Exhibit 10.4
SETTLEMENT AGREEMENT
This Settlement Agreement ("Agreement") is entered into this 7th day of
May, 2002 ("Effective Date"), by and between Jupiter Media Metrix, Inc. ("JMM"),
a Delaware corporation, and NetRatings, Inc. ("NetRatings"), a Delaware
corporation. These entities are referred to individually as "Party" and
collectively as the "Parties."
RECITALS
A. On March 27, 2001, JMM filed a Complaint for Patent Infringement in
Federal District Court in the District of Delaware, Jupiter Media Metrix, Inc.
v. NetRatings, Inc., et al., Civil Action No. 01-193-SLR (the "Action");
B. On May 1, 2001, NetRatings filed an Answer and Counterclaims in the
Action;
C. Each of the Parties later filed amended pleadings in the Action;
D. The Parties have independently determined that it is in each of their
respective best interests to compromise any and all claims they have or may have
with respect to the Action and settle the Action on the terms and conditions set
forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and mutual promises
and covenants herein contained, the Parties agree as follows:
ARTICLE 1
DISMISSAL WITH PREJUDICE AND RELEASE
1.1 Dismissal. Concurrently with the execution of this Agreement, the
Parties shall execute the stipulation and proposed order in the form attached as
Exhibit A, pursuant to which the Parties agree to dismiss the Action with
prejudice, including all claims and counterclaims. Immediately following the
execution of this Agreement, the Parties shall file with the United States
District Court for the District of Delaware (the "Court") the fully executed
version of Exhibit A. Each Party intends and agrees that the Court shall
nevertheless retain jurisdiction for the purpose of resolving any controversy or
claim arising out of or relating to the terms and conditions of this Agreement,
a Party's performance or failure to perform hereunder, or any other claim or
dispute arising out of or resulting from the Agreement. Exhibit A shall be filed
under seal, together with the Proposed Sealing Order attached as Exhibit B, for
use as appropriate in connection with the Court's express reservation of
jurisdiction. Each Party further agrees to waive any objection they may have now
or hereafter to the venue of any proceeding filed in the Court for the purpose
referenced in this Section 1.1.
1.2 Attorney's Fees and Costs Incurred In Action. Except as expressly
provided in this Agreement, each Party shall bear its own fees, costs and
expenses incurred in the Action.
1.3 General Mutual Releases. Except for limitations expressly stated in
this Agreement, and in consideration of the mutual promises and covenants set
forth herein, including the payments and other consideration described in
Article 2 below, JMM and NetRatings, on behalf of their
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respective officers, directors, agents, employees, representatives, assigns,
heirs, and attorneys, hereby forever release and absolutely discharge (i) the
other Party, (ii) each Party's respective officers, directors, employees,
stockholders, agents, representatives, servants, and independent contractors,
(iii) each Party's respective distributors, resellers, independent sales
representatives, licensees, customers, and end users of any and all versions of
its products or services, including without limitation the Insight 3 software,
the tracking software and any data or databases resulting from the use thereof,
(iv) each Party's insurers, (v) successors and assigns of all such persons or
entities and of the interests of such persons or entities in the intellectual
property involved in any of the Subject Agreements as that term is defined in
Section 1.4, and (vi) each Party's attorneys, and the partners, associates,
employees, agents, insurers, assigns, investigators and investigative agencies
of or for their attorneys, from any and all causes of action, actions, theories,
affirmative defenses, judgments, liens, indebtedness, damages, losses, claims,
liabilities and demands of every kind and character, including without
limitation infringement of U.S. Patent No. 6,115,680 (the "'680 Patent") at any
time, arising from the dispute underlying the Action, or which was or could have
been raised in the Action, or arising from any conduct by the Parties or their
agents, attorneys or representative in defending, prosecuting and resolving the
Action, whether known or unknown, suspected or unsuspected, existing or
prospective, up to and as of the Effective Date.
