Exhibit 10.4
STOCK PURCHASE AGREEMENT
This Agreement is made as of the 23rd day of November 1998, by and
between Media Metrix, Inc., a Delaware corporation (the "Corporation"), and
Investment AB Bure, a corporation organized under the laws of Sweden ("Bure").
W I T N E S S E T H:
WHEREAS, Bure was a party to that certain Series C-1 and Series C-2
Preferred Stock Purchase Agreement dated as of July 9, 1998 by and among
RelevantKnowledge, Inc. ("RKI") and the Purchasers listed therein, pursuant to
which Bure had the right to purchase 615,384 shares of Series C-2 Preferred
Stock of RKI at a purchase price of $3.25 per share;
WHEREAS, effective as of November 5, 1998, RKI was merged with and
into the Corporation (the "Merger") pursuant to the terms of that certain
Agreement and Plan of Reorganization dated as of September 30, 1998 by and
between the Corporation and RKI, with the Corporation as the sole surviving
corporation;
WHEREAS, the Corporation and Bure entered into a letter agreement
dated as of October 31, 1998 (the "Bure Agreement") pursuant to which the
Corporation agreed to extend Bure's right to purchase shares of RKI Series C-2
Preferred Stock until November 15, 1998, and, following the Merger, to
substitute shares of the Corporation's common stock, par value $.01 per share
(the "Common Stock") at a rate of 0.21564 shares of Common Stock for every one
share of Series C-2 Preferred Stock at an adjusted purchase price per share of
$15.07;
WHEREAS, the Corporation desires to issue and Bure desires to accept
shares of the Common Stock pursuant to the Bure Agreement, on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, IT IS AGREED between the parties as follows:
1. Purchase and Sale. Bure hereby accepts from the Corporation, and
the Corporation agrees to issue to Bure, One Hundred Thirty Two Thousand Seven
Hundred and One shares (132,701) (the "Shares") of Common Stock, at a price per
share of $15.07 (the "Purchase Price"). The delivery of the Shares and payment
of the aggregate purchase price of $1,999,849.28 shall be made on January 4,
1999 at the offices of the Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
New York.
2. Securities Law Matters.
(a) Bure acknowledges and agrees that all certificates representing
the Shares shall have endorsed thereon the following legend:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933 and, accordingly, may
not be offered for sale, sold or otherwise transferred except (i)
upon effective registration of the securities represented by this
certificate under the Securities Act of 1933, or (ii) upon
acceptance by the issuer of an opinion of counsel in such form and
by such counsel, or other documentation, as shall be satisfactory to
counsel for the issuer that such registration is not required."
and any legend required to be placed thereon by appropriate Blue Sky officials.
(b) Bure acknowledges that it is aware that the Shares have not been
registered under the Securities Act of 1933, as amended (the "Securities Act").
In this connection, Bure warrants and represents to the Corporation that it is
acquiring the Shares for investment and not with a view to or for sale in
connection with any distribution of said Shares or with any present intention of
distributing or selling said Shares and it does not presently have reason to
anticipate any change in circumstances or any particular occasion or event which
would cause it to sell said Shares. Bure acknowledges that its investment in the
Shares will be a highly speculative investment and that it is able, without
impairing its financial condition, to hold the Shares for an indefinite period
of time and to suffer a complete loss on its investment.
3. Anti-Dilution Rights.
(a) Special Definitions. For purposes of this Section 3, the
following definitions shall apply:
(1) "Option" shall mean rights, options or warrants to
subscribe for, purchase or otherwise acquire either Common Stock or
Convertible Securities.
(2) "Original Issue Date" shall mean January 4, 1999.
(3) "Convertible Securities" shall mean any evidence of
indebtedness, shares (other than Common Stock) or other securities
directly or indirectly convertible into or exchangeable for Common
Stock.
(4) "Excluded Shares" shall mean:
(A) shares of Common Stock (subject to adjustment for stock
splits, stock dividends, recapitalizations and other similar events)
or Convertible Securities issuable to officers or employees of, or
consultants to, the Corporation pursuant to a stock purchase or
option plan or other incentive program or compensation arrangement
in effect on the date hereof (collectively, the "Plans");
2
(B) shares of Common Stock (subject to adjustment for stock
splits, stock dividends, recapitalizations and other similar events)
or Convertible Securities issuable upon the exercise of outstanding
warrants and options as of the date hereof;
(C) shares of Common Stock or Convertible Securities issued or
issuable in connection with (i) a strategic venture or ventures
between the Corporation and another corporation or entity to the
extent that Bure agrees with the Company that any such issuance
constitutes a strategic venture (which agreement shall not be
unreasonably withheld) or (ii) a merger, acquisition or other
business combination involving the Corporation or any of its
subsidiaries;
(D) by way of dividend or other distribution on shares of
Common Stock included in the definition of Excluded Shares by the
foregoing clause (A), (B) or (C) or on Common Stock so excluded.
