined that the Indemnitee is
not entitled to be indemnified by the Company.
4.
Partial Indemnity . If Indemnitee is entitled under
any provisions of this Agreement to indemnification by the Company
of some but not all of the Expenses, liabilities, judgments, fines,
penalties and amounts paid in settlement of a Claim, 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. 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.
5. No
Presumption . For purposes of this Agreement, the
termination of any 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
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