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VOTING AGREEMENT
VOTING AGREEMENT (the "Agreement") dated as of June 26, 2000 between
each of the undersigned stockholders (each, a "Stockholder" and collectively,
the "Stockholders") of Jupiter Communications, Inc., a Delaware corporation
("Jupiter"), and Media Metrix, Inc., a Delaware corporation ("Media Metrix").
WHEREAS, Jupiter, Media Metrix and MMX Acquisition Corp., a Delaware
corporation and wholly-owned subsidiary of Media Metrix ("Merger Sub"), propose
to enter into an Agreement and Plan of Merger dated as of the date hereof (as
the same may be amended or supplemented, the "Merger Agreement") providing for
the merger of Merger Sub with and into Jupiter (the "Merger") upon the terms and
subject to the conditions set forth in the Merger Agreement; and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Media Metrix has required that each Stockholder enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
Section 1. Definitions. Each capitalized term used but not defined
herein shall have the meaning ascribed to it in the Merger Agreement.
Section 2. Representations and Warranties of Each Stockholder. Each
Stockholder hereby, severally and not jointly, represents and warrants to Media
Metrix in respect of himself as follows:
(a) The Stockholder is the owner, of record or beneficially
(as such term is defined in the Exchange Act), of that number of
Jupiter Shares set forth opposite his name on Part 1 of Exhibit A (but
not including any Future Jupiter Shares (as hereinafter defined)); has
the full and exclusive power and authority to vote (or direct the
voting of), and to execute (or direct the execution of) consents with
respect to, such Jupiter Shares; and owns such Jupiter Shares free and
clear of any Share Arrangements (including any Share Arrangements
relating to the voting of such Jupiter Shares) or other Encumbrances;
(b) Part 2 of Exhibit A sets forth all Jupiter Shares which
the Stockholder has the right to obtain at any time (disregarding for
this purpose any vesting provisions or other restrictions on exercise)
upon the exercise of stock options outstanding, or under any other
Share Arrangements in effect, on the date hereof ("Future Jupiter
Shares");
(c) The Stockholder does not own, of record or beneficially,
or have the right to acquire any Jupiter Shares other than as set forth
on Exhibit A; and
(d) The Stockholder has the legal capacity and all other
right, power and authority to enter into this Agreement and the Proxy
(as hereinafter defined) and to carry out his obligations hereunder and
thereunder. This Agreement and the Proxy have been duly and
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validly executed and delivered by the Stockholder and constitute the
valid and legally binding agreement of the Stockholder, enforceable
against the Stockholder in accordance with their respective terms; and
the execution and delivery by the Stockholder of this Agreement and the
Proxy and the performance by the Stockholder of his obligations
hereunder and thereunder will not (with or without notice, lapse of
time or both) (i) conflict with, require a consent, waiver or approval
under, or result in a breach of or default under, any of the terms of
any Contract to which the Stockholder is a party or by which the
Stockholder is bound, (ii) violate any Decree or Law applicable to the
Stockholder, or (iii) result in the creation of, or impose any
obligation on the Stockholder to create, any Encumbrance upon any
Jupiter Shares other than in favor of Media Metrix.
Section 3. Representations and Warranties of Media Metrix. Media Metrix
represents and warrants to each of the Stockholders as follows: Media Metrix has
the corporate power and authority to enter into this Agreement and to carry out
its obligations hereunder. The execution and delivery by Media Metrix 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. This
Agreement has been duly and validly executed and delivered by Media Metrix and
constitutes the 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).
The representations and warranties contained in this Section 3 and in Section 2
hereof shall be made as of the date hereof and as of each date from the date
hereof through and including the date that the Merger is consummated or this
Agreement is terminated in accordance with its terms.
