1
AGREEMENT AND PLAN OF MERGER
AMONG
MEDIA METRIX, INC.,
MMX ACQUISITION CORP.
AND
JUPITER COMMUNICATIONS, INC.
DATED AS OF JUNE 26, 2000
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TABLE OF CONTENTS
PAGE
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ARTICLE I THE MERGER....................................... 1
Section 1.1. The Merger.................................. 1
Section 1.2. Closing..................................... 1
Section 1.3. Effective Time.............................. 1
Section 1.4. Effects of the Merger....................... 1
Section 1.5. Certificate of Incorporation and Bylaws..... 1
Section 1.6. Directors; Officers......................... 2
ARTICLE II EFFECT OF THE MERGER ON THE STOCK OF THE
CONSTITUENT CORPORATIONS; EXCHANGE OF
CERTIFICATES.................................... 2
Section 2.1. Conversion of Securities.................... 2
Section 2.2. Fractional Shares........................... 2
Section 2.3. Exchange of Certificates.................... 3
Section 2.4. Stock Transfer Books........................ 4
Section 2.5. Treatment of Jupiter Stock Options.......... 4
Section 2.6. Investment of Exchange Fund................. 5
Section 2.7. Appraisal Rights............................ 5
ARTICLE III REPRESENTATIONS AND WARRANTIES OF JUPITER...... 5
Section 3.1. Organization, Qualification, Etc............ 5
Section 3.2. Capital Stock............................... 6
Section 3.3. Corporate Authority; No Violation........... 7
Section 3.4. Reports and Financial Statements............ 8
Section 3.5. No Undisclosed Liabilities.................. 8
Section 3.6. Compliance with Laws........................ 8
Section 3.7. Employee Benefit Plans...................... 9
Section 3.8. Absence of Certain Changes or Events........ 10
Section 3.9. Litigation.................................. 10
Section 3.10. Title to Assets............................. 11
Section 3.11. Intellectual Property....................... 11
Section 3.12. Material Contracts.......................... 12
Section 3.13. Labor Matters............................... 12
Section 3.14. Tax Matters................................. 13
Section 3.15. Customers................................... 13
Section 3.16. Opinion of Financial Advisor................ 13
Section 3.17. Takeover Laws............................... 13
Section 3.18. Required Vote of Jupiter Stockholders....... 14
Section 3.19. Finders or Brokers.......................... 14
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF MEDIA METRIX
AND MERGER SUB.................................. 14
Section 4.1. Organization, Qualification, Etc............ 14
Section 4.2. Capital Stock............................... 15
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Section 4.3. Corporate Authority; No Violation........... 15
Section 4.4. Reports and Financial Statements............ 16
Section 4.5. No Undisclosed Liabilities.................. 16
Section 4.6. Compliance with Laws........................ 17
Section 4.7. Employee Benefit Plan....................... 17
Section 4.8. Absence of Certain Changes or Events........ 18
Section 4.9. Litigation.................................. 19
Section 4.10. Title to Assets............................. 19
Section 4.11. Intellectual Property....................... 19
Section 4.12. Material Contracts.......................... 20
Section 4.13. Labor Matters............................... 20
Section 4.14. Tax Matters................................. 20
Section 4.15. Customers................................... 21
Section 4.16. Opinion of Financial Advisor................ 21
Section 4.17. Takeover Laws............................... 21
Section 4.18. Required Vote of Media Metrix
Stockholders........................................... 21
Section 4.19. Finders or Brokers.......................... 21
ARTICLE V COVENANTS AND AGREEMENTS......................... 22
Section 5.1. Conduct of Business by Jupiter and Media
Metrix................................................. 22
Section 5.2. Investigation............................... 24
Section 5.3. Stockholder Approval; Filings............... 24
Section 5.4. Additional Reports.......................... 26
Section 5.5. Consents; Approvals......................... 26
Section 5.6. Takeover Statute............................ 26
Section 5.7. No Solicitation............................. 26
Section 5.8. Public Announcements........................ 28
Section 5.9. Indemnification and Insurance............... 28
Section 5.10. Notification of Certain Matters............. 29
Section 5.11. Board of Directors and Officers of Media
Metrix................................................. 29
Section 5.12. Employee Plans and Benefit Arrangements..... 29
Section 5.13. Section 16b Approvals....................... 30
Section 5.14. Bylaw Amendment............................. 30
ARTICLE VI CONDITIONS TO THE MERGER........................ 30
Section 6.1. Conditions to Each Party's Obligation to
Effect the Merger...................................... 30
Section 6.2. Conditions to Obligations of Jupiter to
Effect the Merger...................................... 31
Section 6.3. Conditions to Obligations of Media Metrix to
Effect the Merger...................................... 31
ARTICLE VII TERMINATION, WAIVER, AMENDMENT AND CLOSING..... 32
Section 7.1. Termination or Abandonment.................. 32
Section 7.2. Effect of Termination....................... 33
Section 7.3. Termination Fee Payments.................... 33
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ARTICLE VIII MISCELLANEOUS................................. 34
Section 8.1. No Survival of Representations and
Warranties............................................. 35
Section 8.2. Expenses.................................... 35
Section 8.3. Counterparts; Effectiveness................. 35
Section 8.4. Governing Law............................... 35
Section 8.5. Notices..................................... 35
Section 8.6. Assignment; Binding Effect.................. 36
Section 8.7. Severability................................ 36
Section 8.8. Enforcement of Agreement.................... 36
Section 8.9. Miscellaneous............................... 36
Section 8.10. Interpretation; Definitions................. 36
EXHIBIT A Form of Certificate of Incorporation of Surviving
Corporation
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INDEX OF DEFINED TERMS
TERM SECTION
---- -----------
affiliate................................................... 8.10
Agreement................................................... Preamble
Certificate of Merger....................................... 1.3
Closing..................................................... 1.2
Closing Date................................................ 1.2
Code........................................................ Recitals
company..................................................... 5.7(a)
Competing Transaction....................................... 5.7(a)
Confidentiality Agreement................................... 5.2
Contract.................................................... 3.3(b)
Decrees..................................................... 3.6(b)
Delaware Secretary of State................................. 1.3
DGCL........................................................ 1.1
Effective Time.............................................. 1.3
Employee.................................................... 3.7(a)
Encumbrances................................................ 3.1(b)
ERISA....................................................... 3.7(d)
Exchange Act................................................ 3.3(c)
Exchange Agent.............................................. 2.3(a)
Exchange Fund............................................... 2.3(a)
Exchange Ratio.............................................. 2.1(c)
GAAP........................................................ 3.4
Governmental Entity......................................... 3.3(c)
HSR Act..................................................... 3.3(c)
Indemnified Parties......................................... 5.9(a)
Intellectual Property Rights................................ 3.11(k)
Joint Proxy Statement....................................... 5.3(b)
Jupiter..................................................... Preamble
Jupiter Affiliated Group.................................... 5.13(b)
Jupiter Board Recommendation................................ 3.3(a)
Jupiter Business Combination................................ 7.3(d)
Jupiter Compensation and Benefit Plans...................... 3.7(a)
Jupiter Contract............................................ 3.3(b)
Jupiter Designees........................................... 5.11
Jupiter Disclosure Letter................................... Article III
Jupiter ERISA Affiliate..................................... 3.7(f)
Jupiter ESPP................................................ 2.5(c)
Jupiter Intellectual Property............................... 3.11(k)
Jupiter Intellectual Property Licenses...................... 3.11(b)
Jupiter Meeting............................................. 5.3(a)
Jupiter Option.............................................. 2.5(a)
Jupiter Pension Plan........................................ 3.7(d)
Jupiter Plans............................................... 2.5(a)
Jupiter Preferred Stock..................................... 3.2(a)
Jupiter SEC Reports......................................... 3.4
Jupiter Shares.............................................. 2.1(a)
Jupiter Stock Certificate................................... 2.1(d)
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TERM SECTION
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Jupiter Termination Fee..................................... 7.3(a)
Jupiter Triggering Event.................................... 7.3(a)
Jupiter's 1999 Form 10-K.................................... 3.1(a)
Jupiter's First Quarter 2000 Form 10-Q...................... 3.5
Laws........................................................ 3.6(a)
Material Adverse Effect..................................... 3.1(a)
Media Metrix................................................ Preamble
Media Metrix Board Recommendation........................... 4.3(a)
Media Metrix Business Combination........................... 7.3(e)
Media Metrix Common Stock................................... 2.1(c)
Media Metrix Compensation and Benefit Plans................. 4.7(a)
Media Metrix Contract....................................... 4.3(b)
Media Metrix Designees...................................... 5.11
Media Metrix Disclosure Letter.............................. Article IV
Media Metrix ERISA Affiliate................................ 4.7(e)
Media Metrix Exchange Option................................ 2.5(a)
Media Metrix Intellectual Property.......................... 4.11(g)
Media Metrix Intellectual Property Licenses................. 4.11(b)
Media Metrix Meeting........................................ 5.3(a)
Media Metrix Pension Plan................................... 4.7(c)
Media Metrix Preferred Stock................................ 4.2
Media Metrix SEC Reports.................................... 4.4
Media Metrix Stockholder Proposals.......................... 5.3(a)
Media Metrix Termination Fee................................ 7.3(b)
Media Metrix Triggering Event............................... 7.3(b)
Media Metrix's 1999 Form 10-K............................... 4.1
Media Metrix's First Quarter 2000 Form 10-Q................. 4.5
Merger...................................................... Recitals
Merger Consideration........................................ 5.7(d)
Merger Sub.................................................. Preamble
Xxxxxx Xxxxxxx.............................................. 3.16
Multiemployer Plan.......................................... 3.7(h)
Nasdaq...................................................... 2.2
person...................................................... 8.10
Recommendation.............................................. 5.3(a)
Registration Statement...................................... 5.3(b)
SEC......................................................... 3.4
Securities Act.............................................. 3.3(c)
Share Arrangements.......................................... 3.1(b)
Stockholders Meeting........................................ 5.3(a)
Subsidiaries................................................ 8.10
Superior Transaction........................................ 5.7(d)
Surviving Corporation....................................... 1.1
Takeover Laws............................................... 3.17
Tax Return.................................................. 3.14
Taxes....................................................... 3.14
Third Party................................................. 5.7(a)
Xxxxxx Xxxxxx............................................... 4.16
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THIS AGREEMENT AND PLAN OF MERGER, dated as of June 26, 2000 (this
"Agreement"), is among Media Metrix, Inc., a Delaware corporation ("Media
Metrix"), MMX Acquisition Corp., a Delaware corporation ("Merger Sub"), and
Jupiter Communications, Inc., a Delaware corporation ("Jupiter").
WHEREAS, the respective Boards of Directors of Media Metrix, Merger Sub and
Jupiter have approved and have declared advisable the merger of Merger Sub with
and into Jupiter (the "Merger"), upon the terms and subject to the conditions
set forth herein, and have determined that the Merger and the other transactions
contemplated hereby are consistent with, and in furtherance of, their respective
business strategies and goals and are in the best interests of the companies and
their respective stockholders;
WHEREAS, the parties intend that the Merger constitute a "reorganization"
within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as
amended (the "Code"); and
WHEREAS, the parties desire to make certain representations, warranties,
covenants and agreements in connection with the Merger and also to prescribe
various conditions to the Merger.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement, the parties hereby agree
as follows:
ARTICLE I
THE MERGER
Section 1.1. The Merger. Upon the terms and subject to the conditions set
forth in this Agreement, and in accordance with the Delaware General Corporation
Law (the "DGCL"), Merger Sub shall be merged with and into Jupiter at the
Effective Time (as defined in Section 1.3). Following the Effective Time, the
separate corporate existence of Merger Sub shall cease and Jupiter shall be the
surviving corporation (the "Surviving Corporation") and shall succeed to and
assume all the rights and obligations of Merger Sub in accordance with the DGCL.
Section 1.2. Closing.
The closing of the Merger (the "Closing") will take place at 10:00 a.m.,
local time, at the offices of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, Xxx Xxx
Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 on a date to be specified by the parties,
which shall be no later than the second business day after the first date that
all of the conditions set forth in Sections 6.1(a) through (e) have been
satisfied or waived, unless another place, time or date is agreed to by the
parties hereto (such time on such date, the "Closing Date").
Section 1.3. Effective Time.
Subject to the provisions of this Agreement, as soon as practicable on the
Closing Date, the parties (i) shall file with the Secretary of State for the
State of Delaware (the "Delaware Secretary of State") a certificate of merger or
other appropriate documents (the "Certificate of Merger") executed in accordance
with the relevant provisions of the DGCL and (ii) shall make all other filings
or recordings required under the DGCL necessary to effect the Merger. The Merger
shall become effective at the time of the filing of the Certificate of Merger
with the Delaware Secretary of State in accordance with the DGCL, or at such
subsequent date or time as Media Metrix and Jupiter shall agree and specify in
the Certificate of Merger (the time the Merger becomes effective being
hereinafter referred to as the "Effective Time").
Section 1.4. Effects of the Merger.
The Merger shall have the effects set forth in Section 259 of the DGCL.
Section 1.5. Certificate of Incorporation and Bylaws.
(a) The certificate of incorporation of Jupiter shall be amended as of the
Effective Time to read in its entirety as set forth on Exhibit A and as so
amended shall constitute the certificate of incorporation of the Surviving
Corporation until thereafter amended.
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(b) The bylaws of Merger Sub, as in effect immediately prior to the
Effective Time, shall be adopted as the bylaws of the Surviving Corporation
until thereafter amended.
Section 1.6. Directors; Officers.
The directors and officers of Merger Sub at the Effective Time shall be the
directors and officers, respectively, of the Surviving Corporation until their
respective successors are duly elected and qualified.
ARTICLE II
EFFECT OF THE MERGER ON THE STOCK OF THE
CONSTITUENT CORPORATIONS; EXCHANGE OF CERTIFICATES
Section 2.1. Conversion of Securities.
At the Effective Time, by virtue of the Merger and without any action on
the part of Merger Sub, Jupiter or their respective stockholders:
(a) Each share of common stock, par value $0.001 per share, of Jupiter
("Jupiter Shares") held in the treasury of Jupiter and each Jupiter Share
owned by Media Metrix or any direct or indirect wholly owned Subsidiary (as
defined in Section 8.10) of Media Metrix or of Jupiter immediately prior to
the Effective Time shall be canceled and extinguished, without any
conversion thereof, and no payment shall be made with respect thereto.
(b) Each share of common stock, par value $.01 per share, of Merger
Sub issued and outstanding immediately prior to the Effective Time shall be
converted into one validly issued fully paid and non-assessable share of
common stock of the Surviving Corporation, and the Surviving Corporation
shall be a wholly owned Subsidiary of Media Metrix.
(c) Subject to the other provisions of this Section 2.1, each Jupiter
Share issued and outstanding immediately prior to the Effective Time shall,
except as otherwise provided in Section 2.1(a), be converted into the right
to receive 0.946 share (the "Exchange Ratio") of common stock, par value
$.01 per share, of Media Metrix ("Media Metrix Common Stock"). The shares
of Media Metrix Common Stock to be received as consideration pursuant to
the Merger with respect to Jupiter Shares, together with cash in lieu of
fractional shares of Media Metrix Common Stock as specified in Section 2.2,
is referred to herein as the "Merger Consideration."
(d) From and after the Effective Time, all Jupiter Shares converted in
accordance with Section 2.1(c) shall no longer be outstanding and shall
automatically be canceled and retired and shall cease to exist, and each
holder of a certificate evidencing any Jupiter Shares outstanding
immediately prior to the Effective Time (a "Jupiter Stock Certificate")
shall cease to have any rights with respect thereto except the right to
receive the Merger Consideration in respect thereof. From and after the
Effective Time, all certificates representing the common stock of Merger
Sub shall be deemed for all purposes to represent the number of shares of
common stock of the Surviving Corporation into which they were converted in
accordance with Section 2.1(b).
(e) If, between the date of this Agreement and the Effective Time, the
outstanding shares of Media Metrix Common Stock shall have been changed
into a different number of shares by reason of any stock dividend, stock
split, reclassification, recapitalization, stock combination or other
similar change with respect to the Media Metrix Common Stock, the Exchange
Ratio shall correspondingly be adjusted to reflect such stock dividend,
stock split, reclassification, recapitalization, stock combination or other
similar change.
Section 2.2. Fractional Shares.
No fractional shares of Media Metrix Common Stock shall be issued as a
result of the conversion provided for in Section 2.1(c). In lieu of any such
fractional shares, the holder of a Jupiter Stock Certificate, upon surrender
thereof for exchange pursuant to Section 2.3, shall be entitled to receive a
cash payment
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therefor (without interest) in an amount determined by multiplying (x) the
closing price of a share of Media Metrix Common Stock as reported on the Nasdaq
National Market ("Nasdaq") Composite Tape on the last full trading day
immediately prior to the Closing Date by (y) the fractional interest to which
such holder would otherwise be entitled. Such payment with respect to fractional
shares is merely intended to provide a mechanical rounding off of, and is not a
separately bargained for, consideration. If more than one Jupiter Stock
Certificate shall be surrendered for the account of the same holder, the number
of shares of Media Metrix Common Stock to be issued to such holder in exchange
for the Jupiter Stock Certificates which have been surrendered shall be computed
on the basis of the aggregate number of shares represented by all of the Jupiter
Stock Certificates surrendered for the account of such holder. Any payment owed
with respect to fractional shares shall be rounded to the nearest cent.
Section 2.3. Exchange of Certificates.
(a) Media Metrix shall, promptly following the Effective Time, deposit with
an exchange agent designated by Media Metrix and reasonably acceptable to
Jupiter (the "Exchange Agent"), for the benefit of the holders of Jupiter
Shares, for exchange in accordance with this Section 2.3, certificates
representing shares of Media Metrix Common Stock issuable pursuant to Section
2.1(c) in exchange for outstanding Jupiter Shares and shall from time to time,
as needed, deposit cash in an amount required to be paid pursuant to Section 2.2
(such shares of Media Metrix Common Stock and cash being hereinafter referred to
as the "Exchange Fund").
