Exhibit 4.1
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (the "Agreement") made as of this 8th day of
October, 1999 by and among Media Metrix, Inc., a Delaware corporation (the
"Company"), and the securityholders of the Company set forth on Schedule I
hereto (the "Stockholders").
W I T N E S S E T H:
WHEREAS, this Agreement is made pursuant to the Agreement and Plan of
Merger, dated as of 6th October, 1999, by and among the Company, Jupiter
Acquisition Corp., a Washington corporation and a wholly owned subsidiary of the
Company, AdRelevance, Inc., a Washington corporation ("Target")and the
Stockholders (the "Merger Agreement"), which provides for the issuance by the
Company to the Stockholders of 775,186 shares (the "Registrable Securities") of
common stock, par value $.01 per share, of the Company;
WHEREAS, the parties hereto desire to promote the interests of the Company
and the interests of the Stockholders by establishing herein certain terms and
conditions upon which the Company will register the shares of Common Stock owned
by the Stockholders.
NOW, THEREFORE, in consideration of the premises and mutual covenants and
agreements herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Certain Definitions. As used herein, the following terms shall have the
following respective meanings:
"Closing Date" shall have the meaning ascribed to such term in the
Merger Agreement.
"Common Stock" means the common stock, par value $.01 per share, of
the Company.
"Commission" shall mean the Securities and Exchange Commission or
any other Federal agency at the time administering the Securities Act of 1933,
as amended (the "Securities Act").
"Holder" shall mean any holder of the Registrable Securities.
"Investors' Rights Agreement" shall mean the investors' rights
agreement dated January 15, 1999 between Target and certain of the holders of
the capital stock of Target.
"Lock-Up Period" shall have the meaning assigned such term in
Section 4.3 hereof.
"Restricted Securities" shall mean the securities of the Company
required to bear or bearing the legend set forth in Section 2 hereof.
"Registrable Securities" shall mean shares of (i) the Common Stock
held by the Stockholders or which may subsequently be distributed to the
Stockholders under the terms of the Merger Agreement and (ii) Common Stock
issued to the Stockholders upon any stock split, stock dividend, merger,
consolidation, recapitalization or similar event, excluding all such shares
which (x) have been registered under the Securities Act and disposed of in
accordance with the registration statement covering them, (y) have been publicly
sold pursuant to Rule 144 (or any successor rule) under the Securities Act
("Rule 144") or (z) are eligible for sale without restriction under Rule 144(k)
(or any successor rule) under the Securities Act ("Rule 144(k)").
The terms "register", "registered" and "registration" shall refer to
a registration effected by preparing and filing a registration statement in
compliance with the Securities Act and applicable rules and regulations
thereunder, and the declaration or ordering of the effectiveness of such
registration statement.
"Registration Expenses" shall mean all expenses incurred by the
Company in compliance with Section 4 hereof, including, without limitation, all
registration, qualification and filing fees, exchange listing fees, printing
expenses, escrow fees, fees and disbursements of counsel for the Company, blue
sky fees and expenses, the fees and expenses of one counsel for all the selling
Holders and other security holders and the expense of any special audits
incident to or required by any such registration (but excluding the compensation
of regular employees of the Company, which shall be paid in any event by the
Company).
"Secondary Offering" shall have the meaning given such term in
Section 4.2(a) hereof.
"Selling Expenses" shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities and all fees and
disbursements of counsel for any Holder (other than the fees and disbursements
of counsel included under Registration Expenses).
"Shelf Registration" shall have the meaning given such term in
Section 4.1(a) hereof.
2. Restrictive Legend. Each certificate representing the Common Stock or
any other securities issued upon any stock split, stock dividend,
recapitalization, merger, consolidation or
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similar event shall (unless otherwise permitted or unless the securities
evidenced by such certificate shall have been registered under the Securities
Act) be stamped or otherwise imprinted with a legend in substantially the
following form (in addition to any legend required under applicable state
securities laws):
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT") OR ANY STATE SECURITIES LAWS. NO TRANSFER OF
SAID SECURITIES SHALL BE PERMITTED IN THE ABSENCE OF (I) AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE LAWS
COVERING THE SHARES PROPOSED TO BE TRANSFERRED OR (II) AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH TRANSFER WILL NOT REQUIRE
COMPLIANCE WITH THE REGISTRATION REQUIREMENTS OF THE ACT AND OF ANY
APPLICABLE STATE LAWS.
