{"id":39853,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/executive-employment-agreement-netratings-inc-and-william.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"executive-employment-agreement-netratings-inc-and-william","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/executive-employment-agreement-netratings-inc-and-william.html","title":{"rendered":"Executive Employment Agreement &#8211; NetRatings Inc. and William Hodgman"},"content":{"rendered":"<pre>\n                        EXECUTIVE EMPLOYMENT AGREEMENT\n\n   This Executive Employment Agreement (\"Agreement\") is by and between\nNetRatings, Inc. (\"Company\") and William Hodgman (\"Executive\") and is\ncontingent upon and made effective (\"Effective Date\") as of the Closing Date as\ndefined in that certain Agreement and Plan of Merger dated as of October 25,\n2001 by and among NetRatings, Inc., Sonoma Acquisition Corp., LLC. and Jupiter\nMedia Metrix, Inc. (\"Merger Agreement\"). Capitalized terms that are not\notherwise defined in this Agreement shall have the meaning ascribed to them in\nthe Merger Agreement.\n\n   The parties agree as follows:\n\n   1. Employment. Company hereby employs Executive, and Executive hereby\n      ----------\naccepts such employment, upon the terms and conditions set forth herein.\n\n   2. Duties.\n      ------\n\n   2.1 Position. Executive is to be employed as an Executive Vice President and\n       --------\nshall have the duties and responsibilities assigned by the Company's Chief\nExecutive Officer, both upon initial hire and as may be reasonably assigned\nfrom time to time. Executive shall perform faithfully and diligently all duties\nassigned to Executive. Company reserves the right to modify Executive's\nposition and duties at any time in its sole and absolute discretion.\n\n   2.2 Best Efforts\/Full-time. Executive will expend Executive's best efforts\n       ----------------------\non behalf of Company, and will abide by all policies and decisions made by\nCompany, as well as all applicable federal, state and local laws, regulations\nor ordinances. Executive will act in the best interest of Company at all times.\nExecutive shall devote Executive's full business time and efforts to the\nperformance of Executive's assigned duties for Company, unless Executive\nnotifies the Board of Directors in advance of Executive's intent to engage in\nother paid work and receives the Board of Directors' express written consent to\ndo so.\n\n   3. Term.\n      ----\n\n   3.1 Initial Term. The employment relationship pursuant to this Agreement\n       ------------\nshall be for an initial term commencing on the Effective Date set forth above\nand continuing until two years thereafter (\"Initial Term\"), unless sooner\nterminated in accordance with section 7 below.\n\n   3.2 Renewal. Upon completion of the Initial Term specified in subsection 3.1\n       -------\nabove, Executive's employment, should it continue, shall be renewed\nautomatically for successive periods of one year (a \"Renewal Period\") as long\nas the Executive is employed by the Company, unless either party shall have\ngiven the other party notice of termination not less than forty-five (45) days\nprior to and effective on the next following renewal date; provided, however,\nthat notwithstanding any of the foregoing provisions to the contrary, the\nExecutive's employment hereunder and this Agreement may be terminated at any\ntime as provided in Section 7.\n\n\n\n\n\n   4. Compensation.\n      ------------\n\n   4.1 Base Salary. As compensation for Executive's performance of Executive's\n      ------------\nduties hereunder, Company shall pay to Executive an initial Base Salary of\n$18,750 per month ($225,000 annualized), payable in accordance with the normal\npayroll practices of Company, less required deductions for state and federal\nwithholding tax, social security and all other employment taxes and payroll\ndeductions. Executive's base salary shall be subject to increases on an annual\nbasis on the same basis as other members of the Company's senior management and\nas approved by the Board of Directors of Company or its Compensation Committee.\n\n   4.2 Incentive Compensation. Executive shall have the opportunity to earn a\n      -----------------------\nPerformance Bonus based upon the achievement of certain fiscal and\nperformance-based objectives as those objectives and other terms are mutually\ndetermined in good faith by Executive and CEO prior to the applicable bonus\nperiod. The Target Bonus for Calendar Year 2002 shall be 45 percent of\nExecutive's Base Salary (of which 22.5 percent will be guaranteed) and shall be\nassessed on a semi-annual basis. The Target Bonus each calendar year thereafter\nshall be 45 percent of the Executive's Base Salary, none of which will be\nguaranteed.\n\n   4.3 Stock Options. Subject to the Board of Directors' approval, Executive\n      --------------\nwill be granted a non-qualified stock option to purchase 150,000 shares of\nCompany's Common Stock under Company's Stock Option Plan (the \"Plan\") at an\nexercise price equal to the fair market value of that stock on the Effective\nDate (the \"Option\"). The Option shall vest at the rate of 25% on the first\nanniversary of the grant date and 1\/48 of the shares subject to the Option\nshall vest each month thereafter, in each case as long as the Executive is\nemployed by the Company on such vesting date. The Option will be subject to the\nterms and conditions of the Plan and the standard stock option agreement\nprovided pursuant to the Plan, which Executive will be required to sign as a\ncondition of receiving the Option.