(b) As soon as reasonably practicable after the Effective Time, Media
Metrix will instruct the Exchange Agent to mail to each holder of record of
Jupiter Stock Certificates whose shares were converted into the right to receive
shares of Media Metrix Common Stock pursuant to Section 2.1(c), (i) a letter of
transmittal (which shall specify that delivery shall be effected, and risk of
loss and title to the Jupiter Stock Certificates shall pass, only upon proper
delivery of Jupiter Stock Certificates to the Exchange Agent and shall be in
such form and have such other provisions as Media Metrix and Jupiter may
reasonably specify, including offering holders of Jupiter Stock Certificates the
ability to hold their shares of Media Metrix Common Stock in book entry form in
lieu of the certificates provided for below) and (ii) instructions for use in
effecting the surrender of Jupiter Stock Certificates in exchange for
certificates evidencing shares of Media Metrix Common Stock. Upon surrender to
the Exchange Agent of a Jupiter Stock Certificate for cancellation, together
with such letter of transmittal, duly executed, and such other customary
documents as may be required pursuant to such instructions, the holder of such
Jupiter Stock Certificate shall be entitled to receive in exchange therefor (A)
certificates evidencing that number of whole shares of Media Metrix Common Stock
which such holder has the right to receive in respect of Jupiter Shares formerly
evidenced by such Jupiter Stock Certificate in accordance with Section 2.1(c) in
such denominations and registered in such names as such holder may request and
(B) cash in lieu of fractional shares of Media Metrix Common Stock, if any, and
unpaid dividends and distributions, if any, which such holder is entitled
pursuant to Section 2.3(c), and the Jupiter Stock Certificate so surrendered
shall forthwith be canceled. In the event of a transfer of ownership of Jupiter
Shares which is not registered in the transfer records of Jupiter, a certificate
evidencing the proper number of shares of Media Metrix Common Stock and/or cash
may be issued and/or paid in accordance with this Article II to a transferee if
the Jupiter Stock Certificate evidencing such Jupiter Shares is presented to the
Exchange Agent, accompanied by all documents required to evidence and effect
such transfer and by evidence that any applicable stock transfer taxes have been
paid. Until surrendered as contemplated by this Section 2.3, each Jupiter Stock
Certificate shall be deemed at any time after the Effective Time to evidence
only the right to receive upon such surrender the Merger Consideration payable
in respect thereof.
(c) Notwithstanding any other provisions of this Agreement, no dividends or
other distributions declared or made after the Effective Time with respect to
any shares of Media Metrix Common Stock and having a record date after the
Effective Time shall be paid to the holder of any unsurrendered Jupiter Stock
Certificate unless the holder shall first have surrendered such Jupiter Stock
Certificate as provided in this Section 2.3.
(d) All shares of Media Metrix Common Stock issued and cash paid upon the
surrender for exchange of Jupiter Stock Certificates in accordance with the
terms of this Article II shall be deemed to have been issued
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and paid, respectively, in full satisfaction of all rights pertaining to the
Jupiter Shares theretofore represented by such Jupiter Stock Certificates.
(e) Any portion of the Exchange Fund which remains undistributed to the
holders of Jupiter Shares for six months after the Effective Time shall be
delivered to Media Metrix, upon demand, and any holders of Jupiter Shares who
have not theretofore complied with this Article II shall thereafter look only to
Media Metrix for payment of their claim for the Merger Consideration payable in
respect thereof.
(f) None of Media Metrix, Jupiter, Merger Sub, the Surviving Corporation or
the Exchange Agent shall be liable to any person in respect of any shares of
Media Metrix Common Stock (or dividends or distributions with respect thereto)
or cash from the Exchange Fund in each case delivered to a public official
pursuant to any applicable abandoned property, escheat or similar law. If any
Jupiter Stock Certificate shall not have been surrendered prior to seven years
after the Effective Time (or immediately prior to such earlier date on which any
Merger Consideration payable in respect of the Jupiter Shares evidenced by such
Jupiter Stock Certificates, or any dividends or distributions with respect to
such Merger Consideration, would otherwise escheat to or become the property of
any Governmental Entity (as defined in Section 3.3)), any such Merger
Consideration (and any such dividends or distributions) shall, to the extent
permitted by applicable law, become the property of the Surviving Corporation
free and clear of all claims or interest of any person previously entitled
thereto.
(g) Media Metrix and Merger Sub shall be entitled to deduct and withhold
from the Merger Consideration otherwise payable pursuant to this Agreement to
any holder of Jupiter Shares such amounts as Media Metrix or Merger Sub is
required to deduct and withhold with respect to the making of such payment under
the Code, or any provision of state, local or foreign Tax Law (as such terms are
defined in Sections 3.14 and 3.6, respectively). To the extent that amounts are
so withheld by Media Metrix or Merger Sub, such withheld amounts shall be
treated for all purposes of this Agreement as having been paid to the holder of
Jupiter Shares in respect of which such deduction and withholding was made by
Media Metrix or Merger Sub.
(h) If any Jupiter Stock Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
such Jupiter Stock Certificate to be lost, stolen or destroyed and, if required
by Media Metrix, the posting by such person of a bond in such reasonable amount
as Media Metrix may direct as indemnity against any claim that may be made
against it with respect to such Jupiter Stock Certificate, the Exchange Agent
will issue in exchange for such lost, stolen or destroyed Jupiter Stock
Certificate the Merger Consideration payable in respect thereof pursuant to this
Article II.
Section 2.4. Stock Transfer Books.
There shall be no further registration of transfers on the stock transfer
books of the Surviving Corporation of Jupiter Shares which were outstanding
immediately prior to the Effective Time. If, after the Effective Time, Jupiter
Stock Certificates are presented to the Surviving Corporation or the Exchange
Agent for any reason, they shall be canceled and exchanged as provided in this
Article II, except as otherwise provided by Law.
Section 2.5. Treatment of Jupiter Stock Options.
(a) Prior to the Effective Time, Media Metrix and Jupiter shall take all
such actions as may be necessary to cause (i) each outstanding option to acquire
Jupiter Shares under Jupiter's 1997 Employee Stock Option Plan or Jupiter's 1999
Stock Incentive Plan (the "Jupiter Plans") and (ii) each other outstanding
option to purchase Jupiter Shares granted as compensation for services to
Jupiter or any of its Subsidiaries (each option described in clause (i) or (ii),
a "Jupiter Option") to be automatically converted at the Effective Time into an
option (a "Media Metrix Exchange Option") to purchase that number of shares of
Media Metrix Common Stock equal to the number of Jupiter Shares issuable
immediately prior to the Effective Time upon exercise of such Jupiter Option
(without regard to actual restrictions on exercisability) multiplied by the
Exchange Ratio, with an exercise price equal to the exercise price which was in
effect under such Jupiter Option immediately prior to the Effective Time divided
by the Exchange Ratio, and with such Media Metrix Exchange Option being
otherwise subject to the same terms and conditions as the terms and conditions
of such Jupiter Option immediately before the Effective Time. It is the
intention of the parties that the options
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so assumed by Media Metrix qualify following the Effective Time as incentive
stock options as defined in Section 422 of the Code if and to the extent such
options qualified as incentive stock options prior to the Effective Time. In
connection with the issuance of Media Metrix Exchange Options, Media Metrix
shall (i) reserve for issuance the aggregate number of shares of Media Metrix
Common Stock that will become subject to Media Metrix Exchange Options pursuant
to this Section 2.5, (ii) from and after the Effective Time, upon exercise of
Media Metrix Exchange Options, make available for issuance all shares of Media
Metrix Common Stock covered thereby, subject to the terms and conditions
applicable thereto, and (iii) within 10 days following the Effective Time, file
a registration statement on Form S-8 covering the shares to be issued upon
exercise of the Media Metrix Exchange Options.
(b) For each Jupiter Option that is converted into a Media Metrix Exchange
Option in accordance with this Section 2.5, Jupiter shall ensure that no action
is taken (including by the Board of Directors of Jupiter) which could result in
all or any portion of such Media Metrix Exchange Option becoming exercisable on
or after the Effective Time sooner than under the schedule as to exercisability
applicable to such Jupiter Option as in effect prior to the Effective Time.
(c) Jupiter hereby represents and warrants that it has taken all steps
necessary under Jupiter's 1999 Employee Stock Purchase Plan (the "Jupiter ESPP")
such that (i) following the date hereof, no person who is not then a participant
in the Jupiter ESPP shall be allowed to participate therein, and (ii) the
"Purchase Interval" (as defined in the Jupiter ESPP) during which the Effective
Time occurs shall be the final Purchase Interval. At the "Purchase Date" (as
defined in the Jupiter ESPP) applicable to such final Purchase Interval (which
shall occur not later than the day prior to the Effective Time), (x) all payroll
deductions theretofore taken for purchases under the Jupiter ESPP shall be
applied to the purchase of Jupiter Shares, (y) no further purchase rights shall
exist under the Jupiter ESPP Plan and (z) the Jupiter ESPP shall terminate. As
soon as practicable following the Effective Time, Media Metrix shall cause the
Surviving Corporation to refund (without interest) any payroll deductions held
under the Jupiter ESPP and not applied to the purchase of Jupiter Shares. At the
Effective Time, the Surviving Corporation and its Subsidiaries shall become
participating employers under Media Metrix's 2000 Employee Stock Purchase Plan.
Section 2.6. Investment of Exchange Fund.
The Exchange Agent shall invest any cash included in the Exchange Fund, as
directed by Media Metrix, on a daily basis. Any interest and other income
resulting from such investments shall be paid to Media Metrix upon termination
of the Exchange Fund pursuant to Section 2.3(e).
Section 2.7. Appraisal Rights.
In accordance with Section 262 of the DGCL, no appraisal rights shall be
available to holders of Jupiter Shares in connection with the Merger.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF JUPITER
Jupiter represents and warrants to Media Metrix and Merger Sub that, except
as set forth in the corresponding sections or subsections of the Disclosure
Letter delivered to Media Metrix by Jupiter concurrently with entering into this
Agreement (the "Jupiter Disclosure Letter") (all references to Jupiter in this
Article III being deemed to include reference to its predecessor, unless the
context otherwise requires):
Section 3.1. Organization, Qualification, Etc.
(a) Jupiter is a corporation duly organized, validly existing and in good
standing under the Laws of the jurisdiction of its incorporation and has the
corporate power and authority to own its assets and to carry on its business as
it is now being conducted, and is duly qualified to do business and is in good
standing in each jurisdiction in which the ownership of its assets or the
conduct of its business requires such qualification, except for jurisdictions in
which such failure to be so qualified or to be in good standing would not,
individually or in the aggregate, have a Material Adverse Effect (as hereinafter
defined) on Jupiter. As used in this
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Agreement, any reference to any state of facts, event, change or effect having a
"Material Adverse Effect" on or with respect to Jupiter or Media Metrix, as the
case may be, means such state of facts, event, change or effect that (i) has
had, or would reasonably be expected to have, a material adverse effect on the
assets, liabilities, business, results of operations or financial condition of
Jupiter and its Subsidiaries, taken as a whole, or Media Metrix and its
Subsidiaries, taken as a whole, as the case may be, or (ii) would reasonably be
expected to prevent or substantially delay consummation of the transactions
contemplated by this Agreement; provided that none of the following shall be
taken into account in determining whether there has been or will be a Material
Adverse Effect: (x) any change in the market price or trading volume of
Jupiter's stock or Media Metrix's stock, as the case may be, after the date
hereof; (y) any adverse effect on Jupiter or Media Metrix, as the case may be,
attributable solely to conditions affecting the industries in which Jupiter or
Media Metrix, as the case may be, participates, the U.S. economy as a whole or
foreign economies in any locations where Jupiter or Media Metrix, as the case
may be, or any of their respective Subsidiaries has material operations or sales
(and not having a materially disproportionate effect on Jupiter or Media Metrix,
as the case may be); or (z) any adverse effect arising solely from or relating
solely to any change in accounting requirements or principles or any change in
applicable rules or regulations or the interpretation thereof. The copies of
Jupiter's certificate of incorporation and bylaws filed or incorporated by
reference in Jupiter's Annual Report on Form 10-K for the year ended December
31, 1999 ("Jupiter's 1999 Form 10-K") are complete and correct and in full force
and effect on the date hereof.
(b) Each of Jupiter's Subsidiaries is an entity duly organized, validly
existing and in good standing (where applicable) under the Laws of its
jurisdiction of incorporation or organization, has the power and authority to
own its assets and to carry on its business as it is now being conducted, and is
duly qualified to do business and is in good standing in each jurisdiction in
which the ownership of its assets or the conduct of its business requires such
qualification, except for jurisdictions where the failure to be so organized,
existing, qualified or in good standing would not, individually or in the
aggregate, have a Material Adverse Effect on Jupiter. All the outstanding shares
of capital stock of, or other ownership interests in, Jupiter's Subsidiaries are
validly issued, fully paid and non-assessable and are owned by Jupiter, and such
ownership is free and clear of all liens, claims, charges or encumbrances of any
kind ("Encumbrances"). There are no existing options, rights of first refusal,
conversion rights, preemptive rights, calls, commitments, arrangements or
obligations of any kind ("Share Arrangements") relating to the issued or
unissued capital stock or other securities of, or other ownership interests in,
any Subsidiary of Jupiter. None of the certificates of incorporation or bylaws
or other organizational documents of any of Jupiter's Subsidiaries purport to
grant rights to any person other than (1) customary rights with respect to
corporate governance given to all stockholders pro rata in accordance with their
holdings and (2) customary rights of indemnification of directors and officers.
Jupiter has delivered to Media Metrix complete and correct copies of the
certificate of incorporation and bylaws or other organizational documents of
each of Jupiter's Subsidiaries.
(c) A complete listing of Jupiter's Subsidiaries is set forth in Section
3.1(c) of the Jupiter Disclosure Letter. Except as set forth in Section 3.1(c)
of the Jupiter Disclosure Letter, Jupiter does not directly or indirectly own
any equity or similar interest in, or any interest convertible into or
exchangeable or exercisable for any equity or similar interest in, any
corporation, partnership, joint venture, business association or other person.
Section 3.2. Capital Stock.
(a) The authorized stock of Jupiter consists of 100,000,000 Jupiter Shares
and 5,000,000 shares of preferred stock, par value $.001 per share (the "Jupiter
Preferred Stock"). As of June 22, 2000, 15,549,572 Jupiter Shares and no shares
of Jupiter Preferred Stock were issued and outstanding and no Jupiter Shares
were held in treasury. All of the outstanding Jupiter Shares have been validly
issued and are fully paid and non-assessable. As of June 22, 2000, there were no
outstanding Share Arrangements relating to the issued or unissued capital stock
or other securities of, or other ownership interests in, Jupiter, other than:
(i) options to purchase 2,503,744 Jupiter Shares granted on or prior
to such date pursuant to Jupiter's 1997 Employee Stock Option Plan;
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(ii) options to purchase 1,612,415 Jupiter Shares granted on or prior
to such date pursuant to Jupiter's 1999 Stock Incentive Plan;
(iii) rights to purchase a maximum of 434,534 Jupiter Shares pursuant
to the Jupiter ESPP; and
(iv) convertible promissory notes in the aggregate principal amount of
$1,174,454, due January 7, 2001.
(b) Since June 22, 2000, there have been no increases to any of the amounts
set forth in Section 3.2(a), other than increases in the number of outstanding
Jupiter Shares by reason of issuances of Jupiter Shares upon exercise of any of
Jupiter Options enumerated in clauses (i) and (ii) of Section 3.2(a), which
issuances have reduced the applicable number of Jupiter Options set forth in
clauses (i) and (ii) of Section 3.2(a) by a corresponding amount, nor has
Jupiter modified, amended or entered into new Share Arrangements relating to the
issued or unissued capital stock or other securities of, or other ownership
interests in, Jupiter.
Section 3.3. Corporate Authority; No Violation.
(a) Jupiter has the corporate power and authority to enter into this
Agreement and to carry out its obligations hereunder. The execution and delivery
of this Agreement and the performance by Jupiter of its obligations hereunder
have been duly and validly authorized by the Board of Directors of Jupiter and,
except for the adoption by its stockholders of this Agreement, no other
corporate proceedings on the part of Jupiter are necessary to authorize this
Agreement or the transactions contemplated hereby. The Board of Directors of
Jupiter, at a meeting duly called and held at which a quorum was present
throughout, has unanimously determined that the transactions contemplated by
this Agreement are in the best interest of Jupiter and its stockholders and to
recommend to such stockholders that they vote in favor of this Agreement and the
Merger (the "Jupiter Board Recommendation"). The Jupiter Board Recommendation
has not been revoked or modified. This Agreement has been duly and validly
executed and delivered by Jupiter and, assuming this Agreement constitutes a
valid and binding agreement of the other parties hereto, constitutes a valid and
binding agreement of Jupiter, enforceable against Jupiter in accordance with its
terms (except insofar as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar Laws affecting creditors'
rights generally, or by principles governing the availability of equitable
remedies).
(b) The execution, delivery and performance of this Agreement by Jupiter
does not, and the consummation by Jupiter of the Merger and the other
transactions contemplated hereby will not, constitute or result in (with or
without notice, lapse of time or both) (i) a breach or violation of, or a
default under, or the creation of any rights in favor of any party under, the
certificate of incorporation or bylaws of Jupiter or the comparable governing
instruments of any of its Subsidiaries, (ii) a breach or violation of, or a
default under, or an acceleration of any obligations under, or the creation of
any Encumbrance on the assets of Jupiter or any of its Subsidiaries pursuant to,
any agreement, lease, contract, commitment, note, mortgage, indenture,
arrangement, nongovernmental permit or license or other obligation (each, a
"Contract") binding upon Jupiter or any of its Subsidiaries (each, a "Jupiter
Contract") or (provided, as to consummation, the filings and notices are made,
and approvals are obtained, as referred to in Section 3.3(c)) any applicable Law
or Decree (as defined in Section 3.6) or governmental permit or license to which
Jupiter or any of its Subsidiaries is subject, or (iii) any change in the rights
or obligations of any party under any of the Jupiter Contracts, except for any
breach, violation, default, acceleration, creation of rights or Encumbrances or
change that would not, individually or in the aggregate, have a Material Adverse
Effect on Jupiter.
