Exhibit 2.1
MUTUAL TERMINATION AGREEMENT AND RELEASE
This MUTUAL TERMINATION AGREEMENT AND RELEASE dated as of February
18, 2002 (this "Agreement"), is made and entered into by and among NetRatings,
Inc., a Delaware corporation ("Parent"), Sonoma Acquisition Corp., LLC, a
Delaware limited liability company of which NetRatings is the sole member
("Sub"), Jupiter Media Metrix, Inc., a Delaware corporation (the "Company") and
each of the subsidiaries of the Company identified on the signature page hereto
(the "Identified Subsidiaries"). Parent, Sub, the Company and the Identified
Subsidiaries are collectively referred to herein as the "Parties" and each
individually as a "Party." Capitalized terms used and not otherwise defined
herein shall have the respective meaning set forth in the Merger Agreement, the
Loan Agreement or the Confidentiality Agreement described below.
WHEREAS, the Parties entered into an Agreement and Plan of Merger
dated as of October 25, 2001 (the "Merger Agreement") and Amendment No. 1 to the
Merger Agreement dated as of January 18, 2002 (the "Amendment"), pursuant to
which, subject to the terms and conditions stated therein, Sub was to merge with
and into the Company and the Company was to continue as the surviving
corporation and a wholly-owned subsidiary of Parent;
WHEREAS, contemporaneously with the execution of the Merger
Agreement, Parent and each of the Company and the Identified Subsidiaries
entered into a Loan and Security Agreement (the "Loan Agreement");
WHEREAS, contemporaneously with the execution of the Merger Agreement
and the Loan Agreement, Parent, the Company and certain Stockholders, employees
or subsidiaries of each of Parent and the Company, as the case may be, entered
into (i) a Stockholders Agreement, (ii) Non-competition Agreements, (iii)
Employment Agreements and (iv) Intellectual Property Security Agreements
(collectively, the "Ancillary Agreements");
WHEREAS, Section 8.01(a) of the Merger Agreement provides that the
Merger Agreement may be terminated at any time by the mutual written consent of
Parent and the Company; and
WHEREAS, the Board of Directors of each of Parent and the Company
have determined (1) that each of the Merger Agreement, the Amendment, the Loan
Agreement and the Ancillary Agreements shall be terminated as provided herein
and (2) to release each other from all duties, rights, claims, obligations and
liabilities arising from, in connection with, or relating to, the Merger
Agreement, the Amendment, the Loan Agreement and the Ancillary Agreements, all
as provided herein;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties, intending to be legally bound, agree as follows:
1. Termination of the Merger Agreement and the Loan Agreement. The
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Parties agree that, effective immediately, (i) the Merger Agreement and the
Amendment are hereby terminated pursuant to Section 8.01(a) of the Merger
Agreement, (ii) the Loan Agreement is hereby terminated and (iii) the Ancillary
Agreements are hereby terminated, and none of such agreements will be of any
further force or effect as of the date hereof.
2. Patent Litigation. Notwithstanding the foregoing termination, the
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Parties hereto reaffirm the validity and effectiveness of Section 6.16 of the
Merger Agreement, as amended by the Amendment. The Parties acknowledge that any
lawful action taken 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.
3. Confidentiality.
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a. Notwithstanding the foregoing termination, the Parties hereto
reaffirm the validity and effectiveness of Section 5.01(c) of the Merger
Agreement and the Confidentiality Agreement dated June 4, 2001 (the
"Confidentiality Agreement"), between Parent and the Company.
b. Pursuant to Paragraph 4 of the Confidentiality Agreement, all
Information delivered by the Disclosing Party to the Receiving Party or its
Representatives in written form, and all copies thereof, shall be promptly
returned to the Disclosing Party. All other Information prepared by the
Receiving Party or its Representatives shall be destroyed and no copy retained;
provided, however, that the Receiving Party may retain any Information prepared
by such party deemed reasonably necessary for archival purposes.
4. Removal of All Liens. Parent hereby agrees to release all Liens on
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any secured Collateral of each of the Company and the Identified Subsidiaries
granted under the Loan Agreement. Parent shall promptly take, and hereby
authorizes the Company and each of the Identified Subsidiaries to take, all
necessary actions to remove, or caused to be removed, any Lien on any secured
Collateral of each of the Company and the Identified Subsidiaries (including,
without limitation, filing any and all termination statements and similar
documents with the appropriate federal, state or local governmental offices).
