Exhibit 4.2
STOCKHOLDERS' AGREEMENT
STOCKHOLDERS' AGREEMENT (the "Agreement") made as of this 5th day of
November, 1998 by and among MEDIA METRIX, INC., a Delaware corporation (the
"Company"), and the holders of the Company's common stock, par value $.01 per
share (the "Common Stock"), set forth on Schedule I hereto (the "Stockholders").
W I T N E S S E T H:
WHEREAS, the Company and Relevant Knowledge, Inc., a Delaware corporation
("RK"), have entered into an Agreement and Plan of Reorganization, dated as of
September 30, 1998 (the "Merger Agreement") pursuant to which RK merged with and
into the Company;
WHEREAS, the parties hereto desire to promote the interests of the Company
and the interests of the Stockholders by establishing herein certain terms and
conditions upon which the Common Stock will be held and voted by the
Stockholders, including certain provisions relating to the election of directors
and the sale or other disposition of the Common Stock.
NOW, THEREFORE, in consideration of the premises and mutual covenants and
agreements herein contained and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Voting for Directors. For the term of this Agreement, the Stockholders
shall vote their shares of the Company's voting capital stock and utilize all
other voting rights to which they may become entitled at any annual or special
meeting called for the purpose of electing directors, and the respective
transferees of each of such Stockholder shall so vote such voting capital stock
or such other voting rights, so as to cause the Board of Directors of the
Company to consist of eight (8) persons and the election of five (5) directors
designated by the MMX Stockholders or their representatives (acting by a
majority in interest) (who shall initially consist of Xxx Xxxxxxx, Xxxxxxx X.
Xxxxxx, Xxxx Xxx, Xxxxx Xxxxxxxxx and Xxxxx Xxxxxxxx) and the election of three
(3) directors designated by the RK Stockholders or their representatives (acting
by a majority in interest) (who shall initially consist of Xxxxxxx Xxxx, Xxxxxxx
Xxxx and Xxxxxxx Xxxxxx (the "RK Designees")); provided, however, that upon the
death, resignation, retirement, disqualification or removal from office of any
director in accordance with this Agreement or the Company's Bylaws, the
remaining directors nominated by the Stockholders who nominated the director so
removed from the Board of Directors shall nominate a replacement to serve until
the next annual or special meeting held for the purpose of electing directors.
Each of Xxxxxxx Xxxx, Xxxxxxx Xxxx and Xxxxxxx Xxxxxx shall remain an RK
Designee until such time as he resigns, dies, or becomes disabled. There shall
be no obligation on the part of the Stockholders to vote for Messrs. Xxxx or
Xxxx if the employment by the Company of such individual is terminated for
"justifiable cause" pursuant to his respective employment agreement with the
Company or at such time that either of them ceases to own,
directly or indirectly, at least 70% of the shares of Common Stock held by him
on the date hereof. For purposes of this Agreement, the term "MMX Stockholders"
shall mean those Stockholders who held MMX Common Stock, warrants to purchase
MMX Common Stock or preferred stock that was converted into Common Stock, in
each case immediately prior to the Merger, and the term "RK Stockholders" shall
mean those Stockholders who held RK common stock, warrants to purchase RK common
stock or preferred stock that was converted into RK common stock immediately
prior to the Merger.
2. Certain Corporate Actions. During the term of this Agreement, the
Company shall not, without the approval of seventy-five percent (75%) of the
full Board of Directors, issue shares of any class of capital stock of the
Company or rights to acquire any shares of capital stock of the Company
(excluding options to purchase Common Stock granted pursuant to the Company's
1998 Equity Incentive Plan) which issuance would have the effect of decreasing
any Stockholder's outstanding interest in the Common Stock (on a fully diluted
basis) by greater than five percent (5%). In the event that the Company proposes
to issue shares of its capital stock in connection with an acquisition, merger
or other business combination (a "Transaction"), any director having an interest
in the acquired entity or business shall not be entitled to vote on such
Transaction at any meeting of the Board of Directors of the Company at which
such Transaction is considered, and the approval of 75% of the directors who do
not have an interest in such Transaction shall be required.