Upon request of a holder of such a certificate, the Company shall
remove the foregoing legend from the certificate or issue to such holder a new
certificate therefor free of any transfer legend, if (x) with such request, the
Company shall have received either an opinion referred to in (II) of the above
legend to the effect that any transfer by such holder of the securities
evidenced by such certificate will not violate the Securities Act and applicable
state securities laws, (y) in accordance with Rule 144(k), such holder is not
and has not during the last three months been an affiliate of the Company and
such holder has held the securities represented by such certificate for a period
of at least two years. The Company will use its best efforts to assist any
holder in complying with the provisions of this Section 2 for removal of the
legend set forth above.
3. Notice of Proposed Transfers. The holder of each certificate
representing Restricted Securities by acceptance thereof agrees to comply in all
respects with the provisions of this Agreement. Prior to any proposed transfer
of any Restricted Securities (other than under circum stances described in
Section 4 hereof), the holder thereof shall give written notice to the Company
of such holder's intention to effect such transfer. Each such notice shall
describe the manner and circumstances of the proposed transfer in sufficient
detail, and shall be accompanied (except in transactions in compliance with Rule
144) by a written opinion of legal counsel who shall be satisfactory to the
Company, addressed to the Company and reasonably satisfactory in form and
substance to the Company's counsel, to the effect that the proposed transfer of
the Restricted Securities may be effected without registration under the
Securities Act and applicable state securities laws whereupon the holder of such
Restricted Securities shall be entitled to transfer such Restricted Securities
in accordance with the terms of the notice delivered by the holder to the
Company. Each certificate evidencing the Restricted Securities transferred as
above provided shall bear the appropriate restrictive legend set forth above
unless the opinion of counsel referred to above is to the further effect that no
such legend is required in order to establish compliance with any provisions of
the Securities Act or applicable state securities laws.
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4. Registration Rights.
4.1 (a) Shelf Registration. In the event that the registration statement
covering the Secondary Offering does not become effective prior to the 90th day
following the Closing Date, the Company shall cause to be filed with the
Commission a shelf registration statement (the "Shelf Registration") on Form S-1
or any other appropriate form to register the Registrable Securities within
ninety (90) days after the Closing Date of the Merger, and shall use its best
efforts to effect such registration (including, without limitation, the
execution of an undertaking to file post-effective amendments, appropriate
qualification under applicable blue sky or other state securities laws (except
that the Company shall not be required to qualify the offering under the blue
sky laws of any jurisdiction in which the Company would be required to execute a
general consent to service of process unless the Company is already subject to
service in such jurisdiction) and appropriate compliance with applicable
regulations issued under the Securities Act) as may be so requested and as would
permit or facilitate the sale and distribution of the Registrable Securities.
(b) Following the effective date of the Shelf Registration, each
Holder shall be entitled to sell the Registrable Securities held by such Holder.
The registration statement filed pursuant to Section 4.1(a) may,
subject to the provisions of this Section 4.1 (b), include other securities of
the Company which are held by officers or directors of the Company or which are
held by persons who, by virtue of agreements with the Company are entitled to
include their securities in any such registration (collectively, "Other
Stockholders"). The Company shall promptly give notice of any registration
proposed under this Section 4.1 to such Other Stockholders.
(c) The Company shall have the right to defer its obligation to
effect a registration for up to one hundred and twenty (120) calendar days if,
in the Company's good faith judgment, effecting a registration would be
seriously detrimental to the Company and an executive officer of the Company so
notifies the Holders in writing.
(d) The Company shall have the right, upon five (5) days' prior
written notice to the Holders of Registrable Securities, exercisable once every
six (6) months, to suspend sales of Registrable Securities pursuant to an
effective shelf registration statement for a period not to exceed 90 days, in
the event that the Company is engaged in a material transaction which would
otherwise be required to be disclosed in a post-effective amendment to the
registration statement and the disclosure of which, in the good faith judgment
of the Company's Board of Directors, would have a material adverse effect on the
Company.
