ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") dated as of June 6,
2002 by and between comScore Networks, Inc., a Delaware corporation ("Buyer"),
and Jupiter Media Metrix, Inc., a Delaware corporation ("Seller").
WITNESSETH:
WHEREAS, Buyer desires to acquire, and Seller desire to sell, certain
assets, properties and selected rights of Seller, and in only those expressly
and specifically identified liabilities associated therewith relating to
Seller's United States and Canadian internet audience measurement operations
(the "Business") (including, without limitation, panelists, technology, customer
contracts, historical databases, intellectual property, reports and models, all
as more specifically identified in the attached Schedules) (collectively, the
"Assets"), but excluding all other assets, properties and rights of Seller,
including without limitation, those used in connection with the Retained
Business (as defined below), upon the terms and subject to the conditions set
forth in this Agreement (the "Acquisition"); and
WHEREAS, the Board of Directors of Seller has determined that it is in
the best interests of Seller to sell certain assets, properties and rights
relating to the Business to Buyer, upon the terms and subject to the conditions
set forth in this Agreement.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
1.01 DEFINITIONS.
The following terms, as used herein, have the following meanings:
"Acquisition" is defined in the first recital of the preamble to this
Agreement.
"Affiliate" means, with respect to any Person, any Person directly or
indirectly controlling, controlled by or under common control with such other
Person.
"Allocation Statement" is defined in Section 2.06 of this Agreement.
"Ancillary Agreements" is defined in Section 2.07 of this Agreement.
"Assignment of Intellectual Property Agreement" means the Assignment of
Intellectual Property Agreement between Buyer and Seller, in substantially the
form attached hereto as Exhibit A.
"Assumed Liabilities" is defined in Section 2.03 of this Agreement.
"Benefit Arrangement" means an employment, severance or similar
contract, arrangement or policy and each plan or arrangement providing for
severance pay, life insurance or health care coverage (including any
self-insured arrangements), sabbatical or other leave of absence programs,
flexible spending accounts or cafeteria benefit programs under Code Section 125,
workers' compensation, disability benefits, dependent care benefits,
supplemental unemployment benefits, vacation benefits, pension or retirement
benefits or providing for deferred compensation, profit-sharing, cash or stock
bonuses, stock options, stock appreciation rights, stock purchase or other forms
of incentive compensation or post-retirement life insurance, health care or
disability coverage that (i) is not an Employee Plan and (ii) is maintained or
contributed to by Seller or any of their ERISA Affiliates.
"Xxxx of Sale, Assignment and Assumption Agreement" means the Xxxx of
Sale, Assignment and Assumption Agreement between Buyer and Seller, in
substantially the form attached hereto as Exhibit B.
"Business" is defined in the first recital of the preamble to this
Agreement.
"Buyer" is defined in the preamble to this Agreement.
"Closing Date" means the date of the Closing.
"COBRA" is defined in Section 2.04 of this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Confidentiality Agreement" means the confidentiality agreement between
Buyer and Seller dated February 21, 2002.
"Contracts" means all contracts, agreements, leases, licenses,
commitments, sales and purchase orders and other instruments listed on Schedule
2.01. Contracts shall include agreements with customers ("Customer Contracts").
"Employee Plan" means each "employee benefit plan" of Seller, as such
term is defined in Section 3(3) of ERISA, that (i) is subject to any provision
of ERISA and (ii) is maintained or contributed to by either Seller or any of its
ERISA Affiliates, as the case may be.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Affiliate" of any entity means any other entity that, together
with such entity, would be treated as a single employer under Section 414(b),
(c), (m) or (o) of the Code.
"Excluded Assets" is defined in Section 2.02 of this Agreement.
"Excluded Liabilities" is defined in Section 2.04 of this Agreement.
"Indemnified Person" is defined in Section 8.03 of this Agreement.
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"Indemnifying Person" is defined in Section 8.03 of this Agreement.
"Intellectual Property" means intellectual property listed in Schedule
2.01.
"License Agreement" is defined in Section 3.15 of this Agreement.
"Licensed Intellectual Property" is defined in Section 3.15 of this
Agreement.
"Lien" means, with respect to any asset, any mortgage, lien (including
any tax lien), pledge, charge, security interest or encumbrance of any kind in
respect of such asset.
"Losses" is defined in Section 8.02 of this Agreement.
"Material Adverse Effect" means any change in or effect on the Business
of Seller or the Purchased Assets that, individually or in the aggregate (taking
into account all other such changes or effects), is, or is reasonably likely to
be, materially adverse to the business, assets, condition (financial or
otherwise) or results of operations of the Business taken as a whole.
"Office Lease" shall mean the premises leased pursuant to that certain
Office Lease Agreement, dated as of May 10, 2000 between Kachin Property
Limited, as Landlord, and Media Metrix Canada Co., as Tenant.
"Permits" is defined in Section 3.12 of this Agreement.
"Permitted Liens" is defined in Section 3.07 of this Agreement.
"Person" means an individual, corporation, partnership, association,
trust or other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"Purchase Price" is defined in Section 2.06 of this Agreement.
"Purchased Assets" means those assets, properties and rights used in
the Business and specifically listed on Schedule 2.01; provided, however, that
with respect to Shared Systems, the definition of Purchased Assets shall only
include the data contained in such Shared Systems that specifically relates to
the Business and shall not include the underlying software or database utilized
by the Shared System or the data related solely to the Retained Business.
"Representatives" means Seller or Buyer's respective officers,
directors, employees, accountants, counsel, consultants, advisors, agents and
Affiliates.
"Retained Business" means Seller's Jupiter Research and Jupiter Events
business units.
"Seller" is defined in the preamble to this Agreement.
"Shared Systems" means those financial accounting, marketing, sales and
similar systems and databases which are not set forth on Schedule 2.01 and which
are utilized by both the Business and the Retained Business.
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"Software Programs" is defined in Section 3.15 of this Agreement.
"Tax" is defined in Section 3.21 of this Agreement.
ARTICLE II
PURCHASE AND SALE
2.01 PURCHASE AND SALE. On the terms and subject to the conditions of
this Agreement, Seller, shall sell, convey, transfer, assign and deliver to
Buyer, and Buyer shall purchase and accept from Seller, on the Closing Date, all
right, title and interest of Seller in and to the Purchased Assets.
2.02 EXCLUDED ASSETS. Buyer expressly understands and agrees that all
assets, properties and rights of Seller not listed on Schedule 2.01 and not used
in the Business (the "Excluded Assets") shall be excluded from the Purchased
Assets, including without limitation:
(i) all cash and cash equivalents (including all bank accounts),
marketable securities and prepaid expenses;
(ii) all intercompany receivables other than receivables listed on
Schedule 2.01;
(iii) all corporate records (including minute books and stock
ledgers), tax returns and financial records except as otherwise noted on
Schedule 2.01;
(iv) any Permits which may not be transferred without the consent,
novation, waiver or approval of a third person or entity and for which such
consent, novation, waiver or approval has not been obtained;
(v) all insurance policies;
(vi) any refunds, credits, prepayments or overpayments with
respect to Taxes paid or accrued by Seller; and
(vii) all assets of any Employee Plans and Benefit Arrangements.