3. Affirmative Covenants. The Company hereby covenants and agrees with the
Stockholders that it shall maintain, and cause each of its subsidiaries to
maintain, a system of accounting established and administered in accordance with
sound business practices to permit preparation of financial statements in
conformity with generally accepted accounting principles consistently applied
("GAAP") (it being understood that monthly financial statements are not required
to have footnote disclosures). The Company further covenants that it shall
deliver to each of the Stockholders holding at least an aggregate of 125,000
shares (as adjusted for stock splits, recapitalizations, and the like) of Common
Stock (each, a "Major Stockholder") each of the financial statements and other
reports described below:
(a) Quarterly Financial Statements. As soon as available and in any
event within forty-five (45) days after the end of each fiscal quarter, the
Company shall deliver (i) consolidated balance sheets of the Company and its
subsidiaries, as of the end of such quarter, (ii) the related consolidated
statements of income, stockholders' equity and cash flow for such quarter and
for the period from the beginning of the then current fiscal year of the Company
to the end of such quarter, (iii) a schedule of the outstanding indebtedness for
borrowed money of the Company and its subsidiaries for any liability greater
than $75,000, describing in reasonable detail each such debt issue or loan
outstanding and the principal amount and amount of accrued and unpaid interest
with respect to each such debt issue or loan, and (iv) the monthly financial
statements prepared by the Company for each month in the preceding quarter in
whatever form the Company prepared those financial statements for its internal
use.
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(b) Year-End Financial Statements. As soon as available and in any
event within ninety (90) days after the end of the fiscal year of the Company,
the Company shall deliver (i) the consolidated balance sheets of the Company and
its subsidiaries as of the end of such year and the related consolidated
statements of income, stockholders' equity and cash flow for such fiscal year,
(ii) a schedule of the outstanding indebtedness for borrowed money of the
Company and its subsidiaries for any liability greater than $75,000, describing
in reasonable detail each such debt issue or loan outstanding and the principal
amount and amount of accrued and unpaid interest with respect to each such debt
issue or loan, and (iii) a report with respect to the financial statements from
Ernst & Young LLP or another comparable firm of certified public accountants
selected by the Company, which report shall be prepared in accordance with
Statement of Auditing Standards No. 58 (the "Statement") entitled "Reports on
Audited Financial Statements" and such report shall be "Unqualified" (as such
term is defined in such Statement).
(c) Accountants' Reports. Promptly upon receipt thereof, the Company
shall deliver copies of all significant reports submitted by the Company's firm
of certified public accountants in connection with each annual, interim or
special audit or review of any type of the financial statements or related
internal control systems of the Company and its subsidiaries made by such
accountants, including any comment letter submitted by such accountants to
management in connection with their services.
(d) Management Reports. Together with each delivery of financial
statements of the Company and its subsidiaries pursuant to subsections 3(a) and
3(b), the Company will deliver a management report (i) describing the operations
and financial condition of the Company and its subsidiaries for the quarter then
ended and the portion of the current fiscal year then elapsed (or for the fiscal
year then ended in the case of year-end financial), (ii) setting forth in
comparative form the corresponding figures for the corresponding periods of the
previous fiscal year and the corresponding figures from the most recent
projections for the current fiscal year delivered pursuant to subsection 3(e)
and (iii) discussing the reasons for any significant variations. The information
above shall be presented in reasonable detail and shall be certified by the
chief financial officer of the Company to the effect that such information
fairly presents the results of operations and financial condition of the Company
and its subsidiaries as at the dates and for the periods indicated.
4. Transfer of Shares.
(a) Shares of the Company's Common Stock ("Shares") are transferable
(i) pursuant to public offerings registered under the Securities Act of 1933, as
amended (the "Securities Act"), (ii) pursuant to a public sale under Rule 144
under the Securities Act (except pursuant to Rule 144(k) if the Company's shares
have not become publicly traded) if such rule is available, and (iii) subject to
the conditions specified in paragraphs (b), (c) and (d) below.
(b) In connection with the transfer of any Shares (other than a
transfer described in subparagraph (a)(i) or (ii) above), the transferor will
deliver written notice to the
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Company describing in reasonable detail the transfer or proposed transfer,
together with an opinion of counsel which (to the Company's reasonable
satisfaction) is knowledgeable in securities law matters to the effect that such
transfer of Shares may be affected without registration under the Securities Act
or any applicable state securities laws, and with written confirmation from the
prospective transferee of its agreement to be bound by the conditions contained
in this Agreement and the other restrictions on transfer imposed by the
Securities Act or any applicable state securities laws.