\n\n   5. Customary Fringe Benefits. Executive will be eligible for all customary\n      -------------------------\nand usual fringe benefits generally available to executives of Company subject\nto the terms and conditions of Company's benefit plan documents. Company\nreserves the right to change or eliminate the fringe benefits on a prospective\nbasis, at any time, effective upon notice to Executive, provided, however, that\nthe Company agrees to pay for any employee contributions required for Executive\nand his dependants' participation in the Company's medical and dental insurance\nbenefits. Executive will specifically be eligible for four weeks of vacation\nand sick leave to be administered in accordance with the policies of Company in\neffect during the term of this Agreement. Should the Company require the\nExecutive to relocate and the Executive agrees to relocate, the Company will\npay for all reasonably related moving expenses. Any amounts received by\nExecutive for relocation expense reimbursement will be reported as taxable\nincome to Executive in the year received as required by applicable tax law.\n\n   6. Business Expenses. Executive will be reimbursed for all reasonable,\n      -----------------\nout-of-pocket business expenses incurred in the performance of Executive's\nduties on behalf of Company. To obtain reimbursement, expenses must be\nsubmitted promptly with appropriate supporting documentation in accordance with\nCompany's policies.\n\n                                      2\n\n\n\n\n   7. Termination of Executive's Employment.\n      -------------------------------------\n\n   7.1 Termination for Cause by Company. Although Company anticipates a\n       --------------------------------\nmutually rewarding employment relationship with Executive, Company may terminate\nExecutive's employment immediately at any time for Cause. For purposes of this\nAgreement, \"Cause\" is defined as: (a) any act of personal dishonesty taken by\nthe Executive in connection with his responsibilities as an employee which is\nintended to result in substantial personal enrichment of the Executive; (b) the\nExecutive's conviction of a felony which the Board reasonably believes has had\nor will have a material detrimental effect on the Company's reputation or\nbusiness; (c) a willful act by the Executive which constitutes misconduct and is\ninjurious to the Company; (d) continued willful violations by the Executive of\nthe Executive's obligations to the Company after there has been delivered to the\nExecutive a written demand for performance from the Company which describes the\nbasis for the Company's belief that the Executive has not substantially\nperformed his duties; (e) Executive's failure to perform the essential functions\nof Executive's position, with or without reasonable accommodation, due to a\nmental or physical disability; and (f) Executive's death. In the event\nExecutive's employment is terminated in accordance with this subsection 7.1,\nExecutive shall be entitled to receive only the Base Salary then in effect,\nprorated to the date of termination and, if Executive is terminated in calendar\nyear 2002, the guaranteed portion of his Target Bonus, prorated to the date of\ntermination. All other Company obligations to Executive pursuant to this\nAgreement will become automatically terminated and completely extinguished.\nExecutive will not be entitled to receive the Severance Payment described in\nsubsection 7.2 below.\n\n   7.2 Termination Without Cause by Company\/Severance. Company may terminate\n       ----------------------------------------------\nExecutive's employment under this Agreement without Cause at any time on thirty\n(30) days' advance written notice to Executive. In the event of such\ntermination, Executive shall be entitled to receive the Base Salary then\nin effect, prorated to the date of termination and, if Executive is terminated\nin calendar year 2002, the guaranteed portion of his Target Bonus, prorated to\nthe date of termination. Executive will in addition receive (a) continued\npayment consistent with the Company's normal payroll procedures of Executive's\nsalary at his Base Salary rate, less applicable withholding, for 12 months\nfollowing his termination (\"Severance Period\"); (b) continued payment of a\nprorata share of Executive's Target Bonus, less applicable withholding, for the\nSeverance Period; (c) accelerated vesting of the unvested portion of any stock\noption(s) held by the Employee that were granted by the Company effective the\nday prior to his termination; and (d) payment for the employee portion for the\ncontinuation of health benefits as provided under COBRA, for the Severance\nPeriod, provided that Executive: (i) complies with all surviving provisions of\nthis Agreement as specified in subsection 12.7 below; (ii) complies with the\nprovisions of the NonCompetition Agreement that Executive entered into\nconcurrently with the Merger Agreement; and (iii) executes a full general\nrelease, releasing all claims, known or unknown, that Executive may have\nagainst Company arising out of or any way related to Executive's employment or\ntermination of employment with Company. All other Company obligations to\nExecutive will be automatically terminated and completely extinguished.