Exhibit 10.8
EMPLOYMENT AGREEMENT
AGREEMENT made as of November 5, 1998, between MEDIA METRIX, INC., a
Delaware corporation with an office at 000 Xxxx Xxxxx Xxxx, Xxxx Xxxxxxxxxx, XX
00000 (the "Company"), and Xxxxxxx X. Xxxx residing at 000 Xxx Xxxxx, Xxxxxxx,
XX 00000 ("Executive").
W I T N E S S E T H:
WHEREAS, pursuant to an Agreement and Plan of Reorganization, dated
as of September 30, 1998 (the "Merger Agreement"), by and between the Company
and RelevantKnowledge, Inc. ("RelevantKnowledge"), RelevantKnowledge will be
merged with and into the Company;
WHEREAS, the Executive is a senior executive officer and principal
stockholder of RelevantKnowledge and has unique and specific skills which are
material to the Company's willingness to enter into and consummate the Merger
Agreement; and
WHEREAS, the execution and delivery of this Agreement is a condition
to the closing of the transactions contemplated by the Merger Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
promises, representations and covenants herein contained, the parties hereto
agree as follows, with all capitalized terms used herein and not otherwise
defined herein having the respective meanings ascribed thereto in the Merger
Agreement:
1. EMPLOYMENT.
Subject to the consummation of the transactions contemplated under
the Merger Agreement, the Company hereby employs Executive as Vice Chairman of
the Company. Executive hereby accepts employment as Vice Chairman, subject to
the terms and conditions herein set forth.
2. DUTIES.
During the period from the Employment Date (as defined in Section 3
below) until the earlier of (i) the date nine months from the Employment Date
and (ii) the consummation of the initial public offering of the Company's
securities, Executive shall devote his entire business time, attention and
energies (allowable vacation time and reasonable absences for sickness excepted)
to the business of the Company. For the remainder of the Term (as defined in
Section 3 below), Executive shall devote such time, attention and energy to the
business of the Company as shall be mutually agreed upon by the Chief Executive
Officer and Executive. Executive's duties and responsibilities are set forth on
Exhibit A attached hereto. Executive shall report directly to the Chief
Executive Officer or the Board of Directors of the Company. Executive shall
discharge his duties in a competent and
faithful manner, consistent with sound business practices. Notwithstanding
anything herein to the contrary, during the period from the Employment Date (as
defined in Section 3 below) until the earlier of (i) the date nine months from
the Employment Date and (ii) the consummation of the initial public offering of
the Company's securities, Executive shall not, directly or indirectly, alone or
as a member of any partnership or other organization, or as an officer, director
or employee of any other corporation, partnership or other organization, be
actively engaged in any duties or pursuits which materially interfere with the
performance of his duties hereunder without the prior authorization of the Board
of Directors of the Company.
3. TERM.
The initial term of employment under this Agreement shall begin as
of the date hereof (the "Employment Date") and shall continue until the earlier
of (i) fifteen months from the Employment Date or (ii) six months following the
consummation of the initial public offering of the Company's securities subject
to earlier termination in accordance with the terms hereof. Thereafter, this
Agreement shall be renewable upon mutual agreement of the parties hereto. The
initial term and, if the period of employment is so renewed such additional
period(s) of employment, are collectively referred to herein as the "Term."
4. COMPENSATION.
(a) As compensation for the services to be rendered by Executive
hereunder, the Company agrees to pay, or cause to be paid, to Executive, and
Executive agrees to accept, in accordance with the Company's payroll practice,
an initial annual base salary of $165,000, subject to such payroll deductions as
are required by law. This annual base salary may be increased, but not
decreased, at the discretion of the Board of Directors.
(b) The Executive shall be entitled to a bonus for fiscal 1998 in
addition to the Executive's annual base salary, to be determined by the Chief
Executive Officer in consultation with the Non-Executive RK Director (as defined
below), based on the bonus structure generally available to the Company's senior
executives. In addition, Executive shall be entitled to a bonus for fiscal 1999
in addition to the Executive's annual base salary, to be determined based on
criteria to be agreed upon by the Chief Executive Officer and Executive. For
purposes of this Agreement, the "Non-Executive RK Director" shall by the
director of the Company nominated by the former stockholders of
RelevantKnowledge who is not employed by the Company.