(c) It shall be a condition to the transfer of any Shares that the
transferee thereof agrees to be bound by the provisions of this Agreement as if
originally a party hereto. The transferee (even if a member of another voting
group, pursuant to Section 1 above, immediately prior to such transfer) shall
become a member of the voting group, if any, to which his transferor belongs or
belonged under this agreement with respect to the Shares transferred and shall
be entitled to participate, to the extent of the Shares transferred, with the
other members of such voting group in selecting candidates for the Board of
Directors, if permitted to do so under this Agreement.
(d) Notwithstanding the above: (i) Shares may not be transferred or
assigned to a Competitor or any affiliate of a Competitor of the Company, other
than pursuant to a transaction approved by the Board of Directors. For purposes
of this Agreement, the term "Competitor" shall mean any of the following: XX
Xxxxxxx, Ceridian, Xxxxxxx Media Research, Inc., Xxxxxxxxx Research,
IntelliQuest, Odessey, Reuters, Site-Centric measurement systems (e.g. Internet
Profiles Corporation), Consumer-Centric measurement systems (e.g. NetRatings and
PC Data), International Data Corporation, Gartner Group, @Plan, United News and
Media, VNU, WPP and any others which, now or in the future, compete directly
with the Company; and (ii) Shares may not be transferred or assigned during such
period of time that the Board of Directors of the Company has approved any
offering of equity securities of the Company unless the Board of Directors has
approved such transfer or assignment as not materially impairing the ability of
the Company to complete such offering on the anticipated terms and conditions.
5. Termination of this Agreement. This Agreement shall terminate upon the
earlier to occur of (i) the written agreement of all of the parties hereto or
(ii) the closing of an underwritten public offering pursuant to an effective
registration statement under the Securities Act of 1933, as amended, covering
the offer and sale of Common Stock for the account of the Company to the public.
6. Amendment; Waiver. No amendment, modification, waiver or termination of
any provision of this Agreement shall be valid unless in writing and signed by
the Company and the Stockholders holding a majority of the voting power of the
Shares held by all of the Stockholders. Any amendment or waiver effected in
accordance with this Section 6 shall be binding upon each holder of any shares,
each future holder of all such securities and the Company. No waivers of or
exceptions to any term, condition or provision of this Agreement, in any one or
more instances, shall be deemed to be, or construed as, a further or continuing
waiver of any such term, condition or provision.
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7. Specific Performance. The parties hereby declare that it is impossible
to measure in money the damages which will accrue to a party hereto by reason of
a failure to perform any of the obligations under this Agreement. Therefore, all
parties hereto shall have the right to specific performance of the obligations
of the other parties under this Agreement, and if any party hereto shall
institute an action or proceeding to enforce the provisions hereof, any person
(including the Company) against whom such action or proceeding is brought hereby
waives the claim or defense therein that such party has an adequate remedy at
law, and such person shall not urge in any such action or proceeding the claim
or defense that such remedy at law exists.
8. Notices. All notices and other communications required or permitted
hereunder shall be in writing and shall be mailed by first-class mail, postage
prepaid, return receipt requested, or transmitted by facsimile or delivered
either by hand, by messenger or by nationally recognized overnight courier,
addressed:
(a) if to the Stockholders, at the addresses set forth on the
Schedule I attached hereto or at such other address as they shall have
furnished to the Company in writing.
(b) if to any other holder of securities of the Company at such
address as such holder shall have furnished the Company in writing, or,
until any such holder so furnishes an address to the Company, then to and
at the address of the last holder thereof who has so furnished an address
to the Company, and
(c) if to the Company, to the following address, or at such other
address as the Company shall have furnished to the Stockholders,
Media Metrix, Inc.
000 Xxxx Xxxxx Xxxx
Xxxx Xxxxxxxxxx, XX 00000
Attention: Xxx Xxxxxxx
Fax: (000) 000-0000
with a copy to:
Fulbright & Xxxxxxxx L.L.P.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
Alternatively, to such other address as a party hereto supplies to each
other party in writing.
