**Exhibit 10.22**

 

**SEPARATIONAGREEMENT AND MUTUAL RELEASE**

 

This Settlement Agreementand Mutual Release (“**Agreement**”) ismade by and between NetRatings, Inc. (the “**Company**”)and George Durney (“**Employee**”).

 

WHEREAS, Employee wasemployed by the Company;

 

WHEREAS, in exchange forthe severance and other benefits provided for herein, Employee has agreed tothe terms and conditions of this Agreement and to release the Company from anyand all claims arising from or related to the employment relationship;

 

NOW THEREFORE, inconsideration of the mutual promises made herein, the Company and Employee(collectively referred to as the “**Parties**”)hereby agree as follows:

 

1.                                       Termination.Employee’s employment with the Company is terminated effective as of January 1,2006 (the “Effective Date”)

 

2.                                       CompanyPayments and Benefits.

 

(a)                                  Uponthe Effective Date, the Company will pay (or will have already paid) toEmployee all salary, wages, bonuses, accrued vacation, commissions and expensesincurred on behalf of the Company and any and all other benefits due toEmployee through the Effective Date. Employee acknowledges and represents thatthe Company has paid all salary, wages, bonuses, accrued vacation, commissionsand any and all other benefits due to the Employee as of the Effective Date.Notwithstanding the foregoing, the parties agree and acknowledge that (i) thecommissions owed to Employee for the fourth quarter of 2005 and (ii) thereimbursement of expenses incurred by Employee during December 2005 shallbe paid by Company by January 31, 2006.

 

(b)                                 Inconsideration of the mutual promises and agreements described herein, theCompany will provide the following to Employee: (i) the Company shall makea lump sum payment to Employee in the amount of $87,550.00 (which is equal tosix months of base salary), less applicable taxes and withholding amounts,within five business days after the revocation period indicated in paragraph 5of this Agreement has expired;  (ii) TheCompany shall make a lump sum payment to Employee in the amount of$47,277.00  (90% of the bonus target)less applicable taxes and withholding amounts on the same day that the bonuspayments are made to the Company’s employees; (iii) in the event that thecompany achieves profitability for the fourth quarter of 2005, calculated on anEBITDA basis and evidenced by the publication of the Company’s financialresults press release previously approved by the Company’s Audit Committee,Employee will receive a net issuance of one-third of the restricted sharesgranted to Employee in the 2005  at thesame time as the US-based executives receive their net issuance of restrictedshares; (iv) following the expiration of the revocation period indicatedin paragraph 5 of this Agreement and continuing until 90 days after the EffectiveDate, Employee shall be entitled to exercise any and all stock options thatwould have vested between the Effective Date and June 30, 2006; (v) followingthe expiration of the revocation period indicated in paragraph 5 of thisAgreement, the Company shall pay for healthcare coverage for Employee and hisimmediate family pursuant to COBRA through June 30, 2006;  and (vi) following the expiration of therevocation period indicated in paragraph 5 of this Agreement, Employee shall beentitled to retain the laptop computer used by Employee following the transferto the Company of all Company materials. From and after the Effective Date,Employee will not be entitled to accrual of any employee benefits, includingbut not limited to, vacation benefits or bonuses, and Employee will notparticipate in any executive incentive compensation or bonus plan, or any otherofficer or employee compensation program.

 

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3.                                       ConfidentialInformation and Noncompetition. Employee agrees and acknowledges thatSections 1, 2, 3 and 4 of the Employee Nondisclosure, Noncompetition andInvention Assignment Agreement, dated April 19, 1999 (the “NondisclosureAgreement”), are binding on Employee, and Employee shall comply with all of theterms of Sections 1, 2, 3 and 4 of the Nondisclosure Agreement. Employeerepresents to the Company that Employee has returned to the Company all of theCompany property and confidential and proprietary information in his possessionas of the Effective Date.