1.4 Limitations on Scope of Release. The releases set forth in Section 1.3
above shall not apply to any cause of action, action, judgment, lien,
indebtedness, damage, loss, claim, liability or demand of any kind and character
arising from and after the Effective Date out of or resulting from
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(i) a breach of any specific warranty or representation undertaken by any Party
as set forth expressly in this Agreement or the Intellectual Property Agreement
attached as Exhibit C (collectively, the "Subject Agreements"), (ii) the breach
by any Party of any provision of any of the Subject Agreements, or (iii) any
actions taken, or failure to act, occurring from or after the Effective Date
which is not licensed or otherwise expressly permitted in any of the Subject
Agreements and which gives rise to any such cause of action.
1.5 Waiver. In furtherance of the above stated intention to bar each and
every claim, demand, and cause of action falling within the scope of the release
set forth in this Article 1, each Party hereby expressly waives any and all
rights or benefits conferred by the provisions of Section 1542 of the California
Civil Code, and by any similar provision of California, other state or federal
law now in effect or in effect in the future, and expressly consent that this
Agreement shall be given full force and effect according to each and all of its
express terms and conditions, including those relating to unknown and
unsuspected claims, demands and causes of action specified above, if any.
Section 1542 provides:
"A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing a release, which
if known by him must have materially affected his settlement with the debtor."
1.6 Informed Release. The Parties herein acknowledge that they understand
the significance and potential consequences of their release of unknown claims
and of the specific
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waiver of their rights under Section 1542. The Parties intend that the claims
released by them under this Agreement be construed as broadly as possible.
1.7 No Admission. The Parties acknowledge that this Agreement effects the
settlement of claims which are denied and contested and agree that the
settlement reflected by this Agreement shall not be construed as an admission
against the interests of any Party.
ARTICLE 2
CONSIDERATION
2.1 Form of Consideration. In consideration of the promises and mutual
covenants contained in the Subject Agreements, NetRatings agrees to pay JMM the
lump sum of fifteen million dollars ($15,000,000). The Parties acknowledge that
such payment and the execution of the various documents contemplated by the
Subject Agreements constitutes full consideration.
2.2 Payment By NetRatings. The payment referenced in Section 2.1 shall be
sent on the Effective Date via wire transfer to Chase Manhattan Bank, 0 Xxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx, for deposit to the account of Jupiter Media Metrix,
Account No. 323195695, ABA No. 000000000.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
3.1 General Representations and Warranties. Each Party (the "representing
party") represents and warrants to the other Party that: (i) the person signing
the Subject Agreements and the stipulation and proposed order attached as
Exhibit A (collectively the "Subject Documents") is a duly authorized
representative of the representing party on whose behalf he or she is signing;
(ii) the
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Subject Documents are legally binding agreements fully enforceable against the
representing party in accordance with their terms; (iii) the execution and
delivery of the Subject Documents and the consummation of the transactions
provided thereunder do not require any third-party consent or assignment from a
third party, and will not violate, conflict with, or result in the breach of any
obligation, mortgage, lien, lease agreement, instrument, law, order, arbitration
award, judgment or decree to which the representing party is subject or bound;
and (iv) the representing party is the sole and lawful owner of all rights,
title and interest in and to every claim in matters which it releases in Article
1 and that the representing party has not heretofore assigned or transferred to
any person or entity any right, title or interest in the matters it is
releasing.
ARTICLE 4
CONFIDENTIALITY AND DISCLOSURE
4.1 Following execution of the Subject Documents, the Parties shall
jointly issue the press release in the form attached as Exhibit D.
4.2 Each Party is permitted to disclose the terms of the Subject
Agreements, information relating to the Subject Agreements, or information
related to the `680 Patent (collectively "Information") if advised by counsel
they are required to do so by law (including applicable federal and state
securities laws and regulations promulgated thereunder), legal process or court
order. In the event either Party receives either a subpoena (or other legal
process) or court order seeking Information, such Party shall, before responding
thereto, provide counsel for the other Party with written notice of such legal
process, order or legal requirement in sufficient time (if reasonably
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feasible) to permit the other Party the opportunity to object, seek to limit
such production of information and/or obtain an appropriate protective order.