5. BENEFITS.
Executive shall be entitled to such vacations and to participate in
and receive any other benefits customarily provided by the Company to
Executive's peers in accordance with Company policies, all as determined from
time to time by the Board of Directors of the Company. In addition, Executive
shall receive an automobile allowance of $500 per month.
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6. TERMINATION OF EMPLOYMENT; EFFECT OF TERMINATION.
(a) Executive's employment hereunder may be terminated upon 15 days'
prior written notice from the Company to Executive:
(i) without cause, at any time prior to the expiration of the
period from the Employment Date until the earlier of (x) the date nine
months from the Employment Date and (y) the consummation of the initial
public offering of the Company's securities; or
(ii) at any time during the Term upon the determination by the
Board of Directors that there is justifiable cause (as hereinafter
defined) for such termination.
(b) Executive's employment shall terminate upon:
(i) the death of Executive;
(ii) the "disability" of Executive (as hereinafter defined
pursuant to subsection (c) below); or
(iii) the "constructive termination" of Executive (as
hereinafter defined).
(c) For the purposes of this Agreement, the term "disability" shall
mean the in ability of Executive, due to illness, accident or any other physical
or mental incapacity, to perform his duties with or without reasonable
accommodation for a period of two (2) consecutive months or for a total of four
(4) months (whether or not consecutive) in any twelve (12) month period during
the Term, as reasonably determined by the Board of Directors of the Company,
including the approval of the Non-Executive RK Director.
(d) For the purposes hereof, the term "justifiable cause" shall mean
and be limited to: any repeated unauthorized failure or refusal by Executive to
perform any of his duties pursuant to this Agreement after written notice to
Executive of such failure and, if curable, failure to cure within 30 days from
the date such notice is received; material breach of any duties owed to the
Company as a matter of law after written notice to Executive of such breach, and
if curable, failure to cure within 30 days from the date such notice is
received; Executive's conviction (which, through lapse of time or otherwise, is
not subject to appeal) of any crime or offense which constitutes a felony in the
jurisdiction involved; Executive's performance of any act or his failure to act,
for which if Executive were prosecuted and convicted, a crime or offense
involving money or property of the Company or its subsidiaries, or which would
constitute a felony in the jurisdiction involved, would have occurred; an act of
fraud or embezzlement by Executive in connection with the business of the
Company or any of its subsidiaries, chronic alcohol or drug abuse which
materially affects Executive's performance of his duties hereunder; or any acts
of moral turpitude as would prevent the effective performance of his duties;
provided, however, that after the period from the Employment Date until
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the earlier of (i) the date nine months from the Employment Date or (ii) the
date of the consummation of the initial public offering of the Company's
securities, the term "justifiable cause" shall mean and be limited to
Executive's conviction (which, through lapse of time or otherwise, is not
subject to appeal) of any crime or offense which constitutes a felony in the
jurisdiction involved. Upon termination of Executive's employment for
justifiable cause, this Agreement shall terminate immediately and Executive
shall not be entitled to any amounts or benefits hereunder other than such
portion of Executive's annual salary as has been accrued through the date of his
termination of employment and any benefits or payments to which he is entitled
under the Company's plans or policies. Notwithstanding anything in this
Agreement to the contrary, the Company shall not have justifiable cause to
terminate the Executive due to any action or inaction by the Company which may
result in the constructive termination of the Executive.
(e) For the purposes of this Agreement, the term "constructive
termination" shall mean and be limited to (i) Executive's loss of title without
Executive's consent, (ii) an assignment of duties or responsibilities to
Executive by the Company which are inconsistent with the duties set forth on
Exhibit A, upon written notice to the Company of any such acts and, if curable,
failure to cure within 30 days from the date such notice is received, (iii) a
reduction in Executive's compensation, or (iv) a modification, amendment or
termination of any benefits received by Executive, except for Company-wide
reductions.