(c) Other than in connection with or in compliance with the provisions of
the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder (the "Securities Act"), the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder (the
"Exchange Act"), the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended, and the rules and regulations promulgated thereunder (the "HSR Act"),
and the securities or blue sky Laws of the various states and other than the
filing of the Certificate of Merger with the Delaware Secretary of State, no
authorization, consent or approval of, or filing with, any governmental,
administrative or regulatory body or authority ("Governmental Entity") is
necessary for the consummation by Jupiter of the transactions
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contemplated by this Agreement, except for such authorizations, consents,
approvals or filings that, if not obtained or made, would not, individually or
in the aggregate, have a Material Adverse Effect on Jupiter.
Section 3.4. Reports and Financial Statements.
Jupiter has timely filed with the Securities and Exchange Commission (the
"SEC") all forms, reports, schedules, statements and other documents required to
be filed by it since October 7, 1999 under the Securities Act or the Exchange
Act (such documents, as supplemented or amended since the time of filing, the
"Jupiter SEC Reports"). As of their respective dates, the Jupiter SEC Reports,
including any financial statements or schedules included or incorporated by
reference therein, at the time filed (and, in the case of registration
statements and proxy statements, on the dates of effectiveness and the dates of
mailing, respectively) (i) complied in all material respects with the applicable
requirements of the Securities Act and the Exchange Act (including requirements
as to the filing of Exhibits), and (ii) did not contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. The audited consolidated financial
statements and unaudited consolidated interim financial statements included or
incorporated by reference in the Jupiter SEC Reports (including any related
notes and schedules) fairly present, in all material respects, the financial
position of Jupiter and its consolidated Subsidiaries as of the dates thereof
and the results of their operations and their cash flows and other information
included therein for the periods set forth therein, in each case in accordance
with generally accepted accounting principles in the United States ("GAAP")
consistently applied during the periods involved (except as otherwise disclosed
in the notes thereto) and subject, in the case of the interim financial
statements, to normal year-end adjustments that would not, individually or in
the aggregate, be material in amount or effect.
Section 3.5. No Undisclosed Liabilities.
Neither Jupiter nor any of its Subsidiaries has any liabilities or
obligations of any nature, whether or not accrued, contingent or otherwise (and
whether or not the subject of any other representation or warranty hereunder),
except (a) liabilities or obligations reserved against or disclosed in the
unaudited consolidated interim financial statements of Jupiter as of and for the
three months ended March 31, 2000 contained in Jupiter's Quarterly Report on
Form 10-Q for the quarter ended March 31, 2000 ("Jupiter's First Quarter 2000
Form 10-Q") or disclosed in the footnotes thereto or in the footnotes to the
audited consolidated financial statements of Jupiter as of and for the fiscal
year ended December 31, 1999 included in Jupiter's 1999 Form 10-K or otherwise
disclosed in Jupiter's First Quarter 2000 Form 10-Q or Jupiter's 1999 Form 10-K
(other than the financial statements contained therein) (in each case, in the
amount or of the magnitude so reserved against or disclosed), and (b)
liabilities or obligations which would not, individually or in the aggregate,
have a Material Adverse Effect on Jupiter.
Section 3.6. Compliance with Laws.
Jupiter and each of its Subsidiaries each:
(a) conducts its businesses in compliance with all federal, state,
local and foreign statutes and laws, and all regulations, ordinances and
rules promulgated thereunder (collectively, "Laws") applicable thereto or
to its Employees;
(b) is not subject to any judgment, order, ruling, injunction or
decree of any court or Governmental Entity (collectively, "Decrees");
(c) has all permits, licenses, authorizations, orders and approvals
of, and has made all filings, applications and registrations with, all
Governmental Entities that are required in order to permit it to conduct
its businesses substantially as presently conducted; all such permits,
licenses, authorizations, orders and approvals are in full force and effect
and, to Jupiter's knowledge, no suspension or cancellation of any of them
is threatened; and
(d) has received, since December 31, 1998, no notification or
communication from any Governmental Entity (i) asserting that it is not in
compliance with any Laws or Decrees, (ii) threatening to revoke any permit,
license, authorization, order or approval, or (iii) failing to approve any
proposed
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acquisition, or stating the intention not to approve any acquisition
proposed to be effected by it within a certain time period or indefinitely;
except where the failure of any of the foregoing to be true would not,
individually or in the aggregate, have a Material Adverse Effect on Jupiter.
Section 3.7. Employee Benefit Plans.
(a) Section 3.7 of the Jupiter Disclosure Letter contains a complete list
of (i) all bonus, vacation, deferred compensation, pension, retirement,
profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock
purchase, restricted stock and stock option, incentive, severance or
change-in-control plans or other similar Contracts, (ii) all employment
Contracts, (iii) all medical, dental, disability, health and life insurance
plans or other Contracts, and (iv) all other employee benefit and fringe benefit
plans or other Contracts, in the case of each of (i) through (iv) maintained or
contributed to by Jupiter or any of its Subsidiaries for the benefit of any of
the current or former officers, employees, directors or consultants (each of
such persons, former or current, an "Employee") of Jupiter or any of its
Subsidiaries or the beneficiaries of any of the foregoing, or pursuant to which
Jupiter or any of its Subsidiaries may have any liability (collectively, the
"Jupiter Compensation and Benefit Plans"), but excluding for scheduling purposes
any Jupiter Compensation and Benefit Plan which is not material.
(b) Jupiter has provided or made available to Media Metrix copies of all
Jupiter Compensation and Benefit Plans listed on Section 3.7 of the Jupiter
Disclosure Letter, including all amendments thereto, and, with respect to each
of the Jupiter Compensation and Benefit Plans, as applicable, the trust
documents, determination, opinion and notification letters issued by the
Internal Revenue Service, summary plan descriptions, employee booklets, most
recent nondiscrimination tests, most recent annual reports (Form 5500), COBRA
forms and notices, correspondence or inquiries by the Internal Revenue Service
or the Department of Labor, material written Contracts, including administrative
service agreements, group annuity contracts and group insurance contracts, and
material employee communications, and all of such copies are true and correct.
(c) Section 3.7 of the Jupiter Disclosure Letter sets forth a complete and
correct list of each Employee of Jupiter or any of its Subsidiaries who holds
any Jupiter Option as of the date of this Agreement, together with the number of
Jupiter Shares subject to such Jupiter Option, the exercise price of such
Jupiter Option, the exercisable and unexercisable portion of such Jupiter
Option, and the expiration date of such Jupiter Option. In addition, Section 3.7
of the Jupiter Disclosure Letter sets forth, in the aggregate, the number of
Jupiter Shares underlying (i) any other rights under any Jupiter Compensation
and Benefit Plan (other than plans that are qualified plans under Section 401(a)
of the Code) to receive Jupiter Shares and (ii) compensation based on the value
of Jupiter Shares.
(d) Each Jupiter Compensation and Benefit Plan has been and is being
administered in accordance with the terms thereof and all applicable Law except
where the failure to do so would not, individually or in the aggregate, have a
Material Adverse Effect on Jupiter. Each Jupiter Compensation and Benefit Plan
which is an "employee pension benefit plan" within the meaning of Section 3(2)
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")
(each such plan, a "Jupiter Pension Plan") and is intended to be qualified under
Section 401(a) of the Code is so qualified and has received a favorable
determination letter (or opinion or notification letter, if applicable) from the
Internal Revenue Service or there is a period of time remaining under applicable
Internal Revenue Service regulations or pronouncements in which to apply for
such a letter and make any amendments necessary to obtain a favorable
determination as to the qualified status of each such Jupiter Pension Plan, and
Jupiter is not aware of any circumstances which could result in the revocation
or denial of any such favorable determination letter. To Jupiter's knowledge, no
"prohibited transaction," within the meaning of Section 4975 of the Code or
Section 406 of ERISA, has occurred with respect to any Jupiter Compensation and
Benefit Plan that could result in liability to Jupiter or any of its
Subsidiaries. There is no pending or, to Jupiter's knowledge, threatened
Litigation relating to the employment, termination of employment, compensation
or employee benefits of any Employee of Jupiter or any of its Subsidiaries
which, if determined adversely to Jupiter or any of its Subsidiaries, would,
individually or in the aggregate, have a Material Adverse Effect on Jupiter.
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(e) No Jupiter Compensation and Benefit Plan promises or provides retiree
medical or other retiree welfare benefits to any person, other than health
continuation coverage as required by Section 4980B of the Code or Part 6 of
Title I of ERISA.
(f) No material liability under Title IV of ERISA has been or is reasonably
expected to be incurred by Jupiter or any of its Subsidiaries or any entity
which is considered one employer with Jupiter under Section 4001(a)(15) of ERISA
or Section 414 of the Code (any such entity, a "Jupiter ERISA Affiliate"), other
than such liabilities that have been previously satisfied.
(g) All contributions, premiums and payments required to be made under the
terms of any Jupiter Compensation and Benefit Plan have been made, except where
the failure to do so would not, individually or in the aggregate, have a
Material Adverse Effect on Jupiter. Neither any Jupiter Pension Plan nor any
single-employer plan of a Jupiter ERISA Affiliate is a "defined benefit plan"
within the meaning of Section 3(35) of ERISA.
(h) Neither Jupiter nor any of its Subsidiaries contributes to or is
required to contribute to, or has ever contributed to or been required to
contribute to, any "multiemployer plan" within the meaning of Section 4001(a)(3)
of ERISA (a "Multiemployer Plan").
(i) The execution of, and performance of the transactions contemplated in,
this Agreement will not (either alone or upon the occurrence of any additional
or subsequent events) (i) constitute an event under any Jupiter Compensation and
Benefit Plan, trust or loan that will or may result in any payment (whether of
severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting,
distribution, increase in benefits or obligation to fund benefits with respect
to any Employee, (ii) result in the triggering or imposition of any material
restrictions or limitations on the ability of any Jupiter Compensation and
Benefit Plan to be amended or terminated in accordance with its terms as in
effect on the date hereof or (iii) result in any payment or benefit that will or
may be made by Jupiter, any of its Subsidiaries, Media Metrix or any of their
respective affiliates that will be characterized as an "excess parachute
payment" within the meaning of Section 280G(b)(1) of the Code.
(j) In the event that any individual is classified by Jupiter or any of its
Subsidiaries as a non-employee (such as an independent contractor, leased
employee, consultant or special consultant) and is later reclassified as an
employee upon governmental or judicial review, notwithstanding such
reclassification, no such individual shall be eligible to participate in any
Jupiter Compensation and Benefit Plan, except where such eligibility would not,
individually or in the aggregate, have a Material Adverse Effect on Jupiter.
(k) The contributions of Jupiter and its Subsidiaries to any trust
described in Section 501(c)(9) of the Code have complied with Section 419A of
the Code (if applicable).
Section 3.8. Absence of Certain Changes or Events.
Since March 31, 2000, (a) the businesses of Jupiter and its Subsidiaries
have been conducted in all material respects in the ordinary course consistent
with past practice, (b) Jupiter and its Subsidiaries have not engaged in any
material transaction or series of related transactions other than in the
ordinary course consistent with past practice, (c) there has not been any event,
occurrence or development, alone or taken together with all other existing
facts, that, individually or in the aggregate, would have a Material Adverse
Effect on Jupiter, and (d) neither Jupiter nor any of its Subsidiaries has
taken, or failed to take, any action which, if taken or failed to be taken on or
after the date hereof, would constitute a breach of Section 5.1(a).
Section 3.9. Litigation.
There is no Litigation pending, or, to Jupiter's knowledge, threatened,
against or affecting Jupiter or any of its Subsidiaries or any of their
respective properties, at law or in equity or before any Governmental Entity,
which, if determined adversely to Jupiter or such Subsidiary, would,
individually or in the aggregate, have a Material Adverse Effect on Jupiter.
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Section 3.10. Title to Assets.
Jupiter and its Subsidiaries own or hold under valid leases all the assets
necessary for the conduct of their businesses as presently conducted, except
where the failure to own or hold such assets would not, individually or in the
aggregate, have a Material Adverse Effect on Jupiter.
Section 3.11. Intellectual Property.
(a) Section 3.11(a) of the Jupiter Disclosure Letter contains a true and
complete list of all patents, patent applications, registered trademarks,
trademark applications, trademarks, trade names, registered service marks,
service xxxx applications, service marks, Internet domain name registrations,
copyrights, copyright applications and copyright registrations of Jupiter or any
of its Subsidiaries and all other applications, filings and formal actions made
or taken pursuant to Law by Jupiter or any of its Subsidiaries to protect its
interests in Jupiter Intellectual Property (as hereinafter defined).
(b) All of the material Jupiter Intellectual Property which are licenses,
sublicenses, permissions or other Contracts ("Jupiter Intellectual Property
Licenses"), and the parties, date and term of each Jupiter Intellectual Property
License are set forth in Section 3.11(b) of the Jupiter Disclosure Letter.
(c) With respect to each item of the Jupiter Intellectual Property
(including the Intellectual Property Rights set forth in Sections 3.11(a) and
(b) of the Jupiter Disclosure Letter) either (i) Jupiter or an affiliate of
Jupiter is the sole and exclusive owner of, with all right, title and interest
in and to (free and clear of any Encumbrances), such item of Jupiter
Intellectual Property or (ii) Jupiter has full and unencumbered rights to use
such item of Jupiter Intellectual Property pursuant to a valid and enforceable
Jupiter Intellectual Property License (and is not contractually obligated to
grant any rights or make any royalty or other payments to any third party in
respect thereof). The Jupiter Intellectual Property includes all of the
Intellectual Property Rights that are necessary for the conduct of the
businesses of Jupiter and its Subsidiaries as currently conducted or currently
contemplated to be conducted.
(d) There is no pending or, to Jupiter's knowledge, threatened Litigation
(i) challenging the validity, effectiveness, legality, use, enforceability or
ownership by Jupiter or any of its Subsidiaries of any Jupiter Intellectual
Property or (ii) to the effect that Jupiter or any of its Subsidiaries, the
continued operation of their businesses as currently conducted and as currently
contemplated to be conducted, or any of the Jupiter Intellectual Property or the
exercise of any rights therein, infringes, interferes with, misappropriates or
otherwise comes into conflict with any Intellectual Property Right of any
person, which, if determined adversely to Jupiter or such Subsidiary, would,
individually or in the aggregate, have a Material Adverse Effect on Jupiter, nor
are there any valid grounds for any bona fide claim of any such kind. All items
of Jupiter Intellectual Property are enforceable, valid, subsisting and in full
force and effect, except where the failure of any of the foregoing to be true
would not, individually or in the aggregate, have a Material Adverse Effect on
Jupiter. To Jupiter's knowledge, there is no unauthorized use, infringement or
misappropriation of, or any interference or conflict with, any Jupiter
Intellectual Property by any person, including any Employee of Jupiter or any
Subsidiary.
(e) All Employees, agents and contractors who have contributed to or
participated in the conception and development of Jupiter Intellectual Property
on behalf of Jupiter or any of its Subsidiaries, have executed (i) nondisclosure
agreements and (ii) have been a party to enforceable and appropriate instruments
of assignment (including work for hire agreements with respect to any
copyrights) in favor of Jupiter or one of its Subsidiaries in accordance with
applicable Law, that have conveyed to Jupiter or one of its Subsidiaries full,
effective, exclusive and original ownership in and to all Intellectual Property
Rights arising from the efforts of such personnel.
(f) Neither the execution, delivery and performance of this Agreement nor
the consummation of the transactions contemplated hereby will cause the
diminution, termination or forfeiture of or otherwise alter or impair any rights
or interests of Jupiter or any of its Subsidiaries in and to any of the Jupiter
Intellectual Property which would, individually or in the aggregate, have a
Material Adverse Effect on Jupiter.
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(g) The term "Intellectual Property Rights" shall mean (i) all inventions
(whether patentable or unpatentable and whether or not reduced to practice), all
improvements thereon, and all patents, patent applications and patent
disclosures, together with all reissues, continuations, continuations-in-part,
revisions, divisions, extensions and reexaminations thereof, (ii) all
trademarks, service marks, trade dress, logos, trade names, domain names and
corporate names, and including all goodwill associated therewith, and all
applications, registrations and renewals in connection therewith, (iii) all
copyrightable works, all copyrights, and all applications, registrations and
renewals in connection therewith, (iv) all trade secrets and confidential
business information (including but not limited to research and development,
know-how, business models, formulas, compositions, manufacturing and production
processes and techniques, statistical models, methods, schematics, technology,
flowcharts, block diagrams, technical data, designs, drawings, specifications,
process, customer and supplier lists, pricing and cost information, business and
marketing plans and proposals, confidential information regarding or gathered
from persons, and all design rights whether or not protected by patent,
copyright or other protection), (v) all computer software (including data,
databases and related documentation) in whatever form, (vi) all copies and
tangible embodiments of any of the foregoing (in whatever form or medium) and
(vii) all licenses, sublicenses, permissions or other Contracts in connection
with any of the foregoing. The term "Jupiter Intellectual Property" shall mean
all Intellectual Property Rights which are used or are proposed to be used in
connection with the conduct of the business of Jupiter or any of its
Subsidiaries as currently conducted or currently contemplated to be conducted,
and shall include any such Intellectual Property Rights which are owned by any
affiliate of Jupiter.
Section 3.12. Material Contracts.
Neither Jupiter nor any of its Subsidiaries nor any other party is in
breach of or in default under any Jupiter Contract except for such breaches and
defaults which would not, individually or in the aggregate, have a Material
Adverse Effect on Jupiter. Neither Jupiter nor any of its Subsidiaries is party
to any Contract containing any provision or covenant limiting in any material
respect the ability of Jupiter or any of its Subsidiaries to (a) sell any
products or service of or to any other person, (b) engage in any line of
business or (c) compete with or to obtain products or services from any person,
or limiting the ability of any person to provide products or services to Jupiter
or any of its Subsidiaries. Jupiter has no further liability under the Third
Amended and Restated Operating Agreement of Jupiter Communications, LLC or any
predecessor Contract.
Section 3.13. Labor Matters.
