Exhibit 10.9
CONSULTING AGREEMENT
CONSULTING AGREEMENT (the "Agreement"), dated as of
January 31, 1999, by and between Media Metrix, Inc., a Delaware corporation
(the "Company"), and Xxxxxxx X. X. Xxxx ("Consultant").
W I T N E S S E T H
WHEREAS, the Company and Consultant are parties to an
Employment Agreement dated as of November 5, 1998 (the "Employment Agreement");
WHEREAS, the Company wishes to retain Consultant to render
certain advice to the Company with respect to the operations of
RelevantKnowledge, Inc. which was merged with and into the Company on November
5, 1998, and Consultant is desirous of being so retained;
WHEREAS, the Company and Consultant desire to enter into this
Agreement and to replace the provisions of Sections 7, 8, 9 and 10 of the
Employment Agreement with Sections 4, 5, 6 and 7 of this Agreement;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements herein contained, the parties hereto agree as
follows:
1. DUTIES AND ACCEPTANCE. The Company hereby retains Consultant to
provide such services to the Company as may be mutually agreed to by Company and
Consultant from time to time.
2. TERM OF AGREEMENT. The term of Consultant's engagement under this
Agreement will commence as of the date hereof and shall end upon the Company or
Consultant giving the other prior written notice of termination.
3. COMPENSATION; REIMBURSEMENT OF EXPENSES. Consultant shall be paid a
one-time retainer fee of $59,615.40 to be paid on the signing of this Agreement.
Consultant shall be entitled to reimbursement of all properly-vouchered,
pre-approved and reasonable travel and other business expenses incurred on the
Company's behalf.
4. NON-COMPETITION.
(a) Consultant agrees that from the date hereof until March 5,
2001 (the "NonCompetitive Period"), Consultant 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, Consultant 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) Consultant shall not, during the Non-Competitive Period,
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 Consultant which
are required by, or are within the scope of, the services requested of him by
the Company. In addition, during the Non-Competitive Period, Consultant 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
Consultant without encouragement by Consultant and (ii) such former employee has
not been employed by the Company for at least six months at the time such former
employee approaches Consultant.
(c) If any portion of the restrictions set forth in this
Section 4 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) Consultant acknowledges and agrees that the territorial
and time limitations set forth in this Section 4 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, Consultant agrees to the reduction of the territorial or
time limitation to the area or period which such court shall deem reasonable.
(e) The existence of any claim or cause of action by
Consultant 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) Consultant acknowledges and agrees that the execution of
the Employment Agreement, and specifically Consultant's agreement to the
provisions contained in Section 7 of the Employment Agreement, were conditions
to the consummation by the Company of the transactions contemplated by the
Agreement and Plan of Reorganization between the Company and RelevantKnowledge,
Inc. dated as of September 30, 1998, and that this Agreement and specifically
Section 4 of this Agreement, replace that agreement and provision, respectively.
5. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION.
(a) The Consultant acknowledges that he has learned and
developed and had access to, and will continue to 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. The
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Company is engaged in a highly competitive business; its competitive position
depends in great measure upon the ability to develop or acquire and maintain the
confidentiality of confidential information; and it has expended and is likely
to continue to expend considerable efforts and resources in the development or
acquisition of confidential information. Based upon the foregoing, the
Consultant 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.
(b) Consultant shall not, while this Agreement is in effect 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 Consultant 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 5(a),
directly or indirectly, by Consultant, (ii) was in the public domain prior to
disclosure to Consultant, or (iii) is disclosed to Consultant 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 Consultant shall use his best efforts to
prevent any publication or disclosure thereof. Upon termination of the
Agreement, all documents, records, reports, writings and other similar documents
containing confidential information, including copies thereof, then in
Consultant's possession or control shall be returned and left with the Company.
6. INVENTIONS AND DISCOVERIES.
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(a) Consultant 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 Consultant (whether or not at the request or
upon the suggestion of the Company) prior to the date hereof, 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) Consultant 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 Consultant 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.
7. SPECIFIC PERFORMANCE. Consultant agrees that if he breaches, or
threatens to commit a breach of, any of the provisions of Sections 4, 5, 6 or 7
(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.
8. NOTICES. All notices, requests, consents and other communications
required or permitted to be given hereunder shall be in writing and shall be
delivered as follows (or to such other address as either party shall designate
by notice in writing to the other in accordance herewith): if to the Company:
Media Metrix, Inc., 000 Xxxx Xxxxx Xxxx, Xxxx Xxxxxxxxxx, XX 00000, Attention:
Chief Executive Officer, telephone: (000) 000-0000, fax: (000) 000-0000; if to
Consultant: Xxxxxxx X. X. Xxxx; 0000 Xxxxxx Xxxx XX, Xxxxxxx, Xxxxxxx 00000;
telephone: (000) 000-0000.
9. GENERAL.
(a) This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely in New York.
(b) Upon the due execution and delivery of this Agreement by
the parties hereto, the Employment Agreement shall terminate and shall cease to
be of any further force and effect. This Agreement and the Supplemental Terms
(attached hereto) sets forth the entire agreement and understanding of the
parties relating to the subject matter hereof, and supersedes all prior
agreements, arrangements and understandings, written or oral, relating to the
subject matter hereof, including the Employment Agreement. No representation,
promise or inducement has been made by
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either party that is not embodied in this Agreement, and neither party shall be
bound by or liable for any alleged representation, promise or inducement not so
set forth.
(c) This Agreement may be amended, modified, superseded,
canceled, renewed or extended, and the terms or covenants hereof may be waived,
only by a written instrument executed by the parties hereto, or in the case of a
waiver, by the party waiving compliance. The failure of a party at any time or
times to require performance of any provision hereof shall in no manner affect
the right at a later time to enforce the same. No waiver by a party of the
breach of any term or covenant contained in this Agreement, whether by conduct
or otherwise, or any one or more or continuing waivers of any such breach, shall
constitute a waiver of the breach of any other term or covenant contained in
this Agreement.
(d) The parties have contracted with each other only for the
purpose and to the extent set forth herein and the relationship between the
Company and Consultant shall, during the term of this Agreement, be that of
independent contractors. Nothing herein shall be construed to create a
partnership, joint venture or other similar enterprise between the Company and
Consultant.
(e) This Agreement shall be binding upon the legal
representatives, heirs, distributees, successors and assigns of the parties
hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
MEDIA METRIX, INC.
By:_____________________________
________________________________
Xxxxxxx X. X. Xxxx
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SUPPLEMENTAL TERMS
1. SALE OF SHARES IN THE IPO. The Company agrees to use its best efforts
to allow Consultant tosell shares of common stock of the Company owned
directly or beneficially by Consultant as part of the over-allotment
option granted to the underwriters in connection with the initial
public offering of securities of the Company, in an amount designated
by the Company but not to exceed 100,000 shares; provided, that if the
underwriters selected by the Company elect to reduce the number of
shares that may by sold by selling shareholders in the over-allotment
option as set forth in the registration statement filed or to be filed
with the Securities and Exchange Commission ("SEC") or if the Company
is advised by the underwriters that the inclusion of Consultant's
shares in the over-allotment option will have an adverse effect on the
marketing of the IPO, then the shares to be sold by Consultant in the
over-allotment option shall be reduced pro rata along with the other
stockholders selling shares in the over-allotment option.
2. DIRECTED SHARES. The Company agrees that in connection with any
distribution of "friends and family" shares of the Company in the
initial public offering, the Company shall consider granting shares to
Consultant on a similar basis as directors of the Company.
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