 

4.                                       Releaseof Claims. Employee agrees that the foregoing consideration representssettlement in full of all outstanding obligations owed to Employee by theCompany. Employee and the Company, on behalf of themselves, and theirrespective heirs, family members, executors, officers, directors, employees,investors, shareholders, administrators, affiliates, divisions, subsidiaries,predecessor and successor corporations, and assigns, hereby fully and foreverrelease each other and their respective heirs, family members, executors,officers, directors, employees, investors, shareholders, administrators,affiliates, divisions, subsidiaries, predecessor and successor corporations,agents, and assigns, from, and agree not to sue concerning, any claim, duty,obligation or cause of action relating to any matters of any kind, whetherpresently known or unknown, suspected or unsuspected, that any of them may possessarising from any omissions, acts or facts that have occurred up until andincluding the Separation Date including, without limitation,

 

(a)                                  any and all claims relating to or arising from Employee’semployment relationship with the Company and the termination of thatrelationship;

 

(b)                                 anyand all claims relating to, or arising from, Employee’s right to receive,exercise or purchase, or actual receipt, exercise or purchase of, equity in theCompany, including, without limitation any claims for fraud, misrepresentation,breach of fiduciary duty, breach of duty under applicable state corporate law,and securities fraud under any state or federal law;

 

(c)                                  anyand all claims for wrongful discharge of employment; termination in violationof public policy; discrimination; breach of contract, both express and implied;breach of a covenant of good faith and fair dealing, both express and implied;promissory estoppel; negligent or intentional infliction of emotional distress;negligent or intentional misrepresentation; negligent or intentionalinterference with contract or prospective economic advantage; unfair businesspractices; defamation; libel; slander; negligence; personal injury; assault;battery; invasion of privacy; false imprisonment; and conversion;

 

(d)                                 anyand all claims for violation of any federal, state or municipal statute,including, but not limited to, Title VII of the Civil Rights Act of 1964, theCivil Rights Act of 1991, the Age Discrimination in Employment Act of 1967, theAmericans with Disabilities Act of 1990, the Fair Labor Standards Act, theEmployee Retirement Income Security Act of 1974, The Worker Adjustment andRetraining Notification Act, Older Workers Benefit Protection Act; theCalifornia Fair Employment and Housing Act, and Labor Code section 201, *et seq*. and section 970, *et seq*.,the New York Human Rights Law, as amended, Rev.Code of Wash. Ch. 49.60.010 *et seq*.;

 

(e)                                  any and all claims for violation of the federal, or anystate, constitution;

 

(f)                                    any and all claims arising out of any other laws andregulations relating to employment or employment discrimination;  and

 

(g)                                 any and all claims for attorneys’ fees and costs.

 

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The Company and Employeeagree that the release set forth in this section shall be and remain ineffect in all respects as a complete general release as to the matters released.This release does not extend to any obligations incurred under this Agreement. Employee acknowledges and agrees that anybreach of this paragraph shall constitute a material breach of the Agreementand in the case of a breach by Employee, shall entitle the Company immediatelyto recover the monetary consideration discussed in paragraph 2 above. Employeeshall also be responsible to the Company for all costs, attorneys’ fees and anyand all damages incurred by the Company (a) enforcing the obligation,including the bringing of any suit to recover the monetary consideration, and (b) defendingagainst a claim or suit brought or pursued by Employee in violation of thisprovision.

 

5.                                       Acknowledgmentof Waiver of Claims under ADEA. Employee acknowledges that he is waivingand releasing any rights he may have under the Age Discrimination in EmploymentAct of 1967 (“ADEA”) and that this waiver and release is knowing and voluntary.Employee and the Company agree that this waiver and release does not apply toany rights or claims that may arise under the ADEA after the SeparationDate of this Agreement. Employee acknowledges that the consideration given forthis waiver and release Agreement is in addition to anything of value to whichEmployee was already entitled. Employee further acknowledges that s/he has beenadvised by this writing that (a) he should consult with an attorney priorto executing this Agreement; (b) he has forty-five (45) days within whichto consider this Agreement; (c) he has seven (7) days following theexecution of this Agreement by the parties to revoke the Agreement; and (d) thisAgreement shall not be effective until the revocation period has expired. Anyrevocation should be in writing and delivered to the Company’s General Counselat NetRatings, 120 West 45th Street, 35th Floor, New YorkNY 10036, by close of business on the seventh day from the date that Employeesigns this Agreement.

