Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1 Registration Statement (General Form) 105 511K
9: EX-10.10 Material Contract 22 112K
10: EX-10.11 Material Contract 49 236K
11: EX-10.13 Material Contract 5 25K
12: EX-10.14 Material Contract 6 31K
13: EX-10.15 Material Contract 11 46K
14: EX-10.16 Material Contract 3 17K
15: EX-10.18 Material Contract 5 26K
16: EX-10.19 Material Contract 6 27K
2: EX-10.2 Material Contract 5 22K
17: EX-10.20 Exhbit 10.20 2 14K
18: EX-10.22 Material Contract 18 65K
19: EX-10.23 Material Contract 24 113K
20: EX-10.24 Material Contract 25 108K
21: EX-10.25 Material Contract 18 56K
22: EX-10.26 Material Contract 18 56K
23: EX-10.27 Material Contract 6 33K
3: EX-10.3 Material Contract 6 26K
4: EX-10.4 Material Contract 25 131K
5: EX-10.6 Material Contract 6± 26K
6: EX-10.7 Material Contract 7 34K
7: EX-10.8 Material Contract 5 26K
8: EX-10.9 Material Contract 23 79K
24: EX-23.2 Consent of Experts or Counsel 1 8K
25: EX-27.1 Financial Data Schedule (Pre-XBRL) 2 9K
DIRECTOR'S INDEMNIFICATION AGREEMENT
THIS DIRECTOR'S INDEMNIFICATION AGREEMENT ("Agreement") is made and
entered into as of , 1999 by and between NetZero, Inc., a Delaware
corporation (the "Company"), and ("Director").
R E C I T A L S
A. Director, as the [ ] and a member of the Board of
Directors of the Company, performs a valuable service in such capacity for
the Company;
B. The stockholders of the Company have adopted Bylaws (the
"Bylaws") providing for the indemnification of the officers, directors,
agents and employees of the Company to the maximum extent authorized by
Section 145 of the Delaware General Corporation Law, as amended (the
"Delaware Law");
C. The Bylaws and the Delaware Law, by their non-exclusive
nature, permit contracts between the Company, its officers and the members of
its Board of Directors with respect to indemnification of such persons;
D. In accordance with the authorization as provided by the
Delaware Law, the Company has purchased and presently maintains or will
shortly hereafter purchase and thereafter maintain, a policy or policies of
directors and officers liability insurance ("D & O Insurance"), covering
certain liabilities which may be incurred by its directors and officers in
the performance as directors of the Company;
E. As a result of developments affecting the terms, scope and
availability of D & O Insurance, there exists general uncertainty as to the
extent of protection afforded members of the Board of Directors and officers
of the Company by such D & O Insurance and by statutory and Bylaw
indemnification provisions; and
F. In order to induce Director to continue to serve as
[an executive officer and] a member of the Board of Directors of the Company,
the Company has determined and agreed to enter into this contract with
Director.
NOW, THEREFORE, in consideration of Director's continued service to
the Company after the date hereof, the parties hereto agree as follows:
1. INDEMNITY OF DIRECTOR. The Company hereby agrees to hold
harmless and indemnify Director to the fullest extent authorized or permitted
by the provisions of the Delaware Law, as may be amended from time to time,
and by the Bylaws as they exist as of the date hereof.
2. ADDITIONAL INDEMNITY. Subject only to the exclusions set
forth in Section 3 hereof, the Company hereby further agrees to hold harmless
and indemnify Director:
(a) against any and all expenses (including reasonable
attorneys' fees), witness fees, judgments, fines and amounts paid in
settlement actually and reasonably incurred by Director in connection with
any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (including an action by or
in the right of the Company) to which Director is, was or at any time becomes
a party, or is threatened to be made a party, by reason of the fact that
Director is or was an officer or director of the Company, or is or was
serving or at any time serves at the request of the Company as an officer or
director of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise; and
(b) otherwise to the fullest extent as may be provided to
Director by the Company under the non-exclusivity provisions of Section 5 of
Article VIII of the Bylaws of the Company.