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9. Successors and Assigns. All the terms and provisions of this Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
respective permitted transferees, successors and assigns of the parties hereto,
whether so expressed or not.
10. Governing Law. This Agreement is to be governed by and interpreted
under the laws of the State of New York without giving effect to the principles
of conflicts of laws thereof.
11. Titles and Subtitles. The titles of the sections of this Agreement are
for the convenience of reference only and are not to be considered in construing
this Agreement.
12. Severability. The invalidity or unenforceability of any provisions of
this Agreement shall not be deemed to affect the validity or enforceability of
any other provision of this Agreement.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
14. Entire Agreement. This Agreement constitutes the full and entire
understanding and agreement between the parties with respect to the subject
matter hereof and supersedes all previous agreements, arrangements and
understandings, whether written or oral, with respect to the subject matter
hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Stockholders'
Agreement as of the date first above written.
MEDIA METRIX, INC.
By: /s/ Xxx Xxxxxxx
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Name: Xxx Xxxxxxx
Title: Chief Executive Officer
STOCKHOLDERS:
THE NPD GROUP, INC.
By: /s/ Xxx Xxxxxxx
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Name: Xxx Xxxxxxx
Title: Chairman and Chief Executive Officer
THE 1995 XXXXXX XXXXXXX TRUST
By: /s/ Xxxxxxxx X. Xxxxx
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Name: Xxxxxxxx X. Xxxxx
Title: Trustee
THE 0000 XXXXX XXXXXXX TRUST
By: /s/ Xxxxxxxx X. Xxxxx
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Name: Xxxxxxxx X. Xxxxx
Title: Trustee
GREYLOCK IX LIMITED PARTNERSHIP
By: Greylock IX GP Limited Partnership
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: General Partner
OAK INVESTMENT PARTNERS VI, LIMITED PARTNERSHIP
By: Oak Associates VI, LLC, its General Partner
MANAGING MEMBER OF OAK
ASSOCIATES VI, LLC, By: /s/ Xx Xxxxxxxxxx
THE GENERAL PARTNER OF ----------------------------------------------
OAK INVESTMENT PARTNERS VI, Name: Xx Xxxxxxxxxx
LIMITED PARTNERSHIP Title: Managing Member of Oak Associates VI, LLC
OAK VI AFFILIATES FUND, LIMITED PARTNERSHIP
By: Oak VI Affiliates, LLC, its General Partner
MANAGING MEMBER OF OAK
VI AFFILIATES, LLC, By: /s/ Xx Xxxxxxxxxx
THE GENERAL PARTNER OF ----------------------------------------------
OAK VI AFFILIATES FUND, Name: Xx Xxxxxxxxxx
LIMITED PARTNERSHIP Title: Managing Member of Oak Associates VI, LLC
VENROCK ASSOCIATES II, L.P.
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: General Partner
VENROCK ASSOCIATES
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: General Partner
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders'
Agreement as of the date first above written.
STOCKHOLDERS:
WHITNEY EQUITY PARTNERS, L.P.
J.H. Whitney Equity Partners LLC,
Its General Partner
By: /s/ Xxxxxx X. X'Xxxxx
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Xxxxxx X. X'Xxxxx, Managing Member
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders'
Agreement as of the date first above written.
STOCKHOLDERS:
INVESTMENT A.B. BURE
Signature: /s/ Xxxx Xxxxx
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By: Xxxx Xxxxx
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Title:
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[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders'
Agreement as of the date first above written.
STOCKHOLDERS:
INTIMIDATOR INVESTMENT GROUP, L.L.C.
Signature: /s/ Xxxxxxx X. Xxxxxxxx
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By: Xxxxxxx X. Xxxxxxxx
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Title: Chief Manager
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[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders'
Agreement as of the date first above written.
STOCKHOLDERS:
UNTERBERG HARRIS PRIVATE
EQUITY PARTNERS, C.V.
Signature: /s/ Xxxx Xxxxxxxxx
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By: Xxxx Xxxxxxxxx
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Member of its Investment General Partner,
Unterberg Harris LLC
UNTERBERG HARRIS PRIVATE
EQUITY PARTNERS, L.P.
Signature: /s/ Xxxx Xxxxxxxxx
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By: Xxxx Xxxxxxxxx
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Member of its Investment General Partner,
Unterberg Harris LLC
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders'
Agreement as of the date first above written.
