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FindLaw - Agreement and Plan of Reorganization - NetRatings Inc., ACNielsen eRatings.com and ACNielsen Corp.

AGREEMENT AND PLAN OF REORGANIZATION BY AND AMONG NETRATINGS, INC. ESTANCIA ACQUISITION CORPORATION, ACNIELSEN ERATINGS.COM AND ACNIELSEN CORPORATION October 25, 2001

TABLE OF CONTENTS

			Page
1. Definitions			1
	1.1	Certain Defined Terms.	1
	1.2	Other Terms Used in this Agreement.	4
2. The Merger			5
	2.1	The Merger	5
	2.2	Closing; Effective Time	5
	2.3	Effect of the Merger	5
	2.4	Certificate of Incorporation; Bylaws	5
	2.5	Directors and Officers	5
	2.6	Effect on Capital Stock	5
	2.7	Exchange Procedures	7
	2.8	No Further Ownership Rights in Company Capital Stock	7
	2.9	Lost, Stolen or Destroyed Certificates	7
	2.10	Tax Consequences	7
	2.11	Taking of Necessary Action; Further Action	7
3. Representations and Warranties of the Company and ACN			8
	3.1	Organization, Standing and Power	8
	3.2	Authority	8
	3.3	Governmental Authorization	9
	3.4	Financial Statements	9
	3.5	Capital Structure	9
	3.6	Absence of Certain Changes	10
	3.7	Absence of Undisclosed Liabilities	11
	3.8	Litigation	11
	3.9	Restrictions on Business Activities	11
	3.10	Intellectual Property	11
	3.11	Interested Party Transactions	15
	3.12	Minute Books	15
	3.13	Material Contracts	15
	3.14	Accounts Receivable	16
	3.15	Customers and Suppliers	16
	3.16	Employees and Consultants	16
	3.17	Title to Property	17
	3.18	Environmental Matters	17
	3.19	Taxes	17
	3.20	Employee Benefit Plans	19
	3.21	Employee Matters	21
	3.22	Insurance	22
	3.23	Compliance with Laws	22
	3.24	Brokers' and Finders' Fees	22
	3.25	Privacy Policy.	22
4. Representations and Warranties of NetRatings and Merger Sub			23
	4.1	Organization, Standing and Power	23
	4.2	Authority	24
	4.3	SEC Documents: Financial Statements	24
	4.4	Capital Structure.	25

	4.5	Issuance of Shares.	25
	4.6	Interim Operations of Merger Sub	25
5. Additional Agreements			26
	5.1	Conduct of Business of the Company Prior to the Effective Time.	26
	5.2	Sale of Shares Pursuant to Regulation D	28
	5.3	Access to Information	28
	5.4	Confidentiality	28
	5.5	Public Disclosure	28
	5.6	Regulatory Approval; Further Assurances	29
	5.7	Company Options	30
	5.8	Blue Sky Laws	30
	5.9	Listing of Additional Shares	30
	5.10	Employees	31
	5.11	Reorganization	31
	5.12	Expenses	31
	5.13	Indemnification and Insurance	32
	5.14	Termination of Existing Agreements	33
	5.15	Services Agreement and Post-Closing Agreement	33
	5.16	Modification of International Operations; Transition Matters	33
	5.17	Repayments	34
6. Conditions to the Merger			35
	6.1	Conditions to Obligations of Each Party to Effect the Merger	35
	6.2	Additional Conditions to the Obligations of NetRatings and Merger Sub	35
	6.3	Additional Conditions to Obligations of the Company and ACN	37
7. Termination; Amendment			38
	7.1	Termination	38
	7.2	Effect of Termination	38
	7.3	Amendment	38
8. Indemnification			39
	8.1	Survival of Representations and Warranties	39
	8.2	Indemnification by ACN	39
	8.3	Indemnification by NetRatings and Merger Sub	39
	8.4	Time Limitations	40
	8.5	Limitations on Amount	40
	8.6	Third Party Claims	40
9. General Provisions			41
	9.1	Notices	41
	9.2	Counterparts	43
	9.3	Entire Agreement	43
	9.4	Assignment	43
	9.5	No Third Party Beneficiary	43
	9.6	Severability	43
	9.7	Remedies Cumulative	43
	9.8	Governing Law	43
	9.9	Rules of Construction	43
	9.10	Enforcement	43
	9.11	Waiver	44

