Exhibit 2.2
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of April 14, 1997 (this
"Agreement"), between Media Metrix, Inc., a Delaware corporation (the "Delaware
Corporation"), and PC Meter L.P., a Delaware limited partnership (the "Delaware
Partnership").
WITNESSETH:
WHEREAS, the Delaware Corporation desires to acquire the properties and
other assets, and to assume all of the liabilities and obligations, of the
Delaware Partnership by means of a merger of the Delaware Partnership with and
into the Delaware Corporation;
WHEREAS, Section 17-211 of the Delaware Revised Uniform Limited
Partnership Act, 6 Del. C. ss. 17-101, et seq. (the "Delaware RULPA"), and
Section 263 of the General Corporation Law of the State of Delaware, 8 Del. C.
ss. 101, et seq. (the "GCL"), authorize the merger of a Delaware limited
partnership with and into a Delaware corporation;
WHEREAS, the Delaware Corporation and the Delaware Partnership now desire
to merge (the "Merger"), following which the Delaware Corporation shall be the
surviving entity;
WHEREAS, the Delaware Corporation's Certificate of Incorporation and
By-laws permit, and resolutions adopted by the Delaware Corporation's Board of
Directors authorize, this Agreement and the consummation of the Merger;
WHEREAS, The NPD Group, Inc., in its capacity as the general partner of
the Delaware Partnership (the "Delaware GP"), and the requisite number of the
limited partners of the Delaware Partnership, have approved this Agreement and
the consummation of the Merger.
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
THE MERGER
SECTION 1.01 The Merger. (a) On April 14, 1997, after satisfaction or, to
the extent permitted hereunder, waiver of all conditions to the Merger, as the
Delaware Corporation and the Delaware GP shall determine, the Delaware
Corporation, which shall be the surviving entity, shall merge with the Delaware
Partnership and shall file a certificate of merger substantially in the form of
Exhibit 1 hereto (the "Certificate of Merger") with the Secretary of State of
the State of Delaware and make all other filings or recordings required by
Delaware law in connection with the Merger. The Merger shall become effective at
such time as is specified in the Certificate of Merger (the "Effective Time").
(b) At the Effective Time, the Delaware Partnership shall be merged with
and into the Delaware Corporation, whereupon the separate existence of the
Delaware Partnership shall cease, and the Delaware Corporation shall be the
surviving entity of the Merger (the "Surviving Corporation") in accordance with
Section 17-211 of the Delaware RULPA and Section 263 of the GCL.
SECTION 1.02 Exchange of Interests. (a) At the Effective Time: Each Class
A Unit of the Delaware Partnership (the "Class A Units") held by Delaware GP
outstanding immediately prior to the Effective Time shall be exchanged for
.09446 shares of Delaware Corporation Redeemable Preferred Stock, par value
$1.00 (the "Corporation Redeemable Preferred Stock") so that upon the exchange
of all the Class A Units into Corporation Redeemable Preferred Stock, there
shall be 41,446 shares of Corporation Redeemable Preferred Stock outstanding;
and
(b) Each Class B Unit of the Delaware Partnership (the "Class B Units")
outstanding immediately prior to the Effective Time shall be exchanged for 12.75
shares of Delaware Corporation Common Stock, par value $1.00 (the "Corporation
Common Stock") so that upon the exchange of all the Class B Units into
Corporation Common Stock, there shall be 1,500,100 shares of Corporation Common
Stock outstanding.
ARTICLE II
THE SURVIVING CORPORATION
SECTION 2.01 Certificate of Incorporation and By-laws. The Certificate of
Incorporation and By-laws of the Delaware Corporation in effect at the Effective
Time shall be the Certificate of Incorporation and By-laws of the Surviving
Corporation unless and until amended in accordance with their terms and
applicable law. The name of the surviving Corporation shall be Media Metrix,
Inc.
