Exhibit 10.10
AMENDED AND RESTATED
MANAGEMENT SERVICES AGREEMENT
The parties to this agreement are Media Metrix, Inc., a
Delaware corporation ("MMX"), The NPD Group, Inc., a New York corporation
("NPD") and Xxx Xxxxxxx, an individual with an address at c/o The NPD Group,
Inc., 000 Xxxx Xxxxx Xxxx, Xxxx Xxxxxxxxxx, Xxx Xxxx 00000 ("Xxxxxxx").
MMX is in the business of developing, marketing and selling
marketing research services which track and evaluate usage of Internet and new
media resources and computer software and hardware and operates a national
consumer usage panel (the "Panel") in order to generate data for market research
purposes (the "Business"). NPD has been providing certain services to MMX
pursuant to a Management Services Agreement among MMX, NPD and Xxxxxxx, dated as
of September 30, 1998 (the "Prior MMX Management Services Agreement"). Xxxxxxx
is the Chief Executive Officer and the controlling shareholder of NPD. The
parties desire to provide for a continuation of certain of the services set
forth in the Prior MMX Management Services Agreement.
It is therefore agreed as follows:
1. APPOINTMENT; SERVICES.
1.1 APPOINTMENT. MMX hereby retains NPD on
behalf of itself and its subsidiaries, and NPD hereby accepts retention, to
provide the services relating to the Business set forth in this agreement.
1.2 SERVICES. Subject to the terms and
conditions of this agreement, NPD shall continue to provide to MMX and its
subsidiaries such services relating to the Business as NPD performed immediately
prior to the date hereof under the Prior MMX Management Services
Agreement. Services under this agreement shall be provided at such times and in
such manner as MMX shall reasonably request. The services to be provided by NPD
shall include:
(i) The support of the operation and
administration of the Panel. Such support includes supporting efforts such as
recruiting, operating, projecting and compensating the Panel, using the methods
and procedures generally in use on the date of this agreement or as modified
in the reasonable judgment of MMX.
(ii) Access to panelists in NPD's panels,
including the Home Testing Institute ("HTI") panel, so long as such access will
not adversely affect other projects using any panelist who is primarily a member
of an NPD panel.
(iii) The data capture and editing of all data
reasonably requested by MMX.
(iv) The data base structuring and storage of all
relevant data.
(v) Processing of reports as reasonably
specified by MMX and, where appropriate, supporting clients for on-line usage.
(vi) Provision of such systems support and
development as shall be mutually agreed between NPD and MMX.
(vii) Provision of such computer time, storage and
printing as shall be reasonably necessary in connection with the services
specified in (i) through (vi) above.
(viii) Support in connection with client service
and sales.
(ix) Office space and facilities appropriate to
the Business within NPD leased facilities.
(x) The provision of NPD's Hardware Ownership
Survey (if NPD chooses to collect it).
In addition to the services specified above, NPD shall provide
MMX with such administrative and office logistical support, including payroll
management, as shall be reasonably necessary in connection with the performance
of such services and the operation of the Business.
Further, NPD and Xxxxxxx hereby agree that from the date of
execution of this agreement (the "Execution Date") and for a period of six (6)
months thereafter, Xxxxxxx shall devote at least twenty (20) hours per week to
the business and affairs of MMX. From six (6) months after the Execution Date to
one (1) year after the Execution Date, Xxxxxxx shall devote no less than fifteen
(15) hours per week to the business and affairs of MMX. After the date that is
one year after the Execution Date, Xxxxxxx shall devote such time to the
business and affairs of MMX as shall be mutually agreed upon by Xxxxxxx and MMX.
The parties will adjust this provision in the event that MMX retains a Chief
Executive Officer to replace Xxxxxxx.
1.3 EMPLOYEES. All NPD employees (other than
those, if any, who become employees of MMX) shall remain under the exclusive
direction and control of NPD.
2. NON-COMPETITION. NPD and Xxxxxxx hereby agree that during
the term of this agreement and for a period of two years thereafter, they
shall not individually nor collectively, directly or indirectly, either as an
employee, employer, consultant, agent, principal, partner, stockholder,
corporate officer, director or in any other individual or representative
capacity, engage or participate in the field of audience measurement for
digital online media and measurement of usage of computer software and
personal computers, except for any investment in a publicly traded company
which does not exceed, in the aggregate, 10% of the outstanding capital stock
thereof.