2.03 Assumption of Liabilities. On the Closing Date, Buyer shall assume
and agree to perform all of the obligations of Seller set forth in the Contracts
(other than liabilities or obligations attributable to any failure by Seller to
comply with the terms thereof), but only to the extent such obligations relate
to periods, or arise, after the Closing Date (the "Assumed Liabilities"). Buyer
shall not assume nor be liable for any liabilities of Seller or any of its
affiliates other than the Assumed Liabilities.
2.04 Excluded Liabilities. All liabilities of Seller and its affiliates
other than the Assumed Liabilities (collectively, the "Excluded Liabilities")
shall be retained by Seller and Seller shall pay and satisfy them in the
ordinary course, including but not limited to:
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(i) any obligation or liability for Tax arising from the operation
of the Business prior to the Closing Date or any other Tax for which either
Seller may be liable or any sale or transfer tax related to the Acquisition for
which Buyer may be liable;
(ii) any liabilities or obligations under any Employee Plans and
Benefit Arrangements;
(iii) any liabilities arising prior to the Closing Date pertaining
to any Purchased Assets;
(iv) any liabilities or obligations for continued health care
coverage for any M&A Qualified Beneficiary (as defined in Treasury Regulation
Section 54.4980 B-9, Q&A 4(a) under Code Section 4980B ("COBRA"));
(v) any liabilities arising out of any audits conducted after the
Closing by any governmental authority, insurer, licensor, licensors' association
or other party regarding Seller's 's pre-closing activities;
(vi) any liability or obligation relating to an Excluded Asset.
(vii) any intercompany liabilities (including without limitation
any payables or amounts categorized as due to/from in the Seller's balance sheet
or accounting records);
(viii) any liability to employees for claims for matters occurring
prior to the Closing Date, including but not limited to claims by former
employees regarding sales of Seller common stock.
(ix) any liability or obligation arising out of any contract not
specifically assumed by Seller pursuant to this Agreement.
2.05 ASSIGNMENT OF CONTRACTS AND RIGHTS. Anything in this Agreement to
the contrary notwithstanding, this Agreement shall not constitute an agreement
to assign any Purchased Asset or any claim or right or any benefit arising
thereunder or resulting therefrom if an attempted assignment thereof, without
consent of a third party thereto, would constitute a breach or other
contravention thereof or in any way adversely affect the rights of Buyer or
Seller thereunder. Seller and Buyer will use their commercially reasonable
efforts (but without any payment of money by Seller or Buyer) to obtain the
consent of the other parties to any such Purchased Asset or claim or right or
any benefit arising thereunder for the assignment thereof to Buyer as Buyer may
request. If such consent is not obtained, or if an attempted assignment thereof
would be ineffective or would adversely affect the rights of Seller thereunder
so that Buyer would not in fact receive all such rights, Seller and Buyer will
cooperate in a mutually agreeable arrangement under which Buyer would obtain the
benefits and assume the obligations thereunder in accordance with this
Agreement, including subcontracting, sub-licensing, or subleasing to Buyer, or
under which Seller would enforce for the benefit of Buyer, with Buyer assuming
Seller's obligations, any and all rights of Seller against a third party
thereto. Seller will promptly pay to Buyer when received all monies received by
Seller under any Purchased Asset
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or any claim or right or any benefit arising thereunder, except to the extent
the same represents an Excluded Asset.
2.06 PURCHASE PRICE; ALLOCATION OF PURCHASE PRICE.
(a) The purchase price for the Purchased Assets shall be
$1,483,574 (the "Purchase Price").
(b) At the Closing, Seller shall deliver to Buyer a statement (the
"Allocation Statement"), prepared in cooperation with Buyer, setting forth the
allocation of the Purchase Price among the Purchased Assets, in accordance with
their relative fair market values, and Buyer and Seller agree to report the sale
and purchase of the Purchased Assets consistent with such allocation for all Tax
purposes.
2.07 CLOSING. The closing (the "Closing") of the purchase and sale of
the Purchased Assets and the assumption of the Assumed Liabilities hereunder
shall take place at 00 Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx on the date hereof, or at
such other time or place as Buyer and Seller may agree (the "Closing Date"). At
the Closing:
(a) Buyer shall deliver to Seller the Purchase Price;
(b) Seller and Buyer shall enter into the Xxxx of Sale, Assignment
and Assumption Agreement, and the Assignment of Intellectual Property Agreement
(collectively, the "Ancillary Agreements"), and Seller shall deliver to Buyer
such deeds, bills of sale, endorsements, consents, assignments and other good
and sufficient instruments of conveyance and assignment as the parties and their
respective counsel shall deem reasonably necessary or appropriate to vest in
Buyer all right, title and interest in, to and under the Purchased Assets;
(c) Buyer shall deliver to Seller copies, certified by the
Secretary of Buyer, of resolutions duly adopted by the Board of Directors of
Buyer authorizing the execution, delivery and performance of this Agreement and
the transactions contemplated hereby.
(d) Seller shall deliver to Buyer copies, certified by the
Secretary of each of Seller, of resolutions duly adopted by the Boards of
Directors of Seller, as the case may be, authorizing the execution, delivery and
performance of this Agreement and the transactions contemplated hereby.
(e) Seller and Buyer shall also execute and deliver all such
instruments, documents and certificates as may be reasonably requested by the
other party that are necessary, appropriate or desirable for the consummation at
the Closing of the transactions contemplated by this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer, subject to the
exceptions specifically disclosed in writing in the corresponding sections or
subsections of the Seller Disclosure
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Schedule or in any other section or subsection of the Seller Disclosure Schedule
if it is reasonably apparent that such disclosure applies that:
3.01 ORGANIZATION AND QUALIFICATION. Seller has been duly organized and
is validly existing and in good standing under the laws of its respective
jurisdiction of incorporation and has the requisite corporate power and
authority to own, lease and operate its properties and to carry on its business
as it is now being conducted. Seller is duly qualified or licensed to do
business, and is in good standing in the State of New York.
3.02 CORPORATE AUTHORIZATION. The execution, delivery and performance
by Seller of this Agreement and each of the Ancillary Agreements to which it is
a party, and the consummation by Seller of the transactions contemplated hereby
and thereby are within Seller's respective corporate powers and have been duly
authorized by all necessary corporate action on the part of Seller. This
Agreement and each of the Ancillary Agreements to which either Seller is a party
have been duly executed and delivered by Seller, as the case may be, and
constitute valid and binding agreements of Seller enforceable against in
accordance with their respective terms, except as may be limited by any
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other similar law affecting the enforcement of creditors' rights generally or by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
3.03 NON-CONTRAVENTION. The execution, delivery and performance by
Seller of this Agreement and each of the Ancillary Agreements to which Seller is
a party does not and will not (i) contravene or conflict with the corporate
charter or bylaws of Seller; (ii) contravene or conflict with or constitute a
violation of any provision of any law or regulation, judgment, injunction, order
or decree binding upon or applicable to Seller or the Business; (iii) result in
the creation or imposition of any Lien on any Purchased Asset, other than
Permitted Liens; or (iv) except as listed in Schedule 3.04, and excluding
Customer Contracts, result in a breach of any agreement or Contract which is
included in the Purchased Assets or give rise to a right of termination
thereunder.
3.04 REQUIRED CONSENTS. Schedule 3.04 sets forth each Contract or
Permit, excluding Customer Contracts, requiring a consent, waiver, authorization
or approval as a result of the execution, delivery and performance of this
Agreement and the Ancillary Agreements or the consummation of the transactions
contemplated hereby and thereby (each such consent, a "Required Consent").
