Exhibit 10.6
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT is made as of __________ __,
1999 between Media Metrix, Inc., a Delaware corporation ("Media Metrix"), and
_______________________ (collectively with such person's heirs, executors,
administrators and other personal representatives, the "Indemnitee"), an officer
or director of Media Metrix.
WHEREAS, the Board of Directors has concluded that Media
Metrix's executive officers and directors should be provided with reasonable and
appropriate protection against inordinate risks in order to ensure that the most
capable persons will be attracted to such positions; and, therefore, has
determined to contractually obligate itself to indemnify in a reasonable and
adequate manner its officers and directors, and to assume for itself liability
for expenses and damages in connection with claims lodged against such persons
as a result of their service to Media Metrix;
WHEREAS, applicable law empowers corporations to indemnify a
person who serves as a director, officer, employee or agent of a corporation or
a person who serves at the request of a corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust, or
other enterprise; and
WHEREAS, the parties believe it appropriate to memorialize and
reaffirm Media Metrix's indemnification obligations to Indemnitee and, in
addition, to set forth the agreements contained herein.
NOW, THEREFORE, in consideration of the mutual agreements
herein contained, the parties agree as follows:
1. INDEMNIFICATION. Indemnitee shall be indemnified and held
harmless by Media Metrix against any judgments, penalties, fines, amounts paid
in settlement and Expenses (as hereinafter defined) incurred in connection with
any actual or threatened Proceeding (as hereinafter defined) to the fullest
extent permitted by Media Metrix's Certificate of Incorporation (the
"Certificate"), by-laws ("By-Laws") and the General Corporation Law of the State
of Delaware ("Delaware Law") as in effect on the date hereof and to such greater
extent as Delaware Law may hereafter from time to time permit. In addition,
Media Metrix agrees to advance to Indemnitee Expenses incurred in connection
with the foregoing. "Proceeding" includes, without limitation, any action, suit,
arbitration, alternate dispute resolution mechanism, investigation,
administrative hearing or any other actual, threatened or contemplated
proceeding, whether civil, criminal, administrative or investigative, whether by
a third party, by or in the right of Media Metrix or by Indemnitee to enforce
any rights under this Agreement or otherwise against Media Metrix or its
affiliates.
2. INTERIM EXPENSES. Expenses (including attorneys' fees)
incurred by Indemnitee in defending any civil, criminal, administrative, or
investigative action, suit or proceeding for which Indemnitee may be entitled to
indemnification hereunder shall be paid by Media Metrix in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of Indemnitee to repay such amount if it shall ultimately be
determined that he or she is not entitled to be indemnified by Media Metrix
hereunder. "Expenses" means all attorneys' fees and expenses, retainers, court
costs, transcript costs, duplicating costs, fees of experts, fees of witnesses,
travel expenses, printing and binding costs, telephone charges, postage and
delivery fees, service fees, all other costs and expenses of the types
customarily incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating or being or preparing to be a witness in a
Proceeding, and per diem payments to Indemnitee in an amount equal to the last
annual salary payable under any employment agreement between the Company and
Indemnitee divided by 365 for each day spent by Indemnitee in connection with
prosecuting, defending, preparing to prosecute or defend, investigating or being
or preparing to be a witness in a Proceeding.
3. EXCEPTIONS TO INDEMNIFICATIONS. Notwithstanding the
foregoing, no indemnity pursuant to Sections 1 or 2 shall be paid by Media
Metrix:
(a) on account of any suit in which judgment is
rendered against Indemnitee for an accounting of profits made from the purchase
or sale by Indemnitee of securities of Media Metrix 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;
(b) on account of Indemnitee's conduct which is
finally adjudged to have been knowingly fraudulent or deliberately dishonest,
or to constitute willful misconduct;
(c) on account of Indemnitee's conduct which is
finally adjudged to have constituted a breach of Indemnitee's duty of loyalty to
Media Metrix or resulted in any personal profit or advantage to which Indemnitee
was not legally entitled;
(d) for which payment is actually made to
Indemnitee under a valid and collectible insurance policy or under a valid and
enforceable indemnity clause, bylaw or agreement, except in respect of any
excess beyond payment under such insurance, clause, bylaw or agreements;
(e) if a final decision by a court having
jurisdiction in the matter shall determine that such indemnification is not
lawful; or
(f) in connection with any proceeding (or part
thereof) initiated by Indemnitee, or any proceeding by Indemnitee against Media
Metrix 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 Media Metrix, (iii) such
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indemnification is provided by Media Metrix, in its sole discretion, pursuant to
the powers vested in Media Metrix under applicable law, or (iv) the proceeding
is initiated pursuant to Section 4 hereof.
