Exhibit 10.38
NMR COMMISSIONS AGREEMENT
NMR COMMISSIONS AGREEMENT (as amended from time to time, the
"Agreement"), dated as of May 7, 2002 (the "Effective Date"), with respect to
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Operating Agreement (as amended from time to time, the "Operating Agreement"),
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dated August 15, 1999, between NetRatings, Inc., a Delaware corporation
("NetRatings"), and ▇▇▇▇▇▇▇ Media Research, Inc., a Delaware corporation
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("NMR"). Defined terms used but not otherwise defined herein shall have the
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respective meanings ascribed to them in the Operating Agreement.
Section 5.1 of the Operating Agreement provides that, except as
otherwise provided therein, all Net Customer ▇▇▇▇▇▇▇▇ derived from the
marketing, sale and distribution of the Approved Internet Service shall be
allocated in the following percentages: (i) NMR - 35% (the "Commission") and
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(ii) NetRatings - 65%.
NetRatings has entered into an Agreement and Plan of Reorganization
dated as of May , 2002 (the "Merger Agreement") with, among others, ACNielsen
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Corporation and ACNielsen ▇▇▇▇▇▇▇▇.▇▇▇. Section 6.2(h) of the Merger Agreement
contemplates that NetRatings and NMR will have entered into this Agreement as of
the Effective Time (as defined in the Merger Agreement).
NetRatings and NMR wish to modify Section 5.1 and certain other
provisions of the Operating Agreement as described below.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, hereby agree as follows:
1. From the Effective Date until the termination of this Agreement:
(a) Subject to Section 1(c) below, no Commission shall be payable to
NMR following the Effective Date with respect to Net Customer ▇▇▇▇▇▇▇▇
derived from customer sales; and
(b) The second sentence of Section 2.2 of the Operating Agreement
shall be amended and restated in its entirety to read as follows:
"Notwithstanding the foregoing, NMR shall have primary responsibility
for marketing products and services of the Approved Internet Service
which are marketed and sold using the NMR Trademarks and the NRI
Trademarks to customers in the following categories, in each case, to
the extent that such customers are located in North America: (i)
traditional media customers, consisting of
[***] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS, WHICH ARE NOTED HEREIN WITH THREE ASTERISKS "[***]".
television, radio and other media customers (including broadcast
networks, local TV stations, superstations, cable networks, cable
systems, syndicators and television program producers); (ii)
advertising agencies (including television advertising customers of
such agencies which are then current and active NMR customers),
interactive agencies and media buyers; (iii) the technology companies,
marketers, web sites and web-only agencies listed on Exhibit E hereto
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and (iv) such other customers as may be determined by the Operating
Committee".
(c) As used in this Agreement, an "NMR Customer Contract" means a
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customer contract for Approved Internet Service procured by NMR on or prior
to the Effective Date. As used in this Agreement, the term "Contract Year"
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means, with respect to any NMR Customer Contract, any twelve month period
during the term of such contract that begins on the effective date of the
NMR Customer Contract or twelve-month anniversary of such effective date
(as applicable), and ends on the immediately following twelve-month
anniversary of the effective date of the NMR Customer Contract.
Notwithstanding anything to the contrary in this Agreement, following the
Effective Date, NMR shall be continue to be entitled to receive a
commission of 35% of all Net Customer ▇▇▇▇▇▇▇▇ that are paid after the
Effective Date but which relate to a Contract Year which began prior to or
on the Effective Date. All such commissions shall be payable to NMR on the
terms and subject to the conditions associated with the payment of
Commissions as in effect immediately prior to the Effective Date under the
Operating Agreement.
(d) Notwithstanding anything to the contrary herein, and for the
avoidance of doubt, the parties acknowledge and agree that NetRatings shall
have no obligation to pay any Commission amounts to NMR under any customer
contracts which NetRatings acquires through its acquisition of Jupiter
Media Metrix, Inc.
2. From the Effective Date until the termination of this Agreement, the
provisions of this Section 2 shall be effective:
(a) On the terms and subject to the conditions set forth in this
Section 2, NMR shall cause the services of the individuals listed on
Exhibit A hereto (the "Dedicated Employees"), if they continue to be
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employed by NMR on the Effective Date, to be made available to fulfill
NMR's obligations under Section 2.2 of the Operating Agreement (as amended
and restated herein) on a full-time basis, except as otherwise provided in
this Section 2. On the terms and subject to the conditions of this Section
2, NMR shall cause the services of the individuals listed on Exhibit B
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hereto (the "Shared Employees"), if they continue to be employed by NMR on
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the Effective Date, to be made available to fulfill NMR's obligations under
Section 2.2 of the Operating Agreement (as amended and restated herein) on
a part-time basis (substantially consistent with the amount of time
dedicated by such individuals to such activities on the Effective Date).
