INDEMNIFICATION
AGREEMENT
THIS
AGREEMENT is entered into, effective as of ___, 2007 by and between
comScore, Inc., a Delaware corporation (the “ Company
”), and ___(“ Indemnitee ”), effective as
of the date that the Registration Statement on Form S-1 related to
the initial public offering of the Company’s Common Stock is
declared effective by the United States Securities and Exchange
Commission.
WHEREAS,
it is essential to the Company to retain and attract as directors
and officers the most capable persons available;
WHEREAS,
Indemnitee is a director and/or officer of the Company;
WHEREAS,
both the Company and Indemnitee recognize the increased risk of
litigation and other claims currently being asserted against
directors and officers of corporations;
WHEREAS,
the Amended and Restated Certificate of Incorporation (the “
Certificate of Incorporation ”) and Amended and
Restated Bylaws (the “ Bylaws ”) of the Company
require the Company to indemnify and advance expenses to its
directors and officers to the fullest extent permitted under
Delaware law, and the Indemnitee has been serving and continues to
serve as a director and/or officer of the Company in part in
reliance on the Company’s Certificate of Incorporation and
Bylaws; and
WHEREAS,
in recognition of Indemnitee’s need for (i) substantial
protection against personal liability based on Indemnitee’s
reliance on the aforesaid Certificate of Incorporation and Bylaws,
(ii) specific contractual assurance that the protection
promised by the Certificate of Incorporation and Bylaws will be
available to Indemnitee (regardless of, among other things, any
amendment to or revocation of the Certificate of Incorporation and
Bylaws or any change in the composition of the Company’s
Board of Directors or acquisition transaction relating to the
Company) and (iii) an inducement to provide effective services
to the Company as a director and/or officer, the Company wishes to
provide in this Agreement for the indemnification of and the
advancing of expenses to Indemnitee to the fullest extent (whether
partial or complete) permitted under Delaware law and as set forth
in this Agreement, and, to the extent insurance is maintained, to
provide for the continued coverage of Indemnitee under the
Company’s directors’ and officers’ liability
insurance policies.
NOW,
THEREFORE, in consideration of the above premises and of Indemnitee
continuing to serve the Company directly or, at its request, with
another enterprise, and intending to be legally bound hereby, the
parties agree as follows:
(a)
“ Affiliate ” shall mean any corporation or
other person or entity that directly, or indirectly through one or
more intermediaries, controls or is controlled by or is
under
common control
with, the person specified, including, without limitation, with
respect to the Company, any direct or indirect subsidiary of the
Company.
(b)
“ Board ” shall mean the Board of Directors of
the Company.
(c)
A “ Change in Control ” shall be deemed to have
occurred if (i) any “person” (as such term is used
in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934,
as amended (the “ Exchange Act ”)) (other than a
trustee or other fiduciary holding securities under an employee
benefit plan of the Company or a corporation owned directly or
indirectly by the stockholders of the Company in substantially the
same proportions as their ownership of stock of the Company, and
other than any person holding shares of the Company on the date
that the Company first registers under the Securities Act of 1933,
as amended, or any transferee of such individual if such transferee
is a spouse or lineal descendant of the transferee or a trust for
the benefit of the individual, his or her spouse or lineal
descendants), is or becomes the “beneficial owner” (as
defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 50% or more
of the total voting power represented by the Company’s then
outstanding Voting Securities, (ii) during any period of two
consecutive years, individuals who at the beginning of such period
constitute the Board and any new director whose election by the
Board or nomination for election by the Company’s
stockholders was approved by a vote of at least two-thirds (2/3) of
the directors then still in office who either were directors at the
beginning of the period or whose election or nomination for
election was previously so approved, cease for any reason to
constitute a majority of the Board, (iii) the stockholders of
the Company approve a merger or consolidation of the Company with
any other entity, other than a merger or consolidation that would
result in the Voting Securities of the Company outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into Voting Securities
of the surviving entity) at least 80% of the total voting power
represented by the Voting Securities of the Company or such
surviving entity outstanding immediately after such merger or
consolidation or (iv) the stockholders of the Company approve
a plan of complete liquidation of the Company or an agreement for
the sale or disposition by the Company (in one transaction or a
series of transactions) of all or substantially all of the
Company’s assets.
(d)
“ Expenses ” shall mean any expense, liability
or loss, including attorneys’ fees, judgments, fines, ERISA
excise taxes and penalties, amounts paid or to be paid in
settlement, any interest, assessments or other charges imposed
thereon, any federal, state, local or foreign taxes imposed as a
result of the actual or deemed receipt of any payments under this
Agreement and all other costs and obligations, paid or incurred in
connection with investigating, defending, being a witness in,
participating in (including on appeal) or preparing for any of the
foregoing in, any Proceeding relating to any Indemnifiable
Event.
(e)
“ Indemnifiable Event ” shall mean any event or
occurrence that takes place either prior to or after the execution
of this Agreement, related to the fact that Indemnitee is or was a
director or officer of the Company or an Affiliate of the Company,
or while a director or officer is or was serving at the request of
the Company or an Affiliate of the Company as a director, officer,
employee, trustee, agent or fiduciary of another foreign or
domestic corporation, partnership, joint venture, employee benefit
plan, trust or other enterprise or was a director, officer,
employee or agent of a foreign or domestic corporation that was a
predecessor corporation of the Company or of
-2-
another
enterprise at the request of such predecessor corporation, or
related to anything done or not done by Indemnitee in any such
capacity, whether or not the basis of the Proceeding is alleged
action in an official capacity as a director, officer, employee or
agent or in any other capacity while serving as a director,
officer, employee or agent of the Company or an Affiliate of the
Company, as described above.
