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EXECUTION COPY
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
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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, Shriver &
Jacobson, One New York Plaza, New York, New York 10004 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.
(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.
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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
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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 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
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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 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
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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
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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 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
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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 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,
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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
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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;
(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
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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 Hart-Scott-Rodino 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
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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 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
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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 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
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<PAGE> 14
"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,"
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<PAGE> 15
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.
(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
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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.
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 mark
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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
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<PAGE> 18
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.
(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
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<PAGE> 19
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, 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
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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.
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Section 3.16. Opinion of Financial Advisor.
The Board of Directors of Jupiter has received the opinion of
Morgan Stanley & Co., Inc. ("Morgan Stanley") 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 Morgan Stanley 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
"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 Morgan Stanley, 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.
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(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.
(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
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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
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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 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,
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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.
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
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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
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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 "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.
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(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).
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.
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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 mark 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
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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 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.
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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 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
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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 Thomas Weisel Partners LLC ("Thomas Weisel") 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 Thomas Weisel 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
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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 Thomas Weisel, 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.
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
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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 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
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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
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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 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
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"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
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use its reasonable best efforts to cause the Registration Statement to be
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
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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 Brobeck, Phleger & Harrison LLP, counsel to Jupiter, and
Fried, Frank, Harris, Shriver & Jacobson, 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 Brobeck, Phleger & Harrison LLP and
Fried, Frank, Harris, Shriver & Jacobson certificates of officers of Jupiter,
Media Metrix and Merger Sub in form and substance reasonably satisfactory to
such counsel.
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.
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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
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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, 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
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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 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
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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
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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 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) Gene
DeRose as Vice Chairman and President of Media Metrix, (ii) Kurt Andersen and
Mary Ann Packo 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) Jean Robinson as Executive Vice President,
Business Development of Media Metrix, and Tod Johnson shall continue following
the Effective Time to serve as Chairman and Chief Executive Officer of Media
Metrix and Thomas Lynch shall continue following the Effective Time to serve as
Chief Financial Officer of Media Metrix, all of the foregoing
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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 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.
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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
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Decree.
(f) Jupiter shall have received from Brobeck, Phleger &
Harrison LLP (in the case of Jupiter's obligation to close) and Media Metrix
shall have received from Fried, Frank, Harris, Shriver & Jacobson (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, Brobeck, Phleger & Harrison LLP and Fried, Frank,
Harris, Shriver & Jacobson may require and rely upon representations and
covenants, including 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
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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).
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):
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(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;
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(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 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:
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(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 hereinafter defined) is entered into, agreed to or
consummated by Media Metrix or
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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
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(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.
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.
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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
250 Park Avenue South, 7th Floor
New York, NY 10003
Attention: Gail Balcerzak, Esq.
Telecopier: (212) 515-8719
with a copy to:
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10004-1980
Attention: Aviva Diamant, Esq.
Telecopier: (212) 859-4000
To Jupiter:
Jupiter Communications, Inc.
627 Broadway, 2nd Floor
New York, NY 10012
Attention: Alan N. Shapiro, Esq.
Telecopier: (212) 260-6848
copy to:
Brobeck, Phleger & Harrison LLP
1633 Broadway, 47th Floor
New York, New York 10019
Attention: Eric Simonson, Esq.
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Telecopier: (212) 586-7878
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
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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
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:
Name:
Title:
MMX ACQUISITION CORP.
By:
Name:
Title:
JUPITER COMMUNICATIONS, INC.
By:
Name:
Title:
<PAGE> 58
EXHIBIT A
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
JUPITER COMMUNICATIONS, INC.
Under Section 102 of the
Delaware General Corporation Law
The undersigned, for the purpose of forming a corporation
pursuant to the provisions of the General Corporation Law of the State of
Delaware, does hereby certify as follows:
FIRST: The name of the corporation is Jupiter Communications,
Inc.