4.2 Company Registration.
(a) In the event that (i) the Company shall determine to register
any of its securities for its own account in an underwritten offering (the
"Secondary Offering") prior to the 90th day following the Closing Date, the
Company shall offer to the Stockholders the right to include in
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such registration at least 226,462 shares of Common Stock, to be allocated among
the Holders in the same proportion that such Holder's shares bear to the total
Merger Consideration, or (ii) at any time after the later of January 1, 2000 or
the expiration of the Lock-Up Period, the Company shall determine to register
any of its securities either for its own account or the account of a security
holder or holders exercising their respective demand registration rights, in
each case other than a registration relating solely to employee benefit plans, a
registration relating solely to a Commission Rule 145 transaction or a
registration on any registration form which does not permit secondary sales, the
Company will:
(i) promptly within ten (10) days of such determination give
to each Holder written notice thereof; and
(ii) include in such registration and in any underwriting
involved therein, all the Registrable Securities specified in a written request
or requests, made by any Holder within twenty (20) days after receipt of the
written notice from the Company described in clause (i) above, except as set
forth in Section 4.2(b) below. Such written request may specify all or a part of
a Holder's Registrable Securities.
However, to the extent that a Holder participates in the Shelf
Registration, such Holder shall not be entitled to participate in the
registration referred to in (a) (ii) above.
(b) Underwriting. If the registration of which the Company gives
notice pursuant to this Section 4.2 is for a registered public offering
involving an underwriting, the Company shall so advise the Holders by written
notice. All Holders proposing to distribute their securities through such
underwriting shall (together with the Company distributing its securities for
its own account through such underwriting) enter into an underwriting agreement
in customary form with the underwriter or underwriters selected by the Company.
Notwithstanding any other provision of this Section 4.2, but subject to the
provisions of Section 4.2 (a) hereof, if the representative of the underwriters
advises the Company in writing that, in its opinion, marketing factors require a
limitation on the number of shares to be underwritten, the Company shall so
advise all Holders of securities requesting registration, and the number of
shares that may be included in the registration and underwriting shall be
allocated first to the Company for securities being sold for its account and
then in the following manner: (i) the securities requested to be registered by
officers or directors of the Company shall be excluded from such registration
and underwriting to the extent required by such limitation in proportion, as
nearly as practicable, to the respective amounts of securities requested to be
registered by such officers and directors, and (ii) the securities being sold
for the account of the Holders and Other Stockholders shall be excluded from
such registration and underwriting to the extent required by such limitation in
proportion, as nearly as practicable, to the respective amounts of securities
requested to be included in such registration. If any Holder or Other
Stockholder who has requested inclusion in such registration as provided above
disapproves of the terms of the underwriting, such person may elect to withdraw
therefrom by written notice to the Company and the underwriter.
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4.3 Subsequent Shelf Registration. If the Company files a registration
statement pursuant to Section 4.2 above and the Holders do not sell all or any
portion of their shares in such registration, the Company shall use commercially
reasonable efforts to cause to be filed with the Commission a shelf registration
statement on Form S-1 or any other appropriate form to register the remaining
Registrable Securities within thirty (30) days (but in any event not to exceed
seventy-five (75) days of the expiration of any lock-up period effected in
accordance with such secondary public offering by the Company (the "Lock-Up
Period"), and shall use its best efforts to effect such registration (including,
without limitation, the execution of an undertaking to file post-effective
amendments, appropriate qualification under applicable blue sky or other state
securities laws (except that the Company shall not be required to qualify the
offering under the blue sky laws of any jurisdiction in which the Company would
be required to execute a general consent to service of process unless the
Company is already subject to service in such jurisdiction) and appropriate
compliance with applicable regulations issued under the Securities Act) as may
be so requested and as would permit or facilitate the sale and distribution of
the Registrable Securities. Each Holder hereby agrees to furnish to the Company
all information with respect to such Holder necessary to make the disclosure in
such registration with respect to such Holder not materially misleading. Sales
of Registrable Securities in any registration pursuant to this Section 4.3 shall
be subject to and in compliance with the terms and conditions of Section 4.1 (c)
and (d) hereof.
4.4 Expenses of Registration.
(a) The Company shall bear all Registration Expenses and the selling
securityholders shall bear all Selling Expenses (in proportion, as nearly as
practicable, to the securities of each securityholder being registered) incurred
in connection with any registration, qualification or compliance pursuant to the
provisions of Section 4.1 or 4.2.
(b) The Company shall bear all Registration Expenses for the
registration pursuant to Section 4.3 and the selling securityholders shall bear
all Selling Expenses in connection therewith (in proportion, as nearly as
practicable, to the securities of each securityholder then being registered).
Thereafter, selling securityholders shall bear all Selling and Registration
Expenses (in proportion, as nearly as practicable, to the securities of each
securityholder then being registered).
