STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT (this "Agreement"), is entered into as of
October 25, 2001, by and among NetRatings, Inc., a Delaware corporation
("Parent"), Sonoma Acquisition Corporation, LLC., a Delaware limited liability
company and a wholly owned subsidiary of Parent ("Sub"), and each of the
stockholders of Jupiter Media Metrix, Inc., a Delaware corporation ("Target")
set forth on Schedule 1 hereto (each a "Stockholder" and collectively, the
"Stockholders") on a several and not joint basis.
A. Each Stockholder is, as of the date hereof, the record and
beneficial owner of the number of shares of common stock, par value $0.001 (the
"Target Common Stock"), of Target, set forth opposite the name of such
Stockholder on Schedule 1 hereto;
B. Parent, Sub and Target have entered into an Agreement and Plan of
Merger, dated as of the date hereof (the "Merger Agreement"), which provides,
among other things, for the merger of Sub with and into Target with Target
continuing as the surviving corporation (the "Merger") upon the terms and
subject to the conditions set forth in the Merger Agreement (capitalized terms
used herein without definition shall have the respective meanings specified in
the Merger Agreement); and
C. As a condition to the willingness of Parent and Sub to enter into
the Merger Agreement and as an inducement and in consideration therefor, the
Stockholders have agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein and in the Merger Agreement, and
intending to be legally bound hereby, the parties hereto agree as follows:
Section 1. Representations and Warranties of the Stockholders. Each
Stockholder hereby represents and warrants to Parent and Sub, severally and not
jointly, as follows:
(a) Such Stockholder is the record and beneficial owner of the
shares of Target Common Stock set forth opposite his, her or its name on
Schedule 1 to this Agreement (such shares of Target Common Stock, together with
any Target Common Stock acquired by the Stockholder after the date of this
Agreement, whether upon the exercise of options to purchase Target Common Stock
or otherwise, all as may be adjusted from time to time pursuant to Section 7
hereof, the "Shares"). Schedule 1 lists separately all options issued to such
Stockholder.
(b) Such Stockholder has the legal capacity to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
(c) This Agreement has been validly executed and delivered by
such Stockholder and constitutes the legal, valid and binding obligation of such
Stockholder, enforceable against such Stockholder in accordance with its terms,
except (i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting enforcement of
creditors' rights generally, and (ii) the availability of the remedy of specific
performance or injunctive or other forms of equitable relief may be subject to
equitable defenses and would be subject to the discretion of the court before
which any proceeding therefor may be brought.
(d) Neither the execution and delivery of this Agreement nor
the consummation by such Stockholder of the transactions contemplated hereby
will result in a violation of, or a default under, or conflict with, any
contract, trust, commitment, agreement, understanding, arrangement or
restriction of any kind to which such Stockholder is a party or by which such
Stockholder or his assets are bound. No consent, approval, order or
authorization (collectively, "Consent") of, action by or in respect of, or
registration, declaration or filing with, any Governmental Entity is required to
be obtained or made by or with respect to the Stockholder in connection with the
execution and delivery of this Agreement by the Stockholder or the consummation
by the Stockholder of the transactions contemplated by this Agreement, other
than (i) compliance with and filings under the HSR Act, if applicable to the
Stockholder's receipt in the Merger of Parent Shares, and (ii) such reports
under Sections 13(d) and 16 of the Exchange Act as may be required in connection
with this Agreement and the transactions contemplated hereby.
(e) In the case of any Stockholder that is a corporation,
limited partnership or limited liability company, such stockholder is an entity
duly organized and validly existing under the laws of the jurisdiction in which
it is incorporated or constituted, and each such Stockholder has all requisite
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby, and has taken all necessary corporate action
to authorize the execution, delivery and performance of this Agreement.
