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VOTING AGREEMENT
VOTING AGREEMENT (the "Agreement") dated as of June 26, 2000 between
each of the undersigned stockholders (each, a "Stockholder" and collectively,
the "Stockholders") of Media Metrix, Inc., a Delaware corporation ("Media
Metrix"), and Jupiter Communications, Inc., a Delaware corporation ("Jupiter").
WHEREAS, Media Metrix, Jupiter and MMX Acquisition Corp., a Delaware
corporation and wholly-owned subsidiary of Media Metrix ("Merger Sub"), propose
to enter into an Agreement and Plan of Merger dated as of the date hereof (as
the same may be amended or supplemented, the "Merger Agreement") providing for
the merger of Merger Sub with and into Jupiter (the "Merger") upon the terms and
subject to the conditions set forth in the Merger Agreement; and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Jupiter has required that each Stockholder enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
Section 1. Definitions. Each capitalized term used but not defined
herein shall have the meaning ascribed to it in the Merger Agreement.
Section 2. Representations and Warranties of Each Stockholder. Each
Stockholder hereby, severally and not jointly, represents and warrants to
Jupiter in respect of itself as follows:
(a) The Stockholder is the owner, of record or beneficially
(as such term is defined in the Exchange Act) of that number of shares
of Media Metrix Common Stock ("Media Metrix Shares") set forth opposite
its name on Part 1 of Exhibit A (but not including any Future Media
Metrix Shares (as hereinafter defined)); has the full and exclusive
power and authority to vote (or direct the voting of), and to execute
(or direct the execution of) consents with respect to, such Media
Metrix Shares; and owns such Media Metrix Shares free and clear of any
Share Arrangements (including any Share Arrangements relating to the
voting of such Media Metrix Shares) or other Encumbrances, except for
the option set forth in Part 1 of Exhibit A (the "NPD Option");
(b) Part 2 of Exhibit A sets forth all Media Metrix Shares
which the Stockholder has the right to obtain at any time (disregarding
for this purpose any vesting provisions or other restrictions on
exercise) upon the exercise of stock options outstanding, or under any
other Share Arrangements in effect, on the date hereof ("Future Media
Metrix Shares");
(c) The Stockholder does not own, of record or beneficially,
or have the right to acquire any Media Metrix Shares other than as set
forth on Exhibit A; and
(d) The Stockholder has the legal capacity and all other
right, power and authority to enter into this Agreement and the Proxy
(as hereinafter defined) and to carry out its
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obligations hereunder and thereunder. The execution and delivery by the
Stockholder of this Agreement and the performance by the Stockholder of
its obligations hereunder have been duly and validly authorized by the
trustees of the Stockholder, Board of Directors of the Stockholder, or
general partner[s] of the Stockholder (as the case may be). This
Agreement and the Proxy have been duly and validly executed and
delivered by the Stockholder and constitute the valid and legally
binding agreement of the Stockholder, enforceable against the
Stockholder in accordance with their respective terms; and the
execution and delivery by the Stockholder of this Agreement and the
Proxy and the performance by the Stockholder of its obligations
hereunder and thereunder will not (with or without notice, lapse of
time or both) (i) conflict with, require a consent, waiver or approval
under, or result in a breach of or default under, any of the terms of
any Contract to which the Stockholder is a party or by which the
Stockholder is bound, (ii) violate any Decree or Law applicable to the
Stockholder, or (iii) result in the creation of, or impose any
obligation on the Stockholder to create, any Encumbrance upon any Media
Metrix Shares other than in favor of Jupiter.
Section 3. Representations and Warranties of Jupiter. Jupiter
represents and warrants to each of the Stockholders as follows: Jupiter has the
corporate power and authority to enter into this Agreement and to carry out its
obligations hereunder. The execution and delivery by Jupiter 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. This Agreement has been
duly and validly executed and delivered by Jupiter and constitutes the 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).
The representations and warranties contained in this Section 3 and in Section 2
hereof shall be made as of the date hereof and as of each date from the date
hereof through and including the date that the Merger is consummated or this
Agreement is terminated in accordance with its terms.