The Dedicated Employees and the Shared Employees currently provide services
relating to the marketing, sale and distribution of the Approved Internet
Service. The parties acknowledge and agree that NMR shall be
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deemed to satisfy in full its obligations under Section 2.2 of the
Operating Agreement (as amended and restated herein) by performing NMR's
obligations under this Section 2 and otherwise under this Agreement. The
parties shall amend Exhibit A and Exhibit B following the date of this
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Agreement to the extent necessary to (i) add thereto any New Dedicated
Employee (as defined below), (ii) remove therefrom any person who ceases to
be a Dedicated Employee or Shared Employee covered by this Agreement after
the date hereof and (iii) reclassify as a Shared Employee any Dedicated
Employee who becomes a Shared Employee as permitted by this Agreement.
(b) Notwithstanding anything to the contrary herein, the parties
understand and agree that NMR shall be entitled to cause the Dedicated
Employees to devote a portion of their working time and the Shared
Employees to dedicate an incremental additional portion of their working
time, in each case, determined by NMR in good faith after consultation with
NetRatings to be appropriate, to the provision of services to NMR with
respect to (i) ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. and its products and services, or (ii)
in connection with any other convergence products ("Alternative Uses"). If
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and to the extent any Dedicated Employee provides services to NMR relating
to Alternative Uses as contemplated by this Section 2(b) or otherwise, such
Dedicated Employee shall thereafter be deemed a Shared Employee for the
purposes of this Agreement (including, without limitation, for the purposes
of NetRatings' payment obligations under Section 2(c) below). In addition
to any express provisions of this Section 2(b), the Operating Committee and
NMR may from time to time mutually agree (i) to reduce the amount of
working time devoted to the provisions of services hereunder by any Shared
Employee or Dedicated Employee and/or (ii) to increase the amount of
working time devoted to the provision of services hereunder by any Shared
Employee.
(c) NetRatings shall pay to NMR (i) 100% of the Direct Costs (as
defined) of each Dedicated Employee and (ii) a portion of the Direct Costs
of each Shared Employee equal to the percentage of such Shared Employee's
total working time that is actually devoted to providing services under
this Agreement, as determined in good faith by NMR. As used in this
Agreement, "Direct Costs" means with respect to any Dedicated Employee or
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Shared Employee, the amounts actually paid by NMR in respect of the salary,
benefits, perquisites and other compensation (including reimbursed
expenses) of such individual (including an allocable portion of NMR's
overhead charges, including an appropriate allocation for office space (the
amount described in this parenthetical being referred to as the "Overhead
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Charge")).
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NetRatings shall have the right, at its sole cost and expense, during
reasonable business hours and upon reasonable advance notice, to review the
computer printouts and reports and other books and records of NMR to the
extent that the same relate to amounts to be paid by NetRatings to NMR with
respect to Dedicated Employees and Shared Employees hereunder; provided,
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that such right shall not be exercised by NetRatings more frequently than
once per calendar quarter.
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(d) Subject to (i) applicable laws, (ii) the written employment
policies of NMR as in effect from time to time and (iii) any contract or
agreement in effect on the Effective Date or thereafter entered into with
the consent of the Operating Committee governing a Dedicated Employee's or
Shared Employee's employment with NMR, NMR shall not, other than with the
consent of the Operating Committee, terminate a Dedicated Employee's or
Shared Employee's employment with NMR.
(e) NMR shall not, without the consent of the Operating Committee,
materially modify any Dedicated Employee's or Shared Employee's salary,
benefits, perquisites or other compensation as in effect on the Effective
Date other than (i) as required by any applicable contract or agreement in
effect on the Effective Date or entered into thereafter with the consent of
the Operating Committee, (ii) in the ordinary course of business consistent
with past practice, (iii) in connection with changes to benefits plans and
arrangements maintained by NMR and in which such Dedicated Employee or
Shared Employee participates, which changes affect such Dedicated Employee
or Shared Employee and other employees of NMR generally or (iv) in
accordance with applicable laws and regulations. NMR hereby represents and
warrants to NetRatings, that from May 6, 2002 through the Effective Date,
NMR has not materially increased the salary, benefits, perquisites or other
compensation of any Dedicated Employee or Shared Employee other than in a
manner which, after the Effective Date would be permitted under the
preceding clauses (ii), (iii) and (iv).