AGREEMENT AND PLAN OF REORGANIZATION

This AGREEMENT AND PLAN OF REORGANIZATION (as amended from time to time, the "Agreement") is made and entered into as of October 25, 2001 by and among NetRatings, Inc., a Delaware corporation ("NetRatings"), Estancia Acquisition Corporation, a Delaware corporation ("Merger Sub") and wholly owned subsidiary of NetRatings, ACNielsen eRatings.com, a Delaware corporation (the "Company"), and ACNielsen Corporation, the principal stockholder of the Company ("ACN").

RECITALS:

A. The Boards of Directors of the Company, NetRatings and Merger Sub believe it is in the best interests of their respective companies and the stockholders of their respective companies that the Company and Merger Sub combine into a single company through the merger of Merger Sub with and into the Company (the "Merger") and, in furtherance thereof, have approved the Merger.

B. Pursuant to the Merger, among other things, the outstanding shares of Company Capital Stock shall be converted into the right to receive the Merger Consideration upon the terms and subject to the conditions set forth herein.

C. The Company, NetRatings and Merger Sub desire to make certain representations and warranties and other agreements in connection with the Merger.

D. The parties intend, by executing this Agreement, to adopt a plan of reorganization within the meaning of Section 368 of the Internal Revenue Code of 1986, as amended (the "Code"), and to cause the Merger to qualify as a reorganization under the provisions of Section 368(a) of the Code.

AGREEMENT:

NOW, THEREFORE, in consideration of the covenants and representations set forth herein, and for other good and valuable consideration, the parties agree as follows:

1. Definitions.

1.1 Certain Defined Terms. As used in this Agreement, the following terms shall have the following meanings:

"Accountants" has the meaning set forth in Section 5.17(c).

"Certificate" has the meaning set forth in Section 2.7.

"Closing" has the meaning set forth in Section 2.2.

"Closing Date" has the meaning set forth in Section 2.2.

"COBRA" has the meaning set forth in Section 3.20(e).

"Code" has the meaning set forth in Recital D.

"Common Exchange Ratio" has the meaning set forth in Section 2.6(c).

"Company Audited Financial Statements" has the meaning set forth in Section 3.4.

"Company Balance Sheet" has the meaning set forth in Section 3.4.

"Company Balance Sheet Date" has the meaning set forth in Section 3.6.

"Company Capital Stock" means Company Common Stock, Company Preferred Stock or any combination thereof.

"Company Class A Preferred Stock" means the Class A Preferred Stock, par value $0.001 per share, of the Company.

"Company Common Stock" means the common stock, par value $0.001 per share, of the Company.

"Company Disclosure Schedule" has the meaning set forth in Section 3.

"Company Employee Plan" has the meaning set forth in Section 3.20(a).

"Company Employees" has the meaning set forth in Section 5.10(b).

"Company Financial Statements" has the meaning set forth in Section 3.4.

"Company Indemnified Person" and "Company Indemnified Persons" have the meanings set forth in Section 8.3.

"Company Intellectual Property" has the meaning set forth in Section 3.10(c).

"Company International Employee Plans" has the meaning set forth in Section 3.20(a).

"Company Operating Agreement" means that certain Operating Agreement, dated as of September 22, 1999, between the Company and NetRatings.

"Company Option Plan" means the ACNielsen eRatings.com Stock Option Plan.

"Company Options" has the meaning set forth in Section 2.6(e).

"Company Preferred Stock" means the preferred stock, par value $0.001 per share, of the Company.

"Company Rights Agreement" means that certain Rights Agreement, dated as of September 22, 1999, among ACN, the Company and NetRatings.

"Company Side Letter" means that certain letter agreement, dated as of September 22, 1999, between NetRatings and ACN.

"Company Stockholders Agreement" means that certain Stockholders Agreement, dated as of September 22, 1999, among ACN, the Company and NetRatings.