\n\n   7.3 Voluntary Resignation by Executive for Good Reason\/Severance. Executive\n       ------------------------------------------------------------\nmay voluntarily resign Executive's position with Company for Good Reason, at\nany time on sixty (60) days' advance written notice. In the event of\nExecutive's resignation for Good Reason, Executive will be entitled to receive\nthe payments and benefits described in 7.2 subsection above, provided Executive\ncomplies with all of the conditions in 7.2 subsection above. All other Company\nobligations to Executive pursuant to this Agreement will become\n\n                                      3\n\n\n\n\nautomatically terminated and completely extinguished. Executive will be deemed\nto have resigned for Good Reason in the following circumstances: (a) without the\nExecutive's express written consent, the reduction of the Executive's duties\nwhich results in a significant diminution of the Executive's position or\nresponsibilities with the Company, or the removal of the Executive from his\nemployment position in the Company other than for Cause; (b) without the\nExecutive's express written consent, a material reduction (defined as more than\na 10 percent reduction) by the Company in the Executive's total cash\ncompensation as in effect immediately prior to such reduction; (c) without the\nExecutive's express written consent, a material reduction by the Company in the\nkind or level of employee benefits to which the Executive is entitled\nimmediately prior to such reduction with the result that the Executive's overall\nbenefits package is significantly reduced; (d) without the Executive's express\nwritten consent, the relocation of the Company to a facility or location more\nthan 30 miles from the Company's then present location, provided, or (e) any\nbreach by the Company of any material provision of this Agreement. Executive\nrecognizes, however, that under no circumstance will his own relocation within\nthe first year following the Closing Date (even if at the request of the\nCompany) constitute an event of Good Reason.\n\n   7.4 Voluntary Resignation by Executive Without Good Reason. In the event of\n       ------------------------------------------------------\nExecutive's resignation without Good Reason, Executive will be entitled to\nreceive payment(s) for all prorated salary, applicable prorated Target Bonus,\nand unpaid vacation accrued as of the date of Employee's termination of\nemployment. All other Company obligations to Executive pursuant to this\nAgreement will become automatically terminated and completely extinguished. In\naddition, Executive will not be entitled to receive the Severance Payment\ndescribed in subsection 7.2 above.\n\n   7.5 280G Compliance. In the event the Executive becomes entitled to the\n       ---------------\npayments and benefits provided under this Agreement and\/or any other payments\nor benefits with a Change of Control (as defined in Section 3(b)) of the\nCompany (collectively, the \"Payments\"), and such Payments would result in a\n\"parachute payment\" as described in Section 280G of the Internal Revenue Code\nof 1986, as amended (the \"Code\"), the amount of such Payments shall be either:\n\n   (i) the full amount of the Payments, or\n\n   (ii) a reduced amount which would result in no portion of the Payments being\nsubject to the excise tax imposed pursuant to Section 4999 of the Code (the\n\"Excise Tax\"), whichever of the foregoing amounts, taking into account the\napplicable federal, state and local income taxes and the Excise Tax, results in\nthe receipt by the Executive, on an after-tax basis, of the greatest amount of\nbenefit. Unless the Company or the Executive otherwise agree in writing, any\ndetermination required under this Section shall be made in writing by\nindependent public accountants appointed by the Company and reasonably\nacceptable to the Executive (the \"Accountants\"), whose determination shall be\nconclusive and binding upon the Executive and the Company for all purposes. The\nCompany shall bear all costs the Accountants may reasonably incur.\n\n   7.6 Termination of Employment Upon Nonrenewal. In the event that Executive\n       -----------------------------------------\ngives notice of his election not to extend the Agreement for a Renewal Period\nas proscribe in subsection 3.2, the Agreement will expire, Executive's\nemployment with Company\n\n                                      4\n\n\n\n\nwill terminate Executive will only be entitled to the Base Salary and\nTarget Bonus then in effect, prorated to the date of termination, any accrued\nvacation benefits, and the Company releases any fully vested options. All other\nCompany obligations to Executive pursuant to this Agreement will become\nautomatically terminated and completely extinguished. Executive will not be\nentitled to the Severance Payment described in subsection 7.2 above. In the\nevent that the Company gives notice of its election not to extent the Agreement\nfor a Renewal Period as proscribed in section 3.2, such non-renewal shall be\nconsidered an event of Good Reason and Executive will be entitled to receive the\npayments and benefits described in subsection 7.2 above, provided Executive\ncomplies with all of the conditions in subsection 7.2 above. All other Company\nobligations to Executive pursuant to this Agreement will become automatically\nterminated and completely extinguished.