AGREEMENT OF INDEMNIFICATION OF DIRECTORS
INDEMNITY AGREEMENT, made and executed this _______ day of
____________, 19__, by and between NBC INTERNET, INC., a Delaware corporation
(the "Company"), and _______________, an individual resident of the State of
________________ (the "Indemnitee");
PREAMBLE
The Company is aware that, in order to induce highly competent persons
to serve the Company as Directors or in other capacities, the Company must
provide such persons with adequate protection through insurance and
indemnification against inordinate risks of claims and actions against them
arising out of their service to and activities on behalf of the Company. The
difficulty of obtaining adequate directors' and officers' liability insurance in
the current market has increased the difficulty of attracting and retaining such
persons. The Board of Directors of the Company has determined that (1) it is
essential to the best interests of the Company's stockholders that the Company
act to assure such persons that there will be increased certainty of such
protection in the future, and that (2) it is reasonable, prudent and necessary
for the Company contractually to obligate itself to indemnify such persons to
the fullest extent permitted by applicable law so that they will continue to
serve the Company free from undue concern that they will not be so indemnified.
The Indemnitee is willing to serve, continue to serve, and take on additional
service for or on behalf of the Company on the condition that he be so
indemnified;
NOW THEREFORE, in consideration of the premises and the mutual promises
and covenants contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Company and
the Indemnitee do hereby agree as follows:
1. SERVICE BY THE INDEMNITEE. The Indemnitee will continue to
serve as a Director or officer of the Company faithfully and will discharge his
duties and responsibilities to the best of his ability so long as he is duly
elected or qualified in accordance with the provisions of the Certificate of
Incorporation and Bylaws of the Company and the General Corporation Law of the
State of Delaware or until his earlier death, resignation or removal. The
Indemnitee may at any time and for any reason resign from such position (subject
to any other contractual obligation or other obligation imposed by operation of
law), in which event the Company shall have no obligation under this Agreement
to continue the Indemnitee in any such position. Nothing in this Agreement shall
confer upon the Indemnitee the right to continue in the employ of the Company or
as a Director of the Company or affect the right of the Company to terminate the
Indemnitee's employment at any time in the sole discretion of the Company, with
or without cause, subject to any contract rights of the Indemnitee created or
existing otherwise than under this Agreement.
2. INDEMNIFICATION. The Company shall indemnify the Indemnitee to
the fullest extent permitted by the General Corporation Law of the State of
Delaware or other applicable law, as in effect from time to time. Without
diminishing the scope of the indemnification provided by this Section, the
rights of indemnification of the Indemnitee provided hereunder shall include,
but shall not be limited to, those rights hereinafter set forth, except that no
indemnification shall be paid to the Indemnitee:
(a) on account of any suit in which judgment is rendered
against the Indemnitee for disgorgement of profits made from the
purchase or sale by the Indemnitee of securities of the Company
pursuant to the provisions of Section 16(b) of the Securities Exchange
Act of 1934, as amended, or similar provisions of any federal, state or
local statutory law;
(b) on account of conduct of the Indemnitee which is
finally adjudged by a court of competent jurisdiction to have been
knowingly fraudulent or to constitute willful misconduct;
(c) in any circumstance where such indemnification is
expressly prohibited by applicable law;
(d) with respect to liability for which payment is
actually made to the Indemnitee under a valid and collectible insurance
policy or under a valid and enforceable indemnity clause, bylaw or
agreement (other than this Agreement), except in respect of any
liability in excess of payment under such insurance, clause, bylaw or
agreement;
(e) 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 the Indemnitee have been
advised that it is the position of the Securities and Exchange
Commission 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 the appropriate court for adjudication); or
(f) in connection with any proceeding (or part thereof)
initiated by the Indemnitee, or any proceeding by the Indemnitee
against the Company or its directors, officers, employees or other
Indemnitees, unless (i) such indemnification is expressly required to
be made by law, (ii) the proceeding was authorized by the Board of
Directors of the Company, (iii) such indemnification is provided by the
Company in its sole discretion, pursuant to the powers vested in the
Company under applicable law, or (iv) except as provided in Sections 10
and 13 hereof.