"Company Unaudited Financial Statements" has the meaning set forth in Section 3.4.

"Confidentiality Agreement" has the meaning set forth in Section 5.4

"Copyrights" has the meaning set forth in Section 3.10(a).

"Damages" has the meaning set forth in Section 8.2.

"Delaware Law" has the meaning set forth in Section 2.1.

"Disputed Amounts" has the meaning set forth in Section 5.17(d).

"Effective Time" has the meaning set forth in Section 2.2.

"ERISA" has the meaning set forth in Section 3.20(a).

"ERISA Affiliate" has the meaning set forth in Section 3.20(a).

"Exchange Act" means the United States Securities Exchange Act of 1934, as amended.

"Foreign Antitrust Laws" means any foreign antitrust or competition laws or regulations that require advance notification or clearance as a condition to the consummation of a business combination.

"Governmental Entity" means a court, administrative agency or commission or other governmental authority or instrumentality.

"HIPAA" has the meaning set forth in Section 3.20(e).

"Independent Directors" means the directors of NetRatings that are not (i) affiliated with ACN or any other entity (other than NetRatings) that controls, is controlled by or is under common control with ACN or (ii) employees of NetRatings.

"Insurance Amount" has the meaning set forth in Section 5.13(c).

"Intellectual Property" has the meaning set forth in Section 3.10(a).

"Issued Patents" has the meaning set forth in Section 3.10(a).

"JMM" means Jupiter Media Metrix, Inc., a Delaware corporation.

"JMM Merger Agreement" has the meaning set forth in Section 6.2(d).

"Leased Employees" has the meaning set forth in Section 3.22.

"Material Adverse Effect," with respect to any entity or group of entities, means any event, change or effect that is materially adverse to the financial condition, properties, assets, liabilities, business, operations or results of operations of such entity and its subsidiaries, taken as a whole, other than any event, change or effect resulting from any of the following, in and of itself: (a) a change in generally accepted accounting principles in the United States or any foreign jurisdiction or any interpretation thereof; (b) a change or occurrence affecting the industry or industries in which such entity or entities is or are engaged generally, except to the extent the effect on such entity is materially disproportionate as compared to the effect on substantially similarly situated entities engaged in such industry or industries generally; (c) a change in general economic conditions in the United States or in any foreign jurisdiction, except to the extent the effect of such change on such entity is materially disproportionate as compared to the effect on substantially similarly situated entities; (d) any adverse change to the extent attributable to the announcement or pendency of the Merger, including any cancellations of or delay in customer orders, any reduction in sales or revenues, any disruption in supplier, distributor, partner or similar relations or any loss of employees; (e) any adverse change to the extent attributable to the announcement, pendency or consummation of the transactions contemplated by the JMM Merger Agreement, including any cancellations of or delay in customer orders, any reduction in sales or revenues, any disruption in supplier, distributor, partner or similar relations, any loss of employees, or any adverse change affecting JMM; or (f) any adverse change to the extent attributable to the taking or engaging in by ACN (or any affiliate thereof) or the Company of any Transition Matters or incurrence thereby of any Transition Costs or otherwise in connection with the implementation of the plan relating to the Company's international operations described on Annex C hereto.

"Material Contract" has the meaning set forth in Section 3.13.

"Merger Consideration" means the shares of NetRatings Common Stock to be issued in the Merger.

"Merger Sub Common Stock" means the common stock, par value $.001 per share, of Merger Sub.

"Nasdaq" means The Nasdaq Stock Market, Inc.

"NetRatings Common Stock" means the common stock, $.001 par value per share, of NetRatings.

"NetRatings Employee Stock Purchase Plan" has the meaning set forth in Section 4.4.

"NetRatings Financial Statements" has the meaning set forth in Section 4.3(b).

"NetRatings Indemnified Person" and "NetRatings Indemnified Persons" have the meanings set forth in Section 8.2.

"NetRatings Plans" has the meaning set forth in Section 5.10(b).

"NetRatings SEC Documents" has the meaning set forth in Section 4.3(a).

"NetRatings Stock Option Plan" has the meaning set forth in Section 4.4.