3. LIMITATIONS ON ADDITIONAL INDEMNITY. No indemnity pursuant to
Section 2 hereof shall be paid by the Company:
(a) except to the extent the aggregate of losses to be
indemnified thereunder exceeds the sum of such losses for which the Director
is indemnified pursuant to Section 1 hereof or pursuant to any directors and
officers liability insurance purchased and maintained by the Company;
(b) in respect to remuneration paid to Director if it shall
be determined by a final judgment or other final adjudication that such
remuneration was in violation of law;
(c) on account of any suit in which judgment is rendered
against Director for an accounting of profits, made from the purchase or sale
by Director of securities of the Company, pursuant to the provisions of
Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto
or similar provisions of any federal, state or local statutory law;
(d) on account of Director's conduct which is finally
adjudged to have been knowingly fraudulent or deliberately dishonest, or to
constitute willful misconduct;
(e) on account of Director's conduct which is the subject of
an action, suit or proceeding described in Section 7(c)(ii) hereof;
(f) on account of any action, claim or proceeding (other than
a proceeding referred to in Section 8(b) hereof) initiated by the Director
unless such action, claim or proceeding was authorized in the specific case
by action of the Board of Directors; and
(g) if a final decision by a court having jurisdiction in the
matter shall determine that such indemnification is not lawful (and, in this
respect, both the Company and Director have been advised that the Securities
and Exchange Commission believes that indemnification for liabilities arising
under the federal securities laws is against public policy and is, therefore,
unenforceable and that claims for indemnification should be submitted to
appropriate courts for adjudication).
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4. CONTRIBUTION. If the indemnification provided in Sections 1
and 2 hereof is unavailable by reason of a court decision described in
Section 3(g) hereof based on grounds other than any of those set forth in
paragraphs (b) through (f) of Section 3 hereof, then in respect of any
threatened, pending or completed action, suit or proceeding in which the
Company is jointly liable with Director (or would be if joined in such
action, suit or proceeding), the Company shall contribute to the amount of
expenses (including reasonable attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred and paid or payable by
Director in such proportion as is appropriate to reflect (i) the relative
benefits received by the Company on the one hand and Director on the other
hand from the transaction from which such action, suit or proceeding arose,
and (ii) the relative fault of the Company on the one hand and of Director on
the other in connection with the events which resulted in such expenses,
judgments, fines or settlement amounts, as well as any other relevant
equitable considerations. The relative fault of the Company on the one hand
and of Director on the other shall be determined by reference to, among other
things, the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent the circumstances resulting in such
expenses, judgments, fines or settlement amounts. The Company agrees that it
would not be just and equitable if contribution pursuant to this Section 4
were determined by pro rata allocation or any other method of allocation
which does not take account of the foregoing equitable considerations.
5. CONTINUATION OF OBLIGATIONS. All agreements and obligations
of the Company contained herein shall continue during the period Director is
an executive officer or director of the Company (or is or was serving at the
request of the Company as an executive officer or director of another
corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise) and shall continue thereafter so long as Director shall be
subject to any possible claim or threatened, pending or completed action,
suit or proceeding, whether civil, criminal or investigative, by reason of
the fact that Director was an executive officer or director of the Company or
serving in any other capacity referred to herein.
6. NOTIFICATION AND DEFENSE OF CLAIM. Not later than thirty (30)
days after receipt by Director of notice of the commencement of any action,
suit or proceeding, Director will, if a claim in respect thereof is to be
made against the Company under this Agreement, notify the Company of the
commencement thereof, but the omission so to notify the Company will not
relieve the Company from any liability which it may have to Director
otherwise than under this Agreement. With respect to any such action, suit or
proceeding as to which Director notifies the Company of the commencement
thereof:
(a) the Company will be entitled to participate therein at
its own expense;
(b) except as otherwise provided below, to the extent that it
may wish, the Company jointly with any other indemnifying party similarly
notified will be entitled to assume the defense thereof, with counsel
reasonably satisfactory to Director. After notice from the Company to
Director of its election so as to assume the defense thereof, the Company
will not be liable to Director under this Agreement for any legal or other
expenses subsequently
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incurred by Director in connection with the defense thereof other than
reasonable costs of investigation or as otherwise provided below. Director
shall have the right to employ its counsel in such action, suit or
proceeding, but the fees and expenses of such counsel incurred after notice
from the Company of its assumption of the defense thereof shall be at the
expense of Director unless (i) the employment of counsel by Director has been
authorized by the Company, (ii) Director shall have reasonably concluded,
based on the advice of counsel, that there may be a conflict of interest
between the Company and Director in the conduct of the defense of such action
or (iii) the Company shall not in fact have employed counsel to assume the
defense of such action, in each of which cases the fees and expenses of
Director's separate counsel shall be at the expense of the Company. The
Company shall not be entitled to assume the defense of any action, suit or
proceeding brought by or on behalf of the Company or as to which Director
shall have made the conclusion provided for in (ii) above; and
(c) the Company shall not be liable to indemnify Director
under this Agreement for any amounts paid in settlement of any action or
claim effected without its written consent. Company shall be permitted to
settle any action except that it shall not settle any action or claim in any
manner which would impose any penalty or limitation on Director without
Director's written consent. Neither the Company nor Director will
unreasonably withhold its consent to any proposed settlement.