\n\n   8. No Conflict of Interest. During the term of Executive's employment with\n      -----------------------\nCompany, Executive must not engage in any work, paid or unpaid, that creates an\nactual or potential conflict of interest with Company. Such work shall include,\nbut is not limited to, directly or indirectly competing with Company in any\nway, or acting as an officer, director, employee, consultant, stockholder,\nvolunteer, lender, or agent of any business enterprise of the same nature as,\nor which is in direct competition with, the business in which Company is now\nengaged or in which Company becomes engaged during the term of Executive's\nemployment with Company, as may be determined by the Board of Directors in its\nsole discretion. If the Board of Directors believes such a conflict exists\nduring the term of this Agreement, the Board of Directors may ask Executive to\nchoose to discontinue the other work or resign employment with Company. In\naddition, Executive agrees not to refer any client or potential client of\nCompany to competitors of Company, without obtaining Company's prior written\nconsent, during the term of Executive's employment.\n\n   9. Confidentiality and Proprietary Rights. Executive agrees to read, sign\n      --------------------------------------\nand abide by Company's Employee Innovations and Proprietary Rights Assignment\nAgreement, which is provided with this Agreement and incorporated herein by\nreference.\n\n   10. Injunctive Relief. Executive acknowledges that Executive's breach of the\n       -----------------\ncovenants contained in the Confidentiality and Proprietary Rights Agreement\nreferenced in paragraph 9 would cause irreparable injury to Company and agrees\nthat in the event of any such breach, Company shall be entitled to seek\ntemporary, preliminary and permanent injunctive relief without the necessity of\nproving actual damages or posting any bond or other security.\n\n   11. Agreement to Arbitrate. To the fullest extent permitted by law,\n       ----------------------\nExecutive and Company agree to arbitrate any controversy, claim or dispute\nbetween them arising out of or in any way related to this Agreement, the\nemployment relationship between Company and Executive and any disputes upon\ntermination of employment, including but not limited to breach of contract,\ntort, discrimination, harassment, wrongful termination, demotion, discipline,\nfailure to accommodate, family and medical leave, compensation or benefits\nclaims, constitutional claims; and any claims for violation of any local, state\nor federal law, statute, regulation or ordinance or common law. For the purpose\nof this agreement to arbitrate, references to \"Company\" include all parent,\nsubsidiary or related entities and their employees, supervisors, officers,\ndirectors, agents, pension or benefit plans, pension or benefit plan sponsors,\nfiduciaries, administrators, affiliates and all successors and assigns of any\nof them, and this agreement shall apply to them to the extent Executive's\nclaims arise out of or relate to their actions on behalf of Company.\n\n                                      5\n\n\n\n\n   11.1 Consideration. The mutual promise by Company and Executive to arbitrate\n        -------------\nany and all disputes between them (except for those referenced above) rather\nthan litigate them before the courts or other bodies, provides the\nconsideration for this agreement to arbitrate.\n\n   11.2 Initiation of Arbitration. Either party may exercise the right to\n        -------------------------\narbitrate by providing the other party with written notice of any and all\nclaims forming the basis of such right in sufficient detail to inform the other\nparty of the substance of such claims. In no event shall the request for\narbitration be made after the date when institution of legal or equitable\nproceedings based on such claims would be barred by the applicable statute of\nlimitations.\n\n   11.3 Arbitration Procedure. The arbitration will be conducted in Santa Clara\n        ---------------------\nCounty, California by a single neutral arbitrator and in accordance with the\nthen current rules for resolution of employment disputes of the American\nArbitration Association (\"AAA\"). The parties are entitled to representation by\nan attorney or other representative of their choosing. The arbitrator shall\nhave the power to enter any award that could be entered by a judge of the trial\ncourt of the State of California, and only such power, and shall follow the\nlaw. The parties agree to abide by and perform any award rendered by the\narbitrator. Judgment on the award may be entered in any court having\njurisdiction thereof.\n\n   12. General Provisions.\n       ------------------\n\n   12.1 Successors and Assigns.\n        ----------------------\n\n   (a) Company's Successors. Any successor to the Company (whether direct or\n       --------------------\nindirect and whether by purchase, lease, merger, consolidation, liquidation or\notherwise) to all or substantially all of the Company's business and assets\nshall assume the Company's obligations under this Agreement.