Jupiter and its Subsidiaries do not have any labor Contracts (including any
collective bargaining agreements) with any persons employed by Jupiter or any of
its Subsidiaries or any persons otherwise performing services primarily for
Jupiter or any of its Subsidiaries, nor is Jupiter or any of its Subsidiaries in
the process of negotiating any such Contract. There is no labor strike, dispute
or stoppage pending or, to Jupiter's knowledge, threatened against Jupiter or
any of its Subsidiaries which, individually or in the aggregate, would have a
Material Adverse Effect on Jupiter. Neither Jupiter nor any of its Subsidiaries
is the subject of any Litigation asserting that it has committed an unfair labor
practice (within the meaning of the National Labor Relations Act) which
Litigation, if determined adversely to Jupiter or such Subsidiary, would,
individually or in the aggregate, have a Material Adverse Effect on Jupiter, or
any Litigation seeking to compel it to bargain with any labor organization as to
wages and conditions of employment. There are, to Jupiter's knowledge, no
organizational efforts currently being made involving any of the employees of
Jupiter or any of its Subsidiaries.
Section 3.14. Tax Matters.
(a) Jupiter and each of its Subsidiaries have (i) filed all federal, state,
local and foreign Tax Returns (as hereinafter defined) required to be filed by
them (taking into account extensions), (ii) paid or accrued all Taxes shown to
be due on such Returns or which are otherwise due and payable and (iii) paid or
accrued all Taxes for which a notice of assessment or collection has been
received, except, in the case of clause (i), (ii) or (iii), for any such
filings, payments or accruals which would not, individually or in the aggregate,
have a Material Adverse Effect on Jupiter. Neither the Internal Revenue Service
nor any other taxing authority has asserted in writing any claim for Taxes, or
to Jupiter's knowledge, is threatening to assert any claims for Taxes, against
Jupiter or any of its Subsidiaries which claims, if determined adversely to
Jupiter or such Subsidiary,
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would, individually or in the aggregate, have a Material Adverse Effect on
Jupiter. Jupiter and each of its Subsidiaries have withheld or collected and
paid over to the appropriate Governmental Entities (or are properly holding for
such payment) all Taxes required by Law to be withheld or collected. There are
no outstanding Contracts extending or waiving the statutory period of limitation
applicable to any material Tax Return of Jupiter or any of its Subsidiaries.
Neither Jupiter nor any of its Subsidiaries has made an election under Section
341(f) of the Code. There are no Encumbrances for Taxes upon the assets of
Jupiter or any of its Subsidiaries, other than Encumbrances for Taxes that are
not yet due, Encumbrances that are being contested in good faith in accordance
with applicable law and disclosed in Section 3.14(a) of the Jupiter Disclosure
Letter and Encumbrances which would not, individually or in the aggregate, have
a Material Adverse Effect on Jupiter. Neither Jupiter nor any of its
Subsidiaries (i) has any liability under Treasury Regulation Section 1.1502-6 or
analogous state, local or foreign Law for any Taxes, other than for Taxes of
Jupiter or its Subsidiaries or (ii) is a party to a Tax sharing or Tax indemnity
Contract or any other Contract of a similar nature with any entity other than
Jupiter or any of its Subsidiaries that remains in effect. No claim has been
made in writing by a taxing authority in a jurisdiction where Jupiter or any of
its Subsidiaries does not file Tax Returns that Jupiter or any of its
Subsidiaries is or may be subject to taxation by that jurisdiction where such
claim, if determined adversely to Jupiter or such Subsidiary, would,
individually or in the aggregate, have a Material Adverse Effect on Jupiter.
Neither Jupiter nor any of its Subsidiaries is the subject of any currently
ongoing audit or examination with respect to Taxes, nor, to Jupiter's knowledge,
has any such audit been threatened or proposed by any taxing authority.
(b) Jupiter does not know of any fact relating to Jupiter or its
stockholders that could reasonably be expected to prevent the Merger from
qualifying as a reorganization within the meaning of Section 368(a) of the Code.
For purposes of this Agreement: (i) "Taxes" shall mean any and all federal,
state, local, foreign or other taxes of any kind (together with any and all
interest, penalties, additions to tax and additional amounts imposed with
respect thereto) imposed by any taxing authority, including taxes or other
charges on or with respect to income, franchises, windfall or other profits,
gross receipts, property, sales, use, capital stock, payroll, employment, social
security, workers' compensation, unemployment compensation, or net worth, and
taxes or other charges in the nature of excise, withholding, ad valorem or value
added, and includes any liability for Taxes of another person, as a transferee
or successor, under Treasury Regulation Section 1.1502-6 or analogous provision
of Law or otherwise; and (ii) "Tax Return" shall mean any return, report or
similar statement (including the attached schedules) required to be filed with
respect to any Tax, including any information return, claim for refund, amended
return or declaration of estimated Tax.
Section 3.15. Customers.
No customers have cancelled or otherwise terminated (other than at the end
of the stated term of their Contract with Jupiter or a Subsidiary of Jupiter) or
decreased materially, or made any written threat to Jupiter or any Subsidiary to
cancel or otherwise terminate or decrease materially, their relationship with
Jupiter or such Subsidiary or their usage of the services or products of Jupiter
or such Subsidiary, as the case may be, which cancellation, termination or
decrease would, individually or in the aggregate, have a Material Adverse Effect
on Jupiter.
Section 3.16. Opinion of Financial Advisor.
The Board of Directors of Jupiter has received the opinion of Xxxxxx
Xxxxxxx & Co., Inc. ("Xxxxxx Xxxxxxx") to the effect that, as of the date of
this Agreement, the Merger Consideration is fair to Jupiter's stockholders from
a financial point of view, and such opinion has not been revoked or modified in
any respect. A copy of the written opinion of Xxxxxx Xxxxxxx to the foregoing
effect will be delivered to Media Metrix as soon as practicable after the date
of this Agreement.
Section 3.17. Takeover Laws.
Jupiter has taken all action required to be taken by it in order to exempt
this Agreement and the transactions contemplated hereby from, and this Agreement
is exempt from, the requirements of all applicable
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"moratorium," "control share", "fair price" and other anti-takeover Laws,
including Section 203 of the DGCL (collectively, "Takeover Laws").
Section 3.18. Required Vote of Jupiter Stockholders.
The affirmative vote of the holders of a majority of the Jupiter Shares
outstanding and entitled to vote at the Jupiter Meeting (as defined in Section
5.3) is required for the adoption (herein also sometimes referred to as
"approval") of this Agreement. No other vote of the stockholders of Jupiter is
required by Law, the certificate of incorporation or bylaws of Jupiter or
otherwise in order for Jupiter to consummate the Merger and the other
transactions contemplated hereby.
Section 3.19. Finders or Brokers.
Except for Xxxxxx Xxxxxxx, a true and complete copy of whose engagement
agreement has been provided to Media Metrix, neither Jupiter nor any of its
Subsidiaries has employed any investment banker, broker, finder or intermediary
who might be entitled to any fee or any commission in connection with or upon
consummation of the Merger.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF MEDIA METRIX AND MERGER SUB
Media Metrix and Merger Sub represent and warrant to Jupiter that, except
as set forth in the corresponding sections or subsections of the Disclosure
Letter delivered to Jupiter by Media Metrix concurrently with entering into this
Agreement (the "Media Metrix Disclosure Letter") (all references to Media Metrix
in this Article IV being deemed to include reference to its predecessor, unless
the context otherwise requires):
Section 4.1. Organization, Qualification, Etc.
(a) Media Metrix is a corporation duly organized, validly existing and in
good standing under the Laws of the jurisdiction of its incorporation and has
the corporate power and authority to own its assets and to carry on its business
as it is now being conducted, and is duly qualified to do business and is in
good standing in each jurisdiction in which the ownership of its assets or the
conduct of its business requires such qualification, except for jurisdictions in
which such failure to be so qualified or to be in good standing would not,
individually or in the aggregate, have a Material Adverse Effect on Media
Metrix. The copies of Media Metrix's certificate of incorporation and bylaws
filed or incorporated by reference in Media Metrix's Annual Report on Form 10-K
for the year ended December 31, 1999 ("Media Metrix's 1999 Form 10-K") are
complete and correct and in full force and effect on the date hereof.
(b) Each of Media Metrix's Subsidiaries is an entity duly organized,
validly existing and in good standing (where applicable) under the Laws of its
jurisdiction of incorporation or organization, has the power and authority to
own its assets and to carry on its business as it is now being conducted, and is
duly qualified to do business and is in good standing in each jurisdiction in
which the ownership of its assets or the conduct of its business requires such
qualification, except for jurisdictions where the failure to be so organized,
existing, qualified or in good standing would not, individually or in the
aggregate, have a Material Adverse Effect on Media Metrix. All the outstanding
shares of capital stock of, or other ownership interests in, Media Metrix's
Subsidiaries are validly issued, fully paid and non-assessable and are owned by
Media Metrix, and such ownership is free and clear of all Encumbrances. There
are no existing Share Arrangements relating to the issued or unissued capital
stock or other securities of, or other ownership interests in, any Subsidiary of
Media Metrix. None of the certificates of incorporation or bylaws or other
organizational documents of any of Media Metrix's Subsidiaries purport to grant
rights to any person other than (1) customary rights with respect to corporate
governance given to all stockholders pro rata in accordance with their holdings
and (2) customary rights of indemnification of directors and officers. Media
Metrix has delivered to Jupiter complete and correct copies of the certificate
of incorporation and bylaws or other organizational documents of each of Media
Metrix's Subsidiaries.
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(c) A complete listing of Media Metrix's Subsidiaries is set forth in
Section 4.1(c) of the Media Metrix Disclosure Letter. Except as set forth in
Section 4.1(c) of the Media Metrix Disclosure Letter, Media Metrix does not
directly or indirectly own any equity or similar interest in, or any interest
convertible into or exchangeable or exercisable for any equity or similar
interest in, any corporation, partnership, joint venture, business association
or other person.
(d) Merger Sub has engaged in no business or other activities other than in
connection with the transactions contemplated hereby. Merger Sub is a wholly
owned Subsidiary of Media Metrix. The copies of Merger Sub's certificate of
incorporation and bylaws provided to Jupiter are complete and correct and are in
full force and effect on the date hereof.
Section 4.2. Capital Stock.
(a) The authorized stock of Media Metrix consists of 60,000,000 shares of
Media Metrix Common Stock and 5,000,000 shares of preferred stock, par value
$.01 per share (the "Media Metrix Preferred Stock"). As of June 22, 2000,
19,844,771 shares of Media Metrix Common Stock and no shares of Media Metrix
Preferred Stock were issued and outstanding and no shares of Media Metrix Common
Stock were held in treasury. All of the outstanding shares of Media Metrix
Common Stock have been validly issued and are fully paid and non-assessable, and
the shares of Media Metrix Common Stock to be issued in the Merger will, when
issued, be validly issued, fully paid and non-assessable. As of June 22, 2000,
there were no outstanding Share Arrangements relating to the issued or unissued
capital stock or other securities of, or other ownership interests in, Media
Metrix, other than options or rights to purchase an aggregate of 1,821,967
shares of Media Metrix Common Stock granted on or prior to such date as set
forth in Section 4.2(a) of the Media Metrix Disclosure Letter.
(b) Since June 22, 2000, there have been no increases to any of the amounts
set forth in Section 4.2(a), other than increases in the number of outstanding
shares of Media Metrix Common Stock by reason of issuances of shares of Media
Metrix Common Stock upon exercise of any of the options or rights set forth in
Section 4.2(a) of the Media Metrix Disclosure Letter, which issuances have
reduced the applicable number of options or rights set forth in Section 4.2(a)
of the Media Metrix Disclosure Letter by a corresponding amount, nor has Media
Metrix modified, amended or entered into new Share Arrangements relating to the
issued or unissued capital stock or other securities of, or other ownership
interests in, Media Metrix.
Section 4.3. Corporate Authority; No Violation.
(a) Media Metrix has the corporate power and authority to enter into this
Agreement and to carry out its obligations hereunder. The execution and delivery
of this Agreement and the performance by Media Metrix of its obligations
hereunder have been duly and validly authorized by the Board of Directors of
Media Metrix and, except for the approval of its stockholders of the Media
Metrix Stockholder Proposals (as defined in Section 5.3), no other corporate
proceedings on the part of Media Metrix are necessary to authorize this
Agreement or the transactions contemplated hereby. The Board of Directors of
Media Metrix, at a meeting duly called and held at which a quorum was present
throughout, has unanimously determined that the transactions contemplated by
this Agreement are in the best interest of Media Metrix and its stockholders and
to recommend to such stockholders that they vote in favor of the Media Metrix
Stockholder Proposals (the "Media Metrix Board Recommendation"). The Media
Metrix Board Recommendation has not been revoked or modified. This Agreement has
been duly and validly executed and delivered by Media Metrix and, assuming this
Agreement constitutes a valid and binding agreement of the other parties hereto,
constitutes a valid and binding agreement of Media Metrix, enforceable against
Media Metrix in accordance with its terms (except insofar as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar Laws affecting creditors' rights generally, or by principles governing
the availability of equitable remedies).
(b) The execution, delivery and performance of this Agreement by Media
Metrix does not, and the consummation by Media Metrix of the Merger and the
other transactions contemplated hereby will not, constitute or result in (with
or without notice, lapse of time or both) (i) a breach or violation of, or a
default under, or the creation of any rights in favor of any party under, the
certificate of incorporation or bylaws of
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Media Metrix or the comparable governing instruments of any of its Subsidiaries,
(ii) a breach or violation of, or a default under, or an acceleration of any
obligations under, or the creation of any Encumbrance on the assets of Media
Metrix or any of its Subsidiaries pursuant to, any Contract binding upon Media
Metrix or any of its Subsidiaries (each, a "Media Metrix Contract") or
(provided, as to consummation, the filings and notices are made, and approvals
are obtained, as referred to in Section 4.3(c)) any applicable Law or Decree or
governmental permit or license to which Media Metrix or any of its Subsidiaries
is subject, or (iii) any change in the rights or obligations of any party under
any of the Media Metrix Contracts, except for any breach, violation, default,
acceleration, creation of rights or Encumbrances or change that would not,
individually or in the aggregate, have a Material Adverse Effect on Media
Metrix.
(c) Other than in connection with or in compliance with the provisions of
the Securities Act, the Exchange Act, the HSR Act, and the securities or blue
sky Laws of the various states and other than the filing of the Certificate of
Merger with the Delaware Secretary of State, no authorization, consent or
approval of, or filing with, any Governmental Entity is necessary for the
consummation by Media Metrix of the transactions contemplated by this Agreement,
except for such authorizations, consents, approvals or filings that, if not
obtained or made, would not, individually or in the aggregate, have a Material
Adverse Effect on Media Metrix.
Section 4.4. Reports and Financial Statements.
Media Metrix has timely filed with the SEC all forms, reports, schedules,
statements and other documents required to be filed by it since May 6, 1999
under the Securities Act or the Exchange Act (such documents, as supplemented or
amended since the time of filing, the "Media Metrix SEC Reports"). As of their
respective dates, the Media Metrix SEC Reports, including any financial
statements or schedules included or incorporated by reference therein, at the
time filed (and, in the case of registration statements and proxy statements, on
the dates of effectiveness and the dates of mailing, respectively) (i) complied
in all material respects with the applicable requirements of the Securities Act
and the Exchange Act (including requirements as to the filing of Exhibits), and
(ii) did not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The audited consolidated financial statements and unaudited
consolidated interim financial statements included or incorporated by reference
in the Media Metrix SEC Reports (including any related notes and schedules)
fairly present, in all material respects, the financial position of Media Metrix
and its consolidated Subsidiaries as of the dates thereof and the results of
their operations and their cash flows and other information included therein for
the periods set forth therein, in each case in accordance with GAAP consistently
applied during the periods involved (except as otherwise disclosed in the notes
thereto) and subject, in the case of the interim financial statements, to normal
year-end adjustments that would not, individually or in the aggregate, be
material in amount or effect.
Section 4.5. No Undisclosed Liabilities.
Neither Media Metrix nor any of its Subsidiaries has any liabilities or
obligations of any nature, whether or not accrued, contingent or otherwise (and
whether or not the subject of any other representation or warranty hereunder),
except (a) liabilities or obligations reserved against or disclosed in the
unaudited consolidated interim financial statements of Media Metrix as of and
for the three months ended March 31, 2000 contained in Media Metrix's Quarterly
Report on Form 10-Q for the quarter ended March 31, 2000 ("Media Metrix's First
Quarter 2000 Form 10-Q") or disclosed in the footnotes thereto or in the
footnotes to the audited consolidated financial statements of Media Metrix as of
and for the fiscal year ended December 31, 1999 included in Media Metrix's 1999
Form 10-K or otherwise disclosed in Media Metrix's First Quarter 2000 Form 10-Q
or Media Metrix's 1999 Form 10-K (other than the financial statements contained
therein) (in each case, in the amount or of the magnitude so reserved against or
disclosed), and (b) liabilities or obligations which would not, individually or
in the aggregate, have a Material Adverse Effect on Media Metrix.
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Section 4.6. Compliance with Laws.
Media Metrix and each of its Subsidiaries each:
(a) conducts its businesses in compliance with all federal, state,
local and foreign Laws applicable thereto or to its Employees;
(b) is not subject to any Decrees;
(c) has all permits, licenses, authorizations, orders and approvals
of, and has made all filings, applications and registrations with, all
Governmental Entities that are required in order to permit it to conduct
its businesses substantially as presently conducted; all such permits,
licenses, authorizations, orders and approvals are in full force and effect
and, to Media Metrix's knowledge, no suspension or cancellation of any of
them is threatened; and
(d) has received, since December 31, 1998, no notification or
communication from any Governmental Entity (i) asserting that it is not in
compliance with any Laws or Decrees, (ii) threatening to revoke any permit,
license, authorization, order or approval, or (iii) failing to approve any
proposed acquisition, or stating the intention not to approve any
acquisition proposed to be effected by it within a certain time period or
indefinitely;
except where the failure of any of the foregoing to be true would not,
individually or in the aggregate, have a Material Adverse Effect on Media
Metrix.
Section 4.7. Employee Benefit Plans.
(a) Section 4.7 of the Media Metrix Disclosure Letter contains a complete
list of (i) all bonus, vacation, deferred compensation, pension, retirement,
profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock
purchase, restricted stock and stock option, incentive, severance or
change-in-control plans or other similar Contracts, (ii) all employment
Contracts, (iii) all medical, dental, disability, health and life insurance
plans or other Contracts, and (iv) all other employee benefit and fringe benefit
plans or other Contracts, in the case of each of (i) through (iv) maintained or
contributed to by Media Metrix or any of its Subsidiaries for the benefit of any
of their Employees or the beneficiaries of any of the foregoing, or pursuant to
which Media Metrix or any of its Subsidiaries may have any liability
(collectively, the "Media Metrix Compensation and Benefit Plans"), but excluding
for scheduling purposes any Media Metrix Compensation and Benefit Plan which is
not material.