Section 4. Agreement to Vote Jupiter Shares. Each Stockholder hereby
agrees to be present (in person or by proxy) and to vote his Jupiter Shares and
any New Shares (as hereinafter defined), and to cause any holder of record of
his Jupiter Shares or New Shares to be present (in person or by proxy) and to
vote (including by giving a written consent), (a) in favor of approval of the
Merger and the Merger Agreement and any other matters necessary for the
consummation of the Merger, (b) against any Competing Transaction, and (c)
against any proposed action or transaction that would result in a breach of any
representation, warranty, covenant or agreement of Jupiter under the Merger
Agreement or result in any of the conditions contained in Section 6.1 or 6.3 of
the Merger Agreement becoming incapable of fulfillment or that would otherwise
prevent, interfere with, frustrate or delay consummation of the Merger (each of
the foregoing actions or transactions, a "Frustrating Transaction"), in each
case, at the Jupiter Meeting or any other meeting of stockholders of Jupiter at
which any such matters are considered and at every adjournment thereof (and, if
applicable, in connection with any solicitation of written consents of
stockholders of Jupiter). Any such vote shall be cast, or consent shall be
given, in accordance with such procedures relating thereto as shall ensure that
it is duly counted for purposes of determining that a quorum is present and for
purposes of recording the results of such vote or consent. Each Stockholder is
delivering to Media Metrix, contemporaneously herewith, a proxy in the form
attached hereto as Exhibit B (each, the "Proxy"), with the total number of the
Stockholder's Jupiter Shares correctly indicated thereon. Each
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Stockholder hereby represents and warrants that any proxies heretofore given in
respect of his Jupiter Shares are not irrevocable and that all such proxies are
hereby revoked. Each Stockholder acknowledges that Media Metrix is entering into
the Merger Agreement in reliance upon the Stockholders' execution and delivery
of this Agreement and the Proxies. Each Stockholder hereby affirms that the
Proxy is given in connection with the execution of the Merger Agreement, that
the Proxy is given to secure the performance of the duties of the Stockholder
under this Agreement, that the Proxy is coupled with an interest and may under
no circumstances be revoked, and that the Proxy is executed and intended to be
irrevocable in accordance with Section 212(e) of the Delaware General
Corporation Law. Each Stockholder hereby ratifies and confirms all that the
proxies and attorneys-in-fact appointed under the Proxy may lawfully do or cause
to be done by virtue thereof.
Section 5. Restrictive Covenants. Each of the Stockholders hereby
covenants and agrees with Media Metrix as follows:
(a) The Stockholder's Jupiter Shares and the certificates
representing such Jupiter Shares will at all times during the term
hereof be held by the Stockholder, or by a nominee or custodian for the
benefit of the Stockholder, free and clear of all Share Arrangements
(including any voting trust or other Share Arrangement relating to the
voting of such Jupiter Shares) or other Encumbrances, other than this
Agreement and the Proxy; and
(b) The Stockholder will not transfer, sell, pledge, assign or
otherwise dispose of (including by gift) (collectively, "Transfer"), or
consent to or permit any Transfer of, or enter into any Contract with
respect to any Transfer of, any or all of the Stockholder's Jupiter
Shares, or any interest therein.
Section 6. Additional Jupiter Shares. Each Stockholder agrees that, in
the event that, after his execution of this Agreement, there occurs any stock
dividend, stock split, recapitalization, reclassification, combination or share
exchange on, of or affecting the Stockholder's Jupiter Shares, the number of
Jupiter Shares set forth opposite the Stockholder's name on Exhibit A shall,
without further action of the parties, be deemed to have been adjusted
appropriately. In addition, each Stockholder agrees that, in the event that,
after his execution of this Agreement, (a) the Stockholder purchases or
otherwise acquires beneficial ownership of any additional Jupiter Shares
(including through the exercise of any warrants or stock options or any right
under any other Share Arrangements), or (b) the Stockholder acquires the right
to vote or share in the voting of any additional Jupiter Shares (collectively,
"New Shares"), the New Shares shall, without further action of the parties, be
subject to the terms of this Agreement and the Proxy to the same extent as if
the New Shares had been owned by the Stockholder on the date hereof. At Media
Metrix's request, the Stockholder shall deliver promptly to Media Metrix an
irrevocable proxy identical in form to the Proxy with respect to such New
Shares. If the Stockholder acquires any New Shares, he shall promptly notify
Media Metrix of such acquisition.
Section 7. Competing Transaction. Each Stockholder agrees that the
Stockholder will not, nor will the Stockholder authorize or permit any
investment banker, attorney or other advisor, agent or representative of the
Stockholder to, directly or indirectly, solicit, initiate, encourage or
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facilitate, or furnish or disclose non-public information in furtherance of, any
Competing Transaction, or negotiate or otherwise engage in discussions with any
person (other than Media Metrix, Merger Sub, Jupiter or their respective
directors, officers, employees, advisors, agents or representatives) with
respect to any Competing Transaction or commit or agree to take any action
inconsistent with the transactions contemplated by the Merger Agreement. Each
Stockholder agrees that he will immediately cease all existing activities,
discussions and negotiations with any persons conducted heretofore with respect
to any proposal for a Competing Transaction. Each Stockholder agrees promptly to
advise Media Metrix in writing of the receipt, directly or indirectly, of any
inquiries or proposals relating to a Competing Transaction (including the
specific terms thereof and the identity of the Third Party), and to keep Media
Metrix fully informed of the status of any such inquiries or proposals, of the
furnishing of information to the Third Party, and of any negotiations or
discussions relating thereto (including any changes or adjustments to the terms
of such Competing Transaction as a result of negotiations or otherwise).