3. ACTIONS OR PROCEEDINGS OTHER THAN AN ACTION BY OR IN THE RIGHT
OF THE COMPANY. The Indemnitee shall be entitled to the indemnification rights
provided in this Section if he is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative in nature, other than an action by or
in the right of the Company, by reason of the fact that he is or was a director,
officer, employee or agent of the Company, or is or was serving at the request
of the Company as a director, officer, employee or agent or fiduciary of any
other entity, including, but not limited to, another corporation, partnership,
joint venture or trust, or by reason of any act or omission by him in any such
capacity. Pursuant to this Section, the Indemnitee shall be indemnified against
all expenses (including attorneys' fees), costs, judgments, penalties, fines and
amounts paid in settlement which were actually and reasonably incurred by him in
connection with such action, suit or proceeding (including, but not limited to,
the investigation, defense or appeal thereof), if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the Company, and, with respect to any criminal action or proceeding, if he had
no reasonable cause to believe his conduct was unlawful.
4. ACTIONS BY OR IN THE RIGHT OF THE COMPANY. The Indemnitee
shall be entitled to the indemnification rights provided in this Section if he
is a person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding brought by or in the
right of the Company to procure a judgment in its favor by reason of the fact
that he is or was a director, officer, employee or agent or fiduciary of the
Company, or is or was serving at the request of the Company as a director,
officer, employee, agent or fiduciary of another entity, including, but not
limited to, another corporation, partnership, joint venture or trust, or by
reason of any act or omission by him in any such capacity. Pursuant to this
Section, the Indemnitee shall be indemnified against all expenses (including
attorneys' fees), costs and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding (including,
but not limited to, the investigation, defense or appeal thereof), if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
be the best interests of the Company; provided, however, that no such
indemnification shall be made in respect of any claim, issue, or matter as to
which applicable law expressly prohibits such indemnification by reason of any
adjudication of liability of the Indemnitee to the Company, unless and only to
the extent that the Court of Chancery of the State of Delaware or the court in
which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, the Indemnitee is fairly and reasonably entitled to indemnify for such
expenses and costs which such court shall deem proper.
5. INDEMNIFICATION FOR COSTS, CHARGES AND EXPENSES OF SUCCESSFUL
PARTY. Notwithstanding the other provisions of this Agreement, to the extent
that the Indemnitee has served on behalf of the Company as a witness or other
participant in any claim, action or proceeding, or has been successful, on the
merits or otherwise, in defense of any action, suit or proceeding referred to in
Sections 3 and 4 hereof, or in defense of any claim, issue or matter therein,
including, but not limited to, the dismissal of any action without prejudice, he
shall be indemnified against all costs, charges and expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
6. PARTIAL INDEMNIFICATION. If the Indemnitee is entitled under
any provision of this Agreement to indemnification by the Company for some or a
portion of the expenses (including attorneys' fees), costs, judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with the investigation, defense, appeal or settlement of such suit, action,
investigation or proceeding described in Section 3 or 4 hereof, but is not
entitled to indemnification for the total amount thereof, the Company shall
nevertheless indemnify the Indemnitee for the portion of such expenses
(including reasonable attorneys' fees), costs, judgments, penalties, fines and
amounts paid in settlement actually and reasonably incurred by him to which the
Indemnitee is entitled. Without limiting the generality of the foregoing, if the
action suit, and so forth, is brought against the Indemnitee in his capacity as
a director, officer, or employee and a shareholder, the presumption shall be
that recovery is sought by reason of the Indemnitee's status as a director,
officer of employee.
7. DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION. Upon written
request by the Indemnitee for indemnification pursuant to Section 3 or 4 hereof,
the entitlement of the Indemnitee to indemnification pursuant to the terms of
this Agreement shall be determined by the following person or persons, who shall
be empowered to make such determination: (a) the Board of Directors of the
Company, by a majority vote of a quorum consisting of Disinterested Directors
(as hereinafter defined); or (b) if such a quorum is not obtainable or, even if
obtainable, if the Board of Directors, by the majority vote of Disinterested
Directors, so directs, by Independent Counsel (as hereinafter defined) in a
written opinion to the Board of Directors, a copy of which shall be delivered to
the Indemnitee. Such Independent Counsel shall be selected by the Board of
Directors and approved by the Indemnitee. Upon failure of the Board to so
select, or upon failure of the Indemnitee to so approve such Independent
Counsel, such Independent Counsel shall be selected by the Chancellor of the
State of Delaware or such other person as the Chancellor shall designate to make
such selection. Such determination of entitlement to indemnification shall be
made not later than 45 days after receipt by the Company of a written request
for indemnification. Such request shall include documentation or information
which is necessary for such determination and which is reasonably available to
the Indemnitee. Any costs or expenses (including attorneys' fees) incurred by
the Indemnitee in connection with his request for indemnification hereunder
shall be borne by the Company. The Company hereby indemnifies and agrees to hold
the Indemnitee harmless therefrom irrespective of the outcome of the
determination of the Indemnitee's entitlement to indemnification. If the person
making such determination shall determine that the Indemnitee is entitled to
indemnification as part (but not all) of the application for indemnification,
such person shall reasonably prorate such partial indemnification among such
claims, issues or matters.
8. PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS. The Secretary
of the Company shall, promptly upon receipt of the Indemnitee's request for
indemnification, advise in writing the Board of Directors, or such other person
or persons as are empowered to make the determination pursuant to Section 7,
that the Indemnitee has made such request for determination. Upon making such
request for indemnification, the Indemnitee shall be presumed to be entitled to
indemnification hereunder and the Company shall have the burden of proof in the
making of any determination contrary to such presumption. If the person or
persons so empowered to make such determination shall have failed to make the
requested indemnification within 45 days after receipt by the Company of such
request, the requisite determination of entitlement to indemnification shall be
deemed to have been made and the Indemnitee shall be absolutely entitled to such
indemnification, absent actual and material fraud in the request for
indemnification. The termination of any action, suit, investigation or
proceeding described in Section 3 or 4 hereof by judgment, order, settlement or
conviction, or upon a plea of NOLO CONTENDERE or its equivalent, shall not, of
itself: (a) create a presumption that the Indemnitee did not act in good faith
and in a manner which he reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceeding, that the Indemnitee had reasonable cause to believe that his conduct
was unlawful; or (b) otherwise adversely affect the rights of the Indemnitee to
indemnification, except as may be provided herein.
9. ADVANCEMENT OF EXPENSES AND COSTS. All reasonable expenses and
costs actually incurred by the Indemnitee (including attorneys' fees, retainers
and advances of disbursements required of the Indemnitee) shall be paid by the
Company in advance of the final disposition of such action, suit or proceeding,
if so requested by the Indemnitee, within 20 days after the receipt by the
Company of a statement or statements from the Indemnitee requesting such advance
or advances. The Indemnitee may submit such statements from time to time. The
Indemnitee's entitlement to such expenses shall include those incurred in
connection with any proceeding by the Indemnitee seeking an adjudication or
award in arbitration pursuant to this Agreement. Such statement or statements
shall reasonably evidence the expenses and costs incurred by him in connection
therewith and shall include or be accompanied by an undertaking by or on behalf
of the Indemnitee to repay such amount if it is ultimately determined that the
Indemnitee is not entitled to be indemnified against such expenses and costs by
the Company pursuant to this Agreement or otherwise.