Section 4. Agreement to Vote Media Metrix Shares. Each Stockholder
hereby agrees to be present (in person or by proxy) and to vote its Media Metrix
Shares and any New Shares (as hereinafter defined), and to cause any holder of
record of its Media Metrix Shares or New Shares to be present (in person or by
proxy) and to vote (including by giving a written consent), (a) in favor of
approval of the Merger and the Merger Agreement and any other matters necessary
for the consummation of the Merger, (b) against any Competing Transaction, and
(c) against any proposed action or transaction that would result in a breach of
any representation, warranty, covenant or agreement of Media Metrix under the
Merger Agreement or result in any of the conditions contained in Section 6.1 or
6.2 of the Merger Agreement becoming incapable of fulfillment or that would
otherwise prevent, interfere with, frustrate or delay consummation of the Merger
(each of the foregoing actions or transactions, a "Frustrating Transaction"), in
each case, at the Media Metrix Meeting or any other meeting of stockholders of
Media Metrix at which any such matters are considered and at every adjournment
thereof (and, if applicable, in connection with any solicitation of written
consents of stockholders of Media Metrix). Any such vote shall be cast, or
consent shall be given, in accordance with such procedures relating thereto as
shall ensure that it is duly counted for
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purposes of determining that a quorum is present and for purposes of recording
the results of such vote or consent. Each Stockholder is delivering to Jupiter,
contemporaneously herewith, a proxy in the form attached hereto as Exhibit B
(each, the "Proxy"), with the total number of the Stockholder's Media Metrix
Shares correctly indicated thereon. Each Stockholder hereby represents and
warrants that any proxies heretofore given in respect of its Media Metrix Shares
are not irrevocable and that all such proxies are hereby revoked. Each
Stockholder acknowledges that Jupiter is entering into the Merger Agreement in
reliance upon the Stockholders' execution and delivery of this Agreement and the
Proxies. Each Stockholder hereby affirms that the Proxy is given in connection
with the execution of the Merger Agreement, that the Proxy is given to secure
the performance of the duties of the Stockholder under this Agreement, that the
Proxy is coupled with an interest and may under no circumstances be revoked, and
that the Proxy is executed and intended to be irrevocable in accordance with
Section 212(e) of the Delaware General Corporation Law. Each Stockholder hereby
ratifies and confirms all that the proxies and attorneys-in-fact appointed under
the Proxy may lawfully do or cause to be done by virtue thereof.
Section 5. Restrictive Covenants. Each of the Stockholders hereby
covenants and agrees with Jupiter as follows:
(a) The Stockholder's Media Metrix Shares and the certificates
representing such Media Metrix Shares will at all times during the term
hereof be held by the Stockholder, or by a nominee or custodian for the
benefit of the Stockholder, free and clear of all Share Arrangements
(including any voting trust or other Share Arrangement relating to the
voting of such Media Metrix Shares) or other Encumbrances, other than
this Agreement and the Proxy and the NPD Option; and
(b) The Stockholder will not transfer, sell, pledge, assign or
otherwise dispose of (including by gift) (collectively, "Transfer"), or
consent to or permit any Transfer of, or enter into any Contract with
respect to any Transfer of, any or all of the Stockholder's Media
Metrix Shares, or any interest therein.
Notwithstanding the foregoing, the provisions of this Section 5 (i)
shall not apply to Greylock IX Limited Partnership ("Greylock") and nothing
herein shall restrict Greylock's ability to transfer any of its Media Metrix
Shares, or any interest therein, and (ii) shall not restrict the NPD Group, Inc.
from complying with the terms of the NPD Option.
Section 6. Additional Media Metrix Shares. Each Stockholder agrees
that, in the event that, after its execution of this Agreement, there occurs any
stock dividend, stock split, recapitalization, reclassification, combination or
share exchange on, of or affecting the Stockholder's Media Metrix Shares, the
number of Media Metrix Shares set forth opposite the Stockholder's name on
Exhibit A shall, without further action of the parties, be deemed to have been
adjusted appropriately. In addition, each Stockholder agrees that, in the event
that, after its execution of this Agreement, (a) the Stockholder purchases or
otherwise acquires beneficial ownership of any additional Media Metrix Shares
(including through the exercise of any warrants or stock options or any right
under any other Share Arrangements), or (b) the Stockholder acquires the right
to vote or
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share in the voting of any additional Media Metrix Shares (collectively, "New
Shares"), the New Shares shall, without further action of the parties, be
subject to the terms of this Agreement and the Proxy to the same extent as if
the New Shares had been owned by the Stockholder on the date hereof. At
Jupiter's request, the Stockholder shall deliver promptly to Jupiter an
irrevocable proxy identical in form to the Proxy with respect to such New
Shares. If the Stockholder acquires any New Shares it shall promptly notify
Jupiter of such acquisition.