Section 8. Fiduciary Duty. Nothing herein contained shall restrict,
limit or prohibit any of the Stockholders who is a director or officer of
Jupiter from exercising, in his capacity as director or officer, his fiduciary
duties to the stockholders of Jupiter under applicable Law, provided that
nothing in this Section 8 shall relieve or be deemed to relieve such Stockholder
from his obligations under Sections 4, 5 and 6 hereof.
Section 9. Termination. This Agreement shall terminate upon the
earliest to occur of (A) the Effective Time, (B) the three month anniversary of
the date of termination of the Merger Agreement pursuant to Section 7.1(c), (h)
(by reason of a breach of covenants or agreements by Jupiter) or (i) thereof,
and (C) the date of termination of the Merger Agreement pursuant to any other
provisions of Section 7.1. Nothing in this Section 9 shall relieve any party of
liability for any breach of any provision of this Agreement occurring prior to
the termination of this Agreement.
Section 10. Expenses. All costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by
the party incurring such expenses.
Section 11. Counterparts. This Agreement may be executed in two or more
consecutive counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument,
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered (by telecopy or otherwise) to the other
parties.
Section 12. Governing Law. This Agreement and the agreements,
instruments and documents contemplated hereby shall be governed by and construed
in accordance with the Laws of the State of Delaware, without regard to the
principles of conflicts of laws thereof.
Section 13. Notices. All notices and other communications hereunder
shall be in writing (including telecopy or similar writing) and shall be
effective (a) if given by telecopy, when such telecopy is transmitted to the
telecopy number specified in this Section 13 and the appropriate telecopy
confirmation is received or (b) if given by any other means, when delivered at
the address specified in this Section 13.
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If to Media Metrix:
Media Metrix Corporation
250 Park Avenue South, 7th Floor
New York, NY 10003
Attention: Gail Balcerzak, Esq.
Telecopier: (212) 515-8719
if to a Stockholder, to him at his address set forth below his
name on the signature page.
Section 14. Successors and Assigns. Neither this Agreement nor any of
the rights, interests or obligations hereunder may be assigned by any of the
parties hereto (except by operation of law) without the prior written consent of
the other parties; provided, however, that Media Metrix may assign all of its
rights and obligations under this Agreement to any person to whom Media Metrix
may assign its rights under the Merger Agreement. Subject to the preceding
sentence, this Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and permitted assigns,
including, in the case of Media Metrix, any successor by merger or otherwise,
and, in the case of the Stockholder, any trustee, executor, heir, legatee or
personal representative succeeding to the ownership of (or power to vote) such
Stockholder's Jupiter Shares or New Shares (including as a result of the death,
disability or incapacity of a Stockholder).
Section 15. Severability. Any term or provision of this Agreement which
is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction,
be ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement in any other jurisdiction. If any provision of this Agreement is so
broad as to be unenforceable, such provision shall be interpreted to be only so
broad as is enforceable.
Section 16. Enforcement of Agreement. Each party hereto agrees that
money damages or other remedy at law would not be sufficient or adequate remedy
for any breach or violation of, or a default under, this Agreement by any of
them and that in addition to all other remedies available to any of them, each
of them shall be entitled to the fullest extent permitted by law to an
injunction restraining such breach, violation or default or threatened breach,
violation or default and to any other equitable relief, including specific
performance, without bond or other security being required.
Section 17. Entire Agreement; Amendments and Waivers. This Agreement
supersedes all prior agreements, written or oral, among the parties hereto with
respect to the subject matter hereof and contains the entire agreement among the
parties with respect to the subject matter hereof. This Agreement may not be
amended, and no provisions hereof may be waived by any party, except by an
instrument in writing signed by all the parties hereto. No waiver of any
provisions hereof by any party shall be deemed a waiver of any other provisions
hereof by any such party, nor shall such waiver be deemed a continuing waiver of
any provision hereof by such party. The failure of any party hereto to exercise
any right, power or remedy provided under this Agreement or otherwise available
in respect hereof at law or in equity, or to insist upon compliance by any other
party hereto
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with its or his obligations hereunder, and any custom or practice of the parties
at variance with the terms hereof, shall not constitute a waiver by such party
of the right to exercise any such or other right, power or remedy or to demand
such compliance.