4.5 Registration Procedures. In the case of each registration effected by
the Company pursuant to this Agreement, the Company will keep each Holder
advised in writing as to the initiation of each registration and as to the
completion thereof. At its expense, the Company will:
(a) Keep such registration effective for a period of two hundred
seventy (270) days or until the Holder or Holders have completed the
distribution described in the registration statement relating thereto, whichever
first occurs; provided, however, that in the case of any registration of
Registrable Securities on Form S-3 which are intended to be offered on a
continuous or delayed basis, such 270-day period shall be extended, if
necessary, to keep the registration statement effective until all such
Registrable Securities are sold, provided that if Rule 415, or any successor
rule under the Securities Act, permits an offering on a continuous or delayed
basis, and
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provided further that if applicable rules under the Securities Act governing the
obligation to file a post-effective amendment permit, in lieu of filing a
post-effective amendment which (y) includes any prospectus required by Section
10(a)(3) of the Securities Act or (z) reflects facts or events represent ing a
material or fundamental change in the information set forth in the registration
statement, the incorporation by reference of information required to be included
in (y) and (z) above to be contained in periodic reports filed pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), in the registration statement;
(b) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of securities
covered by such registration statement;
(c) Furnish such number of prospectuses and other documents incident
thereto, including any term sheet or any amendment of or supplement to the
prospectus, as a selling Holder from time to time may reasonably request;
(d) Notify each seller, at its last known address as set forth in
the Company's books and records, of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or incomplete in the light of the
circumstances then existing, and at the request of any such seller, prepare and
furnish to such seller a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchaser of such shares, such prospectus shall not include an
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 not misleading or
incomplete in the light of the circumstances then existing;
(e) Cause all such Registrable Securities to be listed on each, if
any, securities exchange on which similar securities issued by the Company are
then listed;
(f) Provide a transfer agent and registrar for all Registrable
Securities and a CUSIP number for all such Registrable Securities, in each case
not later than the effective date of such registration;
(g) Make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement, and any attorney or accountant retained by any such
seller or underwriter, all financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's officers and
directors to supply all information reasonably requested by any such seller,
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underwriter, attorney or accountant in connection with such registration
statement; provided, however, that such seller, underwriter, attorney or
accountant shall agree to hold in confidence and trust all information so
provided;
(h) Furnish to each selling Holder a signed counterpart, addressed
to the selling Holder, of an opinion of counsel for the Company, dated the
effective date of the registration statement, and "comfort" letters signed by
the Company's independent public accountants who have examined and reported on
the Company's financial statements included in the registration statement, to
the extent permitted by the standards of the AICPA or other relevant
authorities, covering sub stantially the same matters with respect to the
registration statement (and the prospectus included therein) and (in the case of
the accountants' "comfort" letters) with respect to events subsequent to the
date of the financial statements, as are customarily covered in opinions of
issuer's counsel and in accountants' "comfort" letters delivered to the
underwriters in underwritten public offerings of securities; and
(i) Otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, an earnings statement covering the
period of at least twelve months, but not more than eighteen months, beginning
with the first month after the effective date of the Registration Statement,
which earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act.
5. Indemnification.
(a) The Company will indemnify each Holder, each of its officers,
directors and partners, and each person controlling such Holder, with respect to
which registration, qualification or compliance has been effected pursuant to
Section 4 hereof, and each underwriter, if any, and each person who controls any
underwriter, against all claims, losses, damages and liabilities (or actions,
proceedings or settlements in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any prospectus or other document (including any related registration statement)
incident to any such registration, qualification or compliance, or based on any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each such Holder, each of its officers, directors and partners,
and each person controlling such Holder, each such underwriter and each person
who controls any such underwriter, for any legal and any other expenses as they
are reasonably incurred in connection with investigating and defending any such
claim, loss, damage, liability or action, provided that the Company will not be
liable in any such case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based on any untrue statement or
omission based upon written information furnished to the Company by such Holder
or underwriter and stated to be specifically for use therein or to the extent
due to the failure of such Holder or underwriter to provide an updated
prospectus or other document to a purchaser at a time when the Company has
informed such Holder or underwriter of a material misstatement or omission in a
prospectus or other document and has provided updated prospectuses or other
documents correcting such misstatement or omission.