Section 7. Competing Transaction. Each Stockholder agrees that the
Stockholder will not, nor will the Stockholder authorize or permit any
investment banker, attorney or other advisor, agent or representative of the
Stockholder to, directly or indirectly, solicit, initiate, encourage or
facilitate, or furnish or disclose non-public information in furtherance of, any
Competing Transaction, or negotiate or otherwise engage in discussions with any
person (other than Jupiter, Merger Sub, Media Metrix or their respective
directors, officers, employees, advisors, agents or representatives) with
respect to any Competing Transaction or commit or agree to take any action
inconsistent with the transactions contemplated by the Merger Agreement. Each
Stockholder agrees that it will immediately cease all existing activities,
discussions and negotiations with any persons conducted heretofore with respect
to any proposal for a Competing Transaction. Each Stockholder agrees promptly to
advise Jupiter in writing of the receipt, directly or indirectly, of any
inquiries or proposals relating to a Competing Transaction (including the
specific terms thereof and the identity of the Third Party), and to keep Jupiter
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).
Section 8. Fiduciary Duty. Nothing herein contained shall restrict,
limit or prohibit any person who is a director, officer or controlling person of
any of the Stockholders and who is also a director or officer of Media Metrix
from exercising, in his capacity as director or officer of Media Metrix, his
fiduciary duties to the stockholders of Media Metrix under applicable Law,
provided that nothing in this Section 8 shall relieve or be deemed to relieve
the Stockholder from its obligations under Sections 4, 5 and 6 hereof.
Section 9. Termination. This Agreement shall terminate upon the
earliest to occur of (A) the Effective Time, (B) the three month anniversary of
the date of termination of the Merger Agreement pursuant to Section 7.1(d), (h)
(by reason of a breach of covenants or agreements by Media Metrix) or (j)
thereof, and (C) the date of termination of the Merger Agreement pursuant to any
other provisions of Section 7.1. Nothing in this Section 9 shall relieve any
party of liability for any breach of any provision of this Agreement occurring
prior to the termination of this Agreement.
Section 10. Expenses. All costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by
the party incurring such expenses.
Section 11. Counterparts. 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
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have been signed by each of the parties and delivered (by telecopy or otherwise)
to the other parties.
Section 12. 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 13. 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 13 and the appropriate telecopy
confirmation is received or (b) if given by any other means, when delivered at
the address specified in this Section 13.
If to Jupiter:
Jupiter Communications, Inc.
627 Broadway, 2nd Floor
New York, NY 10012
Attention: Alan N. Shapiro, Esq.
Telecopier: (212) 260-6848
if to a Stockholder, to such Stockholder at its address set
forth below its name on the signature page.
Section 14. Successors and Assigns. Neither this Agreement nor any of
the rights, interests or obligations hereunder may be assigned by any of the
parties hereto (except by operation of law) without the prior written consent of
the other parties. 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, including any successor by merger
or otherwise.
Section 15. 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 16. Enforcement of Agreement. Each party hereto agrees 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 17. Entire Agreement; Amendments and Waivers. This Agreement
supersedes all prior agreements, written or oral, among the parties hereto with
respect to the subject matter hereof and contains the entire agreement among the
parties with respect to the subject matter hereof. This
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Agreement may not be amended, and no provisions hereof may be waived by any
party, except by an instrument in writing signed by all the parties hereto. No
waiver of any provisions hereof by any party shall be deemed a waiver of any
other provisions hereof by any such party, nor shall such waiver be deemed a
continuing waiver of any provision hereof by such party. The failure of any
party hereto to exercise any right, power or remedy provided under this
Agreement or otherwise available in respect hereof at law or in equity, or to
insist upon compliance by any other party hereto with its obligations hereunder,
and any custom or practice of the parties at variance with the terms hereof,
shall not constitute a waiver by such party of the right to exercise any such or
other right, power or remedy or to demand such compliance.
Section 18. Headings. All Section headings herein are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
Section 19. Further Assurances. Each Stockholder shall, from time to
time, execute and deliver or cause to be executed and delivered, such additional
or further consents, documents and other instruments as Jupiter may request for
the purpose of effectuating the matters covered by this Agreement, including the
granting of additional proxies as set forth in Section 6 hereof. Each
Stockholder shall also use its best efforts to take, or cause to be taken, all
action, and do, or cause to be done, all things necessary or advisable in order
to consummate and make effective the transactions contemplated by this Agreement
or the Merger Agreement.
Section 20. Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law or
in equity shall be cumulative and not alternative, and the exercise or beginning
of the exercise of any thereof by any party shall not preclude the simultaneous
or later exercise of any other such right, power or remedy by such party.
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IN WITNESS WHEREOF, the parties hereto have executed this Voting
Agreement as of the date first written above.