(f) If Executive shall die during the Term, this Agreement shall
terminate immediately. In such event, the estate of Executive shall thereupon be
entitled to receive such portion of Executive's annual salary as has been
accrued through the date of his death and any benefits or payments to which
Executive is entitled under the Company's plans or policies.
(g) Upon Executive's "disability" (as defined herein), this
Agreement shall terminate immediately. In such event, the Executive shall
thereupon be entitled to receive such portion of Executive's annual salary as
has been accrued through the date of his disability and any benefits or payments
to which he is entitled under the Company's plans or policies. Notwithstanding
anything to the contrary contained herein, during any period that Executive
fails to perform his duties hereunder as a result of his disability (but prior
to the conclusion of the two or four month period specified in Section 6(c)
hereof), (i) Executive shall continue to receive his full salary at the rate
then in effect and all benefits provided in Section 6 hereof, provided that
payments made to Executive pursuant to this Section 6(g) shall be reduced by the
sum of the amounts, if any, payable to Executive at or prior to the time of any
such payment under any disability benefit plan or program of, or provided by,
the Company, and (ii) the Company shall have the right to hire any other
individual or individuals to temporarily perform, during the pendency of a
disability, such duties and functions as the Company shall desire, including
those duties heretofore performed by Executive.
(h) Notwithstanding any provision to the contrary contained herein,
in the event that Executive's employment is terminated by the Company at any
time for any reason other than justifiable cause, disability or death, the
Company shall pay Executive or Executive's estate, in
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accordance with the prevailing salary payment schedule, a one-time payment equal
to two years of such Executive's base salary.
7. NON-COMPETITION.
(a) Executive agrees that during his employment by the Company and
for a period of eighteen months following the expiration or termination of
Executive's employment hereunder (the "Non-Competitive Period"), Executive shall
not, anywhere in the world that the Company does business, directly or
indirectly, as owner, partner, joint venturer, stockholder (other than a holder
of less than 2% of a class of securities of a publicly traded company),
employee, principal, director, licensor or in any capacity whatsoever engage in,
become financially interested in, be employed by, render any consultation or
business advice with respect to, or have any connection with, any business which
competes with the Business (as hereinafter defined) of the Company or any of its
subsidiaries. For purposes of this Agreement, the term "Business" shall mean new
media market measurement services. In addition, Executive shall not, directly or
indirectly, during the Non-Competitive Period, request or cause any suppliers or
customers with whom the Company or any of its subsidiaries has a business
relationship to cancel or terminate any such business relationship with the
Company or any of its subsidiaries.
(b) Executive shall not, during the Term of this Agreement or for a
period of eighteen months following the termination of this Agreement, directly
or indirectly, solicit, encourage or induce in any manner, any current employee
of the Company or any of its subsidiaries to terminate, for any reason, his or
her employment with the Company or any of its subsidiaries; provided, however,
that the foregoing will not apply to actions taken by Executive which are
required by, or are within the scope of, his employment with the Company. In
addition, for a period of eighteen months following the termination of this
Agreement, Executive shall not, directly or indirectly, hire or offer to hire
any former employees of the Company or its subsidiaries unless any such former
employee (i) approaches Executive without encouragement by Executive and (ii)
such former employee has not been employed by the Company for at least six
months at the time such former employee approaches Executive.
(c) If any portion of the restrictions set forth in this Section 7
should, for any reason whatsoever, be declared invalid by a court of competent
jurisdiction, the validity or enforceability of the remainder of such
restrictions shall not thereby be adversely affected.
(d) Executive acknowledges and agrees that the territorial and time
limitations set forth in this Section 7 are reasonable and properly required for
the adequate protection of the Business. In the event any such territorial or
time limitation is deemed to be unreasonable by a court of competent
jurisdiction, Executive agrees to the reduction of the territorial or time
limitation to the area or period which such court shall deem reasonable.
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(e) The existence of any claim or cause of action by Executive
against the Company or any subsidiary shall not constitute a defense to the
enforcement by the Company or any subsidiary of the foregoing restrictive
covenants, but such claim or cause of action shall be litigated separately.