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(b) Each Holder will, if Registrable Securities held by it are
included in the securities as to which such registration, qualification or
compliance is being effected, indemnify the Company, each of its directors and
officers and each underwriter, if any, of the Company's securities covered by
such a registration statement, each person who controls the Company or such
underwriter within the meaning of the Securities Act and the rules and
regulations thereunder, each other Holder and each of their officers, directors
and partners, and each person controlling such Holder, against all claims,
losses, damages and liabilities (or actions in respect thereof) arising out of
or based on any untrue statement (or alleged untrue statement) of a material
fact contained in any such registration statement, prospectus or other document,
or any omission (or alleged omission) to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse the Company and such Holders, directors, officers, partners,
persons, underwriters or control persons for any legal or any other expenses
reasonably incurred in connection with investi gating or defending any such
claim, loss, damage, liability or action, in each case to the extent, but only
to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement,
prospectus or other document in reliance upon and in conformity with written
information furnished to the Company by such Holder and stated to be
specifically for use therein; provided, however, that the obligations of such
Holders hereunder shall be limited to an amount equal to the net proceeds to
each such Holder of securities sold as contemplated herein.
(c) Each party entitled to indemnification under this Section 5 (the
"Indemnified Party") shall give notice in writing to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or any
litigation resulting therefrom, shall be approved by the Indemnified Party
(whose approval shall not unreasonably be withheld), and the Indemnified Party
may participate in such defense at such Indemnified Party's expense; provided,
however, that the Indemnifying Parties shall pay the expense of one counsel for
all similarly situated Indemnified Parties if representation of such Indemnified
Parties by the counsel retained by the Indemnifying Party would be inappropriate
due to actual or potential differing interests between the Indemnified Parties
and any other party represented by such counsel in such proceeding, and provided
further that the failure of any Indemnified Party to give notice as provided
herein shall not relieve the Indemnifying Party of its obligations under this
Section 5, unless such failure prejudices the ability of the Indemnifying Party
to defend against the claims asserted against the Indemnified Party. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Indemnified Party
of a release from all liability in respect to such claim or litigation and no
Indemnified Party shall consent to entry of any judgment or settle such claim or
litigation without the prior written consent of the Indemnifying Party. Each
Indemnified Party shall furnish such information regarding itself or the claim
in question as an Indemnifying Party may reasonably
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request in writing and as shall be reasonably required in connection with
defense of such claim and litigation resulting therefrom.
(d) If the indemnification provided for in this Section 5 is
unavailable to an Indemnified Party in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such losses, claims, damages or
liabilities in such proportion as is appropriate to reflect the relative fault
of the Company on the one hand and the stockholders offering securities in the
offering (the "Selling Stockholders") on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company on the one hand and the Selling Stockholders on
the other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Selling Stockholders and the parties' relevant intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Selling Stockholders agree that it would not be
just and equitable if contribution pursuant to this Section 5(d) were based
solely upon the number of entities from whom contribution was requested or by
any other method of allocation which does not take account of the equitable
considerations referred to above in this Section 5(d). The amount paid or
payable by an Indemnified Party as a result of the losses, claims, damages and
liabilities referred to above in this Section 5(d) shall be deemed to include
any legal or other expenses reasonably incurred by such Indemnified Party in
connection with investigating or defending any such action or claim, subject to
the provisions of Section 5(d) hereof. Notwithstanding the provisions of this
Section 5(d), no Selling Stockholder shall be required to contribute any amount
or make any other payments under this Agreement which in the aggregate exceed
the net proceeds received by such Selling Stockholder pursuant to the sale of
securities contemplated herein. No person guilty of fraudulent misrepresentation
(within the meaning of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
6. Information by Holder. Each Holder shall furnish to the Company such
information regarding such Holder and the distribution proposed by such Holder
as the Company may reasonably request in writing and as shall be reasonably
required in connection with any registration, qualification or compliance
referred to in this Agreement.
7. "Lock-Up" Agreement. Each Stockholder, if requested by the Company and
the managing underwriter of an offering by the Company of Common Stock or other
securities of the Company pursuant to a Registration Statement, shall agree not
to sell publicly or otherwise transfer or dispose of any Registrable Shares or
other securities of the Company held by such Stockholder for a specified period
of time (not to exceed ninety (90) days unless the underwriters of any such
registration impose a longer period on all participants) following the effective
date of such Registration Statement; provided that all executive officers and
directors of the Company enter into similar agreements.