(b) Media Metrix has provided or will promptly after the date hereof
provide to Jupiter copies of all Media Metrix Compensation and Benefit Plans
listed on Section 4.7 of the Media Metrix Disclosure Letter, including all
amendments thereto, and, with respect to each of the Media Metrix Compensation
and Benefit Plans, as applicable, the trust documents, determination, opinion
and notification letters issued by the Internal Revenue Service, summary plan
descriptions, employee booklets, most recent nondiscrimination tests, most
recent annual reports (Form 5500), COBRA forms and notices, correspondence or
inquiries by the Internal Revenue Service or the Department of Labor, material
written Contracts, including administrative service agreements, group annuity
contracts and group insurance contracts, and material employee communications,
and all of such copies are true and correct.
(c) Each Media Metrix Compensation and Benefit Plan has been and is being
administered in accordance with the terms thereof and all applicable Law except
where the failure to do so would not, individually or in the aggregate, have a
Material Adverse Effect on Media Metrix. Each Media Metrix Compensation and
Benefit Plan which is an "employee pension benefit plan" within the meaning of
Section 3(2) of ERISA (each such plan, a "Media Metrix Pension Plan") and is
intended to be qualified under Section 401(a) of the Code is so qualified and
has received a favorable determination letter (or opinion or notification
letter, if applicable) from the Internal Revenue Service or there is a period of
time remaining under applicable Internal Revenue Service regulations or
pronouncements in which to apply for such a letter and make any amendments
necessary to obtain a favorable determination as to the qualified status of each
such Media Metrix Pension Plan, and Media Metrix is not aware of any
circumstances which could result in the revocation or denial of any such
favorable determination letter. To Media Metrix's knowledge, no
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"prohibited transaction," within the meaning of Section 4975 of the Code or
Section 406 of ERISA, has occurred with respect to any Media Metrix Compensation
and Benefit Plan that could result in liability to Media Metrix or any of its
Subsidiaries. There is no pending or, to Media Metrix's knowledge, threatened
Litigation relating to the employment, termination of employment, compensation
or employee benefits of any Employee of Media Metrix or any of its Subsidiaries
which, if determined adversely to Media Metrix or any of its Subsidiaries,
would, individually or in the aggregate, have a Material Adverse Effect on Media
Metrix.
(d) No Media Metrix Compensation and Benefit Plan promises or provides
retiree medical or other retiree welfare benefits to any person, other than
health continuation coverage as required by Section 4980B of the Code or Part 6
of Title I of ERISA.
(e) No material liability under Title IV of ERISA has been or is reasonably
expected to be incurred by Media Metrix or any of its Subsidiaries or any entity
which is considered one employer with Media Metrix under Section 4001(a)(15) of
ERISA or Section 414 of the Code (any such entity, a "Media Metrix ERISA
Affiliate"), other than such liabilities that have been previously satisfied.
(f) All contributions, premiums and payments required to be made under the
terms of any Media Metrix Compensation and Benefit Plan have been made, except
where the failure to do so would not, individually or in the aggregate, have a
Material Adverse Effect on Media Metrix. Neither any Media Metrix Pension Plan
nor any single-employer plan of a Media Metrix ERISA Affiliate is a "defined
benefit plan" within the meaning of Section 3(35) of ERISA.
(g) Neither Media Metrix nor any of its Subsidiaries contributes to or is
required to contribute to, or has ever contributed to or been required to
contribute to, any Multiemployer Plan.
(h) The execution of, and performance of the transactions contemplated in,
this Agreement will not (either alone or upon the occurrence of any additional
or subsequent events) (i) constitute an event under any Media Metrix
Compensation and Benefit Plan, trust or loan that will or may result in any
payment (whether of severance pay or otherwise), acceleration, forgiveness of
indebtedness, vesting, distribution, increase in benefits or obligation to fund
benefits with respect to any Employee, (ii) result in the triggering or
imposition of any material restrictions or limitations on the ability of any
Media Metrix Compensation and Benefit Plan to be amended or terminated in
accordance with its terms as in effect on the date hereof or (iii) result in any
payment or benefit that will or may be made by Media Metrix, any of its
Subsidiaries, Jupiter or any of their respective affiliates that will be
characterized as an "excess parachute payment" within the meaning of Section
280G(b)(1) of the Code.
(i) In the event that any individual is classified by Media Metrix or any
of its Subsidiaries as a non-employee (such as an independent contractor, leased
employee, consultant or special consultant) and is later reclassified as an
employee upon governmental or judicial review, notwithstanding such
reclassification, no such individual shall be eligible to participate in any
Media Metrix Compensation and Benefit Plan, except where such eligibility would
not, individually or in the aggregate, have a Material Adverse Effect on Media
Metrix.
(j) The contributions of Media Metrix and its Subsidiaries to any trust
described in Section 501(c)(9) of the Code have complied with Section 419A of
the Code (if applicable).
Section 4.8. Absence of Certain Changes or Events.
Since March 31, 2000, (a) the businesses of Media Metrix and its
Subsidiaries have been conducted in all material respects in the ordinary course
consistent with past practice, (b) Media Metrix and its Subsidiaries have not
engaged in any material transaction or series of related transactions other than
in the ordinary course consistent with past practice, (c) there has not been any
event, occurrence or development, alone or taken together with all other
existing facts, that, individually or in the aggregate, would have a Material
Adverse Effect on Media Metrix, and (d) neither Media Metrix nor any of its
Subsidiaries has taken, or failed to take, any action which, if taken or failed
to be taken on or after the date hereof, would constitute a breach of Section
5.1(b).
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Section 4.9. Litigation.
There is no Litigation pending, or, to Media Metrix's knowledge,
threatened, against or affecting Media Metrix or any of its Subsidiaries or any
of their respective properties, at law or in equity or before any Governmental
Entity, which, if determined adversely to Media Metrix or such Subsidiary,
would, individually or in the aggregate, have a Material Adverse Effect on Media
Metrix.
Section 4.10. Title to Assets.
Media Metrix and its Subsidiaries own or hold under valid leases all the
assets necessary for the conduct of their businesses as presently conducted,
except where the failure to own or hold such assets would not, individually or
in the aggregate, have a Material Adverse Effect on Media Metrix.
Section 4.11. Intellectual Property.
(a) Section 4.11(a) of the Media Metrix Disclosure Letter contains a true
and complete list of all patents, patent applications, registered trademarks,
trademark applications, trademarks, trade names, registered service marks,
service xxxx applications, service marks, Internet domain name registrations,
copyrights, copyright applications and copyright registrations of Media Metrix
or any of its Subsidiaries and all other applications, filings and formal
actions made or taken pursuant to Law by Media Metrix or any of its Subsidiaries
to protect its interests in Media Metrix Intellectual Property (as hereinafter
defined).
(b) All of the material Media Metrix Intellectual Property which are
licenses, sublicenses, permissions or other Contracts ("Media Metrix
Intellectual Property Licenses"), and the parties, date and term of each Media
Metrix Intellectual Property License are set forth in Section 4.11(b) of the
Media Metrix Disclosure Letter.
(c) With respect to each item of the Media Metrix Intellectual Property
(including the Intellectual Property Rights set forth in Sections 4.11(a) and
(b) of the Media Metrix Disclosure Letter) either (i) Media Metrix or an
affiliate of Media Metrix is the sole and exclusive owner of, with all right,
title and interest in and to (free and clear of any Encumbrances), such item of
Media Metrix Intellectual Property or (ii) Media Metrix has full and
unencumbered rights to use such item of Media Metrix Intellectual Property
pursuant to a valid and enforceable Media Metrix Intellectual Property License
(and is not contractually obligated to grant any rights or make any royalty or
other payments to any third party in respect thereof). The Media Metrix
Intellectual Property includes all of the Intellectual Property Rights that are
necessary for the conduct of the businesses of Media Metrix and its Subsidiaries
as currently conducted or currently contemplated to be conducted.
(d) There is no pending or, to Media Metrix's knowledge, threatened
Litigation (i) challenging the validity, effectiveness, legality, use,
enforceability or ownership by Media Metrix or any of its Subsidiaries of any
Media Metrix Intellectual Property or (ii) to the effect that Media Metrix or
any of its Subsidiaries, the continued operation of their businesses as
currently conducted and as currently contemplated to be conducted, or any of the
Media Metrix Intellectual Property or the exercise of any rights therein,
infringes, interferes with, misappropriates or otherwise comes into conflict
with any Intellectual Property Right of any person which, if determined
adversely to Media Metrix or such Subsidiary, would, individually or in the
aggregate, have a Material Adverse Effect on Media Metrix, nor are there any
valid grounds for any bona fide claim of any such kind. All items of Media
Metrix Intellectual Property are enforceable, valid, subsisting and in full
force and effect, except where the failure of any of the foregoing to be true
would not, individually or in the aggregate, have a Material Adverse Effect on
Media Metrix. To Media Metrix's knowledge, there is no unauthorized use,
infringement or misappropriation of, or any interference or conflict with, any
Media Metrix Intellectual Property by any person, including any Employee of
Media Metrix or any Subsidiary.
(e) All Employees, agents and contractors who have contributed to or
participated in the conception and development of Media Metrix Intellectual
Property on behalf of Media Metrix or any of its Subsidiaries, have executed (i)
nondisclosure agreements and (ii) have been a party to enforceable and
appropriate instruments of assignment (including work for hire agreements with
respect to any copyrights) in favor of Media Metrix or one of its Subsidiaries
in accordance with applicable Law that have conveyed to Media Metrix or one of
its
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Subsidiaries full, effective, exclusive and original ownership in and to all
Intellectual Property Rights arising from the efforts of such personnel.
(f) Neither the execution, delivery and performance of this Agreement nor
the consummation of the transactions contemplated hereby will cause the
diminution, termination or forfeiture of or otherwise alter or impair any rights
or interests of Media Metrix or any of its Subsidiaries in and to any of the
Media Metrix Intellectual Property which would, individually or in the
aggregate, have a Material Adverse Effect on Media Metrix.
(g) The term "Media Metrix Intellectual Property" shall mean all
Intellectual Property Rights which are used or are proposed to be used in
connection with the conduct of the business of Media Metrix or any of its
Subsidiaries as currently conducted or currently contemplated to be conducted,
and shall include any such Intellectual Property Rights which are owned by any
affiliate of Media Metrix.
Section 4.12. Material Contracts.
Neither Media Metrix nor any of its Subsidiaries nor any other party is in
breach of or in default under any Media Metrix Contract except for such breaches
and defaults which would not, individually or in the aggregate, have a Material
Adverse Effect on Media Metrix. Neither Media Metrix nor any of its Subsidiaries
is party to any Contract containing any provision or covenant limiting in any
material respect the ability of Media Metrix or any of its Subsidiaries to (a)
sell any products or service of or to any other person, (b) engage in any line
of business or (c) compete with or to obtain products or services from any
person, or limiting the ability of any person to provide products or services to
Media Metrix or any of its Subsidiaries.
Section 4.13. Labor Matters.
Media Metrix and its Subsidiaries do not have any labor Contracts
(including any collective bargaining agreements) with any persons employed by
Media Metrix or any of its Subsidiaries or any persons otherwise performing
services primarily for Media Metrix or any of its Subsidiaries, nor is Media
Metrix or any of its Subsidiaries in the process of negotiating any such
Contract. There is no labor strike, dispute or stoppage pending or, to Media
Metrix's knowledge, threatened against Media Metrix or any of its Subsidiaries
which, individually or in the aggregate, would have a Material Adverse Effect on
Media Metrix. Neither Media Metrix nor any of its Subsidiaries is the subject of
any Litigation asserting that it has committed an unfair labor practice (within
the meaning of the National Labor Relations Act) which Litigation, if determined
adversely to Media Metrix or such Subsidiary, would, individually or in the
aggregate, have a Material Adverse Effect on Media Metrix, or any Litigation
seeking to compel it to bargain with any labor organization as to wages and
conditions of employment. There are, to Media Metrix's knowledge, no
organizational efforts currently being made involving any of the employees of
Media Metrix or any of its Subsidiaries.
Section 4.14. Tax Matters.
(a) Media Metrix and each of its Subsidiaries have (i) filed all federal,
state, local and foreign Tax Returns required to be filed by them (taking into
account extensions), (ii) paid or accrued all Taxes shown to be due on such
Returns or which are otherwise due and payable and (iii) paid or accrued all
Taxes for which a notice of assessment or collection has been received, except,
in the case of clause (i), (ii) or (iii), for any such filings, payments or
accruals which would not, individually or in the aggregate, have a Material
Adverse Effect on Media Metrix. Neither the Internal Revenue Service nor any
other taxing authority has asserted in writing any claim for Taxes, or to Media
Metrix's knowledge, is threatening to assert any claims for Taxes, against Media
Metrix or any of its Subsidiaries which claims, if determined adversely to Media
Metrix or such Subsidiary, would, individually or in the aggregate, have a
Material Adverse Effect on Media Metrix. Media Metrix and each of its
Subsidiaries have withheld or collected and paid over to the appropriate
Governmental Entities (or are properly holding for such payment) all Taxes
required by Law to be withheld or collected. There are no outstanding Contracts
extending or waiving the statutory period of limitation applicable to any
material Tax Return of Media Metrix or any of its Subsidiaries. Neither Media
Metrix nor any of its Subsidiaries has made an election under Section 341(f) of
the Code. There are no Encumbrances for Taxes upon the assets of Media Metrix or
any of its Subsidiaries, other than Encumbrances for Taxes that are not yet due,
Encumbrances that are being contested in good faith in accordance with
applicable law and disclosed in
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Section 4.14(a) of the Media Metrix Disclosure Letter and Encumbrances which
would not, individually or in the aggregate, have a Material Adverse Effect on
Media Metrix. Neither Media Metrix nor any of its Subsidiaries (i) has any
liability under Treasury Regulation Section 1.1502-6 or analogous state, local
or foreign Law for any Taxes, other than for Taxes of Media Metrix or its
Subsidiaries or (ii) is a party to a Tax sharing or Tax indemnity Contract or
any other Contract of a similar nature with any entity other than Media Metrix
or any of its Subsidiaries that remains in effect. No claim has been made in
writing by a taxing authority in a jurisdiction where Media Metrix or any of its
Subsidiaries does not file Tax Returns that Media Metrix or any of its
Subsidiaries is or may be subject to taxation by that jurisdiction where such
claim, if determined adversely to Media Metrix or such Subsidiary, would,
individually or in the aggregate, have a Material Adverse Effect on Media
Metrix. Neither Media Metrix nor any of its Subsidiaries is the subject of any
currently ongoing audit or examination with respect to Taxes, nor, to Media
Metrix's knowledge, has any such audit been threatened or proposed by any taxing
authority.
(b) Media Metrix does not know of any fact relating to Media Metrix or its
stockholders that could reasonably be expected to prevent the Merger from
qualifying as a reorganization within the meaning of Section 368(a) of the Code.
Section 4.15. Customers.
No customers have cancelled or otherwise terminated (other than at the end
of the stated term of their Contract with Media Metrix or a Subsidiary of Media
Metrix) or decreased materially, or made any written threat to Media Metrix or
any Subsidiary to cancel or otherwise terminate or decrease materially, their
relationship with Media Metrix or such Subsidiary or their usage of the services
or products of Media Metrix or such Subsidiary, as the case may be, which
cancellation, termination or decrease would, individually or in the aggregate,
have a Material Adverse Effect on Media Metrix.
Section 4.16. Opinion of Financial Advisor.
The Board of Directors of Media Metrix has received the opinion of Xxxxxx
Xxxxxx Partners LLC ("Xxxxxx Xxxxxx") to the effect that, as of the date of this
Agreement, the Merger Consideration is fair to Media Metrix from a financial
point of view, and such opinion has not been revoked or modified in any respect.
A copy of the written opinion of Xxxxxx Xxxxxx to the foregoing effect will be
delivered to Jupiter as soon as practicable after the date of this Agreement.
Section 4.17. Takeover Laws.
Media Metrix has taken all action required to be taken by it in order to
exempt this Agreement and the transactions contemplated hereby from, and this
Agreement is exempt from, the requirements of all applicable Takeover Laws.
Section 4.18. Required Vote of Media Metrix Stockholders.
The affirmative vote of the holders of a majority of the outstanding shares
]of Media Metrix Common Stock entitled to vote is required to approve the
proposed amendment to Media Metrix's certificate of incorporation to increase
the number of authorized shares of Media Metrix Common Stock, and the
affirmative vote of the holders of a majority of the total number of shares of
Media Metrix Common Stock present in person or by proxy and entitled to vote at
the Media Metrix Meeting (as defined in Section 5.3) is required to approve the
issuance of shares of Media Metrix Common Stock in the Merger. No other vote of
the stockholders of Media Metrix is required by Law, the certificate of
incorporation or bylaws of Media Metrix or otherwise in order for Media Metrix
to consummate the Merger and the other transactions contemplated hereby.
Section 4.19. Finders or Brokers.
Except for Xxxxxx Xxxxxx, a true and complete copy of whose engagement
agreement has been provided to Jupiter, neither Media Metrix nor any of its
Subsidiaries has employed any investment banker, broker, finder or intermediary
who might be entitled to any fee or any commission in connection with or upon
consummation of the Merger.
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ARTICLE V
COVENANTS AND AGREEMENTS
Media Metrix and Merger Sub on the one hand and Jupiter on the other hand
hereby covenant and agree with one another as follows:
Section 5.1. Conduct of Business by Jupiter and Media Metrix.
During the period between the date hereof and the Effective Time, except as
may otherwise be consented to in writing by Media Metrix (in the case of Section
5.1(a)) or Jupiter (in the case of Section 5.1(b)) (which consent in each case
shall not be unreasonably withheld) or as may be expressly permitted pursuant to
this Agreement or as set forth in Section 5.1 of the Jupiter Disclosure Letter
or Section 5.1 of the Media Metrix Disclosure Letter, as applicable:
(a) Jupiter shall, and shall cause each of its Subsidiaries to,
conduct its operations in the ordinary and usual course of business in
substantially the same manner as heretofore conducted and use its
reasonable best efforts to preserve intact its business organization and
goodwill in all material respects, keep available the services of its
officers and employees as a group, subject to changes in the ordinary
course, and maintain its existing relationships with suppliers,
distributors, customers and others having business relationships with it.