"NMR" means Nielsen Media Research, Inc., a Delaware corporation.

"NNM" means the Nasdaq National Market.

"Patent Applications" has the meaning set forth in Section 3.10(a).

"Patents" has the meaning set forth in Section 3.10(a).

"Person" means any individual, corporation, general or limited partnership, limited liability company, joint venture, estate, trust, association, organization, labor union or other entity or any Governmental Entity.

"Post-Closing Agreement" has the meaning set forth in Section 5.15.

"Preferred Exchange Ratio" means 1,256,000.

"Returns" has the meaning set forth in Section 3.19(b).

"SEC" means the United States Securities and Exchange Commission.

"Securities Act" means the United States Securities Act of 1933, as amended.

"Services Agreement" has the meaning set forth in Section 5.15.

"Stub Funding Period" has the meaning set forth in Section 5.17(b).

"Surviving Corporation" has the meaning set forth in Section 2.1.

"Tax" has the meaning set forth in Section 3.19(a).

"Third Party Intellectual Property" has the meaning set forth in Section 3.10(d).

"Trademarks" has the meaning set forth in Section 3.10(a).

"Transition Costs" has the meaning set forth in Section 5.16.

"Transition Matters" has the meaning set forth in Section 5.16.

1.2 Other Terms Used in this Agreement. In this Agreement, any reference to any event, change, condition or effect being "material" with respect to any entity or group of entities means that such event, change, condition or effect is material as it relates to the financial condition, properties, assets (including intangible assets), liabilities, business, operations or results of operations of such entity or group of entities, taken as a whole. In this Agreement, any reference to a party's "knowledge" means such party's actual knowledge after reasonable inquiry of officers, directors and other employees of such party reasonably believed to have knowledge of such matters. In this Agreement, any reference to "generally accepted accounting principles" means the generally accepted accounting principles that are applied in the United States, except as otherwise specified. In this Agreement, any reference to a party's "subsidiary" or "subsidiaries" means any entity whose financial results are required to be consolidated with that party's financial results under generally accepted accounting principles, as in effect on the date of this Agreement, as a result of that party's ownership of the entity's equity securities or ability to elect members of the entity's board of directors or similar governing body.

2. The Merger.

2.1 The Merger. At the Effective Time and subject to and upon the terms and conditions of this Agreement and the applicable provisions of the General Corporation Law of the State of Delaware ("Delaware Law"), Merger Sub shall be merged with and into the Company, the separate corporate existence of Merger Sub shall cease and the Company shall continue as the surviving corporation. The Company as the surviving corporation after the Merger is hereinafter sometimes referred to as the "Surviving Corporation."

2.2 Closing; Effective Time. The closing of the transactions contemplated hereby (the "Closing") shall take place as soon as practicable, but no later than two (2) business days, after the satisfaction or waiver of the conditions set forth in Section 6 hereof, or at such other time as the parties hereto agree (the "Closing Date"). The Closing shall take place at the offices of Gray Cary Ware & Freidenrich, counsel to NetRatings, or at such other location as the parties hereto agree. Concurrently with the Closing, the parties hereto shall cause the Merger to be consummated by the filing of a certificate of merger with the Secretary of State of the State of Delaware in accordance with the relevant provisions of Delaware Law (the time of such filing or such other date and time as are agreed between the parties hereto and specified in the certificate of merger being the "Effective Time"). Subject to the provisions of Section 7.1, failure to consummate the Merger and the other transactions contemplated hereby on the date and at the time and place determined under this Section 2.2 will not result in the termination of this Agreement and will not relieve any party of its obligations hereunder.

2.3 Effect of the Merger. At the Effective Time, the effect of the Merger shall be as provided in this Agreement and the applicable provisions of Delaware Law, including Section 259 thereof. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all the property, rights, privileges, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation.

2.4 Certificate of Incorporation; Bylaws.

(a) At the Effective Time, the certificate of incorporation of the Company as in effect immediately prior to the Effective Time shall be the certificate of incorporation of the Surviving Corporation; provided, however, that paragraph 4 of the Company's certificate of incorporation shall be amended and restated in its entirety as set forth on Annex A hereto, and paragraphs 5, 6, 7, 13 and 14 of the Company's certificate of incorporation shall be deleted in their entirety.