3.05 ABSENCE OF CERTAIN CHANGES. Since March 31, 2002, Seller has
conducted the Business in the ordinary course consistent with past practices,
and, except as set forth on Schedule 3.05 hereto:
(a) Seller has not entered into any material transaction or
incurred any material liability or obligation with respect to the Business other
than in the ordinary course of business;
(b) there has not been any material adverse change in the
Purchased Assets or the condition (financial or otherwise) of the Business;
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(c) Seller has not made any representation to any employee or
former employee of the Business that Buyer would assume, continue to maintain or
implement any Employee Plan after the Closing Date; and
(d) there has not occurred:
(i) any single capital expenditure commitment in excess of
Five Thousand Dollars ($5,000) or aggregate capital expenditure commitments in
excess of Ten Thousand Dollars ($10,000) for additions to capital assets
comprising Purchased Assets that is likely to occur, in whole or in part, after
the Closing Date;
(ii) the sale, assignment, transfer, lease or other
disposition of or agreement to sell, assign, transfer, lease or otherwise
dispose of, any of the Purchased Assets, other than the license thereof in the
ordinary course; or
(iii) any material damage, destruction or other casualty loss
with respect to any Purchased Asset, whether or not covered by insurance.
3.06 OFFICE LEASE. Seller has delivered to the Buyer a correct and
complete copy of the Office Lease and any amendment thereto. The Office Lease is
legal, valid, binding, enforceable and in full force and effect. Seller is not
in default, violation or breach in any respect under the Office Lease, and to
Seller's knowledge, no event, including the transactions contemplated by this
Agreement, has occurred that constitutes or, with notice or the passage of time
or both, would constitute a default, violation or breach in any respect under
the Office Lease. The Office Lease grants Seller the exclusive right to use and
occupy the demised premises thereunder. Seller has good and valid title to the
leasehold estate under the Office Lease free and clear of all Liens. Seller
enjoys peaceful and undisturbed possession under the Office Lease.
3.07 PERSONAL PROPERTY.
(a) Schedule 2.01 sets forth a description of identified tangible
personal property used in the Business and included in the Purchased Assets,
including but not limited to machinery, equipment, furniture, vehicles, spare
and replacement parts, trade fixtures and fixed assets.
(b) The equipment included in the Purchased Assets has no material
defects, is in good operating condition and repair, has been reasonably
maintained consistent with standards generally followed in the industry (giving
due account to the age and length of use of same, ordinary wear and tear
excepted) and is suitable for its present uses.
(c) No Purchased Asset is subject to any Lien, except for the
following (collectively, the "Permitted Liens"):
(i) liens for taxes not yet due or being contested in good
faith;
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(ii) liens for inchoate mechanics' and materialmen's liens for
construction in progress and workmen's, repairmen's, warehousemen's and
carriers' liens arising in the ordinary course of the Business; or
(iii) liens and imperfections of title the existence of which
would not materially adversely affect the use of the property subject thereto.
3.08 USE OF PURCHASED ASSETS; OPERATION OF RETAINED BUSINESS . After
sale of the Purchased Assets, Seller shall continue to be able to operate its
Retained Business.
3.09 TITLE TO PURCHASED ASSETS. Upon consummation of the transactions
contemplated hereby, Buyer will have acquired good and marketable title in and
to, or a valid leasehold interest in, each of the Purchased Assets, free and
clear of all Liens, except for Permitted Liens.
3.10 LITIGATION. There is no material action, suit, investigation or
proceeding pending against or, to the knowledge of Seller, threatened against or
affecting the Business or any Purchased Asset before any court or arbitrator or
any governmental body, agency or official. There is no judgment, order,
injunction, decree, fine, penalty or award outstanding (whether rendered by a
court, administrative agency or arbitrator) against Seller or by which Seller is
bound which relates to either the Business or any of the Purchased Assets.
3.11 MATERIAL CONTRACTS.
(a) Except for the Contracts disclosed in Schedule 3.11, Seller is
not a party to or subject to any of the following agreements, contracts or
commitments relating primarily to the Business:
(i) any real property lease;
(ii) any contract for the purchase of materials, supplies,
goods, services, equipment or other assets providing for annual payments by
Seller or pursuant to which in the last year Seller paid in the aggregate,
$25,000 or more;
(iii) any sales, distribution or other similar agreement
providing for the sale by Seller of materials, supplies, goods, services,
equipment or other assets that provides for annual payments to Seller, or
pursuant to which in the last year either Seller or an Affiliate received in the
aggregate, $25,000 or more;
(iv) any partnership, joint venture or other similar contract
arrangement or agreement;
(v) any contract relating to indebtedness for borrowed money
or the deferred purchase price of property (whether incurred, assumed,
guaranteed or secured by an asset);
(vi) any material license agreement, franchise agreement or
agreement in respect of similar rights granted to or held by Seller;
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(vii) any agency, dealer, sales representative or other
similar agreement;
(viii) any agreement, contract or commitment that
substantially limits the freedom of Seller to compete in any line of business or
with any Person or in any area or to own, operate, sell, transfer, pledge or
otherwise dispose of or encumber any Purchased Asset or that would so limit the
freedom of Buyer after the Closing Date;
(ix) any agreement, contract or commitment which is or relates
to an agreement with or for the benefit of any Affiliate of Seller;
(x) any employment agreement; or
(xi) any other agreement, contract or commitment not made in
the ordinary course of business, which is material to the Business.
(b) Each Contract required to be disclosed pursuant to Section
3.11 is a valid and binding agreement of Seller and is in full force and effect,
and the relevant party is not, nor to the knowledge of Seller, any other party
thereto is in default in any material respect under the terms of any such
Contract, nor, to the knowledge of Seller, has any event or circumstance
occurred that, with notice or lapse of time or both, would constitute any event
of default thereunder.
3.12 LICENSES AND PERMITS. Seller possesses all material permits,
licenses and approvals (the "Permits") necessary or used in order to carry on
the Business. Schedule 3.12 hereto sets forth all Permits. Except as set forth
on Schedule 3.12 hereto, the Seller is in compliance in all material respects
with all Permits; there are no proceedings pending or, to the knowledge of
Seller, threatened, to revoke, suspend, cancel or modify any Permit; and, except
as set forth on Schedule 3.12 hereto, all such Permits may be assigned to Buyer
as contemplated hereby without the consent of the issuing authority. Seller
knows of no reason why Buyer will not be able promptly to obtain all Permits
necessary in order to carry on, or used in, the Business.
3.13 COMPLIANCE WITH LAWS. Seller is in no violation in any material
respect of any applicable law, regulation, ordinance, order or any other
requirement of any governmental body or court (including, without limitation,
matters relating to securities, loans, employment and improper payments), and no
notice has been received by Seller or any of its officers or directors alleging
any such violation.
3.14 RECEIVABLES. All accounts, notes receivable and other receivables
included in the Purchased Assets are, and all accounts and notes receivable
arising from or otherwise relating to the Business at the Closing Date will be,
valid and genuine and arose in the ordinary course of business.