\n\n   (b) Executive's Successors. Without the written consent of the Company, the\n       ----------------------\nExecutive shall not assign or transfer this Agreement or any right or\nobligation under this Agreement to any other person or entity. Notwithstanding\nthe foregoing, the terms of this Agreement and all rights of the Executive\nhereunder shall inure to the benefit of, and be enforceable by, the Executive's\npersonal or legal representatives, executors, administrators, successors,\nheirs, distributees, devisees and legatees.\n\n   12.2 Waiver. No provision of this Agreement shall be modified, waived or\n        ------\ndischarged unless the modification, waiver or discharge is agreed to in writing\nand signed by the party hereto adversely affected thereby. No waiver by either\nparty of any breach of, or of compliance with, any condition or provision of\nthis Agreement by the other party shall be considered a waiver of any other\ncondition or provision or of the same condition or provision at another time.\n\n   12.3 Severability. The invalidity or unenforceability of any provision or\n        ------------\nprovisions of this Agreement shall not affect the validity or enforceability of\nany other provision hereof, which shall remain in full force and effect.\n\n   12.4 Interpretation; Construction. The headings set forth in this Agreement\n        ----------------------------\nare for convenience only and shall not be used in interpreting this Agreement.\nThis Agreement has been drafted by legal counsel representing Company, but\nExecutive has participated in the\n\n                                      6\n\n\n\n\nnegotiation of its terms. Furthermore, Executive acknowledges that Executive\nhas had an opportunity to review and revise the Agreement and have it reviewed\nby legal counsel, if desired, and, therefore, the normal rule of construction\nto the effect that any ambiguities are to be resolved against the drafting\nparty shall not be employed in the interpretation of this Agreement.\n\n   12.5 Governing Law. The validity, interpretation, construction and\n        -------------\nperformance of this Agreement shall be governed by the laws of the State of\nCalifornia.\n\n   12.6 Notices. Notices and all other communications contemplated by this\n        -------\nAgreement shall be in writing and shall be deemed to have been duly given when\npersonally delivered or when mailed by U.S. registered or certified mail,\nreturn receipt requested and postage prepaid. In the case of the Executive,\nmailed notices shall be addressed to him at the home address which he most\nrecently communicated to the Company in writing. In the case of the Company,\nmailed notices shall be addressed to its corporate headquarters, and all\nnotices shall be directed to the attention of its Secretary.\n\n   12.7 Survival. Sections 9 (\"Confidentiality and Proprietary Rights\"), 10\n        --------\n(\"Injunctive Relief\"), 11 (\"Agreement to Arbitrate\"), 12 (\"General Provisions\")\nand 13 (\"Entire Agreement\") of this Agreement shall survive Executive's\nemployment by Company.\n\n   13. Entire Agreement. This Agreement, including the Company Employee\n       ----------------\nInnovations and Proprietary Rights Assignment Agreement incorporated herein by\nreference and Company's Stock Option Plan and related option documents\ndescribed in subsection 4.3 of this Agreement, and the NonCompetition Agreement\nexecuted in connection with the Merger Agreement constitute the entire\nagreement between the parties relating to this subject matter and supersedes\nall prior or simultaneous representations, discussions, negotiations, and\nagreements, whether written or oral, including but not limited to the\nAdRelevance, Inc. Amended and Restated Employment Agreement dated October 8,\n1999 entered into between AdRelevance, Inc. and Executive and assigned to\nCompany as a consequence of the Merger. This Agreement may be amended or\nmodified only with the written consent of Executive and the Board of Directors\nof Company. No oral waiver, amendment or modification will be effective under\nany circumstances whatsoever.\n\n                                      7\n\n\n\n\n   14. Counterparts. This Agreement may be executed in counterparts, each of\n       ------------\nwhich shall be deemed an original, but all of which together will constitute\none and the same instrument.\n\n   THE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT AND FULLY\n   UNDERSTAND EACH AND EVERY PROVISION CONTAINED HEREIN.\n\n   WHEREFORE, THE PARTIES HAVE EXECUTED THIS AGREEMENT ON THE DATES SHOWN BELOW.\n\n                                          WILLIAM HODGMAN\n\n   Dated:_____________________________    _____________________________________\n\n\n                                          NetRatings, Inc.\n\n   Dated: ____________________________    By: _________________________________\n                                          Name:\n                                          Title:\n\n                                      8\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8327],"corporate_contracts_industries":[],"corporate_contracts_types":[9539,9544],"class_list":["post-39853","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-netratings-inc","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/39853","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=39853"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39853"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39853"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39853"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}