(f) Executive acknowledges and agrees that the execution of this
Agreement, and specifically Executive's agreement to the provisions contained in
this Section 7, were conditions to the consummation by the Company of the
transactions contemplated by the Merger Agreement.
8. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION.
(a) The Executive acknowledges that, with respect to
RelevantKnowledge, he has learned and developed and had access to, and with
respect to the Company during the Term, he will learn, develop and have access
to, various proprietary or confidential information, not generally known to
others, relating to the business and affairs of the Company and
RelevantKnowledge. The Company and RelevantKnowledge are engaged in a highly
competitive business; their competitive position depends in great measure upon
the ability to develop or acquire and maintain the confidentiality of
confidential information; and they have expended and are likely to continue to
expend considerable efforts and resources in the development or acquisition of
confidential information. Based upon the foregoing, the Executive recognizes
that the unauthorized disclosure of confidential information in violation of the
terms hereof is likely to result in serious and irrevocable harm to the Company
and Relevant Knowledge.
(b) Executive shall not, during the Term of this Agreement or at any
time following termination of this Agreement, directly or indirectly, disclose
or permit to be known (other than as is required in the regular course of his
duties or required by law (in which case Executive shall give the Company prior
written notice of such required disclosure) or with the prior unanimous written
consent of the Board of Directors of the Company), to any person, firm or
corporation, any confidential information acquired by him during the course of,
or as an incident to, his employment with RelevantKnowledge or hereunder,
relating to the Company or any of its subsidiaries, the directors of the Company
or its subsidiaries, any client of the Company or any of its subsidiaries, or
any corporation, partnership or other entity owned or controlled, directly or
indirectly, by any of the foregoing, or in which any of the foregoing has a
beneficial interest, including, but not limited to, the business affairs of each
of the foregoing. Such confidential information shall include, but shall not be
limited to, its computer software designs, computer passwords, computer object
codes, sampling/projection/adjustment methodologies, panel balancing schema,
sample selection programs, modeling codes/formulae, client revenue/project
information, proprietary data obtained from or about clients, research and
development plans, customer lists, financial and pricing information, trade
secrets and general business and operating plans, and any other documents
embodying such confidential information. This confidentiality obligation shall
not apply to any confidential information which (i) thereafter becomes publicly
available other than pursuant to a breach of this Section 8(a), directly or
indirectly, by Executive, (ii) was in the public domain prior to disclosure to
Executive, or (iii) is
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disclosed to Executive by a third party not in violation of any obligations of
confidentiality to the Company.
(c) All information and documents relating to the Company and its
affiliates as hereinabove described (or other business affairs) shall be the
exclusive property of the Company, and Executive shall use his best efforts to
prevent any publication or disclosure thereof. Upon termination of Executive's
employment with the Company, all documents, records, reports, writings and other
similar documents containing confidential information, including copies thereof,
then in Executive's possession or control shall be returned and left with the
Company.
9. INVENTIONS AND DISCOVERIES.
(a) During the period from the Employment Date (as defined in
Section 3 below) until the earlier of (i) the date nine months from the
Employment Date and (ii) the consummation of the initial public offering of the
Company's securities Executive shall promptly and fully disclose to the Company,
and with all necessary detail for a complete understanding of the same, all
developments, know-how, discoveries, inventions, improvements, concepts, ideas,
writings, formulae, processes and methods (whether copyrightable, patentable or
otherwise) made, received, conceived, acquired or written during working hours,
or otherwise, by Executive (whether or not at the request or upon the suggestion
of the Company) during such period, solely or jointly with others, in or
relating to any activities of the Company or its subsidiaries known to him as a
consequence of his employment hereunder (collectively the "Subject Matter").
(b) Executive hereby assigns and transfers, and agrees to assign and
transfer, to the Company, all his rights, title and interest in and to the
Subject Matter, and Executive further agrees to deliver to the Company any and
all drawings, notes, specifications and data relating to the Subject Matter, and
to execute, acknowledge and deliver all such further papers, including
applications for copyrights or patents, as may be necessary to obtain copyrights
and patents for any thereof in any and all countries and to vest title thereto
to the Company.