3.15 PROPRIETARY RIGHTS
(a) Schedule 3.15 hereto contains a complete and correct list of
all Intellectual Property owned or used by Seller in the Business, as well as
all registrations thereof and applications therefor, and each license and
agreement relating thereto. Except as indicated on Schedule 3.15, all of
Seller's patents, patent applications, registered trademarks, trademark
applications, registered copyrights and any other intellectual property subject
to application
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and/or registration issued by any state, government or other public legal entity
included in the Intellectual Property are valid and in full force and effect and
remain in good standing with all fees and filings paid as of the date hereof and
consummation of the transaction contemplated hereby will not alter or impair any
such rights. To the knowledge of Seller, except as set forth on Schedule 3.15
hereto, there is no violation by others of any right of Seller with respect to
any Intellectual Property, and Seller is not infringing upon, misappropriating
or violating any third party's rights that would pertain to the Business. No
proceedings have been instituted or are pending or, to the knowledge of Seller,
threatened, nor any claims made alleging any such violation or challenging or
questioning the validity, enforceability or effectiveness of the Intellectual
Property. Seller has not entered into any agreement to indemnify any other
person against any charge of infringement of any Intellectual Property, other
than indemnification provisions contained in standard sales or license
agreements to end users arising in the ordinary course of business, the forms of
which are attached hereto on Schedule 3.15(a).
(b) The Intellectual Property contains only those items and rights
which are: (i) owned by Seller; (ii) in the public domain; or (iii) rightfully
used by Seller pursuant to a valid and enforceable license or other agreement
(the "LICENSED INTELLECTUAL PROPERTY"), the parties, date, term and subject
matter of each such license or other agreement (each, a "LICENSE AGREEMENT")
being set forth on Schedule 3.15(b). Seller owns all right, title and interest
in and to the Intellectual Property, or has valid and sufficient licenses to all
rights in the Intellectual Property necessary to carry out Seller's current
Business activities free and clear of all liens, claims and encumbrances,
including without limitation, to the extent required to carry out such
activities, rights to make, use, reproduce, modify, adopt, create derivative
works based on, translate, distribute (directly and indirectly), transmit,
display and perform publicly, license, rent and lease and, except with respect
to the Licensed Intellectual Property, assign and sell, the Intellectual
Property. Seller is the exclusive owner of all Trademark Rights used in
connection with the operation or conduct of the business of Seller, including
the provision of any services by Seller.
(c) Schedule 3.15(c) contains a true and complete list of all
software programs owned or used by Seller, other than software programs which
are readily commercially available or for which substitutes are available from
more than one source (the "SOFTWARE PROGRAMS"). Seller, as the case may be, owns
full and unencumbered right and good and marketable title to such Software
Programs which it owns, free and clear of all mortgages, pledges, liens,
security interests, conditional sales agreements, encumbrances or charges of any
kind. Seller has full and unrestricted rights to use the Software Programs that
it licenses, pursuant to the License Agreements.
(d) The Software Programs are free of any disabling codes that may
be used to access, modify, delete, damage or disable any Systems (as defined
below) or that may result in impaired usage thereof or damage thereto. Seller
has taken reasonable steps and implemented reasonable procedures to ensure that
its internal computer systems used in connection with the Business consisting of
hardware, software, databases or embedded control systems ("Systems") are free
from disabling codes. The Systems' components used in connection with the
Business obtained by Seller from third party suppliers are, to the best of
Seller's knowledge, free of any disabling codes that may, or may be used to,
access, modify, delete, damage or disable any of the Systems or that might
result in damage thereto. Except as may be set forth in Schedule 3.15(d),
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Seller has in place appropriate disaster recovery plans and procedures and has
taken reasonable steps to safeguard its Systems and restrict unauthorized access
thereto. Seller has provided, or will provide prior to the Closing, to Buyer an
accurate list of all errors or "bugs" in the Software Programs which are
contained in the computer databases which Seller maintains for the purpose of
tracking errors and "bugs" in the Software Programs.
(e) Seller is not a party to any agreement pursuant to which any
third party has any right to manufacture, reproduce, distribute, market or
exploit any of the Intellectual Property or any adaptations, translations, or
derivative works based on the Intellectual Property or any portion thereof.
Except with respect to the rights of third parties to any Licensed Intellectual
Property, no third party has rights to manufacture, reproduce, distribute,
market or exploit any works or materials of any portion of the Intellectual
Property if such portion of the Intellectual Property constitutes a "derivative
work" (as that term is defined in the United States Copyright Act, Title 17,
U.S.C. Section 101) of an underlying work of authorship. Except as set forth in
Schedule 3.15(e), neither Seller n owes or will owe any royalties or other
payment to third parties in respect of the Intellectual Property. All royalties
or other payments that have accrued prior to the Closing Date have been paid.
(f) All designs, drawings, specifications, source code, object
code, documentation, flow charts and diagrams incorporating, embodying or
reflecting any of the Intellectual Property at any stage of their development
were written, developed and created solely and exclusively by employees of
Seller without the assistance of any third party or entity or were created by
third parties who assigned ownership of their rights to Seller pursuant to valid
and enforceable consultant confidentiality and invention assignment agreements.
Seller has at all times treated the Intellectual Property as containing trade
secrets and has not disclosed or otherwise dealt with such items in such a
manner as to cause the loss of such trade secrets by release into the public
domain, including without limitation, the use of confidentiality agreements with
all of its employees having access to the Intellectual Property and the use of
licenses with all individuals or entities provided access to the Intellectual
Property containing provisions restricting copying and prohibiting decompiling
or disassembly of the Intellectual Property. Given the nature of the Business,
to the knowledge of Seller, no employee of Seller is in violation of any term of
any employment contract, patent disclosure agreement or any other contract or
agreement with respect to (i) the Intellectual Property or (ii) the relationship
of any such employee with Seller or any other party. No current officer,
director, employee, consultant or independent contractor of Seller has and to
the knowledge of the Seller no former officer, director, stockholder, employee,
consultant or independent contractor has any right, claim or interest in or with
respect to any Intellectual Property.
3.16 EMPLOYEES; LABOR MATTERS.
(a) Seller has performed in all material respects all obligations
required to be performed by it under each Employee Plan and Benefit Arrangement
and each Employee Plan and Benefit Arrangement has been established and
maintained in all material respect in accordance with its terms and in
compliance with all applicable laws, statutes, orders, rules and regulations,
including but not limited to ERISA or the Code.
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(b) Except as set forth on Schedule 3.16(b), (i) Seller is not a
party to any union or collective bargaining agreements covering any of the
employees of the Business, (ii) Seller does not know of any activities or
proceedings of any labor union to organize any such employees, and (iii) Seller
does not have any employment agreements with any of such employees. Seller is in
compliance with all applicable laws relating to employment and employment
practices, wages, hours and terms and conditions of employment, in each case
relating to employees primarily engaged in the Business, except to the extent
that such non-compliance would not reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect.
3.17 FINDER'S FEES. There is no investment banker, broker, finder or
other intermediary which has been retained by or is authorized to act on behalf
of Seller who might be entitled to any fee or commission from Seller or any of
their Affiliates upon consummation of the transactions contemplated by this
Agreement.
3.18 EXPORT RESTRICTIONS. Seller has not exported or transmitted any of
the Purchased Assets to any country to which such export or transmission is
restricted by any applicable United States regulation or statute, without first
having obtained all necessary and appropriate United States or foreign
government licenses or permits and complying with all other requirements in
relation thereto.
3.19 BOOKS AND RECORDS. Selected elements of the books and records of
Seller relating to the Business have been made available to Buyer prior to the
execution of this Agreement and contain what have been represented to Seller by
Buyer to be a true and complete record, in all material respects, of the
business, operations, financial condition, results of operations, assets and
liabilities relating to the Business. Seller has no books and records recorded,
stored, maintained, operated or otherwise wholly or partly dependent upon or
held by any means (including any electronic, mechanical or photographic process,
whether computerized or not) that are not under the exclusive ownership and
direct control of Seller.