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8. Limitations on Registration of Issues of Securities. From and after the
date of this Agreement, the Company shall not enter into any agreement with any
holder or prospective holder of any securities of the Company giving such holder
or prospective holder a right to require the Company to initiate any
registration of any securities of the Company or to require the Company, upon
any registration of any of its securities, to include, among the securities
which the Company is then registering, securities owned by such holder which is
superior to the rights granted hereunder, except with the prior written consent
of the holders of a majority of the Registrable Securities.
9. Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the Commission which may permit the sale of the
Restricted Securities to the public without registration, the Company agrees to:
(a) use its best efforts to make and keep public information
available as those terms are understood and defined in Rule 144 at all times
from and after ninety (90) days following the effective date of the first
registration under the Securities Act filed by the Company for an offering of
its securities to the general public;
(b) use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(c) so long as the Holders own any Restricted Securities, furnish to
the Holders forthwith upon request a written statement by the Company as to its
compliance with the reporting requirements of Rule 144 (at any time from and
after ninety (90) days following the effective date of the first registration
statement filed by the Company for an offering of its securities to the general
public), and of the Securities Act and the Exchange Act, a copy of the most
recent annual or quarterly report of the Company, and such other reports and
documents so filed as the Holders may reasonably request in availing themselves
of any rule or regulation of the Commission allowing the Holders to sell any
such securities without registration.
10. Transfer or Assignment of Registration Rights. The rights to cause the
Company to register securities granted to the Holders by the Company under
Section 4 may be transferred or assigned, provided that the Company is given
written notice at the time of or within a reasonable time after said transfer or
assignment, stating the name and address of said transferee or assignee and
identifying the Registrable Securities with respect to which such registration
rights are being transferred or assigned, and provided further that the
transferee or assignee of such rights assumes the obligations of the Holders
under this Agreement, and provided further that said transferee or assignee is
not a Competitor or an affiliate of a Competitor of the Company. A "Competitor"
shall mean any of the following: XX Xxxxxxx, Ceridian, Xxxxxxx Media Research,
Inc., Xxxxxxxxx Research, IntelliQuest, Odessey, Reuters, Site-Centric
measurement systems (e.g. Internet Profiles Corporation), Consumer-Centric
measurement systems (e.g. PC Data), International Data Corporation, Gartner
Group, @Plan, United News and Media, VNU, WPP and any others which, now or in
the future, compete directly with the Company.
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11. Termination. The provisions of Sections 4.1, 4.2 and 4.3 of this
Agreement shall terminate on the third anniversary of the date of this
Agreement.
12. Cancellation of Investors' Rights Agreement. To the extent that a
Stockholder is a party to the Investors' Rights Agreement, such Stockholder
hereby agrees to the cancellation of the Investors' Rights Agreement with effect
from the Closing Date.
13. Consent. The Company hereby represents and warrants that the
performance of this Agreement will not conflict with that certain registration
rights agreement dated as of November 5, 1998 by and among the Company and
certain of its security holders and no consent other than any consents obtained
by the Company is required to enter into this Agreement.
14. Amendment; Waiver. No amendment, alteration or modification of this
Agreement shall be valid unless in each instance such amendment, alteration or
modification is expressed in a written instrument executed by the Holders of a
majority of the Registrable Securities. No waiver of any provision of this
Agreement shall be valid unless it is expressed in a written instrument duly
executed by the party or parties making such waiver. The failure of any party to
insist, in any one or more instances, on performance of any of the terms and
conditions of this Agreement shall not be construed as a waiver or
relinquishment of any rights granted hereunder or of the future performance of
any such term, covenant or condition but the obligation of any party with
respect thereto shall continue in full force and effect.
15. Specific Performance. The parties hereby declare that it is impossible
to measure in money the damages which will accrue to a party hereto by reason of
a failure to perform any of the obligations under this Agreement. Therefore, all
parties hereto shall have the right to specific performance of the obligations
of the other parties under this Agreement, and if any party hereto shall
institute an action or proceeding to enforce the provisions hereof, any person
(including the Company) against whom such action or proceeding is brought hereby
waives the claim or defense therein that such party has an adequate remedy at
law, and such person shall not urge in any such action or proceeding the claim
or defense that such remedy at law exists.