SECTION 2.02 Directors and Officers. From and after the Effective Time,
until successors are duly elected or appointed and qualified in accordance with
applicable law, (i) the directors of the Delaware Corporation at the Effective
Time shall be the directors of the Surviving Corporation, and (ii) the officers
of the Delaware Corporation at the Effective Time shall be the officers of the
Surviving Corporation.
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ARTICLE III
TRANSFER AND CONVEYANCE OF ASSETS
AND ASSUMPTION OF LIABILITIES
SECTION 3.01 Transfer, Conveyance and Assumption. At the Effective Time,
the Delaware Corporation shall continue in existence as the Surviving
Corporation, and without further transfer, succeed to and possess all of the
rights, privileges and powers of the Delaware Partnership, and all of the assets
and property of whatever kind and character of the Delaware Partnership shall
vest in the Delaware Corporation without further act or deed; thereafter, the
Delaware Corporation, as the Surviving Corporation, shall be liable for all of
the liabilities and obligations of the Delaware Partnership, and any claim or
judgment against the Delaware Partnership may be forced against the Delaware
Corporation, as the Surviving Corporation, in accordance with Section 17-211 of
the Delaware RULPA and Section 263 of the GCL.
SECTION 3.02 Further Assurances. If at any time the Delaware Corporation
shall consider or be advised that any further assignment, conveyance or
assurance is necessary or advisable to vest, perfect or confirm of record in the
Surviving Corporation the title to any property or right of the Delaware
Partnership, or otherwise to carry out the provisions hereof, the proper
representatives of the Delaware Partnership as of the Effective Time shall
execute and deliver any and all proper deeds, assignments, and assurances and do
all things necessary or proper to vest, perfect or convey title to such property
or right in the Surviving Corporation, and otherwise to carry out the provisions
hereof.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE DELAWARE PARTNERSHIP
The Delaware Partnership represents and warrants to the Delaware
Corporation that:
SECTION 4.01 Partnership Existence and Power. The Delaware Partnership is
a limited partnership duly formed, validly existing and in good standing under
the laws of the State of Delaware.
SECTION 4.02 Partnership Authorization. The execution, delivery and
performance by the Delaware Partnership of this Agreement and the consummation
by the Delaware Partnership of the transactions contemplated hereby have been
duly authorized by all necessary partnership action on its part. This Agreement
constitutes a valid, binding and enforceable agreement of the Delaware
Partnership.
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SECTION 4.03 Governmental Authorization. The execution, delivery and
performance by the Delaware Partnership of this Agreement and the consummation
of the Merger by the Delaware Partnership require no action by or in respect of,
or filing with, any governmental body, agency, official or authority.
SECTION 4.04 No Violation. The execution, delivery and performance by the
Delaware Partnership of this Agreement and the consummation by the Delaware
Partnership of the transactions contemplated hereby do not and will not (i)
violate the partnership agreement of the Delaware Partnership, (ii) violate any
provision of any law, rule or regulation applicable to the Delaware Partnership,
(iii) breach, or result in a default under, any existing obligation of the
Delaware Partnership under any provision of any agreement, contract or other
instrument to which the Delaware Partnership is a party or by which it or its
property is bound or (iv) breach or otherwise violate any existing obligation of
the Delaware Partnership under any court or administrative order, writ, judgment
or decree that names the Delaware Partnership and is specifically directed to it
or its property.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
OF THE DELAWARE CORPORATION
The Delaware Corporation represents and warrants to the Delaware
Partnership that:
SECTION 5.01 Corporate Existence and Power. The Delaware Corporation is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware.
SECTION 5.02 Corporate Authorization. The execution, delivery and
performance by the Delaware Corporation of this Agreement and the consummation
by the Delaware Corporation of the transactions contemplated hereby have been
duly authorized by all necessary corporate action subject to the approval
thereof of the requisite number of the stockholders of the Delaware Corporation.
This Agreement constitutes a valid, binding and enforceable agreement of the
Delaware Corporation.
SECTION 5.03 Governmental Authorization. The execution, delivery and
performance by the Delaware Corporation of this Agreement and the consummation
of the Merger by the Delaware Corporation require no action by or in respect of,
or filing with, any governmental body, agency, official or authority other than
the filing of the Certificate of Merger in accordance with Delaware law.