10. SPECIFIC PERFORMANCE
Executive agrees that if he breaches, or threatens to commit a
breach of, any of the provisions of Sections 7, 8 or 9 (the "Restrictive
Covenants"), the Company shall have, in addition to, and not in lieu of, any
other rights and remedies available to the Company under law and in equity, the
right to have the Restrictive Covenants specifically enforced by an court of
competent jurisdiction, it being agreed that any breach or threatened breach of
the Restrictive Covenants would cause irreparable injury to the Company and that
money damages would not provide an adequate remedy to the Company.
11. AMENDMENT OR ALTERATION.
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No amendment or alteration of the terms of this Agreement shall be
valid unless made in writing and signed by both of the parties hereto.
12. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of New
York, without reference to or application of any conflicts laws or principles.
13. SEVERABILITY.
The holding of any provision of this Agreement to be invalid or
unenforceable by a court of competent jurisdiction shall not affect any other
provision of this Agreement, which shall remain in full force and effect.
14. NOTICES.
Any notices required or permitted to be given hereunder shall be
sufficient if in writing, and if delivered by hand or courier, or sent by
certified mail, return receipt requested, to the addresses set forth above or
such other address as either party may from time to time designate in writing to
the other, and shall be deemed given as of the date of the delivery or at the
expiration of seven days in the event of a mailing.
15. WAIVER OR BREACH.
It is agreed that a waiver by either party of a breach of any
provision of this Agreement shall not operate, or be construed, as a waiver of
any subsequent breach by that same party.
16. ENTIRE AGREEMENT AND BINDING EFFECT.
This Agreement contains the entire agreement of the parties with
respect to the subject matter hereof, supersedes all prior agreements, both
written and oral, between the parties with respect to the subject matter hereof,
and shall be binding upon and inure to the benefit of the parties hereto and
their respective legal representatives, heirs, distributors, successors and
assigns, provided that duties of Executive may not be delegated or assigned.
17. RETENTION OF EQUIPMENT.
Upon termination of this Agreement, Executive shall be entitled to
retain and remove from the Company's premises (i) his computer; provided, that
prior to the removal, Executive shall purge all data other than personal data
from the memory of such computer and (ii) his portable telephone.
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18. SURVIVAL.
Except as otherwise expressly provided herein, the termination of
Executive's employment hereunder or the expiration of this Agreement shall not
affect the enforceability of Sections 6, 7, 8, 9, 10, 11, 13 and 17 hereof.
19. LEGAL FEES.
The Company hereby agrees to pay all reasonable legal fees incurred
by Executive in connection with the negotiation and execution of this Agreement
up to an amount of $2,500.
20. FURTHER ASSURANCES.
The parties agree to execute and deliver all such further documents,
agreements and instruments and take such other and further action as may be
necessary or appropriate to carry out the purposes and intent of this Agreement.
21. HEADINGS.
The Section headings appearing in this Agreement are for the
purposes of easy reference and shall not be considered a part of this Agreement
or in any way modify, demand or affect its provisions.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date and year first above written.
MEDIA METRIX, INC.
By: /s/ [ILLEGIBLE]
-------------------------
Name:
Title:
EXECUTIVE
/s/ [ILLEGIBLE]
-----------------------------
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EXHIBIT A
Executive's duties and responsibilities hereunder from the Employment Date until
the earlier to occur of (i) nine months or (ii) the consummation of the initial
public offering of the Company's securities shall be as follows:
Member of the transition management committee, being chaired by Xxxx Xxx Xxxxx.
Public spokesperson, in conjunction with others.
Assist Chief Executive Officer in planning for possible initial public offering.
Other duties as mutually agreed upon by the Executive and the Chief Executive
Officer or the Board of Directors of the Company.
For the remainder of the Term, Executive's duties and responsibilities hereunder
shall be as mutually agreed upon by the Executive and the Chief Executive
Officer of the Company.