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3.20 TAXES.
(a) Seller has completed and duly and timely filed in correct form
with the appropriate United States, state and local governmental agencies and
with the appropriate foreign countries and political subdivisions thereof, all
Tax (as hereinafter defined) returns and reports, including estimated Tax
returns and reports and information statements returns and reports
(collectively, "TAX RETURNS") required to be filed on or prior to the date
hereof and will complete and duly and timely file in correct form with the
appropriate United States, state and local governmental agencies and with the
appropriate foreign countries and political subdivisions thereof, all Tax
Returns required to be filed after the date hereof. All of such Tax Returns that
have been filed were accurate and complete as filed. Seller has paid in full all
Taxes, assessments or deficiencies (A) shown to be due on those Tax Returns that
have been filed or (B) claimed to be due by any Taxing authority or otherwise
due or owing, other than those being contested in good faith. Seller has made
all withholdings of Tax required to be made under all applicable United States,
foreign, state and local tax laws and regulations; and such withholdings have
been or will be paid to the respective governmental agencies when due and to the
extent not yet due have been set aside in accounts for purposes of such payment.
(b) The Purchased Assets are not subject to any liens for Taxes,
except liens for current ad valorem Taxes not yet due, and neither Buyer nor any
affiliate thereof will become directly or indirectly liable for, and no lien,
claim or encumbrance will be placed upon the Purchased Assets with respect to,
(A) any Taxes attributable to the ownership or use of the Purchased Assets with
respect to periods prior to and including the Closing Date (other than ad
valorem Taxes not yet due and payable as of the Closing Date) or (B) any other
Taxes (regardless of whether attributable to periods prior to and including the
Closing Date) imposed upon Seller or attributable to the actions or activities
of any of Seller .
(c) For purposes of this Agreement, "TAX" (and, with correlative
meaning, "TAXES," "TAXABLE" and "TAXING") means (A) any net income, alternative
or add-on minimum tax, gross income, gross receipts, sales, use, ad valorem,
transfer, franchise, profits, license, withholding, payroll, employment, excise,
severance, stamp, occupation, premium, property, environmental or windfall
profit tax, custom, duty or other tax, governmental fee or other like assessment
or charge of any kind whatsoever, together with any interest or any penalty,
addition to tax or additional amount imposed by any governmental, regulatory or
administrative entity or agency responsible for the imposition of any such tax
(domestic or foreign), (B) any liability for the payment of any amounts of the
type described in (A) as a result of being a member of an affiliated,
consolidated, combined, unitary or other group for any Taxable period and (C)
any liability for the payment of any amounts of the type described in (A) or (B)
as a result of any express or implied obligation to indemnify any other person.
Notwithstanding the foregoing, solely for purposes of paragraph (a) of this
Section 3.21(c), Tax (and the correlative meanings, "Taxes," "Taxable" and
"Taxing") shall not include any amount to the extent that (A) a lien, claim or
encumbrance cannot be placed upon any of the Purchased Assets with respect to
such amount and (B) neither Buyer nor any of its affiliates can be made directly
or indirectly liable with respect to such amount.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller, subject to the
exceptions specifically disclosed in writing in the corresponding sections or
subsections of Buyer's disclosure schedules or in any other section or
subsection of Buyer's disclosure schedules if it is reasonably apparent that
such disclosure applies, that:
4.01 ORGANIZATION AND QUALIFICATION. Buyer has been duly organized and
is validly existing and in good standing (to the extent applicable) under the
laws of the jurisdiction of its incorporation or organization, as the case may
be, and has the requisite power and authority and all necessary governmental
approvals to own, lease and operate its properties and to carry on its business
as it is now being conducted.
4.02 CORPORATE AUTHORIZATION. The execution, delivery and performance
by Buyer of this Agreement and each of the Ancillary Agreements, and the
consummation by Buyer of the transactions contemplated hereby and thereby are
within Buyer's powers and have been duly authorized by all necessary action on
the part of Buyer. This Agreement and each of the Ancillary Agreements to which
Buyer is a party have been, or will be in the case of the Ancillary Agreements,
duly executed and delivered by Buyer and constitute valid and binding agreements
of Buyer, enforceable against Buyer in accordance with their respective terms,
except as may be limited by any bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar law affecting the enforcement
of creditors' rights generally or by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
4.03 NON-CONTRAVENTION. The execution, delivery and performance by
Buyer of this Agreement and each of the Ancillary Agreements to which Buyer is a
party do not and will not (i) contravene or conflict with the organizational
documents or bylaws of Buyer, (ii) contravene or conflict with or constitute a
violation of any provision of any material law or regulation, judgment,
injunction, order or decree binding upon or applicable to Buyer; (iii)
constitute a material default under or give rise to any right of termination,
cancellation or acceleration of any material right or obligation of Buyer or to
a loss of any material benefit relating to Buyer's business to which Buyer is
entitled under any provision of any material agreement, contract or other
instrument binding upon Buyer or by which any of Buyer's assets is or may be
bound.
4.04 FINDERS' FEES. There is no investment banker, broker, finder or
other intermediary which has been retained by or is authorized to act on behalf
of Buyer who might be entitled to any fee or commission from Buyer or any of its
Affiliates upon consummation of the transactions contemplated by this Agreement.
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ARTICLE V
COVENANTS OF THE PARTIES
5.01 BEST EFFORTS; FURTHER ASSURANCES.
(a) Subject to the terms and conditions of this Agreement and
except as otherwise set forth in this Agreement, each party will use its best
efforts to take, or cause to be taken, all actions and to do, or cause to be
done, all things necessary or desirable under applicable laws and regulations to
consummate the transactions contemplated by this Agreement. Seller and Buyer
each agree to execute and deliver such other documents, certificates, agreements
and other writings and to take such other actions as may be necessary or
desirable in order to consummate or implement expeditiously the transactions
contemplated by this Agreement and to vest in Buyer title to the Purchased
Assets as provided herein.
(b) Seller hereby constitutes and appoints, effective as of the
Closing Date, Buyer and its successors and assigns as the true and lawful
attorney of Seller with full power of substitution in the name of Buyer or in
the name of Seller, but for the benefit of Buyer, except as otherwise
contemplated hereby, (i) to collect for the account of Buyer any items of
Purchased Assets and (ii) to institute and prosecute all proceedings which Buyer
may in its sole discretion deem proper in order to assert or enforce any right,
title or interest in, to or under the Purchased Assets, and to defend or
compromise any and all actions, suits or proceedings in respect of the Purchased
Assets. Buyer shall be entitled to retain for its account any amounts collected
pursuant to the foregoing powers, including any amounts payable as interest in
respect thereof.
(c) At Buyer's request, Seller shall maintain as active all
internet website links or any and all websites maintained by them which link to
any websites pertaining to the Business for a period of up to forty-five (45)
days following the Closing. Seller agree to provide such other termination
services as may relate to the Business as may be reasonably requested by Buyer
at Buyer's expense.
(d) Seller shall provide the data to be transferred to Buyer out
of the Shared Systems to Buyer in such electronic and other formats as Buyer may
reasonably request and Seller shall maintain such data in the Shared Systems for
such reasonable amount of time following the Closing as Buyer may request.