(f) NMR shall invoice NetRatings for the amounts contemplated by this
Section 2 quarterly in arrears. Upon request, NMR will provide commercially
reasonable detail, to the extent the same is reasonably available, to
support the charges included in an invoice. Invoices shall be payable by
NetRatings within forty-five (45) days of receipt (the "Payment Period").
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Disputed amounts shall not affect payment of non-disputed amounts.
NetRatings shall pay any applicable tariff, duty, tax, or like charge,
however designated, imposed with respect to the services provided to
NetRatings by NMR's personnel hereunder. The parties acknowledge and agree
that NetRatings may defer payment of any portion of any Overhead Charge
included in an invoice if NetRatings in good faith disputes its obligation
to pay the same; provided, that any undisputed portion of such Overhead
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Charge shall be paid as provided during the Payment Period.
If NetRatings in good faith disputes its obligation to pay any portion
of any Overhead Charge included in an invoice, it shall promptly (but in no
event more than thirty (30) days) following receipt of the relevant
invoice, give written notice of such dispute (a "Dispute Notice") to NMR
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specifying the amount of Overhead Charges in dispute and identifying the
basis of the dispute in reasonable detail. NMR and NetRatings shall
negotiate in good faith for a period of at least ten (10) days after the
date on which NetRatings delivers a Dispute Notice to resolve all disputes
set forth therein. If NetRatings and NMR are not able to resolve all such
disputes within such ten (10) day period, then
(i) promptly (but in no event more than five (5) days) after the
expiration of such ten (10) day period, all remaining disputes shall
be submitted by NMR and NetRatings to the Operating Committee for
determination in the manner contemplated by Section 3.1(e) of the
Operating Agreement (as modified hereby); and
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(ii) NMR and NetRatings shall use their respective reasonable
good faith efforts to cause the Operating Committee, promptly
following the date of such submission, to meet in the manner
contemplated by Section 3.1(c) of the Operating Agreement to determine
such remaining disputes.
NMR and NetRatings shall instruct the Operating Committee to issue its
determination as to such submitted disputes no more than thirty (30) days
following the date on which they are submitted to the Operating Committee
for determination hereunder (the "Determination Period"). The determination
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of the Operating Committee as to any such disputes submitted to it shall be
conclusive, final and binding upon NMR and NetRatings. Notwithstanding
anything to the contrary in Section 3 of the Operating Agreement, if all
disputes as to Overhead Charges submitted to the Operating Committee for
determination hereunder are not finally determined by the Operating
Committee within the Determination Period (whether or not during the
Determination Period any deadlock has been submitted to the chief executive
officers of NetRatings and NMR for resolution as provided by Section 3.1(f)
of the Operating Agreement and, if any deadlock is so submitted,
notwithstanding that such deadlock may not have been resolved during the
Determination Period by such chief executive officers), then immediately
following the expiration of the Determination Period, NMR shall be entitled
to pursue any such other remedies as may be available to it with respect to
any remaining unpaid Overhead Charges, including, without limitation, the
arbitration procedures set forth in Article IX of the Operating Agreement.
For avoidance of doubt, the parties acknowledge and agree that a dispute
with regard to Overhead Charges shall not be deemed to have been "finally
determined by the Operating Committee" for the purposes hereof in the case
of a deadlock as to such dispute that has not been resolved by the chief
executive officers of NetRatings and NMR during the Determination Period as
provided under Section 3.1(f) of the Operating Agreement. In the event of a
conflict or inconsistency between this Section 2(f) and Section 3 of the
Operating Agreement with respect to the manner in which disputes as to
Overhead Charges are to be determined by the Operating Committee, the
provisions of this Section 2(f) shall govern and control.