4.3 Except as provided in Sections 4.1 and 4.2, neither Party may disclose
any information regarding the Action, or the terms of the Subject Agreements,
publicly or privately, other than to provide the information contained in the
press release attached as Exhibit D in response to a legitimate business
inquiry. Except as otherwise expressly prohibited by or inconsistent with the
Intellectual Property Agreement attached as Exhibit C, nothing in this Agreement
is intended to prevent either Party from discussing the `680 Patent or the
license thereof to JMM for any bona fide business purpose provided such Party
does not divulge proprietary or confidential information of the other Party.
ARTICLE 5
MISCELLANEOUS
5.1 The Subject Documents (together with their respective attachments
referenced therein) constitute and contain the final, complete and exclusive
agreements and understandings between the Parties regarding the subject matter
addressed therein. As such, the Subject Documents supersede and replace all
prior negotiations and all agreements, proposed or otherwise, whether written or
oral, concerning the subject matter thereof. No supplement, modification, or
amendment to any of the Subject Documents shall be binding unless executed in
writing and signed by the Parties expressly stating that modification is
intended.
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5.2 This Agreement shall be governed by the substantive laws of the State
of Delaware, and all rights and obligations of the Parties to this Agreement,
and the interpretation, construction and enforceability hereof shall also be
governed by the laws of the State of Delaware
5.3 All terms of the Subject Documents shall be binding upon, inure to the
benefit of, and be enforceable by the Parties hereto and their respective legal
representatives, successors and assigns. Except as expressly provided in the
Subject Documents, the Subject Documents are not intended to confer on any
person or entity other than the Parties any right or remedy thereunder.
5.4 If any term or other provision of the Subject Agreements is invalid,
illegal or incapable of being enforced by any rule of law or public policy, all
other conditions and provisions of the Subject Agreements shall nevertheless
remain in full force and effect. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the Parties hereto
shall negotiate in good faith to modify the Subject Agreements so as to effect
the original intent of the Parties as closely as possible to the fullest extent
permitted by applicable law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
5.5 Each of the Parties acknowledges that it has been represented by
independent counsel of its choice throughout all negotiations which preceded the
execution of the Subject Documents, and that the Subject Documents have been
executed after consultation with such independent legal counsel. Additionally,
no provision of the Subject Documents shall be interpreted for or against any
Party because that Party or its attorneys drafted the provision.
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5.6 All notices required to be given under this Agreement shall be in
writing and delivered to the Parties at their respective addresses set forth
below (or such other address as specified by either Party in accordance with the
provisions of this Section) by (i) hand delivery, (ii) nationally recognized
overnight courier, (iii) mailed postage prepaid by certified or registered mail,
return receipt requested, or (iv) facsimile transmission with verification of
receipt, and will be deemed to be effective the day of delivery by hand or
overnight courier, the day of transmission if sent by facsimile, or three (3)
days after mailing if sent by mail:
If to NetRatings: NetRatings, Inc.
000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
Facsimile No.: 000-000-0000
With a Copy to: Xxxx Xxxx Xxxx & Freidenrich LLP
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Attention: Xxxx Xxxxxxx, Esq.
Facsimile No.: 000-000-0000
If to JMM: Jupiter Media Metrix, Inc.
00 Xxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Chief Executive Officer
Facsimile No.: 000-000-0000
Attention: General Counsel
With a Copy to: Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
Two Embarcadero Place
0000 Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx, Esq.
Facsimile No.: 000-000-0000
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
duly executed on the date below written.
JUPITER MEDIA METRIX, INC. NETRATINGS, INC.
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxx
------------------ -------------------
Title: Chief Executive Officer Title: Chief Executive Officer
Jupiter Media Metrix, Inc. NetRatings, Inc.
Date: May 7, 2002 Date: May 7, 2002
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