3. TERM. The term of this agreement commenced on the date
hereof and shall continue until terminated by either party giving the other
at least 90 days' prior written notice to such
-3-
effect; provided, however, NPD may not terminate this agreement pursuant to this
Section 3 until March 31, 2002. Upon termination of this agreement, NPD shall
provide to MMX a copy of all data and other documentation in its possession
which were generated during the performance of its services pursuant to this
agreement relating to, and necessary or useful to continue, the Business or
other businesses developed in connection with the Business (the "Information")
upon reimbursement by MMX to NPD of its reasonable out of pocket costs for
delivering the Information. All the Information with respect to the operation of
the Panel shall be provided on a non-exclusive basis pursuant to a perpetual,
royalty free, non-forfeitable license from NPD to MMX, subject to
confidentiality agreements similar in scope and substance to those set forth in
section 6(a); all other Information (including those derived from the operation
of the Panel) shall be the exclusive property of MMX, and NPD shall, to the
extent not previously done, transfer title to such other Information (without
representation or warranty) to MMX pursuant to instruments of transfer
reasonably satisfactory to MMX. MMX shall, at the reasonable request of NPD,
license such Information owned by MMX back to NPD for use in connection with its
businesses pursuant to a non-exclusive, perpetual, royalty-free, non-forfeitable
license, subject to confidentiality agreements similar in scope and substance to
those set forth in section 6(a). Any services provided by NPD to MMX following
the termination of this agreement shall be at NPD's discretion and on such terms
and conditions as shall be agreed to by the parties.
4. COMPENSATION.
-4-
4.1 AMOUNT. As compensation for the services
provided by NPD, MMX shall pay to NPD an amount equal to (a) all expenses
reasonably incurred by NPD in the performance of its duties under this
agreement, plus, without duplication, 105% of the sum of (b) a reasonable
allocation of the overhead of NPD as set forth on Exhibit A hereto and (c) the
service charges, subject to adjustment, as set forth in said Exhibit A. Exhibit
A hereto also summarizes NPD's monthly cost allocation system and will be
applied to the extent appropriate in determining expenses under this Section
4.1.
NPD acknowledges that the amounts charged by NPD under the Prior
Management Services Agreement did not reflect the full amounts due from MMX
pursuant to the Prior Management Services Agreement. NPD hereby waives all right
to any sums in addition to those already paid to it by MMX pursuant to the Prior
Management Services Agreement and any amounts in addition to those amounts
accrued on the books and records on the Execution Date.
4.2 BILLING. NPD shall allocate its expenses
and overhead relating to the performance of its obligations under this agreement
in its cost accounting system as currently in effect, with such changes as may
be agreed to by the parties. NPD shall xxxx MMX monthly in arrears for the
amounts payable to NPD pursuant to Section 4.1 for that month, and MMX shall pay
such amounts as soon as practical after receipt of such invoice but no later
than 30 days after receipt.
5. INDEMNITY. (a) MMX shall indemnify and hold harmless NPD
and its directors, officers and employees from and against all loss,
liability, damage or expense (including, without limitation, reasonable fees
and expenses of counsel) NPD or such directors, officers or employees may
suffer, sustain or become subject to as a result of, or otherwise relating
to, (i) the performance of its or their duties under this agreement, unless
such loss, liability, damage or expense
-5-
shall result from the gross negligence or willful misconduct of NPD or its
directors, officers or employees or the breach of this agreement and (ii) the
operation of the Businesses.
(b) NPD shall indemnify and hold harmless MMX and its
subsidiaries and their respective directors, officers and employees from and
against all loss, liability, damage or expense (including, without limitation,
reasonable fees and expenses of counsel) MMX or such directors, officers or
employees may suffer, sustain or become subject to as a result of, or otherwise
relating to, (i) the gross negligence or willful misconduct of NPD or its
directors, officers or employees in the performance of its or their duties under
this agreement or (ii) the operation of the business of NPD (excluding the
services performed hereunder).
6. CONFIDENTIALITY. (a) MMX and NPD each agrees that it shall
not, and shall cause its directors, officers, employees and affiliates not
to, directly or indirectly, either during the term of this agreement or
thereafter, disclose to anyone (except at the other's direction), any
confidential or secret aspect of the business or affairs of the other
obtained during the term of this agreement which is not presently in and does
not enter the public domain.
(b) Subject to the provisions of Section 3 of this agreement, all
processes and ideas developed by NPD or its employees in connection with the
services rendered under this agreement shall remain the sole property of NPD.
(c) NPD and MMX each acknowledges that the remedy at law for breach
of its covenants under this Section 6 will be inadequate and, accordingly, in
the event of any breach or threatened breach by NPD or MMX of the provisions of
this Section 6, MMX or NPD, as the case may be, shall be entitled, in addition
to all other remedies, to an injunction restraining any such breach.
-6-
7. COMPLETE AGREEMENT. This agreement contains a complete
statement of all the arrangements between the parties with respect to its
subject matter, supersedes all previous agreementsbetween them relating to
its subject matter and cannot be modified, amended or terminated orally. The
Prior MMX Management Services Agreement is hereby terminated. Nothing herein
shall limit the rights and obligations of the parties under that certain
Services Agreement, dated March 31, 1996, by and between PC Meter L. P. (the
predecessor in interest to MMX) and NPD.