(g) At any time and from time to time, the Operating Committee may
give a written notice (a "Waiver Notice") to NMR informing NMR that the
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Operating Committee has determined that the services of one or more
Dedicated Employees or Shared Employees are no longer required to be
provided hereunder. During the thirty (30)-day period following the
delivery by the Operating Committee of a Waiver Notice or to terminate the
employment with NMR of any such individual (the "Decision Period"), NMR
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shall determine whether it desires to retain as an NMR employee the
Dedicated Employee(s) and/or Shared Employee(s) who are the subject of the
Waiver Notice. If NMR determines to terminate the employment with NMR of
any Dedicated Employee or Shared Employee covered by a Waiver Notice, then
NMR shall (i) deliver written notice (a "Termination Notice") to that
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effect to NetRatings during the Decision Period and (ii) during the
Decision Period in good faith begin and thereafter pursue all appropriate
proceedings and actions (including the observance of any relevant notice
periods and other formalities) under applicable, contracts,
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policies, agreements, statutes, laws and regulations to effect the
termination of each such employee in accordance therewith.
(h) If NMR does not deliver a timely Termination Notice relating to
any Dedicated Employee or Shared Employee covered by a Waiver Notice, then
NetRatings shall, following the expiration of the related Decision Period,
not be obligated to make any further payments under this Agreement relating
to such Dedicated Employee or Shared Employee. If NMR does deliver a timely
Termination Notice relating to any Dedicated Employee or Shared Employee
covered by a Waiver Notice, then:
(A) NetRatings shall be obligated to continue to pay the Direct
Costs of such Dedicated Employee or Shared Employee as contemplated by
Section 2(c) above, through the date of his or her termination of
employment; and
(B) NetRatings shall reimburse NMR and its directors, officers,
employees, shareholders and agents (and each of the heirs, executors
and successors and assigns of any of them) for, and shall indemnify
such persons and hold them harmless from (i) any and all Indemnified
Severance Costs (as defined below) of any such Dedicated Employee and
(ii) a portion of the Indemnified Severance Costs of any such Shared
Employee that is equal to the percentage of such Shared Employee's
total working time that was actually devoted to providing services
contemplated by this Agreement at the time of delivery of the Waiver
Notice, as determined in good faith by NMR. In the event that (i)
NetRatings actually pays any Indemnified Severance Costs to NMR
hereunder in connection with the termination of any Dedicated
Employee's or Shared Employee's employment with NMR, and (ii) such
Dedicated Employee or Shared Employee is rehired by NMR within one
year following the date on which such Dedicated Employee's or Shared
Employee's employment with NMR was terminated, then NMR shall
reimburse NetRatings for all such Indemnified Severance Costs actually
paid to NMR thereby.
(C) As used herein, "Indemnified Severance Costs" means any and
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all liabilities, damages, proceedings, claims, fines, costs and
expenses (including, without limitation, severance payments),
including, without limitation, reasonable attorneys' fees, arising out
of or in connection with, directly or indirectly, the cessation of the
employment with NMR of a Dedicated Employee or Shared Employee unless
such cessation of employment is effected by NMR in a manner that
constitutes a willful or grossly negligent violation of applicable
laws and regulations. Notwithstanding anything to the contrary herein,
Indemnified Severance Costs shall not include any portion of any
severance payment or similar benefit that is payable to a Designated
Employee or Shared Employee in respect of years or months of service
with NMR prior to the time such Designated Employee or Shared Employee
began performing services for Nielsen//NetRatings.
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3. If any Dedicated Employee or Shared Employee named on Exhibit A or
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Exhibit B shall cease to be employed by NMR from time to time during the
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effectiveness of this Agreement, other than due to a breach by NMR of its
agreement under Section 2(d), then the Operating Committee shall be entitled to
issue a written notice (a "Replacement Notice") to NMR requesting NMR to replace
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such named Dedicated Employee or Shared Employee hereunder by either (as
determined by NMR in its sole discretion), hiring a new NMR employee of NMR's
choosing or reassigning a then-existing NMR employee (in either case, a
"Replacement Employee"), in either case, to be a Shared Employee or Dedicated
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Employee (as applicable) hereunder and to have substantially similar duties and
position (including with regard to the amount of his or her working time that
will be devoted to performing the services contemplated hereby) and to receive
substantially equivalent salary, benefits, perquisites and other compensation,
as did the Dedicated Employee or Shared Employee whose employment with NMR has
ceased and who is being replaced by the Replacement Employee. If the Operating
Committee delivers a Replacement Notice to NMR, NMR shall use its reasonable
good faith efforts to comply with the request of the Operating Committee
reflected therein and to hire a Replacement Employee as contemplated thereby. If
the Operating Committee delivers a Replacement Notice to NMR, then any and all
costs and expenses reasonably incurred by NMR in connection with identifying,
negotiating with and employing or reassigning any Replacement Employee shall be
reimbursed to NMR by NetRatings.