Section 18. Headings. All Section headings herein are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
Section 19. Further Assurances. Each Stockholder shall, from time to
time, execute and deliver or cause to be executed and delivered, such additional
or further consents, documents and other instruments as Media Metrix may request
for the purpose of effectuating the matters covered by this Agreement, including
the granting of additional proxies as set forth in Section 6 hereof. Each
Stockholder shall also use his best efforts to take, or cause to be taken, all
action, and do, or cause to be done, all things necessary or advisable in order
to consummate and make effective the transactions contemplated by this Agreement
or the Merger Agreement.
Section 20. Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law or
in equity shall be cumulative and not alternative, and the exercise or beginning
of the exercise of any thereof by any party shall not preclude the simultaneous
or later exercise of any other such right, power or remedy by such party.
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IN WITNESS WHEREOF, the parties hereto have executed this Voting
Agreement as of the date first written above.
MEDIA METRIX, INC.
By:__________________________
Name: Tod Johnson
Title: Chairman and
Chief Executive Officer
STOCKHOLDER
____________________________
Name: Ernest Abrahamson
Address:
STOCKHOLDER
____________________________
Name: Kurt Abrahamson
Address:
STOCKHOLDER
____________________________
Name: Gene DeRose
Address:
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EXHIBIT A
Part 1
<TABLE>
<CAPTION>
Name of Stockholder Number of Jupiter Shares Record Owner Beneficial Owner
------------------- ------------------------ ------------ ----------------
<S> <C> <C> <C>
Ernest Abrahamson 745,335 Ernest Abrahamson Ernest Abrahamson
Kurt Abrahamson 1,071,258 Kurt Abrahamson Kurt Abrahamson
Gene DeRose 2,388,478 Gene DeRose Gene DeRose
</TABLE>
Part 2
<TABLE>
<CAPTION>
Name of Stockholder Number of Jupiter Shares Type of Share Arrangement
------------------- ------------------------ -------------------------
<S> <C> <C>
</TABLE>
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EXHIBIT B
FORM OF IRREVOCABLE PROXY
The undersigned Stockholder of Jupiter Communications, Inc., a Delaware
corporation ("Jupiter"), hereby irrevocably (to the fullest extent permitted by
law) appoints and constitutes _________, _________ and _________, and each of
them, the attorneys and proxies of the undersigned, with full power of
substitution and resubstitution, to the full extent of the undersigned's voting
rights with respect to (a) the outstanding shares of common stock, $.001 par
value, of Jupiter (the "Jupiter Shares") owned by the undersigned as of the date
of this Proxy, which shares are specified on the final page of this Proxy, and
(b) any and all other Jupiter Shares which the undersigned may acquire on or
after the date hereof. Upon the execution hereof, all prior proxies given by the
undersigned with respect to any of his Jupiter Shares are hereby revoked, and
the undersigned agrees that no subsequent proxy will be given with respect to
any of his Jupiter Shares.
This Proxy (i) is irrevocable, (ii) is coupled with an interest, (iii)
is granted in connection with the execution and delivery of the Voting Agreement
dated as of the date hereof between Media Metrix, Inc. ("Media Metrix") and the
undersigned and certain other stockholders of Jupiter (the "Voting Agreement"),
and (iv) is granted in consideration of Media Metrix and Merger Sub Corp.
entering into the Agreement and Plan of Merger dated as of the date hereof among
Media Metrix, Merger Sub Corp. and Jupiter (the "Merger Agreement").
Each of the proxies named above (and their respective successors) will
be empowered, and may exercise this Proxy, to vote the undersigned's Jupiter
Shares (a) in favor of approval of the Merger (as defined in the Merger
Agreement) and the Merger Agreement and any other matter necessary for the
consummation of the Merger, (b) against any Competing Transaction (as defined in
the Merger Agreement), and (c) against any proposed action or transaction that
would result in a breach of any representation, warranty, covenant or agreement
of Jupiter under the Merger Agreement or result in any of the conditions
contained in Section 6.1 or 6.3 of the Merger Agreement becoming incapable of
fulfillment or that would otherwise prevent, interfere with, frustrate or delay
consummation of the Merger, in each case, at the Jupiter Meeting (as defined in
the Merger Agreement) or any other meeting of stockholders of Jupiter at which
any such matters are considered and at every adjournment thereof (and, if
applicable, in connection with any solicitation of written consents of
stockholders of Jupiter).
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All authority herein conferred shall survive the death or incapacity of
the undersigned and any obligation of the undersigned hereunder shall be binding
upon the trustees, executors, heirs, legatees, personal representatives,
successors and assigns of the undersigned.
This Proxy shall terminate upon the valid termination of the Voting
Agreement.
Dated: June __, 2000 ___________________________
Stockholder's Name
Number of Jupiter Shares owned as
of the date of this Proxy:
___________________________
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