(5) "Aggregate Shares" shall mean the Shares, as adjusted to
give effect to any subdivision or combination of the Common Stock or
dividend payable solely in shares of Common Stock.
(6) "Target Price" means $15.07, subject to adjustment as
provided below.
(b) Dilutive Issuance. In the event that the Corporation at
any time or from time to time after the Original Issue Date and prior to the
earlier of (i) the consummation of an initial public offering of the
Corporation's Common Stock and (ii) November 23, 2000, shall issue or sell
shares of Common Stock (other than Excluded Shares) at a consideration per share
less than the Target Price in effect immediately prior to the time of such
issuance or sale (a "Dilutive Issuance") then, the provisions of this paragraph
(b) shall apply. Within fifteen days after such Dilutive Issuance, the
Corporation will issue and deliver to Bure for a purchase price of $.01 per
share] a stock certificate representing additional shares of Common Stock
("Additional Shares"). The number of such Additional Shares shall be determined
by (i) multiplying the Target Price in effect immediately prior to such Dilutive
Issuance by the Aggregate Shares held by Bure prior to such Dilutive Issuance;
(ii) dividing the product thereof by the Target Price in effect immediately
following such Dilutive Issuance, as calculated in accordance with the following
sentence; and (iii) subtracting therefrom the Aggregate Shares held by Bure
prior to such Dilutive Issuance. Upon any Dilutive Issuance the Target Price
shall be reduced to a price (calculated to the nearest cent) determined by
multiplying (i) the Target Price in effect immediately prior to such Dilutive
Issuance by (ii) the quotient obtained by dividing (x) the sum of (A) the total
number of shares of Common Stock outstanding, immediately prior to such Dilutive
Issuance, multiplied by the then-effective Target Price, plus (B) the aggregate
amount of all consideration, if any, received by the Corporation upon such
Dilutive Issuance, by (y) the total number of shares of Common Stock outstanding
immediately after such Dilutive Issuance.
3
(c) Adjustments to Target Price, Determination of
Consideration Received and Determination of Common Stock Outstanding. The Target
Price, the determination of the consideration received and the determination of
the number of shares of Common Stock outstanding upon a Dilutive Issuance shall
be subject to the further provisions of this subparagraph (c).
(1) Adjustment of Target Price. In case the Company shall at
any time subdivide its outstanding shares of Common Stock into a
greater number of shares or declare a dividend upon its Common Stock
payable solely in shares of Common Stock, the Target Price then in
effect shall be proportionately reduced. Conversely, in case the
outstanding shares of Common Stock shall be combined into a smaller
number of shares, the Target Price in effect immediately prior to
such combination shall be proportionately increased.
(2) Consideration and Stock Outstanding. For the purposes of
determining the consideration received upon the issuance and sale of
Common Stock and the number of shares of Common Stock outstanding,
the following provisions shall be applicable:
(i) Cash Consideration. In case of the issuance or sale
of additional Common Stock for cash, the consideration
received by the Corporation therefore shall be deemed to be
the amount of cash received by the Corporation for such
shares.
(ii) Non-Cash Consideration. In case of the issuance
(other than upon conversion or exchange of outstanding
Convertible Securities) or sale of additional Common Stock,
Options or Convertible Securities for a consideration other
than cash or a consideration a part of which shall be other
than cash, the fair value of such consideration as determined
by the Board of Directors of the Company if the good faith
exercise of its business judgment, irrespective of the
accounting treatment thereof, shall be deemed to be the value,
for purposes of this Agreement, of the consideration other
than cash received by the Corporation for such securities.
(iii) Options and Convertible Securities. In case the
Corporation shall issue Convertible Securities or Options
(other than Excluded Shares), the total maximum number of
shares of Common Stock issuable upon the exercise of such
Options or upon conversion or exchange of the total maximum
amount of such Convertible Securities at the time such
Convertible Securities first become convertible or
exchangeable shall (as of the date or issue or grant of such
Options or, in the case of the issue or sale of Convertible
Securities
4
other than where the same are issuable upon the exercise of
Options, as of the date of such issue or sale) be deemed to be
issued and to be outstanding for the purpose of determining
whether an issuance is a Dilutive Issuance and to have been
issued for the sum of the amount (if any) paid for such
Options or Convertible Securities and the amount (if any)
payable upon the exercise of such Options or upon conversion
or exchange of such Convertible Securities at the time such
Convertible Securities first become convertible or
exchangeable; provided that, no further adjustment of the
Target Price shall be made upon the actual issuance of any
such Common Stock or Convertible Securities or upon the
conversion or exchange of any such Convertible Securities.