5. Release of the Company by Parent and Sub. Except as set forth
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herein, Parent and Sub do hereby unequivocally release and discharge the Company
and the Identified Subsidiaries and any of their officers, directors, agents,
managers, employees, representatives, stockholders, legal and financial
advisors, parents, subsidiaries, affiliates, principals or partners, and any
heirs, executors, administrators, successors or assigns of any said person or
entity (the "Company Releasees"), from any and all actions, causes of action,
choses in action, cases, claims, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, injuries, xxxxx, damages,
judgments, remedies, extents, executions, demands, liens and liabilities
whatsoever, in law, equity or otherwise (collectively, "Actions"), arising
under, in connection with or relating to the Merger Agreement, the Amendment,
the Loan Agreement or the Ancillary Agreements or the transactions contemplated
thereby, or any action or failure to act under the Merger Agreement,
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the Amendment, the Loan Agreement or the Ancillary Agreements or in connection
therewith, or in connection with the events leading to the abandonment of the
Merger and the termination of the Merger Agreement, the Amendment, the Loan
Agreement and the Ancillary Agreements, which have been asserted against the
Company Releasees or which, whether currently known or unknown, Parent or Sub,
or any successors or assigns of any said entities, ever could have asserted or
ever could assert, in any capacity, against the Company Releasees, relating to
any claims, or any transactions or occurrences from any time in connection with
the foregoing; provided, however, the Company Releasees are not released from
any Actions which may arise under this Agreement. Notwithstanding the foregoing,
Parent and Sub reaffirm the validity and effectiveness of Section 6.16 of the
Merger Agreement, as amended by the Amendment.
6. Release of Parent and Sub by the Company. Except as set forth
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herein, the Company and each of the Identified Subsidiaries do hereby
unequivocally release and discharge the Parent and Sub and any of their
officers, directors, agents, managers, employees, representatives, stockholders,
legal and financial advisors, parents, subsidiaries, affiliates, principals or
partners, and any heirs, executors, administrators, successors or assigns of any
said person or entity (the "Parent Releasees"), from any and all Actions arising
under, in connection with or relating to the Merger Agreement, the Amendment,
the Loan Agreement or the Ancillary Agreements or the transactions contemplated
thereby, or any action or failure to act under the Merger Agreement, the
Amendment, the Loan Agreement and the Ancillary Agreements or in connection
therewith, or in connection with the events leading to the abandonment of the
Merger and the termination of the Merger Agreement, the Amendment, the Loan
Agreement and the Ancillary Agreements, which have been asserted against the
Parent Releasees or which, whether currently known or unknown, the Company, or
any successors or assigns of any said entities, ever could have asserted or ever
could assert, in any capacity, against the Parent Releasees, relating to any
claims, or any transactions or occurrences from any time in connection with the
foregoing; provided, however, the Parent Releasees are not released from any
Actions which may arise under this Agreement. Notwithstanding the foregoing, the
Company reaffirms the validity and effectiveness of Section 6.16 of the Merger
Agreement, as amended by the Amendment.
7. Expenses of Merger Agreement and Loan Agreement. Notwithstanding
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the provisions of Sections 5 or 6, or any other provision in this Agreement (a)
each of Parent and Company reaffirm the validity and effectiveness of Section
8.03(a) of the Merger Agreement, as amended by the Amendment and agrees it shall
remain liable for such expenses as are provided therein, and (b) the Company
agrees to pay $86,000 to Parent representing unpaid "Lender Expenses" (as such
term is defined in the Loan Agreement). Any amounts so owed pursuant to clause
(a) and (b) immediately preceding shall be paid within ten (10) Business Days of
the date of this Agreement.
8. Publicity. Attached hereto as Exhibit A is the form of joint press
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release to be issued by Parent and the Company on signing of this Agreement with
respect to this Agreement and the termination of the Merger Agreement, the
Amendment, the Loan Agreement and the Ancillary Agreements. Except as required
by law or applicable listing agreement with Nasdaq, no other press release shall
be issued regarding the termination of the Merger Agreement, the Loan Agreement
and the Ancillary Agreements by either Parent or the Company without the prior
written consent of the other which consent shall not be unreasonably withheld or
delayed.
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9. Representations of the Parties. Parent and Sub, on the one hand,
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and the Company and each of the Identified Subsidiaries, on the other hand,
represents to the each other Party that: (a) it is duly organized and validly
existing under the laws of the jurisdiction of its incorporation and in good
standing; (b) it has power to execute and perform its obligations under this
Agreement and has taken all necessary action to authorize such execution,
delivery and performance; (c) such execution, delivery and performance do not
violate or conflict with any law applicable to it, any provision of its charter
or bylaws, any order or judgment of any court or other agency of government
applicable to it or any of its assets or any contractual restriction binding on
or affecting it or any of its assets; (d) all governmental and other consents
that are required to have been obtained by it with respect to this Agreement
have been obtained and are in full force and effect and all conditions of any
such consents have been complied with; (e) its obligations under this Agreement
constitute its legal, valid and binding obligations, enforceable in accordance
with their respective terms; and (f) it beneficially owns no shares of, or any
membership interest in, any other Party (except that Parent is the sole member
of Sub).