Without limiting the generality of the foregoing, Jupiter shall not, and
shall cause its Subsidiaries not to, (i) authorize, declare, set aside or
pay any dividends on, or make any distribution with respect to, its
outstanding shares of stock, except that (1) wholly owned domestic
Subsidiaries of Jupiter may pay dividends or make distributions of cash to
Jupiter or another wholly owned domestic Subsidiary of Jupiter and (2)
wholly owned foreign Subsidiaries of Jupiter may pay dividends to Jupiter
or other wholly owned Subsidiaries of Jupiter so long as such dividends do
not have adverse Tax consequences to Jupiter or any of its Subsidiaries;
(ii) (x) enter into or amend any employment, severance, change-in-control
or similar Contracts with, or (y) except in the ordinary course of business
consistent with past practice, grant any bonus or salary increases or
otherwise increase the compensation or benefits provided to any of their
respective Employees; provided, however, that any of the actions set forth
in clause (y) hereof with respect to any director of Jupiter or any of its
Subsidiaries or any officer of Jupiter or any of its Subsidiaries set forth
in Section 5.1(a)(ii) of the Jupiter Disclosure Letter shall in all cases
require Media Metrix's prior written consent; (iii) (other than the Merger
or as expressly permitted by Section 5.7) authorize, or announce an
intention to authorize, or enter into a Contract with respect to, or take
any action to consummate any Contract with respect to (1) any merger,
consolidation or business combination, (2) any liquidation, dissolution,
restructuring, recapitalization, reorganization, stock split, reverse stock
split or other change to its authorized capitalization, or (3) any
acquisition or disposition of a material amount of assets or securities or
any release or relinquishment of any material rights; (iv) propose or adopt
any amendments to its certificate of incorporation or bylaws; (v) issue,
sell or otherwise dispose of, or create any Encumbrance on, any capital
stock owned by it in any of its Subsidiaries; (vi) issue, sell or otherwise
permit to become outstanding any shares of its capital stock, except, in
the case of Jupiter, upon exercise of Jupiter Options outstanding on the
date hereof and in the amount set forth in Section 3.2 or as required by
the convertible preferred note, or redeem, repurchase or otherwise acquire
any shares of its capital stock; (vii) grant or award any options,
warrants, conversion rights or other rights to acquire any shares of
capital stock of Jupiter or any of its Subsidiaries, or enter into any
other Share Arrangement relating to such capital stock; (viii) amend the
terms of any Jupiter Compensation and Benefit Plan, including any of the
Jupiter Plans, or adopt any new employee benefit plan or other related
Contract other than as contemplated by Section 2.5; (ix) except pursuant to
existing credit agreements disclosed to Media Metrix in the Jupiter
Disclosure Letter, on the terms in effect on the date hereof, incur,
create, assume or otherwise become liable for any indebtedness for borrowed
money; (x) except in the ordinary course of business consistent with past
practice, transfer, lease, license, mortgage, pledge or create any other
Encumbrance on any other material asset or material amount of assets; (xi)
make any material Tax election or settle or compromise any material Tax
liability or take any action which could reasonably be expected to cause
the Merger to fail to qualify as a reorganization within the meaning of
Section 368(a) of the Code; (xii) incur or commit to any capital
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expenditure, individually or in the aggregate, in excess of $12,000,000;
(xiii) enter into any Contract containing any provision or covenant
limiting the ability of Jupiter or any Subsidiary to (A) sell any products
or services of or to any other person, (B) engage in any line of business
or (C) compete with or obtain products or services from any person, or
limiting the ability of any person to provide products or services to
Jupiter or any of its Subsidiaries; (xiv) implement or adopt any change in
its accounting principles, practices or methods, other than as may be
required by GAAP or Regulation S-X promulgated under the Exchange Act; (xv)
settle any material Litigation against Jupiter; or (xvi) agree or commit to
do anything prohibited by this Section 5.1(a).
(b) Media Metrix shall, and shall cause each of its Subsidiaries to,
conduct its operations in the ordinary and usual course of business in
substantially the same manner as heretofore conducted and use its
reasonable best efforts to preserve intact its business organization and
goodwill in all material respects, keep available the services of its
officers and employees as a group, subject to changes in the ordinary
course, and maintain its existing relationships with suppliers,
distributors, customers and others having business relationships with it.
Without limiting the generality of the foregoing, Media Metrix shall not,
and shall cause its Subsidiaries not to, (i) authorize, declare, set aside
or pay any dividends on, or make any distribution with respect to, its
outstanding shares of stock, other than a dividend or distribution of stock
for which there would be an adjustment in the Exchange Ratio pursuant to
Section 2.1(e); except that (1) wholly owned domestic Subsidiaries of Media
Metrix may pay dividends or make distributions of cash to Media Metrix or
another wholly owned domestic Subsidiary of Media Metrix and (2) wholly
owned foreign Subsidiaries of Media Metrix may pay dividends to Media
Metrix or other wholly owned Subsidiaries of Media Metrix so long as such
dividends do not have adverse Tax consequences to Media Metrix or any of
its Subsidiaries; (ii) (x) enter into or amend any employment, severance,
change-in-control or similar Contracts with, or (y) except in the ordinary
course of business consistent with past practice, grant any bonus or salary
increases or otherwise increase the compensation or benefits provided to
any of their respective Employees; provided, however, that any of the
actions set forth in clause (y) hereof with respect to any director of
Media Metrix or any of its Subsidiaries or any officer of Media Metrix or
any of its Subsidiaries set forth in Section 5.1(b)(ii) of the Media Metrix
Disclosure Letter shall in all cases require Jupiter's prior written
consent; (iii) (other than the Merger or as expressly permitted by Section
5.7) authorize, or announce an intention to authorize, or enter into a
Contract with respect to, or take any action to consummate any Contract
with respect to (1) any merger, consolidation or business combination, (2)
any liquidation, dissolution, restructuring, recapitalization,
reorganization, stock split, reverse stock split or other change to its
authorized capitalization, other than any subdivision, split or combination
for which there would be an adjustment in the Exchange Ratio pursuant to
Section 2.1(e), or (3) any acquisition or disposition of a material amount
of assets or securities or any release or relinquishment of any material
rights; (iv) propose or adopt any amendments to its certificate of
incorporation or bylaws; (v) issue, sell or otherwise dispose of, or create
any Encumbrance on, any capital stock owned by it in any of its
Subsidiaries; (vi) issue, sell or otherwise permit to become outstanding
any shares of its capital stock, except, in the case of Media Metrix, upon
exercise of Media Metrix Options outstanding on the date hereof and in the
amount set forth in Section 4.2, or redeem, repurchase or otherwise acquire
any shares of its capital stock; (vii) grant or award any options,
warrants, conversion rights or other rights to acquire any shares of
capital stock of Media Metrix or any of its Subsidiaries, or enter into any
other Share Arrangement relating to such capital stock; (viii) amend the
terms of any Media Metrix Compensation and Benefit Plan or adopt any new
employee benefit plan or other related Contract other than as contemplated
by Section 2.5; (ix) except pursuant to existing credit agreements
disclosed to Jupiter in the Media Metrix Disclosure Letter, on the terms in
effect on the date hereof, incur, create, assume or otherwise become liable
for any indebtedness for borrowed money; (x) except in the ordinary course
of business consistent with past practice, transfer, lease, license,
mortgage, pledge or create any other Encumbrance on any other material
asset or material amount of assets; (xi) make any material Tax election or
settle or compromise any material Tax liability or take any action which
could reasonably be expected to cause the Merger to fail to qualify as a
reorganization within the meaning of Section 368(a) of the Code; (xii)
incur or commit to any capital expenditure, individually or in the
aggregate, in excess of $20,000,000; (xiii) enter into any Contract
containing any
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provision or covenant limiting the ability of Media Metrix or any
Subsidiary to (A) sell any products or services of or to any other person,
(B) engage in any line of business or (C) compete with or obtain products
or services from any person, or limiting the ability of any person to
provide products or services to Media Metrix or any of its Subsidiaries;
(xiv) implement or adopt any change in its accounting principles, practices
or methods, other than as may be required by GAAP or Regulation S-X
promulgated under the Exchange Act; (xv) settle any material Litigation
against Media Metrix; or (xvi) agree or commit to do anything prohibited by
this Section 5.1(b).
Section 5.2. Investigation.
During the period between the date hereof and the Effective Time, each of
Jupiter and Media Metrix shall afford to one another and to one another's
officers, employees, accountants, counsel and other authorized representatives
full access, during normal business hours, to its and its Subsidiaries' (a)
properties, Contracts, books and records (including but not limited to Tax
Returns and accountants' work papers), (b) any report, schedule or other
document filed or received by it pursuant to the requirements of federal or
state securities Laws and (c) any other information concerning its business,
properties and personnel as the other may reasonably request; provided, however,
that no investigation pursuant to this Section 5.2 shall affect or be deemed to
modify any representation or warranty made by Jupiter, Media Metrix or Merger
Sub herein. The parties hereby agree that each of them will treat any such
information in accordance with the applicable Confidentiality Agreement between
Jupiter and Media Metrix (each, a "Confidentiality Agreement"). Notwithstanding
any provision of this Agreement to the contrary, no party shall be obligated to
make any disclosure in violation of applicable Laws or if disclosure would cause
a breach of any confidentiality provision in any Contract or a forfeiture of
attorney-client privilege. Jupiter and Media Metrix will make appropriate
substitute disclosure arrangements if the circumstances of the preceding
sentence apply.
Section 5.3. Stockholder Approval; Filings.
(a) Subject to the terms and conditions contained herein, (i) Jupiter shall
submit this Agreement for approval to the holders of Jupiter Shares at a meeting
to be duly held for this purpose by Jupiter (the "Jupiter Meeting"), and (ii)
Media Metrix shall submit the proposed amendment to its certificate of
incorporation to increase the number of authorized shares of Media Metrix Common
Stock and the proposed issuance of Media Metrix Common Stock in the Merger (the
matters submitted, the "Media Metrix Stockholder Proposals") for approval to the
holders of shares of Media Metrix Common Stock at a meeting to be duly held for
this purpose by Media Metrix (the "Media Metrix Meeting"; the Media Metrix
Meeting and the Jupiter Meeting are each sometimes referred to herein as a
"Stockholders Meeting"). Jupiter and Media Metrix shall take all action in
accordance with the federal securities Laws, the DGCL and their respective
certificates of incorporation and bylaws necessary to duly convene the Jupiter
Meeting and the Media Metrix Meeting. Jupiter and Media Metrix shall coordinate
and cooperate with respect to the timing of such meetings and shall use their
reasonable best efforts to hold such meetings on the same day and as soon as
reasonably practicable after the date hereof. Subject to the provisions of
Section 5.7, the Joint Proxy Statement (as defined below) shall include the
Jupiter Board Recommendation and the Media Metrix Board Recommendation (each a
"Recommendation"). Jupiter and Media Metrix shall use their reasonable best
efforts to take all lawful action to solicit the requisite approval by their
respective stockholders. Notwithstanding any withdrawal, modification or change
in the Jupiter Board Recommendation, Jupiter agrees to hold its Stockholders
Meeting in accordance with the provisions of this Section 5.3(a), and,
notwithstanding any withdrawal, modification or change in the Media Metrix Board
Recommendation, Media Metrix agrees to hold its Stockholders Meeting in
accordance with the provisions of this Section 5.3(a).
(b) Each of Media Metrix and Jupiter agrees to cooperate in the preparation
of a registration statement on Form S-4 (the "Registration Statement") to be
filed by Media Metrix with the SEC in connection with the issuance of Media
Metrix Common Stock in the Merger (including the joint proxy statement and other
proxy solicitation materials of Media Metrix and Jupiter constituting a part
thereof (the "Joint Proxy Statement") and all related documents). Provided
Jupiter has cooperated as required above, Media Metrix agrees to file the
Registration Statement with the SEC as promptly as practicable after the date
hereof. Each of Jupiter and Media Metrix agrees to use its reasonable best
efforts to cause the Registration Statement to be
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declared effective under the Securities Act as promptly as practicable after the
filing thereof, and to cause the Joint Proxy Statement to be mailed as promptly
as practicable after the Registration Statement shall have become effective to
the stockholders of Jupiter and the stockholders of Media Metrix. Media Metrix
also agrees to use its reasonable best efforts to obtain all necessary state
securities Law or "blue sky" permits and approvals required to carry out the
transactions contemplated by this Agreement. Media Metrix and Jupiter each agree
to furnish the other all information concerning itself and its Subsidiaries,
officers, directors and stockholders as may be reasonably requested by the other
in connection with the foregoing.
(c) Each of Jupiter and Media Metrix agrees, as to itself and its
Subsidiaries, that none of the information supplied or to be supplied by it for
inclusion or incorporation by reference in the Registration Statement or any
amendment or supplement to the Registration Statement will, (i) at the time the
Registration Statement and each amendment or supplement thereto, if any, is
filed with the SEC, (ii) at the time the Registration Statement becomes
effective under the Securities Act or (iii) at the Effective Time, contain any
untrue statement of a material fact or omit to state any material fact required
to be stated in the Registration Statement or necessary in order to make the
statements in the Registration Statement, in light of the circumstances under
which they were made, not misleading. Each of Jupiter and Media Metrix agrees,
as to itself and its Subsidiaries, that none of the information supplied or to
be supplied by it for inclusion or incorporation by reference in the Joint Proxy
Statement or any amendment or supplement to the Joint Proxy Statement will, at
the time the Joint Proxy Statement is first mailed to the respective
stockholders of Jupiter and Media Metrix, and at the time of the Jupiter Meeting
and of the Media Metrix Meeting, contain any statement which, at such time and
in light of the circumstances under which it was made, is false or misleading
with respect to any material fact, or which omits to state any material fact
necessary in order to make the statements made in the Joint Proxy Statement not
false or misleading or necessary to correct any statement made by such company
in any earlier communication by such company with respect to the solicitation of
proxies for the Jupiter Meeting or the Media Metrix Meeting, as the case may be,
which has become false or misleading. Each of Jupiter and Media Metrix further
agrees that if it shall become aware prior to the time of the Jupiter Meeting or
of the Media Metrix Meeting of any information that would cause any of the
statements in the Registration Statement or Joint Proxy Statement or any
amendment or supplement thereto to be false or misleading with respect to any
material fact, or to omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading, to
promptly inform the other party thereof and to take the necessary steps to
correct such document.
(d) Media Metrix will advise Jupiter, promptly after Media Metrix receives
notice thereof, of the time when the Registration Statement has become effective
or any supplement or amendment has been filed, of the issuance of any stop order
or the suspension of the qualification of the Media Metrix Common Stock for
offering or sale in any jurisdiction, of the initiation or threat of any
proceeding for any such purpose, or of any request by the SEC for the amendment
or supplement of the Registration Statement or for additional information.
(e) Promptly after the execution of this Agreement, Media Metrix shall
prepare and file with the Nasdaq Stock Market, Inc. listing applications for the
listing of securities on the Nasdaq covering the shares of Media Metrix Common
Stock issuable in the Merger or upon exercise of the Media Metrix Exchange
Options, and use its reasonable best efforts to obtain, prior to the Effective
Time, approval for the listing of such shares of Media Metrix Common Stock,
subject only to official notice of issuance. Jupiter shall as promptly as
practicable furnish Media Metrix with all information concerning Jupiter and its
Subsidiaries as may be required for inclusion in such listing applications.
(f) Media Metrix and Jupiter shall cooperate with one another in obtaining
from Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP, counsel to Jupiter, and Fried, Frank,
Harris, Xxxxxxx & Xxxxxxxx, counsel to Media Metrix, the requisite opinion
described in Section 6.1(f), and, in connection therewith, each of Jupiter and
Media Metrix shall deliver to Xxxxxxx, Phleger & Xxxxxxxx LLP and Fried, Frank,
Harris, Xxxxxxx & Xxxxxxxx certificates of officers of Jupiter, Media Metrix and
Merger Sub in form and substance reasonably satisfactory to such counsel.
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Section 5.4. Additional Reports.
Jupiter and Media Metrix shall each furnish to the other copies of any
Jupiter SEC Reports or Media Metrix SEC Reports, as the case may be, which it
files with the SEC on or after the date hereof, and Jupiter and Media Metrix, as
the case may be, represents and warrants that, as of the respective dates
thereof, such reports will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. Any unaudited consolidated interim
financial statements included in such reports (including any related notes and
schedules) will fairly present, in all material respects, the financial position
of Jupiter and its consolidated Subsidiaries or Media Metrix and its
consolidated Subsidiaries, as the case may be, as of the dates thereof and the
results of operations and cash flows and other information included therein for
the periods set forth therein, in each case in accordance with GAAP consistently
applied during the periods involved (except as otherwise disclosed in the notes
thereto) and subject to normal year-end adjustments that would not, individually
or in the aggregate, be material in amount or effect.
Section 5.5. Consents; Approvals.
Each of the parties shall use its reasonable best efforts to take, or cause
to be taken, all actions, and to do, or cause to be done, and to assist and
cooperate with the other parties in doing, all things necessary, proper or
advisable to consummate and make effective, in the most expeditious manner
practicable, the Merger and the other transactions contemplated by this
Agreement, including (A) the obtaining of (and cooperating with the other
parties to obtain) waivers, consents, exemptions, licenses, permits,
authorizations, orders and approvals from, and the making of all other necessary
registrations and filings with, Governmental Entities, (including filings
required to be made pursuant to the HSR Act), (B) the obtaining of (and
cooperating with the other parties to obtain) all waivers, consents, exemptions,
licenses, authorizations and approvals from third parties which may be necessary
or desirable to be obtained by reason of the Merger or in order to consummate
the transactions contemplated by, and to fully carry out the purposes of and
realize the benefits of, this Agreement and (C) the execution and delivery of
any additional instruments necessary to consummate the transaction contemplated
by, and to fully carry out the purposes of and realize the benefits of, this
Agreement.