(e) In connection with the transfer of the Office Lease, Buyer
shall reasonably cooperate with Seller to ensure the prompt return of all
security deposits of Seller or its subsidiaries held by the landlord under the
Office Lease, either by substituting the deposits currently held by such
landlord or by remitting to Seller the amount of such deposits.
(f) With respect to the websites maintained by Seller pursuant to
Section 5.01(c) above, Seller agrees to follow all reasonable instructions of
Buyer with respect to the maintenance of such websites and the transfer of such
websites included in the Purchased Assets.
5.02 CERTAIN FILINGS. Seller and Buyer shall cooperate with one another
and shall use all reasonable efforts and take all reasonable steps to obtain all
consents, approvals, waivers or other documents from any third parties,
including any governmental authorities, and make all
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filings, registrations and other notifications, as may be required to consummate
the transactions contemplated by this Agreement and, in taking such actions or
making any such filings, furnishing information required in connection therewith
and seeking timely to obtain any such actions, consents, approvals or waivers.
5.03 CONFIDENTIALITY. The parties hereto shall comply with, and shall
cause their respective Representatives to comply with, all of their respective
obligations under the Confidentiality Agreement with respect to the information
disclosed pursuant to this Agreement provided however, that, the parties shall
be permitted to make such disclosures as they shall reasonably determine are,
and to the extent, required by law.
5.04 NONSOLICITATION BY SELLER . Seller agrees that, for a period of
one (1) year following the Closing Date, Seller shall not solicit or induce the
employment or services of any Employee of the Buyer without the prior written
consent of Buyer, provided, however, that nothing in this Section 5.04 shall be
construed as prohibiting Seller from conducting any general solicitation
(including by placing advertisements in any form or method not targeted at
employees or independent contractors of Buyer).
5.05 AUDIENCE MEASUREMENT DATA. For a period of 60 months commencing on
the Closing Date, Buyer shall provide Seller with both client level and detailed
"warehouse" level data on audience measurement and related behavior and
reasonable training with respect thereto, at no cost to Seller. In addition, in
the event Seller sells or assigns this right, delivery shall continue for 12
months after such assignment and then terminate. Seller may not sell or assign
this right to any entity identified on Schedule 5.05.
5.06 NAME CHANGE. From and after the Closing, Seller will cease using
the name "Media Metrix" and thereafter will not use any substantially similar or
confusingly similar names or include them in any logo. In addition, promptly
after the Closing, Seller will change its corporate name to a name that does not
contain the words "Media Metrix" or any substantially similar or confusingly
similar name, and will file that name change in all state jurisdictions in which
Seller has presently registered the name for purposes of maintaining its
corporate business and doing business as a foreign corporation.
5.07 INFORMATIONAL UPDATES. Buyer agrees that it shall provide Seller
with such information and take such other action, as may reasonably be requested
by Seller from time to time, in connection with Seller's reporting obligations
to any governmental authority.
5.08 COVENANT NOT TO COMPETE.
(a) Seller covenants and agrees that, except as permitted under
this Section 5.08, for a period of three years after the Closing Date, it will
not, and will cause its subsidiaries not to, engage in the Business anywhere in
the world; provided, however, that nothing herein shall be construed to prevent
Seller or any subsidiary from owning as a passive investor up to five percent
(5%) in any person that engages in the Business. It is the desire and intent of
the parties that the provisions of this Section 5.08 shall be enforced to the
fullest extent permitted under the laws and public policies of each jurisdiction
in which enforcement is sought. If any court determines that any provision of
this Section 5.08 is unenforceable, such court shall have the
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power to reduce the duration or scope of such provision, as the case may be, or
terminate such provision and, in reduced form, such provision shall be
enforceable; it is the intention of the parties that the foregoing restrictions
shall not be terminated, unless so terminated by a court, but shall be deemed
amended to the extent required to render them valid and enforceable, such
amendment to only apply with respect to the operation of this Section 5.08 in
the jurisdiction of the court that has made the adjudication
(b) The parties acknowledge and agree that the restrictions
contained in this Section 5.08 are a reasonable and necessary protection of the
immediate interest of Buyer, and any violation of these restrictions would cause
substantial injury to Buyer and Buyer would not have entered into this Agreement
without receiving the additional consideration offered by Seller in binding
itself to these restrictions. In the event of a breach or a threatened breach by
Seller or any of their respective subsidiaries of these restrictions, Buyer
shall be entitled to apply to any court of competent jurisdiction for an
injunction restraining such person from such breach or threatened breach
(without the necessity of providing the inadequacy of money damages as a
remedy); provided, however, that the right to apply for injunctive relief shall
not be construed as prohibiting Buyer from pursuing any other available remedies
for such breach or threatened breach.
5.09 MAIL AND COMMUNICATIONS. Seller will promptly remit to Buyer any
mail or other communications received by Seller relating to the Business or the
Purchased Assets and any invoices received by Seller relating to Assumed
Liabilities, which are received by Seller from and after the Closing Date. Buyer
will promptly remit to Seller any mail or other communications, including,
without limitation, any written inquiries and payments received by Buyer
relating to the Excluded Assets or to any business or activity of Seller other
than the Business, and any invoices received by Buyer relating to liabilities of
Seller other than the Assumed Liabilities which are received by Buyer from and
after the Closing Date.
5.10 PUBLIC ANNOUNCEMENTS. The initial press release concerning the
transactions contemplated hereby shall be a joint press release approved by the
parties to this Agreement.
5.11 TAXES.
(a) Seller shall pay all Taxes imposed upon Seller. Seller shall
also pay, or indemnify Buyer for, all Taxes imposed on Buyer or any affiliate of
Buyer and any Taxes to which the Purchased Assets are subject or for which a
lien, claim or encumbrance can be placed upon the Purchased Assets but only in
each case to the extent that any such Taxes relate to periods (or portions
thereof) ending on or prior to the Closing Date or transactions or events
occurring on or prior to the Closing Date and only to the extent related to the
Business and including any sales or transfer taxes regardless of which party may
be the legal obligor under applicable law. Liability for any Taxes that Seller
is required to satisfy pursuant to this Section 5.11 shall not constitute or be
treated as Assumed Liabilities.
(b) Seller shall properly file all Tax Returns that they are
required by any applicable law to file with respect to Taxes arising in or
related to periods on or prior to the Closing Date or related to transactions or
events occurring prior to the Closing Date by the due date (including
extensions) for such returns. With respect to state and local ad valorem taxes
on
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the Purchased Assets (whether personal or real, owned or leased) for the current
Tax year, Seller shall as provided in Section 2.04 be responsible for the
payment of all such Taxes for the period up to and including the Closing Date
and Buyer shall be responsible for the payment of all such Taxes for the period
after the Closing Date. For all purposes of this Agreement, (i) all such Taxes
assessed on an annual basis shall be prorated on the assumption that an equal
amount of Tax applies to each day of the year, regardless of how installment
payments are billed or made and (ii) any supplemental property Taxes or
assessments which arise out of a revaluation of a Purchased Asset which
revaluation would not have occurred except for the change in ownership of the
Purchased Asset shall be allocated to periods after the Closing Date and shall
accordingly be borne by Buyer. Any payment of Taxes due from one party to the
other pursuant to the foregoing provisions of this Section 5.11 shall be paid at
the Closing Date. If the current year's Taxes and assessments are not available
at the Closing Date, for the purposes of apportionment between Seller and Buyer
and payment pursuant to this Section 5.11, the amount thereof shall be estimated
on the basis of the prior year's Taxes and assessments, and any incremental
payment shall be adjusted after receipt of the final Tax statements, but within
fifteen (15) days after such statements are provided by the tax authorities. For
purposes of this Agreement income and similar Taxes (including any franchise or
other Taxes measured by reference to income or receipts) for any taxable period
that includes the Closing Date shall be allocated to the period up to and
including the Closing Date, on the one hand, and the period following the
Closing Date, on the other hand, by utilizing the so-called closing of the books
method whereby the tax for each of such periods is separately computed as though
the Closing Date constituted the end of a taxable period.