4. In the event that the Operating Committee determines from time to time
during the effectiveness of this Agreement that an increase in the requirements
for services of the nature provided by the Dedicated Employees and Shared
Employees under this Agreement requires additional Dedicated Employees to be
made available by NMR under this Agreement, the Operating Committee may deliver
a notice (a "Staff Increase Notice") which shall (i) request NMR to hire a
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specified number of new employees of NMR's choosing (each, a "New Dedicated
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Employee") to be Dedicated Employees hereunder, (ii) identify the position,
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duties and general responsibilities which the Operating Committee has determined
should be applicable to each such New Dedicated Employee and (iii) set forth in
reasonable detail the levels of salary, benefits, perquisites and other
compensation (the "Approved Compensation Levels") that the Operating Committee
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believes are appropriate for each such New Dedicated Employee. If the Operating
Committee delivers a Staff Increase Notice, NMR shall use its reasonable good
faith efforts to comply with the Operating Committee's request set forth therein
and to hire the New Dedicated Employees contemplated thereby. If the Operating
Committee delivers a Staff Increase Notice to NMR, then any and all costs and
expenses reasonably incurred by NMR in connection with identifying, negotiating
with and employing any New Dedicated Employee requested by the Operating
Committee shall be reimbursed to NMR by NetRatings. NMR shall not grant to any
New Dedicated Employee in connection with his or her hiring by NMR, salary,
benefits, perquisites and other compensation that differ materially from the
Approved Compensation Levels.
5. This Agreement shall terminate automatically upon the termination of the
Operating Agreement for any reason whatsoever. Also, this Agreement may be
terminated at any time (i) by the mutual written consent of NMR and NetRatings
or (ii) by NMR or NetRatings upon a material breach by the other, which remains
uncured for ninety (90) days after written notice thereof. If this Agreement
shall be terminated for any reason, NetRatings shall be deemed to have delivered
a
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Waiver Notice with respect to all Dedicated Employees and Shared Employees at
the time of termination, and the provisions of Section 2(g) and Section 2(h)
shall thereafter apply accordingly, mutatis mutandi. Notwithstanding any
termination of this Agreement, NetRatings shall remain liable for any payment
and other obligations incurred by it prior to termination, and the provisions of
Section 2(g), Section 2(h), Section 6, Section 7, Section 8, Section 9, Section
10 and Section 11 shall survive.
6. Except as expressly modified by this Agreement, on the Effective Date,
the Operating Agreement shall continue in full force in effect as in effect
immediately prior to the Effective Date.
7. This Agreement, together with the Operating Agreement, constitutes the
entire agreement and understanding of the parties with respect to its subject
matter, supersedes any and all prior oral or written agreements, negotiations,
contracts and understandings between the parties with respect to such subject
matter, and can be amended, supplemented or otherwise modified only by a written
agreement executed by NMR and NetRatings. This Agreement may be executed in any
number of counterparts, each of which shall be effective against the parties
actually executing such counterparts, and all of which together shall constitute
one and the same instrument.
8. Any and all disputes between NMR and NetRatings under this Agreement
shall be settled as contemplated by Article VIII of the Operating Agreement.
9. Any and all notices and other communications hereunder shall be given in
the manner contemplated by Section 10.4 of the Operating Agreement and shall be
deemed to be effective or to have been given at the times specified in such
Section 10.4.
10. The headings in this Agreement are included for the purposes of
convenience only, and are not to have any bearing on the construction or
interpretation of this Agreement.
11. The failure of any party to exercise any of its rights under this
Agreement or its failure to insist upon strict adherence to any term of this
Agreement on any one occasion shall not be construed as a waiver or deprive that
party of the right thereafter to insist upon strict adherence to the terms and
conditions of this Agreement at a later date.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives as of the date first written
above.
NetRatings, Inc.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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Title: Chief Financial Officer
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Date: May 7, 2002
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▇▇▇▇▇▇▇ Media Research, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Senior Vice President
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Date: May 7, 2002
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Exhibit A
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[***]
Exhibit B
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Shared Employees
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None.
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