STOCKHOLDERS:
SIRROM CAPITAL CORPORATION
Signature: /s/ Xxxxx Xxxxxx
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By: Xxxxx Xxxxxx
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Title: Vice President
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[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders'
Agreement as of the date first above written.
STOCKHOLDERS:
JEDFAM INVESTMENTS, L.L.C.
Signature: /s/ Xxxxx X. Xxxxx, III
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By: XXXXX X. XXXXX, III
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Title: MANAGER
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[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders'
Agreement as of the date first above written.
STOCKHOLDERS:
BAYVIEW INVESTORS, LTD.
Signature: /s/ [ILLEGIBLE]
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By:
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Title: Authorized Signatory
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[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders'
Agreement as of the date first above written.
STOCKHOLDERS:
XXXXXXX XXXXX XXXXX, TRUSTEE UA DATED
7/14/80, THE DDS REVOCABLE TRUST
Signature: /s/ Xxxxxxx Xxxxx Xxxxx
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By:
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Xxxxxxx Xxxxx Xxxxx, Trustee
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders'
Agreement as of the date first above written.
STOCKHOLDERS:
XXXXXX-XXXXX INVESTMENTS, L.L.C
Signature: /s/ Xxxxx X. Xxxxx, III
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By: XXXXX X. XXXXX, III
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Title: MANAGER
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[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders'
Agreement as of the date first above written.
STOCKHOLDERS:
/s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders'
Agreement as of the date first above written.
STOCKHOLDERS:
/s/ Xxxxxxx X.X. Xxxx
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Xxxxxxx X.X. Xxxx
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders'
Agreement as of the date first above written.
STOCKHOLDERS:
THE XXXXXXX X. XXXX 1996 CHILDREN'S TRUST
Signature: /s/ Xxxx X. Xxxx
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By: Xxxx X. Xxxx
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Trustee
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders'
Agreement as of the date first above written.
STOCKHOLDERS:
THE XXXXXXX XXXXXXXXXX XXXXXXX XXXX
1996 CHILDREN'S TRUST
Signature: /s/ Xxxxx X. Xxxxxxxx
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By:
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Trustee
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders'
Agreement as of the date first above written.
STOCKHOLDERS:
/s/ Xxxxx Xxxxx Xxxxx
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Xxxxx Xxxxx Xxxxx
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders'
Agreement as of the date first above written.
STOCKHOLDERS:
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(Name of Stockholder)
Signature: /s/ Xxxxxxx Xxxxx Xxxx
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By: Xxxxxxx Xxxxx Xxxx
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Title:
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[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders'
Agreement as of the date first above written.
STOCKHOLDERS:
/s/ Xxxxx Xxxxx Xxxxx
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Xxxxx Xxxxx Xxxxx
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders'
Agreement as of the date first above written.
STOCKHOLDERS:
/s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
[SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT]
Schedule I
STOCKHOLDERS
The NPD Group, Inc.
The 1995 Xxxxxx Xxxxxxx Trust
The 1995 Xxxxx Xxxxxxx Trust
Greylock IX Limited Partnership
Oak Investment Partners VI, Limited Partnership
Oak VI Affiliates Fund, Limited Partnership
Venrock Associates II, L.P.
Venrock Associates
Whitney Equity Partners, L.P.
Investment A.B. Bure
Intimidator Investment Group, LLC
Unterberg Harris Private Equity Partners, X.X.
Xxxxxxxxx Xxxxxx Private Equity Partners, LP
Sirrom Capital Corporation
JedFam Investments, LLC
Bayview Investors, Ltd.
Xxxxxxx Xxxxx Xxxxx, Trustee UA 7/14/80, The DDS Revocable Trust
Xxxxxx-Xxxxx Investments LLC
Xxxxxxx X. Xxxx
Xxxxxxx X.X. Xxxx
Xxxxxxx X. Xxxx 1996 Children's Trust
Xxxxxxx Xxxxxxxxxx Xxxxxxx Xxxx 1996 Children's Trust
Xxxxxxx Xxxxx Xxxx
Xxxxx Xxxxx Xxxxx
Xxxxxx X. Xxxx