10. REMEDIES OF THE INDEMNITEE IN CASES OF DETERMINATION NOT TO
INDEMNIFY OR TO ADVANCE EXPENSES. In the event that a determination is made that
the Indemnitee is not entitled to indemnification hereunder or if payment has
not been timely made following a determination of entitlement to indemnification
pursuant to Sections 7 and 8, or if expenses are not advanced pursuant to
Section 9, the Indemnitee shall be entitled to a final adjudication in an
appropriate court of the State of Delaware or any other court of competent
jurisdiction of his entitlement to such indemnification or advance.
Alternatively, the Indemnitee may, at his option, seek an award in arbitration
to be conducted by a single arbitrator pursuant to the rules of the American
Arbitration Association, such award to be made within 60 days following the
filing of the demand for arbitration. The Company shall not oppose the
Indemnitee's right to seek any such adjudication or award in arbitration or any
other claim. Such judicial proceeding or arbitration shall be made DE NOVO and
the Indemnitee shall not be prejudiced by reason of a determination (if so made)
that he is not entitled to indemnification. If a determination is made or deemed
to have been made pursuant to the terms of Section 7 or Section 8 hereof that
the Indemnitee is entitled to indemnification, the Company shall be bound by
such determination and shall be precluded from asserting that such determination
has not been made or that the procedure by which such determination was made is
not valid, binding and enforceable. The Company further agrees to stipulate in
any such court or before any such arbitrator that the Company is bound by all
the provisions of this Agreement and is precluded from making any assertions to
the contrary. If the court or arbitrator shall determine that the Indemnitee is
entitled to any indemnification hereunder, the Company shall pay all reasonable
expenses (including attorneys' fees) and costs actually incurred by the
Indemnitee in connection with such adjudication or award in arbitration
(including, but not limited to, any appellate proceedings).
11. NOTIFICATION AND DEFENSE OF CLAIM. Promptly after receipt by
the Indemnitee of notice of the commencement of any action, suit or proceeding,
the Indemnitee will, if a claim in respect thereof is to be made against the
Company under this Agreement, notify the Company in writing of the commencement
thereof, but the omission to so notify the Company will not relieve the Company
from any liability that it may have to the Indemnitee otherwise than under this
Agreement. Notwithstanding any other provision of this Agreement, with respect
to any such action, suit or proceeding as to which the Indemnitee gives notice
to the Company of the commencement thereof:
(a) The Company will be entitled to participate therein
at its own expense; and
(b) Except as otherwise provided in this Section 11(b),
to the extent that it may wish, the Company, jointly with any other
indemnifying party similarly notified, shall be entitled to assume the
defense thereof, with counsel satisfactory to the Indemnitee. After
notice from the Company to the Indemnitee of its election to so assume
the defense thereof, the Company shall not be liable to the Indemnitee
under this Agreement for any legal or other expenses subsequently
incurred by the Indemnitee in connection with the defense thereof other
than reasonable costs of investigation or as otherwise provided below.
The Indemnitee shall have the right to employ his own 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 the Indemnitee unless (i) the
employment of counsel by the Indemnitee has been authorized by the
Company, (ii) the Indemnitee shall have reasonably concluded that there
may be a conflict of interest between the Company and the Indemnitee 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 the action,
in each of which cases the fees and expenses of 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 the Indemnitee shall have reached the
conclusion provided for in clause (ii) above.
(c) The Company shall not be liable to indemnify the
Indemnitee under this Agreement for any amounts paid in settlement of
any action or claim effected without its written consent. The Company
shall not settle any action or claim in any manner that would impose
any penalty or limitation on the Indemnitee without the Indemnitee's
written consent. Neither the Company nor the Indemnitee will
unreasonably withhold their consent to any proposed settlement.
12. OTHER RIGHTS TO INDEMNIFICATION. The indemnification and
advancement of expenses (including attorneys' fees) and costs provided by this
Agreement shall not be deemed exclusive of any other rights to which the
Indemnitee may now or in the future be entitled under any provision of the
Bylaws of the Company, any provision of the Certificate of Incorporation of the
Company, any vote of stockholders or Disinterested Directors, any provision of
law or otherwise.