16. Notices. All notices and other communications required or permitted
hereunder shall be in writing and shall be mailed by first-class mail, postage
prepaid, return receipt requested, or transmitted by facsimile or delivered
either by hand, by messenger or by nationally recognized overnight courier,
addressed:
(a) if to the Holders, at the addresses set forth on the Schedule I
attached hereto or at such other address as they shall have furnished to
the Company in writing.
(b) if to any other holder of securities of the Company at such
address as such holder shall have furnished the Company in writing, or,
until any such holder so furnishes an address to the Company, then to and
at the address of the last holder thereof who has so furnished an address
to the Company, and
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(c) if to the Company, to the following address, or at such other
address as the Company shall have furnished to the Holders,
000 Xxxx Xxxxxx Xxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx
00000
Attention: Xxx Xxxxxxx
with a copy to:
Fulbright & Xxxxxxxx L.L.P.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Fax: (000) 000-0000
Alternatively, to such other address as a party hereto supplies to each
other party in writing.
17. Successors and Assigns. All the terms and provisions of this Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
respective permitted transferees, successors and assigns of the parties hereto,
whether so expressed or not.
18. Governing Law. This Agreement is to be governed by and interpreted
under the laws of the State of New York without giving effect to the principles
of conflicts of laws thereof.
19. Titles and Subtitles. The titles of the sections of this Agreement are
for the convenience of reference only and are not to be considered in construing
this Agreement.
20. Severability. The invalidity or unenforceability of any provisions of
this Agreement shall not be deemed to affect the validity or enforceability of
any other provision of this Agreement.
21. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
22. Entire Agreement. This Agreement constitutes the full and entire
understanding and agreement between the parties with respect to the subject
matter hereof and supersedes all previous agreements, arrangements and
understandings, whether written or oral, with respect to the subject matter
hereof.
-13-
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date first above written.
MEDIA METRIX, INC.
By: /s/ Xxxx Xxx Xxxxx
-------------------------------------
Name: Xxxx Xxx Xxxxx
Title: President
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COUNTERPART SIGNATURE PAGE
The undersigned, intending to be bound by and become a party to, the
Registration Rights Agreement dated as of first set forth herein by and among
Media Metrix, Inc. (the "Company") and the other signatories hereto does hereby
execute this Counterpart Signature Page to said Registration Rights Agreement.
XXX XXXX
By: /s/ Xxx Xxxx
--------------------------------------
Title: Not Applicable
XXXXX X. XXXXXX
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Title: Not Applicable
MADRONA INVESTMENT GROUP LLC
By: /s/ illegible
--------------------------------------
Title: ___________________________________
XXXXX X. XXXXXX
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Title: Vice President Engineering
-00-
XXXXXXXXX XXXXXXX PARTNERS II LP
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------
Title: President
INLAND INVESTMENT INVESTORS LP
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------
Title: President
XXXXXXX XXXXXXX
By: /s/ Xxxxxxx XxXxxxx
--------------------------------------
Title: Not Applicable
CNA TRUST, TRUSTEE FOR VLG 401 (K) FBO:
XXXXX XXXXXXX
By: /s/ illegible
--------------------------------------
Title: Vice President
REDLEAF VENTURE II, LP
By: /s/ illegible
--------------------------------------
Title: General Partner
-16-
VLG INVESTMENT 1998
By: /s/ illegible
--------------------------------------
Title: Director
VLG INVESTMENT 1998
By: /s/ illegible
--------------------------------------
Title: Director
VLG INVESTMENT 1999
By: /s/ illegible
--------------------------------------
Title: Director
GUIDE FIND II LP
By: /s/ illegible
--------------------------------------
Title: Managing Director
XXXXX XXXXXXX
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Title: Not Applicable
-17-
XXXXXXX X. XXXXXXX
By: /s/ Xxxxxxx X. Eriscon
--------------------------------------
Title: Not Applicable
XXXXX XXXXXXX
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Title: Not Applicable
XXXXX XXXXXXXXX
By: /s/ Xxxxx Xxxxxxxxx
--------------------------------------
Title: Not Applicable
XXXX XXXXXXX
By: /s/ Xxxx Xxxxxxx
--------------------------------------
Title: President & Chief Executive Officer
XXXXXX XXXXXX
By: /s/ Xxxxxx Xxxxxx
--------------------------------------
Title: Not Applicable
-18-
1998 WELD CHILDREN'S TRUST
By: /s/ Xxx Xxxx
--------------------------------------
Title: Not Applicable
XXXXX XXXXXXX
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Title: Not Applicable
-19-