(f) The Shares owned by such Stockholder are now, and at all
times during the term hereof will be, held by such Stockholder, or by a nominee
or custodian for the benefit of such Stockholder, free and clear of all liens,
claims, security interests, proxies, voting trusts or agreements, options,
rights, understandings or arrangements or any other encumbrances whatsoever on
title, transfer, or exercise of any rights of a stockholder in respect of such
Shares (collectively, "Encumbrances"), except for any such Encumbrances arising
hereunder.
Section 2. Representations and Warranties of Parent and Sub. Each of
Parent and Sub hereby, jointly and severally, represents and warrants to the
Stockholders as follows:
(a) Parent is a corporation duly organized and validly
existing under the laws of the State of Delaware, Sub is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and each of Parent and Sub has all requisite corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby, and has taken all necessary corporate action
to authorize the execution, delivery and performance of this Agreement.
(b) This Agreement has been duly authorized, executed and
delivered by each of Parent and Sub, and constitutes the legal, valid and
binding obligation of each of Parent and Sub, enforceable against each of them
in accordance with its terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors' rights generally and (ii) the availability
of the remedy of specific performance or injunctive or other forms of equitable
relief may be subject to
equitable defenses and would be subject to the discretion of the court before
which any proceeding therefor may be brought.
Section 3. Transfer of the Shares.
(a) Prior to the termination of this Agreement, none of the
Stockholders shall: (i) except as described on and pursuant to the terms of
Annex I hereto, transfer, assign, sell, gift-over, pledge or otherwise dispose
of, or consent to any of the foregoing ("Transfer"), any or all of the Shares or
any right or interest therein; (ii) enter into any contract, option or other
agreement, arrangement or understanding with respect to any Transfer; (iii)
grant any proxy, power-of-attorney or other authorization or consent with
respect to any of the Shares; (iv) deposit any of the Shares into a voting
trust, or enter into a voting agreement or arrangement with respect to any of
the Shares or (v) take any other action that would in any way restrict, limit or
interfere with the performance of such Stockholder's obligations hereunder or
the transactions contemplated hereby.
(b) Each Stockholder agrees to surrender to Target, or to the
transfer agent for Target, certificates evidencing the Shares, and shall cause
Target or the transfer agent for Target to place the following legend on any and
all certificates evidencing the Shares:
THE SHARES OF TARGET COMMON STOCK REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER PURSUANT TO THAT CERTAIN
STOCKHOLDERS AGREEMENT, DATED AS OF OCTOBER 25, 2001, BY AND AMONG
NETRATINGS, INC., ACQUISITION CORPORATION AND CERTAIN STOCKHOLDERS OF
TARGET ANY TRANSFER OF SUCH SHARES OF TARGET COMMON STOCK IN VIOLATION
OF THE TERMS AND PROVISIONS OF SUCH AGREEMENT SHALL BE NULL AND VOID
AND OF NO EFFECT WHATSOEVER.
Section 4. Voting Arrangements.