(c) Buyer agrees to take all actions reasonably requested by
Seller to minimize any sales, use and other transfer taxes and fees incurred in
connection with the assignment, conveyance, transfer and/or delivery of the
Purchased Assets hereunder (collectively, the "Sales Taxes"), including, without
limitation the transfer via means of electronic transmission of all assets
capable of being so transmitted. Buyer further agrees to deliver all
certificates reasonably requested by Seller to verify the fact of such
electronic transmissions or other actions. Seller shall be responsible for the
payment of the amount of any Sales Taxes.
5.12 COOPERATION AND RECORDS RETENTION. Seller and Buyer shall (i) each
provide the other with such assistance as may reasonably be requested by them in
connection with the preparation of any Tax Returns, or in connection with any
audit or other examination by any taxing authority or any judicial or
administrative proceedings relating to liability for Taxes, (ii) each retain and
provide the other, with any records or other information which may be relevant
to any such Tax Return, audit or examination, proceeding or determination, and
(iii) each provide the other with any final determination of any such audit or
examination, proceeding or determination that affects any amount required to be
shown on any Tax Return of the other for any period. Without limiting the
generality of the foregoing, Seller and Buyer shall retain, until the applicable
statute of limitations (including any extensions) have expired, copies of all
Tax Returns, supporting work schedules and other records or information which
may be relevant to such Tax Returns for all tax periods or portions thereof
ending before or including the Closing Date and shall not destroy or otherwise
dispose of any such records without first providing the other party with a
reasonable opportunity to review and copy the same. Buyer shall keep the
original copies of the records and, at Seller's expense, shall provide copies of
the records to Seller upon Seller's request.
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5.13 STANDSTILL. For a period commencing with the Closing Date, and
ending six months thereafter, Buyer agrees that neither it nor any of its
affiliates, nor anyone acting on its or their behalf, will acquire, or agree to
acquire, any voting securities of Seller.
ARTICLE VI
EMPLOYEE BENEFITS
6.01 EMPLOYEES AND OFFERS OF EMPLOYMENT. After the Closing Date, Buyer
shall be entitled to make offers of employment to selected employees of Seller
primarily engaged in the Business. For any current Employee of Seller who
receives a severance payment from Seller, and within 90 days of Closing accepts
an offer of Employment from Buyer, Buyer shall reimburse Seller for the amount
of any severance payment.
6.02 EMPLOYEE NON-COMPETITION AGREEMENTS. Seller agrees that following
the Closing all rights which it or any of its affiliates may have to prevent any
employees being transferred to Buyer from working in the Business or competing
therewith shall not be enforced without the consent of Buyer. To the extent such
rights have not been transferred to Buyer pursuant to this Agreement, Seller
shall cooperate with Buyer, at Buyer's expense and upon Buyer's request, to
enforce such rights.
ARTICLE VII
CONDITIONS TO CLOSING
7.01 CONDITIONS TO THE OBLIGATIONS OF EACH PARTY. The obligations of
Buyer and Seller to consummate the transactions contemplated hereby are subject
to the satisfaction of the following conditions:
(a) Buyer, Seller and any other parties thereto shall have
executed and delivered to the other this Agreement and each of the Ancillary
Agreements.
(b) Each party shall have received such closing documents as it
may reasonably request, all in form and substance reasonably satisfactory to
such requesting party.
ARTICLE VIII
SURVIVAL; INDEMNIFICATION
8.01 SURVIVAL. The covenants, agreements, representations and
warranties of the parties hereto contained in this Agreement or in any
certificate or other writing delivered pursuant hereto or in connection herewith
shall survive the Closing until twelve (12) months after the Closing Date or (i)
in the case of Section 5.08 (Covenant Not To Compete) for the
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period set forth therein; or (ii) in the case of the covenants, agreements,
representations and warranties contained in Articles V and VI, until expiration
of the applicable statutory period of limitations (giving effect to any waiver,
mitigation or extension thereof), if later. Notwithstanding the preceding
sentence, any covenant, agreement, representation or warranty in respect of
which indemnity may be sought under Sections 8.02 shall survive the time at
which it would otherwise terminate pursuant to the preceding sentence, if notice
of the inaccuracy or breach thereof giving rise to such right to indemnity shall
have been given to the party against whom such indemnity may be sought prior to
such time.
8.02 INDEMNIFICATION.
(a) Seller hereby indemnifies Buyer and its officers, directors,
employees and agents against, and agrees to hold each of them harmless from, any
and all damages, claims, debts, actions, assessments, judgments, losses,
liabilities, fines, fees, penalties and expense (including, without limitation,
reasonable expenses of investigation and reasonable attorneys' fees and expenses
in connection with any action, suit or proceeding) (collectively, "Losses")
incurred or suffered by any of them arising out of:
(i) any misrepresentation or breach of representation and
warranty, covenant or agreement made or to be performed by Seller pursuant to
this Agreement or the Ancillary Agreements; and
(ii) the failure of Seller to assume full responsibility for
any Excluded Liability or any obligation or liability of the Business relating
to the Excluded Assets and failure to pay and discharge when due any Excluded
Liability, or any claim or cause of action by any party against such indemnities
with respect to the Excluded Liability.
(b) Buyer hereby indemnifies Seller and its Affiliates and its
officers, directors, employees and agents against, and agrees to hold each of
them harmless from, any and all Losses incurred or suffered by such parties
arising out of:
(i) any misrepresentation or breach of representation and
warranty, covenant or agreement made or to be performed by Buyer pursuant to
this Agreement or the Ancillary Agreements; and
(ii) the failure of Buyer to assume full responsibility for
any Assumed Liability or any obligation or liability of the Business relating to
the Purchased Assets and failure to pay and discharge when due any Assumed
Liability, or any claim or cause of action by any party against such indemnities
with respect to the Assumed Liability.
(c) Notwithstanding anything in this Agreement to the contrary,
neither Seller on the one hand, nor Buyer on the other hand, shall be liable
under this Article VIII unless and until the aggregate Losses (without giving
effect to any materiality or material adverse effect qualifications or
materiality exceptions contained in any provision of this Agreement) to any
Indemnified Person incurred or suffered by them resulting from, relating to or
constituting any misrepresentation or breach of warranty contained in this
Agreement or the Ancillary Agreements exceed $25,000, and then such liability
shall be only for Losses in excess of such amount. Except with respect to claims
based on fraud, the indemnification obligations for all
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Losses resulting from, relating to or constituting any misrepresentation, breach
of warranty or failure to perform any covenant or agreement of Seller or Buyer,
as applicable, shall be limited to $375,000. Notwithstanding anything in this
Agreement to the contrary, any claims by Buyer for indemnification for any Taxes
shall not be subject to the foregoing limitation on recovery.