JUPITER COMMUNICATIONS, INC.
By:__________________________
Name:
Title:
THE 1995 STACEY JOHNSON TRUST
By:__________________________
Trustee: Franklin L. Green
By:___________________________
Trustee: Deborah Raizes
THE 1995 SCOTT JOHNSON TRUST
By:__________________________
Trustee: Franklin L. Green
By:___________________________
Trustee: Deborah Raizes
THE NPD GROUP, INC.
By:__________________________
Name: Tod Johnson
Title: Chairman and Chief Executive Officer
Address: 900 West Shore Road
Port Washington, NY 11050
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GREYLOCK IX L.P.
By:__________________________
Name: Henry McCance
Address:
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EXHIBIT A
Part 1
<TABLE>
<CAPTION>
Number of
Name of Stockholder Media Metrix Shares Record Owner Beneficial Owner
------------------- ------------------- ------------ ----------------
<S> <C> <C> <C>
The 1995 Stacey Johnson Trust 883,342 Goldman Sachs & Co. The 1995 Stacey Johnson Trust
The 1995 Scott Johnson Trust 883,342 Goldman Sachs & Co. The 1995 Scott Johnson Trust
The NPD Group, Inc.(1) 4,140,560 The NPD Group, Inc. The NPD Group, Inc.
Greylock IX L.P. 1,242,529 Greylock IX L.P. Greylock IX L.P.
</TABLE>
Part 2
<TABLE>
<CAPTION>
Name of Stockholder Number of Media Metrix Shares Type of Share Arrangement
------------------- ----------------------------- -------------------------
<S> <C> <C>
None.
</TABLE>
--------
(1) Of the 4,140,560 Media Metrix shares owned by NPD, 384,038 Media Metrix
shares are required to be sold to certain present or former employees
or advisors of NPD upon the exercise of options granted on such shares
pursuant to an NPD benefit plan.
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EXHIBIT B
FORM OF IRREVOCABLE PROXY
The undersigned Stockholder of Media Metrix, Inc., a Delaware
corporation ("Media Metrix"), hereby irrevocably (to the fullest extent
permitted by law) appoints and constitutes _________, _________ and _________,
and each of them, the attorneys and proxies of the undersigned, with full power
of substitution and resubstitution, to the full extent of the undersigned's
voting rights with respect to (a) the outstanding shares of common stock, $.01
par value, of Media Metrix (the "Media Metrix Shares") owned by the undersigned
as of the date of this Proxy, which shares are specified on the final page of
this Proxy, and (b) any and all other Media Metrix Shares which the undersigned
may acquire on or after the date hereof. Upon the execution hereof, all prior
proxies given by the undersigned with respect to any of its Media Metrix Shares
are hereby revoked, and the undersigned agrees that no subsequent proxy will be
given with respect to any of its Media Metrix Shares.
This Proxy (i) is irrevocable, (ii) is coupled with an interest, (iii)
is granted in connection with the execution and delivery of the Voting Agreement
dated as of the date hereof between Jupiter Communications, Inc. ("Jupiter") and
the undersigned and certain other stockholders of Media Metrix (the "Voting
Agreement"), and (iv) is granted in consideration of Jupiter entering into the
Agreement and Plan of Merger dated as of the date hereof among Jupiter, Merger
Sub Corp. and Media Metrix (the "Merger Agreement").
Each of the proxies named above (and their respective successors) will
be empowered, and may exercise this Proxy, to vote the undersigned's Media
Metrix Shares (a) in favor of approval of the Merger (as defined in the Merger
Agreement) and the Merger Agreement and any other matter necessary for the
consummation of the Merger, (b) against any Competing Transaction (as defined in
the Merger Agreement), and (c) against any proposed action or transaction that
would result in a breach of any representation, warranty, covenant or agreement
of Media Metrix under the Merger Agreement or result in any of the conditions
contained in Section 6.1 or 6.2 of the Merger Agreement becoming incapable of
fulfillment or that would otherwise prevent, interfere with, frustrate or delay
consummation of the Merger, in each case, at the Media Metrix Meeting (as
defined in the Merger Agreement) or any other meeting of stockholders of Media
Metrix at which any such matters are considered and at every adjournment thereof
(and, if applicable, in connection with any solicitation of written consents of
stockholders of Media Metrix).
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This Proxy shall terminate upon the valid termination of the Voting
Agreement.
Stockholder
Dated: June __, 2000 By:___________________________
Number of Media Metrix Shares
owned as of the date of this
Proxy:
______________________________
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