(a) Each Stockholder agrees that, during the time this
Agreement is in effect, at any meeting of the stockholders of Target (a "Target
Stockholders' Meeting"), however called, and at every adjournment or
postponement thereof, he, she or it shall (i) appear at the meeting or otherwise
cause his, her or its Shares, to be counted as present thereat for purposes of
establishing a quorum, (ii) vote, or execute consents in respect of, his, her or
its Shares, or cause his, her or its Shares to be voted, or consents to be
executed in respect thereof, in favor of the approval and adoption of the Merger
Agreement (including any revised or amended Merger Agreement approved by the
board of directors of Target (other than any amendment modifying the
consideration to be paid to such Stockholder)), and any action required in
furtherance thereof and (iii) vote, or execute consents in respect of, his, her
or its Shares, or cause his, her or its Shares to be voted, or consents to be
executed in respect thereof, against (A) any agreement or transaction relating
to any (I) merger, consolidation, share exchange, business combination, issuance
of securities, acquisition of securities, tender offer, exchange offer or other
similar transaction (1) in which the Company or any of its subsidiaries is a
constituent corporation, (2) in which a person or "group" (as defined in the
Exchange Act and the rules promulgated thereunder) of persons, directly or
indirectly, acquires beneficial or record ownership of
securities representing more than 15% of the outstanding securities of any class
of voting securities of the Company or any of its subsidiaries, or (3) in which
the Company or any of its subsidiaries issues or sells securities representing
more than 15% of the outstanding securities of any class of voting securities of
the Company or any of its subsidiaries; or any sale (other than sales of
inventory in the ordinary course of business), lease (other than in the ordinary
course of business), exchange, transfer (other than sales of inventory in the
ordinary course of business), license (other than nonexclusive licenses in the
ordinary course of business), acquisition or disposition of any business or
businesses or assets that constitute or account for 15% or more of the
consolidated net revenues, net income or assets of the Company or any of its
subsidiaries; or (II) any liquidation or dissolution of Target (each, an
"Acquisition Proposal") or transaction or occurrence that if proposed and
offered to Target or its stockholders (or any of them) would constitute an
Acquisition Proposal (collectively, "Alternative Transactions") or (B) any
amendment of Target's Certificate of Incorporation or By-laws or other proposal,
action or transaction involving Target or any of its Subsidiaries or any of its
stockholders, which amendment or other proposal, action or transaction could
reasonably be expected to prevent or materially impede or delay the consummation
of the Merger or the other transactions contemplated by the Merger Agreement or
the consummation of the transactions contemplated by this Agreement or to
deprive Parent of any material portion of the benefits anticipated by Parent to
be received from the consummation of the Merger or the other transactions
contemplated by the Merger Agreement or this Agreement, or change in any manner
the voting rights of Target Common Stock (collectively, "Frustrating
Transactions") presented to the Stockholders of Target (regardless of any
recommendation of the Board of Directors of Target) or in respect of which vote
or consent of the Stockholder is requested or sought.
(b) Irrevocable Proxy. As security for the Stockholders'
obligations under Section 4(a), each of the Stockholders hereby irrevocably
constitutes and appoints Parent and any designee of Parent as his, her or its
attorney and proxy in accordance with Delaware General Corporation Law ("DGCL"),
with full power of substitution and resubstitution, to cause the Stockholder's
shares to be counted as present at any Target Stockholders Meetings to vote his,
her or its Shares at any Target Stockholders' Meeting, however called, and
execute consents in respect of his, her or its shares as and to the extent
provided in Section 5(a). THIS PROXY AND POWER OF ATTORNEY IS IRREVOCABLE AND
COUPLED WITH AN INTEREST. Each Stockholder hereby revokes all other proxies and
powers of attorney with respect to his, her or its Shares that he, she or it may
have heretofore appointed or granted, and no subsequent proxy or power of
attorney shall be granted.
(c) Each Stockholder represents that any proxies heretofore
given in respect of the Shares, if any, are revocable, and hereby revokes such
proxies.
(d) Each Stockholder hereby affirms that the irrevocable proxy
set forth in this Section 4 is given in connection with the execution of the
Merger Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of such Stockholder under this Agreement. Such
Stockholder hereby further affirms that the irrevocable proxy is coupled with an
interest and, except as set forth in this Section or in Section 8, is intended
to be irrevocable in accordance with the provisions of Section 212 of the DGCL.
If for any reason the proxy granted herein is not irrevocable, then such
Stockholder agrees to vote his, her or its Shares in accordance with Section
4(a) above as instructed by Parent in writing. The parties agree that the
foregoing is a voting agreement created under Section 218 of the DGCL with
respect to Parent and each of the Stockholders.
Section 5. Covenants of Each Stockholder. Each Stockholder, severally
and not jointly, covenants and agrees as follows:
(a) The Stockholder shall not issue any press release or make
any other public statement with respect to the Merger Agreement, the Merger or
any other transaction contemplated by the Merger Agreement without the prior
written consent of Parent, except as may be required by applicable law.