7. ADVANCEMENT AND REPAYMENT OF EXPENSES.
(a) In the event that Director employs his own counsel
pursuant to Section 6(b)(i) through (iii) above, the Company shall advance to
Director, prior to any final disposition of any threatened or pending action,
suit or proceeding, whether civil, criminal, administrative or investigative,
any and all reasonable expenses (including legal fees and expenses) incurred
in investigating or defending any such action, suit or proceeding within ten
(10) days after receiving copies of invoices presented to Director for such
expenses.
(b) Director agrees that Director will reimburse the Company
for all reasonable expenses paid by the Company in defending any civil or
criminal action, suit or proceeding against Director in the event and only to
the extent it shall be ultimately determined by a final judicial decision
(from which there is no right of appeal) that Director is not entitled, under
the provisions of the Delaware Law, the Bylaws, this Agreement or otherwise,
to be indemnified by the Company for such expenses.
(c) Notwithstanding the foregoing, the Company shall not be
required to advance such expenses to Director if Director (i) commences any
action, suit or proceeding as a plaintiff unless such advance is specifically
approved by a majority of the Board of Directors or (ii) is a party to an
action, suit or proceeding brought by the Company and approved by a majority
of the Board which alleges willful misappropriation of corporate assets by
Director, wilfull disclosure of confidential information in bad faith and in
violation of Director's fiduciary or contractual obligations to the Company,
or any other willful and deliberate breach in bad faith of Director's duty to
the Company or its stockholders.
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8. ENFORCEMENT.
(a) The Company expressly confirms and agrees that it has
entered into this Agreement and assumed the obligations imposed on the
Company hereby in order to induce Director to continue as a director of the
Company, and acknowledges that Director is relying upon this Agreement in
continuing in such capacity.
(b) In the event Director is required to bring any action to
enforce rights or to collect moneys due under this Agreement and is
successful in such action, the Company shall reimburse Director for all
Director's reasonable fees and expenses in bringing and pursuing such action.
9. 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 Director, 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.
10. NON-EXCLUSIVITY OF RIGHTS. The rights conferred on Director
by this Agreement shall not be exclusive of any other right which Director
may have or hereafter acquire under any statute, provision of the Company's
Certificate of Incorporation or Bylaws, agreement, vote of stockholders or
directors, or otherwise, both as to action in his official capacity and as to
action in another capacity while holding office.
11. SURVIVAL OF RIGHTS. The rights conferred on Director by this
Agreement shall continue after Director has ceased to be a director, officer,
employee or other agent of the Company and shall inure to the benefit of
Director's heirs, executors and administrators.
12. SEVERABILITY. Each of the provisions of this Agreement is a
separate and distinct agreement and independent of the others, so that if any
or all of the provisions hereof shall be held to be invalid or unenforceable
for any reason, such invalidity or unenforceability shall not affect the
validity or enforceability of the other provisions hereof or the obligation
of the Company to indemnify the Director to the full extent provided by the
Bylaws or the Delaware Law.
13. GOVERNING LAW; VENUE AND JURISDICTION. This Agreement shall
be interpreted and enforced in accordance with the laws of the State of
Delaware, without regard to the conflicts of law provisions thereof. The
Company and Director hereby irrevocably and unconditionally (i) agree that
any action or proceeding arising out of or in connection with this Agreement
shall be brought only in the Court of Chancery of the State of Delaware (the
"Delaware Court"), and not in any other State or federal court in the United
States of America or any court in any other country, (ii) consent to submit
to the exclusive jurisdiction of the Delaware Court for purposes of any
action or proceeding arising out of or in connection with this Agreement,
(iii) waive any objection to the laying of venue of any such action or
proceeding in the Delaware Court, and (iv) waive, and agree not to plead or
to make, any claim that any such action or proceeding brought in the Delaware
Court has been brought in an improper or otherwise inconvenient forum.
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14. BINDING EFFECT. This Agreement shall be binding upon Director
and upon the Company, its successors and assigns, and shall inure to the
benefit of Director, his heirs, personal representatives and assigns and to
the benefit of the Company, its successors and assigns.
15. AMENDMENT AND TERMINATION. No amendment, modification,
termination or cancellation of this Agreement shall be effective unless in
writing signed by both parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on and as of the day and year first above written.
NetZero, Inc.
a Delaware corporation
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By: Mark R. Goldston
Its Chairman and Chief Executive Officer
DIRECTOR
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Name:
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