 

6.                                       CivilCode Section 1542. The Parties represent that they are not aware ofany claim by either of them other than the claims that are released by thisAgreement. Employee and the Company acknowledge that they have been advised bylegal counsel and are familiar with the provisions of California Civil Code Section 1542,which provides as follows:

 

A GENERAL RELEASE DOESNOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST INHIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HER MUST HAVEMATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.

 

Employee and the Company, being aware of said codesection, agree to expressly waive any rights they may have thereunder, aswell as under any other statute or common law principles of similar effect.

 

7.                                       NoPending or Future Lawsuits. Employee represents that s/he has no lawsuits,claims, or actions pending in his/her name, or onbehalf of any other person or entity, against the Company or any other personor entity referred to herein. Employee also represents that s/he does notintend to bring any claims on his/her own behalf or on behalf of any otherperson or entity against the Company or any other person or entity referred toherein.

 

8.                                       NoCooperation. Employee agrees s/he will not act in any manner that mightdamage the business of the Company. Employee agrees that s/he will not counselor assist any attorneys or their clients in the presentation or prosecution ofany disputes, differences, grievances, claims, charges, or complaints by anythird party against the Company and/or any officer, director, employee, agent,representative, shareholder or attorney of the Company, unless under a subpoenaor other court order to do so.

 

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9.                                       Non-Disparagement.Each Party agrees to refrain from any defamation, libel or slander of the other, or tortuous interference with the contracts andrelationships of the other. All inquiries by potential future employers ofEmployee will be directed to the Company’s Human Resources Department. Uponinquiry, unless otherwise agreed to by the Company and Employee, the Companyshall only state the following:  Employee’slast position and dates of employment.

 

10.                                 NoAdmission of Liability. The Parties understand and acknowledge that thisAgreement constitutes a compromise and settlement of any and all disputedclaims. No action taken by the Parties hereto, or either of them, eitherpreviously or in connection with this Agreement shall be deemed or construed tobe (a) an admission of the truth or falsity of any claims heretofore madeor (b) an acknowledgment or admission by either Party of any fault orliability whatsoever to the other Party or to any third party.

 

11.                                 Costs.The Parties shall each bear their own costs, expert fees, attorneys’ fees andother fees incurred in connection with this Agreement.

 

12.                                 Mediation.Employee and the Company agree that any dispute or controversy arising out of,relating to, or in connection with this Agreement, or the interpretation,validity, construction, performance, breach or termination thereof, shall firstbe submitted to mediation. The mediation shall be conducted within forty-five(45) days of Employee notifying the Company of a dispute or controversy regardingthis Agreement or Employee’s employment relationship with the Company. Unlessotherwise provided for by law, the Company and Employee shall each pay half thecosts and expenses of the mediation.

 

13.                                 Arbitration.

 

(a)                                  Inthe event that mediation pursuant to Section 12 fails to resolve a disputeor controversy, Employee and the Company agree that any dispute or controversyarising out of, relating to, or in connection with this Agreement, or theinterpretation, validity, construction, performance, breach, or terminationthereof, shall be finally settled by binding arbitration, unless otherwiserequired by law, to be held in New York County, New York before the AmericanArbitration Association under its National Rules for the Resolution ofEmployment Disputes, or by a judge to be mutually agreed upon. The decision ofthe arbitrator shall be final, conclusive and binding on the Parties to thearbitration. Judgment may be entered on the arbitrator’s decision in anycourt having jurisdiction.

 

(b)                                 Thearbitrator(s) shall apply New York law to the merits of any dispute or claim,without reference to rules of conflicts of law.

 

(c)                                  Unless otherwise provided for by law, theCompany shall pay the costs and expenses unique to such arbitration.