4. FAILURE TO INDEMNIFY. (a) If a claim under this Agreement,
under any statute, or under any provision of the Certificate or By-Laws
providing for indemnification, is not paid in full by Media Metrix within 45
days after a written request for payment thereof has first been received by
Media Metrix, Indemnitee may, but need not, at any time thereafter bring an
action against Media Metrix to recover the unpaid amount of the claim and, if
successful in whole or in part, Indemnitee shall also be entitled to be paid for
Indemnitee's reasonable expenses, including attorneys' fees, actually and
necessarily incurred in connection with successfully establishing the right to
indemnification, in whole or in part, in any such action shall also be
indemnified by Media Metrix.
(b) It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in
connection with any action, suit or proceeding in advance of its final
disposition) that Indemnitee has not met the standards of conduct which make it
permissible under the General Corporation Law of the State of Delaware for Media
Metrix to indemnify Indemnitee for the amount claimed, but the burden of proving
such defense shall be on Media Metrix and Indemnitee shall be entitled to
receive interim payments of Expenses pursuant to Paragraph 2 unless and until
such defense may be finally adjudicated by court order or judgment from which no
further right of appeal exists.
5. CERTAIN AGREEMENTS OF INDEMNITEE.
(i) Indemnitee agrees to do all things reasonably requested by
the Board of Directors of Media Metrix to enable Media Metrix to coordinate
Indemnitee's defense with, if applicable, Media Metrix's defense, provided,
however, that Indemnitee shall not be required to take any action that would in
any way prejudice his or her defense or waive any defense or position available
to him or her in connection with any action;
(ii) Indemnitee agrees to do all things reasonably requested
by the Board of Directors of Media Metrix to subrogate to Media Metrix any
rights of recovery (including rights to insurance or indemnification from
persons other than Media Metrix) which Indemnitee may have with respect to any
action;
(iii) Indemnitee agrees to be represented in any action by a
law firm mutually acceptable to Media Metrix and Indemnitee; and
(iv) Indemnitee agrees to cooperate with Media Metrix and its
counsel and maintain any confidences revealed to him or her by Media Metrix in
connection with Media Metrix's defense of any action. Media Metrix agrees to
cooperate with Indemnitee and his or her counsel and
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maintain any confidences revealed to it by Indemnitee in connection with
Indemnitee's defense of any action.
6. SUCCESSORS. This Agreement establishes contract rights
which shall be binding upon, and shall inure to the benefit of, the successors,
assigns, heirs and legal representatives of the parties hereto.
7. CONTRACT RIGHTS NOT EXCLUSIVE. The contract rights
conferred by this Agreement shall be in addition to, but not exclusive of, any
other right which Indemnitee may have or may hereafter acquire under any
statute, provision of the Certificate or By-Laws, agreement, vote of
shareholders or disinterested directors or otherwise.
8. INDEMNITEE'S OBLIGATIONS. Indemnitee shall promptly advise
Media Metrix in writing of the institution of any investigation, claim, action,
suit, or proceeding which is or may be subject to this Agreement and generally
keep Media Metrix informed of, and consult with Media Metrix with respect to,
the status of any such investigation, claim action, suit or proceeding.
9. SEVERABILITY. Should any provision or paragraph of this
Agreement, or any clause hereof, be held to be invalid, illegal or
unenforceable, in whole or in part, the remaining provisions, paragraphs and
clauses of this Agreement shall remain fully enforceable and binding on the
parties.
10. CHOICE OF LAW. The validity, interpretation, performance
and enforcement of this Agreement shall be governed by the laws of the State of
Delaware.
11. CONTINUATION OF INDEMNIFICATION. The indemnification under
this Agreement shall continue as to Indemnitee even though he or she may have
ceased to be a director, officer, employee and/or agent of Media Metrix. Media
Metrix acknowledges that, in providing services to Media Metrix, Indemnitee is
relying on this Agreement. Accordingly, Media Metrix agrees that its obligations
hereunder will survive (i) any actual or purported termination of this Agreement
by Media Metrix or its successors or assigns whether by operation of law or
otherwise, (ii) any change in Media Metrix's certificate of incorporation or
by-laws and (iii) termination of the Indemnitee's services to Media Metrix
(whether such services were terminated by Media Metrix or the Indemnitee),
whether or not a claim is made or an action or Proceeding is threatened or
commenced before or after the actual or purported termination of this Agreement,
change in the certificate of incorporation or by-laws or termination of
Indemnitee's services.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and signed as of the day and year first above
written.
_____________________________________________
MEDIA METRIX, INC.
By:__________________________________________
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