EXHIBIT 2.1
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER (this "AMENDMENT")
dated as of January 18, 2002, amends the Agreement and Plan of Merger dated as
of October 25, 2001 (the "MERGER AGREEMENT"), among NETRATINGS, INC., a Delaware
corporation ("PARENT"), SONOMA ACQUISITION CORP., LLC, a Delaware limited
liability company of which Parent is the sole member ("SUB"), and JUPITER MEDIA
METRIX, INC., a Delaware corporation (the "COMPANY").
WHEREAS the parties desire to amend the Merger Agreement as set forth
in this Amendment.
NOW, THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
hereby agree as follows:
ARTICLE I
AMENDMENTS
SECTION 1.01. AMENDMENTS. Section 6.16 of the Merger Agreement is
hereby amended and restated in its entirety to read as follows:
"SECTION 6.16. PENDING PATENT LITIGATION. Parent and the Company each
agree that (i) the agreement between Parent and the Company to stay any further
action with respect to the Patent Litigation is hereby terminated, (ii) any
action taken on or after January 18, 2002, as between each of them with respect
to the prosecution, settlement or defense of the Patent Litigation shall not, in
and of itself, constitute a breach of any representation, warranty or covenant
of such party contained in this Agreement, including, without limitation,
Section 6.11 of this Agreement and (iii) neither of them shall proceed against
the other for failure to meet any deadline related to the Patent Litigation
which deadline occurred prior to the date of this Amendment and which would have
been required to have been meet absent the existence of the agreement to stay
the Patent Litigation pursuant to the original version of Section 6.16 that was
contained in the Merger Agreement prior to this Amendment."
ARTICLE II
GENERAL PROVISIONS
SECTION 2.01. EFFECTIVENESS. This Amendment shall be deemed an
amendment to the Merger Agreement and shall become effective when executed by
Parent, Sub and the Company as required by Section 8.04 of the Merger Agreement.
Except as expressly amended pursuant to this Amendment, the Merger Agreement
shall continue in full force and effect.
SECTION 2.02. DEFINED TERMS. All capitalized terms not defined
herein shall have the meanings assigned to them in the Merger Agreement.
SECTION 2.03. COUNTERPARTS. This Amendment may be executed in one or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other parties.
SECTION 2.04. GOVERNING LAW; EXCLUSIVE JURISDICTION. This Amendment
shall be governed by, and construed in accordance with, the laws of the State of
Delaware, regardless of the laws that might otherwise govern under applicable
principles of conflict laws thereof. The parties agree to the exclusive
jurisdiction of the Courts of the State of Delaware with respect to any action,
suit or proceeding arising out of or in connection with this Amendment or the
transactions contemplated hereby or the enforcement of any rights under this
Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
signed by their respective officers thereunto duly authorized, all as of the
date first written above.
NETRATINGS, INC.
By: /s/ XXXXX XXXX
-----------------------------------------
Name: Xxxxx Xxxx
Title:
SONOMA ACQUISITION CORP., LLC
By: /s/ XXXXX XXXX
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Name: Xxxxx Xxxx
Title:
JUPITER MEDIA METRIX, INC.
By: /s/ XXXX XXXXXXXX
-----------------------------------------
Name: Xxxx Xxxxxxxx
Title: Chief Financial Officer
Signature Page to Amendment No. 1 to Agreement and Plan of Merger