 

(d)                                 EMPLOYEEHAS READ AND UNDERSTANDS THIS SECTION DISCUSSING ARBITRATION. EMPLOYEEUNDERSTANDS THAT BY SIGNING THIS AGREEMENT, EMPLOYEE AGREES TO SUBMIT ANYCLAIMS ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, ORTHE INTERPRETATION, VALIDITY, CONSTRUCTION, PERFORMANCE, BREACH OR TERMINATIONTHEREOF TO BINDING ARBITRATION, UNLESS OTHERWISE REQUIRED BY LAW, AND THAT THISARBITRATION CLAUSE CONSTITUTES A WAIVER OF EMPLOYEE’S RIGHT TO A JURY TRIAL ANDRELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS OF THEEMPLOYER/EMPLOYEE RELATIONSHIP.

 

14.                                 Authority.The Company represents and warrants that the undersigned has the authority toact on behalf of the Company and to bind the Company and all who may claimthrough it to the terms and

 

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conditionsof this Agreement. Employee represents and warrants that s/he has the capacityto act on his/her own behalf and on behalf of all who might claim through herto bind them to the terms and conditions of this Agreement. Each Party warrantsand represents that there are no liens or claims of lien or assignments in lawor equity or otherwise of or against any of the claims or causes of actionreleased herein.

 

15.                                 NoRepresentations. Each Party represents that it has had the opportunity toconsult with an attorney, and has carefully read and understands the scope andeffect of the provisions of this Agreement. Neither Party has relied upon anyrepresentations or statements made by the other Party hereto which are notspecifically set forth in this Agreement.

 

16.                                 Severability.In the event that any provision hereof becomes or is declared by a court ofcompetent jurisdiction to be illegal, unenforceable or void, this Agreementshall continue in full force and effect without said provision.

 

17.                                 EntireAgreement. This Agreement, the terms of the stock option agreement issuedto Employee (which terms are amended hereby), and any confidentiality agreemententered into by and between the Company and the Employee, represent the entireagreement and understanding between the Company and Employee concerningEmployee’s separation from the Company, and supersedes and replaces any and allprior agreements and understandings concerning Employee’s relationship with theCompany and his/her compensation by the Company, including, but not limited to,Retention Agreements or Change in Control Agreements.

 

18.                                 NoOral Modification. This Agreement may only be amended in writingsigned by Employee and either the Chief Executive Officer of the ChiefFinancial Officer of the Company.

 

19.                                 GoverningLaw. This Agreement shall be governed by the internal substantive laws butnot the choice of law rules of the State of New York.

 

20.                                 Counterparts.This Agreement may be executed in counterparts, and each counterpart shallhave the same force and effect as an original and shall constitute aneffective, binding agreement on the part of each of the undersigned.

 

21.                                 VoluntaryExecution of Agreement. This Agreement is executed voluntarily and withoutany duress or undue influence on the part or behalf of the Parties hereto,with the full intent of releasing all claims. The Parties acknowledge that:

 

(a)                                  Theyhave read this Agreement;

 

(b)                                 Theyhave been represented in the preparation, negotiation, and execution of thisAgreement by legal counsel of their own choice or that they have voluntarilydeclined to seek such counsel;

 

(c)                                  Theyunderstand the terms and consequences of this Agreement and of the releases itcontains;

 

(d)                                 Theyare fully aware of the legal and binding effect of this Agreement.

 

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IN WITNESS WHEREOF, theParties have executed this Agreement on the respective dates set forth below.

 

 
|   |                 | NETRATINGS, INC. |
|--------|----------------------|-----------------------|
|   |                 |                  |
|   |                 |                  |
| Dated: | January 1, 2006 | By                    | /s/ William R. Pulver |   |
|   |                 |                  |
|   |                 |                  |
|   |                 | Title                 | Chief Executive Officer |   |
|   |                 |                  |
|   |                 |                  |
|   |                 | GEORGE DURNEY         |
|   |                 |                  |
|   |                 |                  |
| Dated: | January 1, 2006 | /s/ George Durney     |   |
|        |                      |                       |  |  |  |

 

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