Section 5.6. Takeover Statutes.
None of the parties shall take any action that would cause the transactions
contemplated by this Agreement to be subject to the requirements of any Takeover
Law. If any Takeover Law shall become applicable to the transactions
contemplated by this Agreement, each of Jupiter and Media Metrix and the members
of their respective Boards of Directors shall grant such approvals and take such
actions as are necessary so that the transactions contemplated hereby may be
consummated as promptly as practicable on the terms contemplated hereby, and
otherwise act to eliminate or minimize the effects of such Takeover Law on the
transactions contemplated hereby.
Section 5.7. No Solicitation.
(a) During the term of this Agreement, neither Jupiter nor Media Metrix
shall, nor shall either of such companies authorize or permit any of its
Subsidiaries or any of its, or its Subsidiaries', directors, officers,
employees, advisors, agents or representatives, directly or indirectly, to,
solicit, initiate, encourage or facilitate, or furnish or disclose non-public
information in furtherance of, any inquiries or the making of any proposal with
respect to any recapitalization, merger, consolidation or other business
combination involving such company, or the acquisition of 15% or more of the
outstanding capital stock of such company or any of its Subsidiaries or the
acquisition of 15% or more (on a book value or fair market value basis) of the
assets of such company and its Subsidiaries, taken as a whole, in a single
transaction or a series of related transactions, or any combination of the
foregoing (each, a "Competing Transaction"), or negotiate or otherwise engage in
discussions with any person (other than Media Metrix, Merger Sub, Jupiter or
their respective directors, officers, employees, advisors, agents or
representatives) with respect to any Competing Transaction or enter into any
Contract or understanding requiring it to abandon, terminate or fail to
consummate the Merger or any of the other transactions contemplated by this
Agreement, and will immediately cease all existing activities,
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discussions and negotiations with any persons conducted heretofore with respect
to any proposal for a Competing Transaction and request the return or
destruction of all non-public information furnished in connection therewith;
provided that, at any time prior to receipt of the stockholder approval referred
to in Section 3.18 or 4.18, as applicable, Media Metrix or Jupiter (each,
sometimes, a "company"), as the case may be, may, subject to compliance with
Section 5.7(b), furnish information to, and negotiate or otherwise engage in
discussions with, any person (a "Third Party") who (x) delivers a bona fide
written proposal for a Competing Transaction which was not solicited, initiated,
encouraged or facilitated by such company, directly or indirectly, after the
date of this Agreement or otherwise resulted from a breach of this Section 5.7,
and (y) enters into an appropriate confidentiality agreement with such company
(which agreement shall be no less favorable to such company than the applicable
Confidentiality Agreement and a copy of which will be delivered to the other
company promptly after the execution thereof), if, but only if, the Board of
Directors of such company determines in good faith by a majority vote, (i) after
consultation with, and receipt of advice from, its outside legal counsel, that
failing to take such action would constitute a breach of the fiduciary duties of
such Board of Directors under applicable Law, and (ii) after consultation with
such company's independent financial advisors, that such proposal could
reasonably be expected to lead to a Superior Transaction (as hereinafter
defined).
(b) From and after the execution of this Agreement, Media Metrix and
Jupiter shall each promptly advise the other in writing of the receipt, directly
or indirectly, of any inquiries or proposals relating to a Competing Transaction
involving it (including the specific terms thereof and the identity of the Third
Party), and shall keep the other fully informed of the status of any such
inquiries or proposals, of the furnishing of information to the Third Party, and
of any negotiations or discussions relating thereto (including any changes or
adjustments to the terms of such Competing Transaction as a result of
negotiations or otherwise).
(c) If, prior to the adoption of the Merger Agreement by the stockholders
of Jupiter or the approval of the Media Metrix Stockholder Proposals by the
stockholders of Media Metrix, as the case may be, the Board of Directors of such
company determines in good faith by a majority vote, with respect to any written
proposal from a Third Party for a Competing Transaction received after the date
hereof that was not solicited, initiated, encouraged or facilitated by such
company, directly or indirectly, after the date of this Agreement or did not
otherwise result from a breach of this Section 5.7, that, based upon (x) the
written opinion (a copy of which shall have been delivered to the other company)
from such company's independent financial advisors that the Competing
Transaction is a Superior Transaction and (y) the advice of such company's
outside legal counsel, such Competing Transaction is a Superior Transaction and
is in the best interest of such company and its stockholders and failure to
enter into such Competing Transaction would constitute a breach of the fiduciary
duties of the Board of Directors of such company under applicable Law, then such
company may terminate this Agreement and enter into an acquisition agreement for
the Superior Transaction; provided that, prior to any such termination, and in
order for such termination to be effective, (i) such company shall provide the
other company three business days' written notice that it intends to terminate
this Agreement pursuant to this Section 5.7(c), identifying the Superior
Transaction and the parties thereto and delivering an accurate description of
all material terms of the Superior Transaction to be entered into, and (ii) on
the date of termination (provided that the opinion and advice referred to in
clauses (x) and (y) above shall continue in effect without revocation, revision
or modification), such company shall deliver to the other company (A) a written
notice of termination of this Agreement pursuant to this Section 5.7(c), (B) a
wire transfer of immediately available funds in the amount of the Termination
Fee (as defined in Section 7.3), (C) a written acknowledgment from such company
that the termination of this Agreement and the entry into the Superior
Transaction are a Jupiter Triggering Event or a Media Metrix Triggering Event,
as the case may be (each term as defined in Section 7.3), and (D) a written
acknowledgment from each other party to the Superior Transaction that it has
read such company's acknowledgment referred to in clause (C) above and will not
contest the matters thus acknowledged by such company, including the payment of
the Termination Fee.
(d) "Superior Transaction" shall mean a Competing Transaction which the
Board of Directors of Media Metrix or Jupiter, as the case may be, reasonably
determines is more favorable to such company and its stockholders than the
Merger and which is not subject to any financing condition; provided, however,
that, without limiting the foregoing, a Competing Transaction shall not
constitute a Superior Transaction unless, in
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the written opinion (with only customary qualifications) of such company's
independent financial advisors, the value of the consideration to be paid in the
Competing Transaction is more favorable to the stockholders of such company from
a financial point of view than the Merger Consideration. Reference in the
foregoing definition to the "Merger" and "Merger Consideration" shall include,
as applicable, any proposed alteration of the terms of this Agreement submitted
by the other company in writing in response to such Competing Transaction.
(e) Nothing in this Section 5.7 shall prevent the Board of Directors of
Jupiter or the Board of Directors of Media Metrix, as the case may be, from
taking, and disclosing to such company's stockholders, a position contemplated
by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act or making any
disclosure required under applicable Law (subject, however, to compliance with
the balance of this sentence where applicable), and such Board of Directors may
prior to the date of the Jupiter Meeting or the Media Metrix Meeting (as
applicable), withdraw, modify or change its Recommendation if, but only if and
only to the extent that, such Board of Directors determines in good faith that
such withdrawal, modification or change is required in order to comply with its
fiduciary duties to its stockholders under applicable Law after receiving advice
from its outside legal counsel; provided that in the case of a tender offer, the
Board of Directors of Jupiter or the Board of Directors of Media Metrix, as the
case may be, shall not recommend that stockholders tender their Jupiter Shares
or shares of Media Metrix Common Stock (as applicable) in such tender offer
unless (i) such tender offer is determined to be a Superior Transaction in
accordance with the provisions of Section 5.7(c) and (ii) Jupiter or Media
Metrix, as the case may be, has provided the other with not less than three
business days prior written notice of any such action.
(f) Notwithstanding anything to the contrary contained herein, neither
Media Metrix nor Jupiter shall take any action to make the Takeover Laws
inapplicable to any Competing Transaction in respect of such company (including
any Superior Transaction) prior to the termination of this Agreement in
accordance with its terms.
Section 5.8. Public Announcements.
Each of the parties agrees that it shall not, nor shall any of their
respective affiliates, issue or cause the publication of any press release or
other public announcement with respect to the Merger, this Agreement or the
transactions contemplated hereby, or make any company-wide announcement as to
material changes in the operations of the combined company, without the prior
approval of the other party, except such disclosure as may be required by Law or
by any listing agreement with a national securities exchange or the Nasdaq;
provided that, if such disclosure is required by Law or any such listing
agreement, such disclosure shall not be made without prior consultation of the
other parties.
Section 5.9. Indemnification and Insurance.
(a) Media Metrix and Merger Sub agree that all rights to exculpation and
indemnification for acts or omissions occurring at or prior to the Effective
Time now existing in favor of the current or former directors or officers of
Jupiter or any of its Subsidiaries (the "Indemnified Parties") as provided in
its certificate of incorporation or bylaws or in any Contract disclosed to Media
Metrix in the Jupiter Disclosure Letter shall survive the Merger and shall
continue in full force and effect in accordance with their terms.
(b) For six years from the Effective Time, Media Metrix shall indemnify,
defend and hold harmless each of the Indemnified Parties for acts or omissions
occurring at or prior to the Effective Time to the fullest extent permitted by
applicable Law, including with respect to taking all actions necessary to
advance expenses to the extent permitted by applicable Law.
(c) Media Metrix shall use its reasonable best efforts to obtain and
maintain in effect, or cause the Surviving Corporation to obtain and maintain in
effect, for six years from the Effective Time, Jupiter's current directors' and
officers' liability insurance covering those persons who are currently covered
by Jupiter's directors' and officers' liability insurance policy (a true and
complete copy of which has been heretofore delivered to Media Metrix); provided,
however, that in no event shall Media Metrix or the Surviving Corporation be
required to expend in any year an amount in excess of 150% of the annual
premiums currently paid by Jupiter for such insurance, and, provided, further,
that if the annual premiums of such insurance
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coverage exceed such amount, Media Metrix shall or shall cause the Surviving
Corporation to obtain a policy with the greatest coverage available for a cost
not exceeding such amount.
(d) The provisions of this Section 5.9 are intended to be for the benefit
of, and shall be enforceable by, each Indemnified Party and his or her heirs and
legal representatives.
Section 5.10. Notification of Certain Matters.
Each of Jupiter and Media Metrix shall give prompt notice to the other of
any fact, event or circumstance known to it that is reasonably likely,
individually or taken together with all other existing facts, events and
circumstances known to it, (i) to result in any Material Adverse Effect on it or
(ii) to cause or constitute a breach of any of its representations, warranties,
covenants or agreements contained herein.
Section 5.11. Board of Directors and Officers of Media Metrix.
Media Metrix shall take all action necessary to cause the Board of
Directors of Media Metrix to be comprised, immediately following the Effective
Time, of the following nine persons: (i) one Media Metrix Designee (as defined
below) and two Jupiter Designees (as defined below), who shall be assigned to
the class of directors whose term of office expires at Media Metrix's first
annual meeting of stockholders after the Effective Time, (ii) two Media Metrix
Designees and one Jupiter Designee, who shall be assigned to the class of
directors whose term of office expires at Media Metrix's second annual meeting
of stockholders after the Effective Time and (iii) two Media Metrix Designees
and one Jupiter Designee, who shall be assigned to the class of directors whose
term of office expires at Media Metrix's third annual meeting of stockholders
after the Effective Time. The Board of Directors of Media Metrix also shall
appoint, effective immediately following the Effective Time, (i) Xxxx XxXxxx as
Vice Chairman and President of Media Metrix, (ii) Xxxx Xxxxxxxxxx and Xxxx Xxx
Xxxxx as Co-Chief Operating Officers of Media Metrix (and each shall continue
following the Effective Time to serve as President of his or her operating
division), and (iii) Xxxx Xxxxxxxx as Executive Vice President, Business
Development of Media Metrix, and Xxx Xxxxxxx shall continue following the
Effective Time to serve as Chairman and Chief Executive Officer of Media Metrix
and Xxxxxx Xxxxx shall continue following the Effective Time to serve as Chief
Financial Officer of Media Metrix, all of the foregoing persons to serve in
accordance with the provisions of the certificate of incorporation and bylaws of
Media Metrix and the provisions of the DGCL. "Media Metrix Designees" shall mean
those persons designated by Media Metrix, and "Jupiter Designees" shall mean
those persons designated by Jupiter (any of the foregoing, whether designated by
Media Metrix or Jupiter, a "Designee"), to serve as members of the Board of
Directors of Media Metrix immediately following the Effective Time, which
designation shall specify the class of directors to which such Designee is to be
assigned.
Section 5.12. Employee Plans and Benefit Arrangements.
(a) From and after the Effective Time, subject to applicable Law, Media
Metrix shall cause the Surviving Corporation to honor the obligations of Jupiter
and its Subsidiaries incurred prior to the Effective Time under all existing
Jupiter Compensation and Benefit Plans.
(b) Media Metrix shall cause the Surviving Corporation to grant to all
individuals who are, as of the Effective Time, active employees of Jupiter or
any of its Subsidiaries credit for all service with Jupiter, any of its present
and former Subsidiaries, any other affiliate of Jupiter and their respective
predecessors (collectively, the "Jupiter Affiliated Group") prior to the
Effective Time for purposes of eligibility and vesting (but not benefit accrual)
under the employee benefit plans of Media Metrix and its Subsidiaries in which
such employees commence to participate after the Effective Time, but only to the
extent that (i) such prior service was credited by Jupiter for similar purposes
prior to the Effective Time and (ii) prior service is recognized by Media Metrix
in respect of employees other than the employees of the Jupiter Affiliated
Group. Any employee benefit plan which provides medical, dental or life
insurance benefits after the Effective Time to any individual who is an active
employee of the Jupiter Affiliated Group as of the Effective Time or a dependent
thereof shall, with respect to such individuals, waive any waiting periods and
any pre-existing conditions and actively-at-work exclusions to the extent so
waived under present policy of the Jupiter Affiliated Group and shall provide
that any expenses incurred on or before the Effective Time by such individuals
shall be taken into
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account under such plans for purposes of satisfying applicable deductible or
coinsurance provisions to the extent taken into account under present policy of
the Jupiter Affiliated Group.
Section 5.13. Section 16b Approvals.
The Board of Directors or Compensation Committee of each of Media Metrix
and Jupiter shall grant all approvals and take all other actions required
pursuant to Rules 16b-3(d) and 16b-3(e) under the Exchange Act to cause the
disposition in the Merger of Jupiter Shares and Jupiter Options and the
acquisition in the Merger of shares of Media Metrix Common Stock and Media
Metrix Exchange Options to be exempt from the provisions of Section 16(b) of the
Exchange Act.
Section 5.14. Bylaw Amendment.
Media Metrix shall take all action necessary to cause the bylaws of Media
Metrix to be amended as set forth in Section 6.2(e) effective as of the
Effective Time.
ARTICLE VI
CONDITIONS TO THE MERGER
Section 6.1. Conditions to Each Party's Obligation to Effect the Merger.
The respective obligations of each party to effect the Merger shall be
subject to the fulfillment at or prior to the Closing Date (or waiver, to the
extent legally permitted, by the party for whose benefit the applicable
condition exists) of the following conditions:
(a) The holders of the issued and outstanding Jupiter Shares shall
have duly adopted this Agreement, and the holders of the issued and
outstanding shares of Media Metrix Common Stock shall have duly approved
the Media Metrix Stockholder Proposals, all in accordance with applicable
Law, the respective certificates of incorporation and bylaws of Jupiter and
Media Metrix, and the rules of the Nasdaq.
(b) The Registration Statement shall have become effective in
accordance with the provisions of the Securities Act and no stop order
suspending such effectiveness shall have been issued and remain in effect
and no proceedings for that purpose shall have been initiated or threatened
by the SEC or any other Governmental Entity.
(c) The shares of Media Metrix Common Stock issuable in the Merger
shall have been approved for listing on the Nasdaq, subject only to
official notice of issuance.
(d) All regulatory approvals required to consummate the transactions
contemplated hereby shall have been obtained and shall be in full force and
effect and all statutory waiting periods in respect thereof shall have
expired or been terminated, other than any such regulatory approvals the
failure to obtain which would not reasonably be likely, individually, in
the aggregate or together with all other existing facts, events and
circumstances, to result in any Material Adverse Effect on Jupiter (in the
case of Media Metrix's obligation to close) or on Media Metrix (in the case
of Jupiter's obligation to close).
(e) No Law or Decree shall have been enacted, entered, promulgated, or
enforced by any court or Governmental Entity which prohibits or makes
illegal the consummation of any of the transactions contemplated hereby. In
the event any such Decree shall have been issued, each party shall use its
reasonable efforts to remove such Decree.
(f) Jupiter shall have received from Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
(in the case of Jupiter's obligation to close) and Media Metrix shall have
received from Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx (in the case of
Media Metrix's obligation to close), in each case in form and substance
reasonably satisfactory to the receiving company, and dated the Closing
Date, an opinion to the effect that the Merger will qualify for federal
income tax purposes as a reorganization within the meaning of Section
368(a) of the Code. In rendering such opinions, Xxxxxxx, Phleger & Xxxxxxxx
LLP and Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx may require and rely upon
representations and covenants, including
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those contained in certificates of officers of Jupiter, Media Metrix and
Merger Sub, which representations and covenants shall be in form and
substance reasonably satisfactory to such counsel.
Section 6.2. Conditions to Obligations of Jupiter to Effect the Merger.
The obligation of Jupiter to effect the Merger is further subject to the
fulfillment at or prior to the Closing Date (or waiver by Jupiter) of the
conditions that (a) the representations and warranties of Media Metrix contained
herein (which for purposes of this clause (a) shall be read as though none of
them contained any Material Adverse Effect or materiality qualifier) shall be
true and correct in all respects as of the Closing Date with the same effect as
though made as of the Closing Date (provided that any representations and
warranties made as of a specified date shall be required only to continue on the
Closing Date to be true and correct as of such specified date) except (i) for
changes specifically permitted by the terms of this Agreement and (ii) where the
failure of the representations and warranties to be true and correct in all
respects would not in the aggregate have a Material Adverse Effect on Media
Metrix; (b) Media Metrix shall have in all material respects performed all
obligations and complied with all covenants required by this Agreement to be
performed or complied with by it at or prior to the Closing Date; (c) each of
the noncompetition agreements set forth in Section 6.2(a) of the Media Metrix
Disclosure Letter between Media Metrix and the persons listed therein shall
continue on the Closing Date to be in full force and effect in accordance with
its terms and shall not have been modified, amended or terminated (other than
with Jupiter's prior written consent), and no person listed in Section 6.2(b) of
the Media Metrix Disclosure Letter shall be in breach thereof; (d) at any time
after the date of this Agreement there shall not have occurred any fact, event
or circumstance which would, individually, in the aggregate, or together with
all other existing facts, events and circumstances, have a Material Adverse
Effect on Media Metrix; (e) the bylaws of Media Metrix shall have been amended
to provide that vacancies on the Board of Directors of Media Metrix created by
the cessation of service of a Jupiter Designee or Media Metrix Designee, as the
case may be, shall be filled by a person selected by a majority of such
company's Designees then serving on such Board of Directors, which bylaw may not
be amended except by vote of a majority of the entire Board of Directors or the
stockholders of Media Metrix, and (f) Media Metrix shall have delivered to
Jupiter a certificate, dated the Closing Date and signed by its Chief Executive
Officer, President or Chief Financial Officer, certifying the satisfaction of
the conditions set forth in the foregoing clauses (a) through (e).