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SECTION 5.04 No Violation. The execution, delivery and performance by the
Delaware Corporation of this Agreement and the consummation by the Delaware
Corporation of the transactions contemplated hereby do not and will not (i)
violate the Certificate of Incorporation or By-laws of the Delaware Corporation,
(ii) violate any provision of any law, rule or regulation applicable to the
Delaware Corporation, (iii) breach, or result in a default under, any existing
obligation of the Delaware Corporation under any provision of any agreement,
contract or other instrument to which the Delaware Corporation is a party or by
which it or its property is bound or (iv) breach or otherwise violate any
existing obligation of the Delaware Corporation under any court or
administrative order, writ, judgment or decree that names the Delaware
Corporation and is specifically directed to it or its property.
ARTICLE VI
CONDITIONS TO THE MERGER
SECTION 6.01 Conditions to the Obligations of Each Party. The obligations
of the Delaware Partnership and the Delaware Corporation to consummate the
Merger are subject to the satisfaction of the following conditions as of the
Effective Time:
(i) no provision of any applicable law or regulation and no
judgment, injunction, order or decree shall prohibit the consummation of the
Merger; and
(ii) all actions by or in respect of or filings with any
governmental body, agency, official or authority required to permit the
consummation of the Merger shall have been obtained; and
(iii) this Agreement shall have been adopted by the requisite number
of the stockholders of the Delaware Corporation required by and in accordance
with applicable law.
ARTICLE VII
TERMINATION
SECTION 7.01 Termination. This Agreement may be terminated and the Merger
may be abandoned at any time prior to the Effective Time:
(i) by mutual written consent of the Delaware GP, on behalf of the
Delaware Partnership, and the Board of Directors of the Delaware Corporation;
(ii) by either the Delaware GP, on behalf of the Delaware
Partnership, or the Board of Directors of the Delaware Corporation, if there
shall be any law or regulation that makes consummation of the Merger illegal or
otherwise prohibited, or if any judgment, injunction, order or
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decree enjoining the Delaware Corporation or the Delaware Partnership from
consummating the Merger is entered and such judgment, injunction, order or
decree shall become final and nonappealable.
(iii) Effect of Termination. If this Agreement is terminated
pursuant to Section 7.01, this Agreement shall become void and of no effect with
no liability on the part of either party hereto.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 Survival of Representations and Warranties. The
representations and warranties and agreements contained herein and in any
certificate or other writing delivered pursuant hereto shall not survive the
Effective Time or the termination of this Agreement.
SECTION 8.02 Amendments; No Waivers. (a) Any provision of this Agreement
may, subject to applicable law, be amended or waived prior to the Effective Time
if, and only if, such amendment or waiver is in writing and signed by the
Delaware GP, on behalf of the Delaware Partnership, and by the Delaware
Corporation.
(b) No failure or delay by any party hereto 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.
SECTION 8.03 Integration. All prior or contemporaneous agreements,
contracts, promises, representations, and statements, if any, between the
Delaware Corporation and the Delaware Partnership, or their representatives, are
merged into this Agreement, and this Agreement shall constitute the entire
understanding between the Delaware Corporation and the Delaware Partnership with
respect to the subject matter hereof.
SECTION 8.04 Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, provided that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of the other party hereto.
SECTION 8.05 Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of Delaware, without
giving effect to principles of conflicts of law.
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SECTION 8.06 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
the counterpart hereof signed by the other party hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized representatives as of the day and
year first-above written.
PC METER L.P.
By: The NPD Group, Inc., as General
Partner
By: /s/ XXXXXX XXXXXXX
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Name: Xxxxxx Xxxxxxx
Title: President
Attest: MEDIA METRIX, INC.
By: /s/ XXXX XXX XXXXX By: /s/ XXX XXXXXXX
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Name: Xxxx Xxx Xxxxx Name: Xxx Xxxxxxx
Title: President Title: Chairman and CEO
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