(f)
“ Independent Counsel ” shall mean the person or
body appointed in connection with Section 3.
(g)
“ Proceeding ” shall mean any threatened,
pending or completed action, suit or proceeding or any alternative
dispute resolution mechanism (including an action by or in the
right of the Company or an Affiliate of the Company) or any
inquiry, hearing or investigation, whether conducted by the Company
or an Affiliate of the Company or any other party, that Indemnitee
in good faith believes might lead to the institution of any such
action, suit or proceeding, whether civil, criminal,
administrative, investigative or other.
(h)
“ Reviewing Party ” shall mean the person or
body appointed in accordance with Section 3.
(i)
“ Voting Securities ” shall mean any securities
of the Company that vote generally in the election of
directors.
2.
Agreement to Indemnify .
(a)
General Agreement . In the event Indemnitee was, is or
becomes a party to or witness or other participant in, or is
threatened to be made a party to or witness or other participant
in, a Proceeding by reason of (or arising in part out of) an
Indemnifiable Event, the Company shall indemnify Indemnitee from
and against any and all Expenses to the fullest extent permitted by
law, as the same exists or may hereafter be amended or interpreted
(but in the case of any such amendment or interpretation, only to
the extent that such amendment or interpretation permits the
Company to provide broader indemnification rights than were
permitted prior thereto). The parties hereto intend that this
Agreement shall provide for indemnification in excess of that
expressly permitted by statute, including, without limitation, any
indemnification provided by the Company’s Certificate of
Incorporation, its Bylaws, vote of its stockholders or
disinterested directors or applicable law.
(b)
Initiation of Proceeding . Notwithstanding anything in this
Agreement to the contrary, Indemnitee shall not be entitled to
indemnification pursuant to this Agreement in connection with any
Proceeding initiated by Indemnitee against the Company or any
director or officer of the Company unless (i) the Company has
joined in or the Board has consented to the initiation of such
Proceeding, (ii) the Proceeding is one to enforce
indemnification rights under Section 5 or (iii) the
Proceeding is instituted after a Change in Control (other than a
Change in Control approved by a majority of the directors on the
Board who were directors immediately prior to such Change in
Control) and Independent Counsel has approved its
initiation.
-3-
(c)
Expense Advances . If so requested by Indemnitee, the
Company shall advance (within thirty (30) days of such
request) any and all Expenses to Indemnitee (an “Expense
Advance”). The Indemnitee shall qualify for such Expense
Advances upon the execution and delivery to the Company of this
Agreement which shall constitute an undertaking providing that the
Indemnitee undertakes to repay such Expense Advances if and to the
extent that it is ultimately determined by a court of competent
jurisdiction in a final judgment, not subject to appeal, that
Indemnitee is not entitled to be indemnified by the Company.
Indemnitee’s obligation to reimburse the Company for Expense
Advances shall be unsecured and no interest shall be charged
thereon. This Section 2(c) shall not apply to any claim made by
Indemnitee for which indemnity is excluded pursuant to Section 2(b)
or 2(f).
(d)
Mandatory Indemnification . Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee has been
successful on the merits or otherwise in defense of any Proceeding
relating in whole or in part to an Indemnifiable Event or in
defense of any issue or matter therein, Indemnitee shall be
indemnified against all Expenses incurred in connection
therewith.
(e)
Partial Indemnification . If Indemnitee is entitled under
any provision of this Agreement to indemnification by the Company
for some or a portion of Expenses, but not, however, for the total
amount thereof, the Company shall nevertheless indemnify Indemnitee
for the portion thereof to which Indemnitee is entitled.
(f)
Prohibited Indemnification . No indemnification pursuant to
this Agreement shall be paid by the Company on account of any
Proceeding in which a final judgment is rendered against Indemnitee
or Indemnitee enters into a settlement, in each case (i) for
an accounting of profits made from the purchase or sale by
Indemnitee of securities of the Company pursuant to the provisions
of Section 16(b) of the Exchange Act or similar provisions of any
federal, state or local laws; (ii) for which payment has
actually been made to or on behalf of Indemnitee under any
insurance policy or other indemnity provision, except with respect
to any excess beyond the amount paid under any insurance policy or
other indemnity provision; or (iii) for which payment is
prohibited by law. Notwithstanding anything to the contrary stated
or implied in this Section 2(f), indemnification pursuant to this
Agreement relating to any Proceeding against Indemnitee for an
accounting of profits made from the purchase or sale by Indemnitee
of securities of the Company pursuant to the provisions of Section
16(b) of the Exchange Act or similar provisions of any federal,
state or local laws shall not be prohibited if Indemnitee
ultimately establishes in any Proceeding that no recovery of such
profits from Indemnitee is permitted under Section 16(b) of the
Exchange Act or similar provisions of any federal, state or local
laws.
3.
Reviewing Party . Prior to any Change in Control, the
Reviewing Party shall be any appropriate person or body consisting
of a member or members of the Board or any other person or body
appointed by the Board who is not a party to the particular
Proceeding with respect to which Indemnitee is seeking
indemnification; provided that if all members of the Board are
parties to the particular Proceeding with respect to which
Indemnitee is seeking indemnification, the Independent Counsel
referred to below shall become the Reviewing Party; after a Change
in Control, the Independent Counsel referred to below shall become
the Reviewing Party. With respect to all matters arising before a
Change in Co
|