Section 6.3. Conditions to Obligations of Media Metrix to Effect the
Merger.
The obligation of Media Metrix to effect the Merger is further subject to
the fulfillment at or prior to the Closing Date (or waiver by Media Metrix) of
the conditions that (a) the representations and warranties of Jupiter contained
herein (which for purposes of this clause (a) shall be read as though none of
them contained any Material Adverse Effect or materiality qualifier) shall be
true and correct in all respects as of the Closing Date with the same effect as
though made as of the Closing Date (provided that any representations and
warranties made as of a specified date shall be required only to continue on the
Closing Date to be true and correct as of such specified date) except (i) for
changes specifically permitted by the terms of this Agreement and (ii) where the
failure of the representations and warranties to be true and correct in all
respects would not in the aggregate have a Material Adverse Effect on Jupiter;
(b) Jupiter shall have in all material respects performed all obligations and
complied with all covenants required by this Agreement to be performed or
complied with by it at or prior to the Closing Date; (c) each of the
noncompetition agreements set forth in Section 6.3(a) of the Jupiter Disclosure
Letter between Jupiter and the persons listed therein shall continue on the
Closing Date to be in full force and effect in accordance with its terms and
shall not have been modified, amended or terminated (other than with Media
Metrix's prior written consent), and no person listed in Section 6.3(b) of the
Jupiter Disclosure Letter shall be in breach thereof; (d) at any time after the
date of this Agreement there shall not have occurred any fact, event or
circumstance which would, individually, in the aggregate or together with all
other existing facts, events and circumstances, have a Material Adverse Effect
on Jupiter; and (e) Jupiter shall have delivered to Media Metrix a certificate,
dated the Closing Date and signed by its Chief Executive Officer, President or a
Vice President, certifying the satisfaction of the conditions set forth in the
foregoing clauses (a) through (d).
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ARTICLE VII
TERMINATION, WAIVER, AMENDMENT AND CLOSING
Section 7.1. Termination or Abandonment.
This Agreement may be terminated and the Merger may be abandoned at any
time prior to the Effective Time (notwithstanding any adoption of this Agreement
by the stockholders of Jupiter or any approval of the Media Metrix Stockholder
Proposals by the stockholders of Media Metrix):
(a) by mutual written consent of Media Metrix and Jupiter;
(b) by either Media Metrix or Jupiter, if the Merger shall not have
been consummated before December 31, 2000; provided, however, that the
right to terminate this Agreement under this Section 7.1(b) shall not be
available to any party whose breach of any representation or warranty or
whose failure to perform any covenant or agreement under this Agreement has
been the cause of or resulted in the failure of the Merger to occur on or
before such date;
(c) by Media Metrix, if (i) the Board of Directors of Jupiter shall or
shall resolve to (A) either not recommend that Jupiter stockholders vote in
favor of this Agreement and the Merger or withdraw the Jupiter Board
Recommendation, (B) modify the Jupiter Board Recommendation in a manner
adverse to Media Metrix or Merger Sub, or (C) approve, recommend or fail to
take a position that is adverse to any proposed Competing Transaction
involving Jupiter or any of its Subsidiaries, or (ii) the Board of
Directors of Jupiter shall have refused to affirm the Jupiter Board
Recommendation as promptly as practicable (but in any case within five
days) after receipt of any reasonable written request for such affirmation
from Media Metrix or (iii) Jupiter shall have failed as promptly as
practicable after the Registration Statement is declared effective by the
SEC to call the Jupiter Meeting or mail the Joint Proxy Statement to its
stockholders or failed to include the Jupiter Board Recommendation in the
Joint Proxy Statement or failed to hold the Jupiter Meeting when scheduled;
(d) by Jupiter, if (i) the Board of Directors of Media Metrix shall or
shall resolve to (A) either not recommend that Media Metrix's stockholders
vote in favor of the Media Metrix Stockholder Proposals or withdraw the
Media Metrix Board Recommendation, (B) modify the Media Metrix Board
Recommendation in a manner adverse to Jupiter, or (C) approve, recommend or
fail to take a position that is adverse to any proposed Competing
Transaction involving Media Metrix or any of its Subsidiaries, or (ii) the
Board of Directors of Media Metrix shall have refused to affirm the Media
Metrix Board Recommendation as promptly as practicable (but in any case
within five days) after receipt of any reasonable written request for such
affirmation from Jupiter or (iii) Media Metrix shall have failed as
promptly as practicable after the Registration Statement is declared
effective by the SEC to call the Media Metrix Meeting or to mail the Joint
Proxy Statement to its stockholders or failed to include the Media Metrix
Board Recommendation in the Joint Proxy Statement or failed to hold the
Media Metrix Meeting when scheduled;
(e) by either Media Metrix or Jupiter, if at the Jupiter Meeting
(including any adjournment or postponement thereof) the requisite vote of
the stockholders of Jupiter to adopt this Agreement shall not have been
obtained;
(f) by either Media Metrix or Jupiter, if at the Media Metrix Meeting
(including any adjournment or postponement thereof) the requisite vote of
the stockholders of Media Metrix to approve the Media Metrix Stockholder
Proposals shall not have been obtained;
(g) by either Media Metrix or Jupiter, if there shall be any Law or
Decree that prohibits or makes illegal consummation of the Merger, or if
any Decree enjoining Media Metrix or Jupiter from consummating the Merger
shall have been entered and become final and nonappealable;
(h) by either Media Metrix or Jupiter, if there shall have been a
material breach by the other of any of its representations, warranties,
covenants or agreements contained in this Agreement, which breach would
result in the failure to satisfy one or more of the conditions set forth in
Section 6.2 (in the case of a
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breach by Media Metrix) or Section 6.3 (in the case of a breach by
Jupiter), and such breach shall be incapable of being cured or, if capable
of being cured, shall not have been cured within 30 days after written
notice thereof shall have been received by the party alleged to be in
breach;
(i) by Jupiter pursuant to, but only in compliance with, Section 5.7;
or
(j) by Media Metrix pursuant to, but only in compliance with, Section
5.7.
Notwithstanding anything herein to the contrary, no termination by Media
Metrix or Jupiter pursuant to this Section 7.1 under circumstances requiring
payment of a Termination Fee shall be effective unless, concurrently with such
termination, the fee is paid in full by Media Metrix or Jupiter, as applicable,
in accordance with Section 7.3.
Section 7.2. Effect of Termination.
In the event of the termination of this Agreement pursuant to Section 7.1,
this Agreement, except for the provisions of the second sentence of Section 5.2,
this Section 7.2 and Sections 7.3, 8.2 and 8.4, shall become void and have no
effect, without any liability on the part of any party or any of its affiliates.
Notwithstanding the foregoing, nothing in this Section 7.2 shall relieve any
party to this Agreement of liability for any willful breach of any provision of
this Agreement.
Section 7.3. Termination Fee Payments.
(a) Upon the happening of a Jupiter Triggering Event, Jupiter shall pay to
Media Metrix (or to any Subsidiary of Media Metrix designated in writing by
Media Metrix to Jupiter) the amount of $16 million (the "Jupiter Termination
Fee"). "Jupiter Triggering Event" means any one of the following:
(i) a termination of this Agreement by Media Metrix pursuant to
Section 7.1(c);
(ii) a termination of this Agreement by Media Metrix or Jupiter
pursuant to Section 7.1(b) or 7.1(e), if (A) any Competing Transaction is
publicly proposed or announced on or after the date hereof and prior to the
Jupiter Meeting being held and (B) any Jupiter Business Combination (as
hereinafter defined) is entered into, agreed to or consummated by Jupiter
or any of its Subsidiaries within 12 months of such termination of this
Agreement;
(iii) a termination of this Agreement by Jupiter pursuant to Section
7.1(i); or
(iv) a termination of this Agreement by Media Metrix or Jupiter
pursuant to Section 7.1(b), 7.1(e) or by Media Metrix pursuant to Section
7.1(h) (but only if the breach of warranty, representation, covenant or
agreement that gives rise to such termination arises out of bad faith or
willful misconduct of Jupiter), if any Jupiter Business Combination is
entered into, agreed to or consummated by Jupiter within three months of
such termination of this Agreement.
Payment of the Jupiter Termination Fee shall be made by wire transfer of
immediately available funds (1) on the second business day after such
termination in the case of clause (i) of the definition of Jupiter Triggering
Event, (2) on or prior to the date of such termination, in the case of clause
(iii) of the definition of Jupiter Triggering Event, or (3) on the earlier of
the date a Contract is entered into with respect to a Jupiter Business
Combination or a Jupiter Business Combination is consummated, in the case of
clause (ii) or (iv) of the definition of Jupiter Triggering Event. In no event
shall more than one Jupiter Termination Fee be payable under this Agreement.
(b) Upon the happening of a Media Metrix Triggering Event, Media Metrix
shall pay to Jupiter (or to any Subsidiary of Jupiter designated in writing by
Jupiter to Media Metrix) the amount of $16 million (the "Media Metrix
Termination Fee"). "Media Metrix Triggering Event" means any one of the
following:
(i) a termination of this Agreement by Jupiter pursuant to Section
7.1(d);
(ii) a termination of this Agreement by Jupiter or Media Metrix
pursuant to Section 7.1(b) or 7.1(f), if (A) any Competing Transaction is
publicly proposed or announced on or after the date hereof and prior to the
Media Metrix Meeting being held and (B) any Media Metrix Business
Combination (as
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hereinafter defined) is entered into, agreed to or consummated by Media
Metrix or any of its Subsidiaries within 12 months of such termination of
this Agreement;
(iii) a termination of this Agreement by Media Metrix pursuant to
Section 7.1(j); or
(iv) a termination of this Agreement by Jupiter or Media Metrix
pursuant to Section 7.1(b), 7.1(f) or by Jupiter pursuant to Section 7.1(h)
(but only if the breach of warranty, representation, covenant or agreement
that gives rise to such termination arises out of bad faith or willful
misconduct of Media Metrix), if any Media Metrix Business Combination is
entered into, agreed to or consummated by Media Metrix within three months
of such termination of this Agreement.
Payment of the Media Metrix Termination Fee shall be made by wire transfer of
immediately available funds (1) on the second business day after such
termination in the case of clause (i) of the definition of Media Metrix
Triggering Event, (2) on or prior to the date of such termination, in the case
of clause (iii) of the definition of Media Metrix Triggering Event, or (3) on
the earlier of the date a Contract is entered into with respect to a Media
Metrix Business Combination or a Media Metrix Business Combination is
consummated, in the case of clause (ii) or (iv) of the definition of Media
Metrix Triggering Event. In no event shall more than one Media Metrix
Termination Fee be payable under this Agreement.
(c) The parties acknowledge that the agreements contained in paragraphs (a)
and (b) of this Section 7.3 are an integral part of the transactions
contemplated by this Agreement, and that, without these agreements, they would
not enter into this Agreement; accordingly, if either of Media Metrix or Jupiter
fails to pay promptly any fee payable by it pursuant to this Section 7.3, then
the party owing such fee shall pay to the party owed such fee its costs and
expenses (including attorneys' fees) in connection with any Litigation brought
by such company to obtain payment of such fee, together with interest on the
amount of the fee at the prime or base rate of The Chase Manhattan Bank from the
date such payment was due under this Agreement until the date of payment.
(d) "Jupiter Business Combination" shall mean:
(i) any merger, consolidation or other business combination as a
result of which the stockholders of Jupiter would hold less than 60% of the
voting securities of Jupiter outstanding following that transaction;
(ii) the acquisition of 40% or more of the outstanding capital stock
of Jupiter; or
(iii) the acquisition of 40% or more (on a book value basis or fair
market value basis) of the assets of Jupiter and its Subsidiaries taken as
a whole (including capital stock of any Subsidiary).
(e) "Media Metrix Business Combination" shall mean:
(i) any merger, consolidation or other business combination as a
result of which the stockholders of Media Metrix would hold less than 60%
of the voting securities of Media Metrix outstanding following that
transaction;
(ii) the acquisition of 40% or more of the outstanding capital stock
of Media Metrix; or
(iii) the acquisition of 40% or more (on a book value basis or) fair
market value basis) of the assets of Media Metrix and its Subsidiaries
taken as a whole (including capital stock of any Subsidiary).
ARTICLE VIII
MISCELLANEOUS
Section 8.1. No Survival of Representations and Warranties.
None of the representations, warranties, covenants or agreements in this
Agreement or in any instrument delivered pursuant to this Agreement shall
survive the Merger, except for the agreements set forth in Article II, the
provisions of Section 5.9 and this Section 8.1.
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Section 8.2. Expenses.
Whether or not the Merger is consummated, all costs and expenses incurred
in connection with this Agreement and the transactions contemplated hereby shall
be paid by the party incurring such expenses, except that the expenses incurred
in connection with the filing, printing and mailing of the Registration
Statement and the Joint Proxy Statement (including registration and filing fees
relating thereto) and the fee payable in connection with the filings made
pursuant to the HSR Act shall be shared equally by Jupiter and Media Metrix.
Section 8.3. Counterparts; Effectiveness.
This Agreement may be executed in two or more consecutive counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument, and shall become effective
when one or more counterparts have been signed by each of the parties and
delivered (by telecopy or otherwise) to the other parties.
Section 8.4. Governing Law.
This Agreement and the agreements, instruments and documents contemplated
hereby shall be governed by and construed in accordance with the Laws of the
State of Delaware, without regard to the principles of conflicts of laws
thereof.
Section 8.5. Notices.
All notices and other communications hereunder shall be in writing
(including telecopy or similar writing) and shall be effective (a) if given by
telecopy, when such telecopy is transmitted to the telecopy number specified in
this Section 8.5 and the appropriate telecopy confirmation is received or (b) if
given by any other means, when delivered at the address specified in this
Section 8.5:
To Media Metrix or Merger Sub:
Media Metrix Corporation
000 Xxxx Xxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxxx, Esq.
Telecopier: (000) 000-0000
with a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx Xxxxxxx, Esq.
Telecopier: (000) 000-0000
To Jupiter:
Jupiter Communications, Inc.
000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxx, Esq.
Telecopier: (000) 000-0000
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copy to:
Xxxxxxx, Phleger & Xxxxxxxx LLP
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxx, Esq.
Telecopier: (000) 000-0000
Section 8.6. Assignment; Binding Effect.
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;
provided, however, that Merger Sub may assign all of its rights and obligations
under this Agreement and the transactions contemplated hereby to any other
wholly owned Subsidiary of Media Metrix. Subject to the preceding sentence, this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
Section 8.7. Severability.
Any term or provision of this Agreement which is invalid or unenforceable
in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent
of such invalidity or unenforceability without rendering invalid or
unenforceable the remaining terms and provisions of this Agreement in any other
jurisdiction. If any provision of this Agreement is so broad as to be
unenforceable, such provision shall be interpreted to be only so broad as is
enforceable.
Section 8.8. Enforcement of Agreement.
The parties hereto agree that money damages or other remedy at law would
not be sufficient or adequate remedy for any breach or violation of, or a
default under, this Agreement by any of them and that in addition to all other
remedies available to any of them, each of them shall be entitled to the fullest
extent permitted by law to an injunction restraining such breach, violation or
default or threatened breach, violation or default and to any other equitable
relief, including specific performance, without bond or other security being
required.
Section 8.9. Miscellaneous.
This Agreement:
(a) along with the Confidentiality Agreements constitutes the entire
agreement, and supersedes all other prior agreements and understandings,
both written and oral, between the parties, or any of them, with respect to
the subject matter hereof and thereof; and
(b) except for the provisions of Section 5.9, is not intended to and
shall not confer upon any person other than the parties hereto any rights
or remedies hereunder.
Section 8.10. Interpretation; Definitions.
When a reference is made in this Agreement to a Section or Subsection, such
reference shall be to a Section or Subsection of this Agreement unless otherwise
indicated. The table of contents and headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. The term "including" shall mean including
without limitation, whether or not so stated, and is meant to be by way of
example rather than limitation. The words "hereof," "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement.
References in this Agreement (except as specifically otherwise defined) to
"affiliates" shall mean, as to any person, any other person which, directly or
indirectly, controls, or is controlled by, or is under common control with, such
person. As used in this definition, "control" (including, with its correlative
meanings, "controlled by" and "under common control with") shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of management or policies of a person, whether through the ownership
of securities or other ownership interests, by contract or otherwise. References
in this Agreement to "person" shall mean an individual, a corporation, a
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partnership, an association, a trust or any other entity or organization,
including a Governmental Entity. The definitions contained in this Agreement are
applicable to the singular as well as the plural forms of such terms. References
in this Agreement to "Subsidiaries" of Jupiter or Media Metrix (as applicable)
shall mean any corporation or other form of legal entity of which more than 50%
of the outstanding voting securities are directly or indirectly owned by Jupiter
or Media Metrix, as the case may be.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first above written.
MEDIA METRIX, INC
By: /s/ XXX XXXXXXX
------------------------------------
Name: Xxx Xxxxxxx
Title:
MMX ACQUISITION CORP.
By: /s/ XXX XXXXXXX
------------------------------------
Name: Xxx Xxxxxxx
Title:
JUPITER COMMUNICATIONS, INC.
By: /s/ XXXX XXXXXX
------------------------------------
Name: Xxxx XxXxxx
Title:
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