8.03 PROCEDURES; NO WAIVER; EXCLUSIVITY.
(a) All claims for indemnification by an Indemnified Person
pursuant to this Article VIII shall be made in accordance with the provisions of
this Section 8.03.
(b) A party entitled to indemnification under this Article VIII
(the "Indemnified Person") shall give prompt written notification to the Person
obligated to provide such indemnification (the "Indemnifying Person") of the
commencement of any action, suit or proceeding relating to a third party claim
for which indemnification pursuant to this Article VIII may be sought; provided,
however, that no delay on the part of the Indemnified Person in notifying the
Indemnifying Person shall relieve the Indemnifying Person from any liability or
obligation under this Article VIII except to the extent of any damage or
liability caused solely by or arising out of such delay. Within 20 days after
delivery of such notification, the Indemnifying Person may, upon written notice
thereof to the Indemnified Person, assume control of the defense of such action,
suit or proceeding with counsel reasonably satisfactory to the Indemnified
Person, provided (i) the Indemnifying Person acknowledges in writing to the
Indemnified Person that the Indemnifying Person shall indemnify the Indemnified
Person with respect to all elements of such action, suit or proceeding and any
damages, fines, costs or other liabilities that may be assessed against the
Indemnified Person in connection with such action, suit or proceeding, and (ii)
the third party seeks monetary damages only. If the Indemnifying Person does not
so assume control of such defense, the Indemnified Person shall control such
defense. The party not controlling such defense may participate therein at its
own expense; provided, that if the Indemnifying Person assumes control of such
defense and the Indemnified Person is advised by counsel in writing that the
Indemnifying Person and the Indemnified Person may have conflicting interests or
different defenses available with respect to such action, suit or proceeding,
the reasonable fees and expenses of counsel to the Indemnified Person shall be
considered "Losses" for purposes of this Agreement. The party controlling such
defense shall keep the other party advised of the status of such action, suit or
proceeding and the defense thereof and shall consider in good faith
recommendations made by the other party with respect thereto. An Indemnified
Person shall not agree to any settlement of such action, suit or proceeding
without the prior written consent of the Indemnifying Person, which shall not be
unreasonably withheld or delayed. The Indemnifying Person shall not agree to any
settlement or the entry of a judgment in any action, suit or proceeding without
the prior written consent of the Indemnified Person, which shall not be
unreasonably withheld (it being understood that it is reasonable to withhold
such consent if, among other things, the settlement or the entry of a judgment
(A) lacks a complete release of the Indemnified Person for all liability with
respect thereto or (B) imposes any liability or obligation on the Indemnified
Person). If Seller shall have consented to any settlement as provided herein,
they shall forfeit their right to object to any Buyer Claim against the Escrow
Fund for recovery of such amounts.
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8.04 RESOLUTION OF CONFLICTS; ARBITRATION.
(a) In case Seller shall so object in writing to any claim or
claims by Buyer made in any Officer's Certificate, Seller and Buyer shall
attempt in good faith for sixty (60) days to agree upon the rights of the
respective parties with respect to each of such claims. If no such agreement can
be reached after good faith negotiation, either Buyer or Seller may, by written
notice to the other, demand arbitration of the matter unless the amount of the
Losses is at issue in pending litigation with a third party, in which event
arbitration shall not be commenced until such amount is ascertained or both
parties agree to arbitration; and in either such event the matter shall be
settled by arbitration conducted by three arbitrators. Within fifteen (15) days
after such written notice is sent, Buyer and Seller shall each select one
arbitrator, and the two arbitrators so selected shall select a third arbitrator.
The decision of the arbitrators as to the validity and amount of any claim in
such Officer's Certificate shall be binding and conclusive upon the parties to
this Agreement.
(b) Judgment upon any award rendered by the arbitrators may be
entered in any court having jurisdiction. Any such arbitration shall be held in
New York, New York under the commercial rules then in effect of the American
Arbitration Association. Buyer and Seller shall share equally all fees and
expenses of the arbitrators.
ARTICLE IX
MISCELLANEOUS
9.01 NOTICES. All notices, requests and other communications to either
party hereunder shall be in writing (including telecopy or similar writing) and
shall be given,
if to Buyer, to:
comScore Networks, Inc.
00000 Xxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: General Counsel
Facsimile No.: (000) 000-0000
if to Seller, to:
Jupiter Media Metrix, Inc.
00 Xxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Chief Executive Officer
Facsimile No.: 000-000-0000
23
9.02 AMENDMENTS; NO WAIVERS.
(a) Any provisions of this Agreement may be amended or waived
prior to the Closing Date if, and only if, such amendment or waiver is in
writing and signed, in the case of an amendment, by Buyer and Seller, or in the
case of a waiver, by the party against whom the waiver is to be effective.
(b) No failure or delay by either party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
9.03 EXPENSES. Except as otherwise provided herein, all costs and
expenses incurred in connection with this Agreement shall be paid by the party
incurring such cost or expense. Buyer shall pay all sales and transfer taxes
that may be imposed by reason of the sale, transfer, assignment and delivery of
the Purchased Assets and shall timely prepare and file all tax returns related
thereto.
9.04 SUCCESSORS AND ASSIGNS. Except as otherwise provided in this
Agreement, no party hereto shall assign this Agreement or any rights or
obligations hereunder without the prior written consent of the other party
hereto and any such attempted assignment without such prior written consent
shall be void and of no force and effect. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
9.05 GOVERNING LAW. This Agreement shall be construed in accordance
with and governed by the law of the State of Delaware, without regard to the
conflicts of law rules of such state.
9.06 BULK SALES LAWS. Buyer hereby waives compliance by Seller with the
provisions of the "bulk sales", "bulk transfer" or similar laws of any state.
Seller, on one hand, and Buyer, on the other hand, agree to indemnify and hold
the other harmless against any and all claims, losses, damages, liabilities,
costs and expenses incurred by such party or any of its affiliates as a result
of any failure to comply with any such "bulk sales", "bulk transfer" or similar
laws.
9.07 COUNTERPARTS; EFFECTIVENESS. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument. This
Agreement shall become effective when each party hereto shall have received a
counterpart hereof signed by the other party hereto.
9.08 ENTIRE AGREEMENT. This Agreement, the Ancillary Agreements and the
Confidentiality Agreement constitute the entire agreement between the parties
with respect to the subject matter hereof and supersedes all prior agreements,
understandings and negotiations, both written and oral, between the parties with
respect to the subject matter of this Agreement. No representation, inducement,
promise, understanding, condition or warranty not set forth herein has been made
or relied upon by either party hereto. None of this Agreement, the Ancillary
24
Agreements or the Confidentiality Agreement is intended to confer upon any
Person other than the parties hereto any rights or remedies hereunder.
9.09 CAPTIONS. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
9.10 INCORPORATION OF EXHIBITS AND SCHEDULES. The Exhibits and
Schedules referred to in this Agreement are incorporated herein and made a part
hereof.
25
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
JUPITER MEDIA METRIX, INC.
By: Xxxxxx Xxxxxx
------------------------------
Name: Xxxxxx Xxxxxx
Title: Chief Executive Officer
COMSCORE NETWORKS, INC.
By: Xxxxx Xxxxxxx
------------------------------
Name: Xxxxx Xxxxxxx
Title: President and
Chief Executive Officer
[SIGNATURE PAGE TO ASSET PURCHASE AGREEMENT]