SECOND: The address of the registered office of the
corporation in the State of Delaware shall be at Corporation Trust Center, 1209
Orange Street, City of Wilmington, County of New Castle and the name of its
registered agent at such address shall be The Corporation Trust Company.
THIRD: The purpose of the corporation is to engage in any
lawful act or activity for which a corporation may be organized under the
General Corporation Law of Delaware as set forth in Title 8 of the Delaware Code
of 1953, as amended (the "GCL").
FOURTH: The total number of shares of all classes of stock
which the Corporation has authority to issue is one hundred (100) shares of
Common Stock, par value $.01 per share (the "Common Stock").
FIFTH: The corporation is to have perpetual existence.
SIXTH: In furtherance and not in limitation of the powers
conferred by statute, the board of directors is expressly authorized to make,
alter or repeal the by-laws of the corporation.
SEVENTH: Meetings of stockholders may be held within or
without the State of Delaware, as the by-laws may provide. The books of the
corporation may be kept (subject to any provision of the GCL) outside the State
of Delaware at such place or places as may be designated from time to time by
the board of directors or in the by-laws of the corporation. Election of
directors need not be by written ballot unless the by-laws of the corporation
shall so provide.
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EIGHTH: Whenever a compromise or arrangement is proposed
between this corporation and its creditors or any class of them and/or between
this corporation and its stockholders or any class of them, any court of
equitable jurisdiction within the State of Delaware may, on the application in a
summary way of this corporation or of any creditor or stockholder thereof or on
the application of any receiver or receivers appointed for this corporation
under the provisions of Section 291 of the GCL or on the application of trustees
in dissolution or of any receiver or receivers appointed for this corporation
under the provisions of Section 279 of the GCL, order a meeting of the creditors
or class of creditors, and/or of the stockholders or class of stockholders of
this corporation, as the case may be, to be summoned in such manner as the said
court directs. If a majority in number representing three-fourths in value of
the creditors or class of creditors, and/or of the stockholders or class of
stockholders of this corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of this corporation as consequence of such
compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders, of this corporation, as the case
may be, and also on this corporation.
NINTH: The corporation reserves the right to amend, alter,
change or repeal any provision contained in this Certificate of Incorporation,
in the manner now or thereafter prescribed by statute, and all rights conferred
on the stockholders herein are granted subject to this reservation.
TENTH: A director of this corporation shall not be personally
liable to the corporation or its stockholders for monetary damages for the
breach of any fiduciary duty as a director, except (i) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) for acts
or omissions not in good faith or that involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the GCL, as the same exists
or hereafter may be amended, or (iv) for any transaction from which the director
derived an improper personal benefit. If the GCL is amended after the date of
incorporation of the corporation to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability
of a director of the corporation shall be eliminated or limited to the fullest
extent permitted by the GCL, as so amended.
Any repeal or modification of the foregoing paragraph by the
stockholders of the corporation shall be prospective only, and shall not
adversely affect any limitation on the personal liability of a director of the
corporation existing at the time of such repeal or modification.
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EXECUTION COPY
AGREEMENT AND PLAN OF MERGER
among
MEDIA METRIX, INC.,
MMX ACQUISITION CORP.
and
JUPITER COMMUNICATIONS, INC.