(b) At the Effective Time, the Bylaws of the Company as in effect immediately prior to the Effective Time shall be the Bylaws of the Surviving Corporation until thereafter amended.

2.5 Directors and Officers. At the Effective Time, (i) the directors of Merger Sub immediately prior to the Effective Time shall be the directors of the Surviving Corporation, until their respective successors are duly elected or appointed and qualified, and (ii) the officers of the Company immediately prior to the Effective Time shall be the officers of the Surviving Corporation and shall continue to hold the offices they held immediately prior to the Effective Time, to serve until their respective successors are duly elected or appointed and qualified.

2.6 Effect on Capital Stock. At the Effective Time, by virtue of the Merger and without any action on the part of Merger Sub, the Company or the holders of any of the following securities:

(a) Cancellation of Treasury Securities. At the Effective Time, each share of Company Capital Stock held by the Company as treasury stock or otherwise immediately prior to the

Effective Time shall automatically be cancelled and retired and no consideration or payment shall be delivered therefor or in respect thereof.

(b) Conversion of Company Class A Preferred Stock. Each share of Company Class A Preferred Stock issued and outstanding immediately prior to the Effective Time shall be converted and exchanged, without any action on the part of the holders thereof, into the right to receive a number of fully paid and nonassessable shares of NetRatings Common Stock equal to the Preferred Exchange Ratio.

(c) Conversion of Company Common Stock. Subject to Section 2.6(d), each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than shares owned by NetRatings or any direct or indirect subsidiary of NetRatings) shall be converted and exchanged, without any action on the part of the holders thereof, into the right to receive a number of fully paid and nonassessable shares of NetRatings Common Stock at the rate of .01568 shares of NetRatings Common Stock for each share of Company Common Stock (the "Common Exchange Ratio").

(d) Cancellation of Company Capital Stock Owned by NetRatings. At the Effective Time, each share of Company Capital Stock owned by NetRatings or any direct or indirect subsidiary of NetRatings immediately prior to the Effective Time shall be canceled and extinguished without any conversion thereof.

(e) Company Stock Options. At the Effective Time, all options to purchase Company Common Stock then outstanding under the Company Option Plan ("Company Options") at the Effective Time shall be assumed by NetRatings in accordance with Section 5.7.

(f) Capital Stock of Merger Sub. At the Effective Time, each share of Merger Sub Common Stock issued and outstanding immediately prior to the Effective Time shall be converted into and exchanged for one validly issued, fully paid and nonassessable share of common stock of the Surviving Corporation. Each stock certificate of Merger Sub evidencing ownership of any such shares shall continue to evidence ownership of such shares of capital stock of the Surviving Corporation.

(g) Adjustments to Exchange Ratios. The Preferred Exchange Ratio and the Common Exchange Ratio shall each be adjusted to reflect fully the effect of any stock split, reverse split, stock dividend (including any dividend or distribution of securities convertible into NetRatings Common Stock, Company Class A Preferred Stock or Company Common Stock), reorganization, recapitalization or other like change with respect to NetRatings Common Stock, Company Class A Preferred Stock or Company Common Stock occurring after the date hereof and on or prior to the Effective Time or, with respect to the NetRatings Common Stock, after the Effective Time if the record date with respect thereto is set after the date hereof and prior to the Effective Time.

(h) Certificate Legends. The shares of NetRatings Common Stock to be issued pursuant to this Section 2.6 shall not have been registered and shall be characterized as "restricted securities" under the federal securities laws, and under such laws such shares may be resold without registration under the Securities Act, only in certain limited circumstances. Each certificate evidencing shares of NetRatings Common Stock to be issued pursuant to this Section 2.6 shall bear the following legend:

"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH SHARES MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION WITHOUT AN EXEMPTION UNDER THE SECURITIES ACT OR AN OPINION OF LEGAL

COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED."

and any legends required by state securities laws.