13. ATTORNEYS' FEES AND OTHER EXPENSES TO ENFORCE AGREEMENT. In
the event that the Indemnitee is subject to or intervenes in any proceeding in
which the validity or enforceability of this Agreement is at issue or seeks an
adjudication or award in arbitration to enforce his rights under, or to recover
damages for breach of, this Agreement, the Indemnitee, if he prevails in whole
or in part in such action, shall be entitled to recover from the Company and
shall be indemnified by the Company against any actual expenses for attorneys'
fees and disbursements reasonably incurred by him.
14. DURATION OF AGREEMENT. This Agreement shall continue until and
terminate upon the later of: (a) ten years after the Indemnitee has ceased to
occupy any of the positions or have any relationship described in Sections 3 and
4 of this Agreement, and (b) the final termination of all pending or threatened
actions, suits, proceedings or investigations to which the Indemnitee may be
subject by reason of the fact that he is or was a director, officer, employee,
agent or fiduciary of the Company or is or was serving at the request of the
Company as a director, officer, employee, agent or fiduciary of any other
entity, including, but not limited to, another corporation, partnership, joint
venture or trust, or by reason of any act or omission by him in any such
capacity. The indemnification provided under this Agreement shall continue as to
the Indemnitee even though he may have ceased to be a director or officer of the
Company. This Agreement shall be binding upon the Company and its successors and
assigns and shall inure to the benefit of the Indemnitee and his spouse,
successors, assigns, heirs, devisees, executors, administrators or other legal
representatives.
15. SEVERABILITY. If any provision or provisions of this Agreement
shall be held invalid, illegal or unenforceable for any reason whatsoever, (a)
the validity, legality and enforceability of the remaining provisions of this
Agreement (including, but not limited to, all portions of any Sections of this
Agreement containing any such provision held to be 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, but
not limited to, 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 manifest by the provision held invalid, illegal or
unenforceable.
16. 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 one and the same Agreement. Only one
such counterpart signed by the party against whom enforceability is sought shall
be required to be produced to evidence the existence of this Agreement.
17. CAPTIONS. The captions and headings used in this Agreement are
inserted for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
18. DEFINITIONS. For purposes of this Agreement:
(a) "Disinterested Director" shall mean a Director of the
Company who is not or was not a party to the action, suit,
investigation or proceeding in respect of which indemnification is
being sought by the Indemnitee.
(b) "Independent Counsel" shall mean a law firm or a
member of a law firm that neither is presently nor in the past five
years has been retained to represent: (i) the Company or the Indemnitee
in any matter material to either such party, or (ii) any other party to
the action, suit, investigation or proceeding giving rise to a claim
for indemnification hereunder. Notwithstanding the foregoing, the term
"Independent Counsel" shall not include any person who, under the
applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either the Company or the
Indemnitee in an action to determine the Indemnitee's right to
indemnification under this Agreement.
19. MODIFICATION AND WAIVER. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by both
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.
20. NOTICES. All notices, requests, demands or other
communications hereunder shall be in writing and shall be deemed to have been
duly given if (i) delivered by hand with receipt acknowledged by the party to
whom said notice or other communication shall have been directed or if (ii)
mailed by certified or registered mail, return receipt requested, with postage
prepaid, on the date shown on the return receipt:
(a) If to the Indemnitee to:
(b) If to the Company, to:
or to such other address as may be furnished to the Indemnitee by the Company or
to the Company by the Indemnitee, as the case may be.
21. GOVERNING LAW. The parties hereto agree that this Agreement
shall be governed by, and construed and enforced in accordance with, the laws of
the State of Delaware, applied without giving effect to any conflicts-of-law
principles.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
NBC INTERNET, INC.
By:
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Its:
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INDEMNITEE:
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