(b) The Stockholder hereby consents to and approves the
actions taken by the Board of Directors of the Company in approving the Merger
Agreement and this Agreement, the Merger and the other transactions contemplated
by the Merger Agreement. The Stockholder hereby waives, and agrees not to
exercise or assert, any appraisal rights under Section 262 of the DGCL in
connection with the Merger.
(c) If, at the time the Merger Agreement is submitted for
adoption by the stockholders of the Company, the Stockholder is an "affiliate"
of the Company for purposes of Rule 145 under the Securities Act and has made or
proposes to make a Share Election, the Stockholder shall deliver to Parent prior
to the Closing a written agreement substantially in the form attached as Exhibit
A to the Merger Agreement.
(d) Each Stockholder agrees that unless otherwise agreed with
Parent, such Stockholder shall elect to receive Parent Shares in the Merger,
provided, however that each Stockholder may elect to receive cash, as provided
in, and pursuant to the terms of the Merger Agreement, for up to thirty percent
(30%) of the number of Shares listed on Schedule 1 attributable to such
Stockholder.
Section 6. Certain Events. In the event of any change in the Target
Common Stock by reason of a stock dividend, stock split, split-up,
recapitalization, reorganization, business combination, consolidation, exchange
of shares, or any similar transaction or other change in the capital structure
of Target affecting the Target Common Stock or the acquisition of additional
shares of Target Common Stock or other securities or rights of Target by any
Stockholder (whether through the exercise of any options, warrants or other
rights to purchase shares of Target Common Stock or otherwise): (a) the number
of Shares owned by such Stockholder shall be adjusted appropriately, and (b)
this Agreement and the obligations hereunder shall attach to any additional
shares of Target Common Stock or other securities or rights of Target issued to
or acquired by each of the Stockholders.
Section 7. Acquisition Proposals; Non-Solicitation.
(a) Acquisition Proposals. In the event any Stockholder, in
such Stockholder's capacity as a stockholder, shall receive or become aware of
any Acquisition Proposal subsequent to the date hereof, such Stockholder shall
promptly inform Parent as to any such matter and the details thereof (including
the name of the person making such proposal and the material terms and
conditions of any proposals or offers). Such stockholder will keep Parent and
Sub fully informed, on a current basis, of the status and terms of any
Acquisition Proposal.
(b) Non-Solicitation. Such Stockholder agrees that it shall
immediately cease and cause to be terminated all existing discussions,
negotiations and communications between such Stockholder and any persons with
respect to any Acquisition Proposal. Such Stockholder shall not and shall not
authorize or permit its Representatives to directly or indirectly (i) initiate,
solicit or knowingly encourage, or knowingly take any action to facilitate the
making of, any offer or proposal which constitutes or is reasonably likely to
lead to any Acquisition Proposal, (ii) enter into any agreement with respect to
any Acquisition Proposal, or (iii) in the event of an unsolicited Acquisition
Proposal for Target, engage in negotiations or discussions with, or provide any
information or data to, any person (other than Parent or any of its affiliates
or representatives) relating to any Acquisition Proposal. Any violation of the
foregoing restrictions by such Stockholder or its Representatives, whether or
not such Stockholder or Representative is so authorized by Target or by any
other Stockholder and whether or not such Stockholder or Representative is
purporting to act on behalf of Target, any Stockholder or Stockholders or
otherwise, shall be deemed to be a breach of this Agreement by such Stockholder.
It is understood that this Agreement, including this Section 7, limits the
rights of each Stockholder only to the extent that such Stockholder is acting in
such Stockholder's capacity as a Stockholder. Nothing in this Agreement shall be
construed as preventing a Stockholder who is an officer or director of Target
from fulfilling the obligations of such office (including, subject to the
limitations contained in Sections 5.3 of the Merger Agreement, the performance
of obligations required by the fiduciary obligations of such Stockholder acting
solely in his or her capacity as an officer or director).