(d) Change in Option Price or Conversion. In the event that
the purchase price provided for in any Option referred to in section
3(c)(2)(iii), or the rate at which any Convertible Securities referred to in
Section 3(c)(2)(iii) are convertible into or exchangeable for shares of Common
Stock, shall change at any time (other than under or by reason or provisions
designed to protect against dilution), then, for purposes of any adjustment
required to the Target Price by Section 3(c), the Target Price then in effect
shall forthwith be readjusted to the Target Price that would have been in effect
at such time had such Options or Convertible Securities which are then still
outstanding at the time initially granted, issued or sold, provided for such
changed purchase price, additional consideration or conversion rate, as the case
may be. Notwithstanding the foregoing, if such readjustment is an increase in
the Target Price, such readjustment shall not exceed the amount (as adjusted by
Sections 3(b) and 3(c)) by which the Target Price was decreased pursuant to
Section 3(b) upon the issuance of the Option or Convertible Security. No
adjustment shall be made in respect to changes in Options or Convertible
Securities by reason of provisions with respect thereto designed to protect
against dilution.
(e) Termination or Option or Conversion Rights. In the event
of the termination or expiration of any right to purchase Common Stock under any
Option granted after the Original Issue Date or of any right to convert or
exchange Convertible Securities issued after the date of this Agreement, the
Target Price shall, upon such termination, be readjusted to the Target Price
that would have been in effect at the time of such expiration or termination had
such Option or Convertible Security, to the extent outstanding immediately prior
to such expiration or termination, never been issued, and the shares of Common
Stock issuable thereunder shall no longer be deemed to be outstanding, provided
that if such readjustment is an increase in the Target Price, such readjustment
shall not exceed the amount (as adjusted by Sections 3(b) and 3(c)) by which the
Target Price was decreased pursuant to Section 3(b) upon the issuance of the
Option or Convertible Security.
(f) Changes in Common Stock. In case at any time following the
date hereof until the date the Shares are purchased under the terms of this
Agreement, the Corporation shall be a party to any transaction (including,
without limitation, a merger, consolidation, sale of all
5
or substantially all of the Corporation's assets or recapitalization of the
Common Stock) in which the previously outstanding Common Stock shall be changed
into or exchanged for different securities of the Corporation or common stock or
other securities of another corporation or interest in a noncorporate entity or
other property (including cash) or any combination of any of the foregoing (each
such transaction being herein called the "Transaction" and the different
securities, common stock, other securities or interests being herein called the
"Consideration")), then, as a condition of the consummation of the Transaction,
lawful and adequate provisions shall be made so that Bure shall be entitled to
receive, in lieu of the Common Stock issuable hereunder, the Consideration
resulting from such Transaction. The provisions of this Section 3(f) shall
similarly apply to successive Transactions.
4. The issuance of certificates for Additional Shares under this
Agreement shall be made without charge to Bure for any issue tax in respect
thereof; provided, however, that the Company shall not be required to pay any
tax which may be payable in respect of any transfer involved in the issuance and
delivery of any certificate in a name other than of the then holder of the
Aggregate Shares upon which any certificate is being issued.
5. This Agreement shall inure to the benefit of and be binding upon
each of the Corporation, Bure and their respective successors and assigns.
6. Notices required or permitted to be given hereunder shall be in
writing and shall be deemed to be sufficiently given when personally delivered
or sent by registered mail, return receipt requested, addressed (i) if to the
Corporation, at Media Metrix, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: Chief Executive Officer, and (ii) if to Bure, to ▇.▇. ▇▇▇
▇▇▇▇, ▇-▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, Attention: Ulf, Ivarsson.
7. This Agreement shall be enforced, governed and construed in all
respects in accordance with the laws of the State of Delaware. In the event that
any provision of this Agreement is invalid or unenforceable under any applicable
statute or rule of law, then such provision shall be deemed inoperative to the
extent that it may conflict therewith and shall be deemed modified to conform
with such statute or rule of law. Any provision hereof which may prove invalid
or unenforceable under any law shall not affect the validity or enforceability
of any other provisions hereof.
8. This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof. Any provision of this
Agreement may be amended and the observance thereof may be waived only by a
writing executed by each party hereto.
9. This Agreement shall terminate and be of no further force or
effect upon the closing of an initial public offering of the Corporation's
Common Stock.
6
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
MEDIA METRIX, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Executive Officer
INVESTMENT AB BURE
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director IT/Infomedia
7