10. Waiver. Any term of this Agreement may be waived at any time by
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the Party that is entitled to the benefit thereof, but no such waiver shall be
effective unless set forth in a written instrument duly executed by or on behalf
of the Party waiving such term or condition. No waiver by any Party of any term
or condition of this Agreement, in any one or more instances, shall be deemed to
be or construed as a waiver of the same or any other term or condition of this
Agreement on any future occasion. All remedies, either under this Agreement or
by any laws or otherwise afforded, will be cumulative and not alternative.
11. Amendment. This Agreement may be amended, supplemented or
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modified only by a written instrument duly executed by or on behalf of each
Party hereto.
12. No Assignment; Binding Effect. Neither this Agreement nor any
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right, interest or obligation hereunder may be assigned by any Party hereto
without the prior written consent of the other Parties hereto and any attempt to
do so will be void, except for assignments and transfers by operation of any
laws. Subject to the preceding sentence, this Agreement is binding upon, inures
to the benefit of and is enforceable by the Parties and their respective
successors and assigns.
13. Entire Agreement. This Agreement supercedes all prior
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discussions, representations, warranties and agreements, both written and oral,
among the Parties with respect to the subject matter hereof, and contains the
sole and entire agreement among the Parties with respect to the subject matter
hereof. No prior drafts of this Agreement and no words or phrases from any such
prior drafts shall be admissible into evidence in any action, suit or other
proceeding involving this Agreement.
14. Third Party Beneficiaries. There are no third party beneficiaries
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to this Agreement except for the Parent Releasees, the Company Releasees and
parties to the Loan Agreement and the Ancillary Agreements that are not parties
to this Agreement.
15. Headings. The headings used in this Agreement have been inserted
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for convenience of reference only and do not define or limit the provisions
hereof.
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16. Invalid Provisions. If any provision of this Agreement is held to
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be illegal, invalid or unenforceable under any present or future laws, and if
the rights or obligations of any Party hereto under this Agreement will not be
materially and adversely affected thereby, (a) such provision will be fully
severable, (b) this Agreement will be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part hereof, and (c)
the remaining provisions of this Agreement will remain in full force and effect
and will not be affected by the illegal, invalid or unenforceable provision or
by its severance herefrom. Notwithstanding anything in this Agreement to the
contrary, if for any reason any of the releases contained in Sections 5 or 6
hereof are avoided, nullified or otherwise rendered ineffective, then all
releases in Section 5 or 6 hereof shall be rendered invalid and unenforceable
and this Agreement shall be automatically reformed to delete Sections 5 and 6
herefrom.
17. Injunctive Relief. The Parties agree that irreparable damage
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would occur in the event that any of the provisions of this Agreement was not
performed in accordance with its specified terms or was otherwise breached and
that money damages would not be an adequate remedy for any breach of this
Agreement. It is accordingly agreed that in any proceeding seeking specific
performance each of the Parties will waive the defense of adequacy of a remedy
at law. Each of the Parties shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and
provisions hereof in any court of competent jurisdiction, this being in addition
to any other remedy to which they are entitled at law or in equity.
18. Governing Law. This Agreement shall be interpreted under the laws
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of the State of Delaware without reference to Delaware conflicts of law
provisions.
19. Waiver of Jury Trial. Each of Parent, the Company and Sub hereby
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irrevocably waives all right to trial by jury in any action, proceeding or
counterclaim (whether based on contract, tort or otherwise) arising out of or
relating to this Agreement or the actions of Parent, the Company or Sub in the
negotiation, administration, performance and enforcement thereof.
20. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
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IN WITNESS WHEREOF, Parent, Sub, the Company and the Identified Subsidiaries
have caused this Mutual Termination Agreement and Release to be duly executed as
of the date first above written by their respective officers duly authorized.
NetRatings, Inc.
By: /s/ Xxxxx X. Xxxx
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Name:
Title:
Sonoma Acquisition Corp., LLC
By: /s/ Xxxxx X. Xxxx
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Name:
Title:
Jupiter Media Metrix, Inc.
By: /s/ Xxxx Xxxxxxxx
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Name:
Title:
Jupiter Communications, Inc.
By: /s/ Xxxx Xxxxxxxx
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Name:
Title:
MMXI Holdings, Inc.
By: /s/ Xxxx Xxxxxxxx
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Name:
Title:
Net Market Makers, Inc.
By: /s/ Xxxx Xxxxxxxx
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Name:
Title:
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IRG Acquisition Corp.
By: /s/ Xxxx Xxxxxxxx
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Name:
Title:
AdRelevance, Inc.
By: /s/ Xxxx Xxxxxxx
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Name:
Title:
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