Section 8. Termination. This Agreement, and all rights and obligations
of the parties hereunder (including the proxy contained herein), shall terminate
immediately upon the earlier of (a) the date of termination of the Merger
Agreement or (b) the Effective Time.
Section 9. Expenses. All fees, costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such fees, costs and expenses.
Section 10. Public Announcements. Each of the Stockholders, the Parent
and Sub agrees that it will not issue any press release or otherwise make any
public statement with respect to this Agreement or the transactions contemplated
hereby without the prior consent of the other party, which consent shall not be
unreasonably withheld or delayed; provided, however, that such disclosure may be
made without obtaining such prior consent (a) if (i) the disclosure is required
by law or is required by any regulatory authority, including but not limited to
the Nasdaq National Stock Market and any other national securities exchange,
trading market or inter-dealer quotation system on which the Shares trade and
(ii) the party making such disclosure has first used its best efforts to consult
with the other parties about the form and substance of such disclosure, or (b)
by Parent and Sub in accordance with Section 6.06 of the Merger Agreement.
Section 11. Miscellaneous.
(a) Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally,
telecopied (which is confirmed) or sent by a nationally recognized overnight
courier service, such as Federal Express (providing
proof of delivery), to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
If to any of the Stockholders, at the address set forth
opposite the name of such Stockholder on Schedule 1 hereto:
with a copy to:
and
If to Parent or Sub, to:
NetRatings, Inc.
000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxx
Facsimile:
with a copy to:
Xxxx Xxxx Xxxx & Freidenrich LLP
000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000-0000
Attention: Xxx Xxxxx, Esq.
Facsimile: (000) 000-0000
(b) Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(c) Counterparts. This Agreement may be executed manually or
by facsimile by the parties hereto, or xerographically or electronically by
their respective attorneys, in any number of counterparts, each of which shall
be considered one and the same agreement and shall become effective when a
counterpart hereof shall have been signed by each of the parties and delivered
to the other parties.
(d) Entire Agreement. This Agreement (together with the Merger
Agreement and any other documents and instruments referred to herein and
therein) constitutes the entire agreement among the parties with respect to the
subject matter hereof and thereof and supersedes all other prior agreements and
understandings, both written and oral, among the parties or any of them with
respect to the subject matter hereof and thereof.
(e) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without giving
effect to the principles of conflicts of law thereof.
(f) Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties except that Parent and Sub may assign, in their
sole discretion and without the consent of any other party, any or all of their
rights, interests and obligations hereunder to each other or to one or more
direct or indirect wholly- owned subsidiaries of Parent (each, an "Assignee").
Any such Assignee may thereafter assign, in its sole discretion and without the
consent of any other party, any or all of its rights, interests and obligations
hereunder to one or more additional Assignees. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of and be
enforceable by, the parties and their respective successors and assigns, and the
provisions of this Agreement are not intended to confer upon any person other
than the parties hereto any rights or remedies hereunder.
(g) Severability of Provisions. If any term or provision of
this Agreement is invalid, illegal or incapable of being enforced by rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated by this Agreement is not affected in
any manner adverse to any party. 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 this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that the transactions are fulfilled to the extent possible.
(h) Specific Performance. The parties hereto acknowledge that
money damages would be an inadequate remedy for any breach of this Agreement by
any party hereto, and that the obligations of the parties hereto shall be
enforceable by any party hereto through injunctive or other equitable relief.
(i) Amendment. No amendment, modification or waiver in respect
of this Agreement shall be effective against any party unless it shall be in
writing and signed by such party.
[The remainder of this page is left intentionally blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first written above.
NetRatings, Inc.
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
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Title: Chief Executive Officer, President
and Director
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Sonoma Acquisition Corp., LLC.
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
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Title: Manager
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Stockholder
By: /s/ Xxx Xxxxxxx
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Name: Xxx Xxxxxxx
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Title:
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