8. WAIVER. The failure of a party to insist upon strict
adherence to any term of this agreement on any occasion shall not be
considered a waiver or deprive that party of the right thereafter to insist
upon strict adherence to that term or any other term of this agreement. Any
waiver must be in writing.
9. INVALIDITY. The invalidity or unenforceability of any term
or provision of this agreement shall not affect the validity or
enforceability of the remaining terms or provisions of this agreement which
shall remain in full force and effect and any such invalid or unenforceable
term or provision shall be given full effect to the extent possible. If any
term or provision of this agreement is invalid or unenforceable in one
jurisdiction, it shall not affect the validity or enforceability of that term
or provision in any other jurisdiction.
10. GOVERNING LAW. This agreement shall be governed by and
construed in accordance with the law of the State of New York applicable to
agreements made and to be performed in New York.
11. ASSIGNABILITY. This agreement shall be binding on and inure
to the benefit of the respective successors and assigns of the parties,
PROVIDED, that neither party may assign any of its rights under this
agreement (by operation of law or otherwise) without the prior written
consent of the
-7-
other, other than in connection with a transfer of the Business, in the case of
MMX, or a transfer of all or substantially all of its business, in the case of
NPD, in either case to an entity that agrees in a writing satisfactory to the
other to be bound by the terms of this agreement.
-8-
Dated as of May __, 1999.
MEDIA METRIX, INC.
By: ____________________________________
Name: Xxxx Xxx Xxxxx
Title: President
THE NPD GROUP, INC.
By: ____________________________________
Name: Xxxxxx Xxxxxxx
Title: President
________________________________________
XXX XXXXXXX
-9-
EXHIBIT A
SUMMARY OF NPD COST ALLOCATION SYSTEM AND SERVICE CHARGES
GENERAL
NPD accounting utilizes an expense cost allocation system that is
currently maintained in a Microsoft Excel and Xxxxx Xxxxx Xxxxxxx (SDG)
financial software environment. In the near future, SDG will be replaced by
Xxxxxx financial software. Reports generated from this system reflect (a) direct
expenses captured through the general ledger or "book" and (b) allocated costs.
These latter expenses represent costs originally incurred by either NPD Service
or Corporate Administration departments (cost centers) which are subsequently
allocated to the operating departments based on an actual usage or on an
overhead basis.
NPD CHARGES ON AN ACTUAL USAGE BASIS
Computer Rent Charge from NPD Dept 835 for desktop PCs/Network/Tech.
Support. Average of $500 per month per PC.
Computer Time: Charge from NPD Dept 830 for usage of HP Mainframe
Computer. Based on standard CPU click charge plus disk
storage charge.
Data Capture: Charge from NPD Dept 630 for loading and processing disks.
disks. Based on standard hourly personnel charge - $20.50
per hour.
Mail Handling: Charge from NPD Dept 770 for mail handling. Based on
standard hourly personnel charge - $24.50 per hour.
Panel Management: Charge from NPD Dept 745 for panel assistance. Based on
standard hourly personnel charge - $50 per hour.
HTI Panel Charge: Charge for use of HTI Panelists. Based on $2.50 per month
for each HTI panel member.
Printing & Postage: Charge from NPD Dept 781 for printing of monthly reports.
Based on standard click charges from Printing Center.
NSHO/Other Survey: Charge from NPD Dept 465 for assistance from
Custom for fielding surveys. Based on discounted internal
Custom charge out rates.
Applications Support: Charge from NPD Dept. 840 for testing of software. Based
on standard hourly personnel charge.
-10-
NPD CHARGES ON AN OVERHEAD BASIS
NPD - Rent: Charge from NPD Dept. 130 and Dept. 131 for space at
Uniondale. Based on actual square footage used and
standard square footage charge.
NPD - Benefits: Charge from NPD Dept. 110 for personnel related benefits
such as 401(k) plan, vacation pay and standard bonus
accrual. Based on actual headcount or actual
participation.
NPD - Insurance: Charge from NPD Dept. 110 for Life and Health (L&H), and
Property and Casualty Insurance (P&C). L&H based on actual
headcount and actual usage and P&C based on actual
footage and actual usage.
NPD - HR: Charge from NPD Depts. 122/123 for provision of Human
Resource and Personnel services. Based on actual
headcount.
NPD - Mgment: Charge from Dept. 110 for Xxx Xxxxxxx. At the rate of
$15,000 per calendar month.
NPD reserves the right to implement reasonable fee increases upon no
less than 90 days advance notice to Media Metrix consistent with NPD's internal
policies.
-11-