Dated as of June 26, 2000
<PAGE> 61
TABLE OF CONTENTS
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ARTICLE I THE MERGER 1
Section 1.1. The Merger 1
Section 1.2. Closing 2
Section 1.3. Effective Time 2
Section 1.4. Effects of the Merger 2
Section 1.5. Certificate of Incorporation and Bylaws 2
Section 1.6. Directors; Officers 3
ARTICLE II EFFECT OF THE MERGER ON THE STOCK OF THE CONSTITUENT CORPORATIONS;
EXCHANGE OF CERTIFICATES 3
Section 2.1. Conversion of Securities 3
Section 2.2. Fractional Shares 4
Section 2.3. Exchange of Certificates 4
Section 2.4. Stock Transfer Books 7
Section 2.5. Treatment of Jupiter Stock Options 7
Section 2.6. Investment of Exchange Fund 8
Section 2.7. Appraisal Rights 8
ARTICLE III REPRESENTATIONS AND WARRANTIES OF JUPITER 8
Section 3.1. Organization, Qualification, Etc. 8
Section 3.2. Capital Stock 10
Section 3.3. Corporate Authority; No Violation 11
Section 3.4. Reports and Financial Statements 12
Section 3.5. No Undisclosed Liabilities 13
Section 3.6. Compliance with Laws 13
Section 3.7. Employee Benefit Plans 14
Section 3.8. Absence of Certain Changes or Events 16
Section 3.9. Litigation 16
Section 3.10. Title to Assets 17
Section 3.11. Intellectual Property 17
Section 3.12. Material Contracts 19
Section 3.13. Labor Matters 19
Section 3.14. Tax Matters 19
Section 3.15. Customers 21
Section 3.16. Opinion of Financial Advisor 21
Section 3.17. Takeover Laws 21
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Section 3.18. Required Vote of Jupiter Stockholders 21
Section 3.19. Finders or Brokers 21
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF MEDIA METRIX
AND MERGER SUB 22
Section 4.1. Organization, Qualification, Etc. 22
Section 4.2. Capital Stock 23
Section 4.3. Corporate Authority; No Violation 24
Section 4.4. Reports and Financial Statements 25
Section 4.5. No Undisclosed Liabilities 25
Section 4.6. Compliance with Laws 26
Section 4.7. Employee Benefit Plan 26
Section 4.8. Absence of Certain Changes or Events 29
Section 4.9. Litigation 29
Section 4.10. Title to Assets 29
Section 4.11. Intellectual Property 29
Section 4.12. Material Contracts 31
Section 4.13. Labor Matters 31
Section 4.14. Tax Matters 32
Section 4.15. Customers 32
Section 4.16. Opinion of Financial Advisor 33
Section 4.17. Takeover Laws 33
Section 4.18. Required Vote of Media Metrix Stockholders 33
Section 4.19. Finders or Brokers 33
ARTICLE V COVENANTS AND AGREEMENTS 34
Section 5.1. Conduct of Business by Jupiter and Media Metrix 34
Section 5.2. Investigation 37
Section 5.3. Stockholder Approval; Filings 37
Section 5.4. Additional Reports 40
Section 5.5. Consents; Approvals 40
Section 5.6. Takeover Statute 41
Section 5.7. No Solicitation 41
Section 5.8. Public Announcements 44
Section 5.9. Indemnification and Insurance 44
Section 5.10. Notification of Certain Matters 45
Section 5.11. Board of Directors and Officers of Media Metrix 45
Section 5.12. Employee Plans and Benefit Arrangements 45
Section 5.13. Section 16b Approvals 46
Section 5.14. Bylaw Amendment 46
ARTICLE VI CONDITIONS TO THE MERGER 46
Section 6.1. Conditions to Each Party's Obligation to Effect the Merger 46
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Section 6.2. Conditions to Obligations of Jupiter to Effect the Merger 48
Section 6.3. Conditions to Obligations of Media Metrix to Effect the Merger 48
ARTICLE VII TERMINATION, WAIVER, AMENDMENT AND CLOSING 49
Section 7.1. Termination or Abandonment 49
Section 7.2. Effect of Termination 51
Section 7.3. Termination Fee Payments 51
ARTICLE VIII MISCELLANEOUS 54
Section 8.1. No Survival of Representations and Warranties 54
Section 8.2. Expenses 54
Section 8.3. Counterparts; Effectiveness 54
Section 8.4. Governing Law 54
Section 8.5. Notices 55
Section 8.6. Assignment; Binding Effect 56
Section 8.7. Severability 56
Section 8.8. Enforcement of Agreement 56
Section 8.9. Miscellaneous 56
Section 8.10. Interpretation; Definitions 57
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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)
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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)
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
Morgan Stanley 3.16
Multiemployer Plan 3.7(h)
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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)
Thomas Weisel 4.16
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