2.7 Exchange Procedures.

(a) At or after the Closing, each holder of Company Capital Stock shall deliver to NetRatings any certificate or certificates which immediately prior to the Effective Time represented outstanding shares of Company Capital Stock (each a "Certificate"), which shares were converted into the right to receive shares of NetRatings Common Stock pursuant to Section 2.6, and NetRatings shall issue to each such holder of Company Capital Stock immediately upon receipt of such Certificate a certificate representing the number of whole shares of NetRatings Common Stock into which the shares represented by such Certificate immediately prior to the Effective Time were converted pursuant to Section 2.6 in connection with the Merger, and the Certificate(s) so surrendered shall forthwith be canceled.

(b) Until so surrendered, each outstanding Certificate that, prior to the Effective Time, represented shares of Company Capital Stock will be deemed from and after the Effective Time, for all purposes, to evidence the ownership of the number of full shares of NetRatings Common Stock into which such shares of Company Capital Stock shall have been converted in connection with the Merger.

2.8 No Further Ownership Rights in Company Capital Stock. The Merger Consideration delivered upon the surrender for exchange of shares of Company Capital Stock in accordance with the terms hereof (including any dividends or distributions) shall be deemed to have been issued in full satisfaction of all rights pertaining to such shares of Company Capital Stock, and there shall be no further registration of transfers on the records of the Surviving Corporation of shares of Company Capital Stock which were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged substantially as provided in this Section 2.

2.9 Lost, Stolen or Destroyed Certificates. In the event any Certificates shall have been lost, stolen or destroyed, NetRatings shall issue in exchange for such lost, stolen or destroyed Certificates, upon the making of an affidavit of that fact by the holder thereof such NetRatings Common Stock (and dividends and distributions) as may be required pursuant to Section 2.6; provided, however, that NetRatings may, as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed Certificate to provide to NetRatings an indemnity agreement against any claim that may be made against NetRatings with respect to the Certificate.

2.10 Tax Consequences. It is intended by the parties hereto that the Merger shall constitute a reorganization within the meaning of Section 368(a) of the Code.

2.11 Taking of Necessary Action; Further Action. Subject to the terms and conditions hereof, each of NetRatings, Merger Sub, the Company and ACN will take all such reasonable and lawful actions as may be reasonably necessary or desirable in order to effectuate the Merger in accordance with this Agreement as promptly as possible. If, at any time after the Effective Time, any further action is reasonably necessary or desirable to carry out the purposes of this Agreement and to vest the Surviving Corporation with full right, title and possession to all assets, property, rights, privileges, powers and franchises of the Company and Merger Sub, the officers and directors of the Company and Merger Sub are fully authorized in the name of their respective corporations or otherwise to take, and will take, all such lawful and necessary action, so long as such action is not inconsistent with this Agreement.

3. Representations and Warranties of the Company and ACN. The Company and ACN each represent and warrant to NetRatings and Merger Sub that the statements contained in this Section 3 are true and correct, except as disclosed in a document of even date herewith and delivered by the Company to NetRatings referring to the representations and warranties in this Agreement (the "Company Disclosure Schedule") and as otherwise qualified herein. The Company Disclosure Schedule will be arranged in paragraphs corresponding to the numbered and lettered paragraphs contained in this Section 3, and the disclosure in any such numbered and lettered section of the Company Disclosure Schedule shall qualify only the corresponding subsection in this Section 3 (except to the extent disclosure in any numbered and lettered section of the Company Disclosure Schedule is specifically cross-referenced in another numbered and lettered section of the Company Disclosure Schedule).

3.1 Organization, Standing and Power. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. The Company has the corporate power to own its properties and to carry on its business as now being conducted and as currently proposed to be conducted, and is duly qualified to do business and is in good standing in each jurisdiction in which the failure to be so qualified and in good standing could reasonably be expected to have a Material Adverse Effect on the Company. The Company has delivered to NetRatings true and correct copies of the Company's certificate of incorporation and bylaws, each as amended to date. The Company is not in violation of any of the provisions of its certificate of incorporation or bylaws. The Company has no subsidiaries. Except as set forth in Section 3.1 of the Company Disclosure Schedule, the Company does not directly or indirectly own any equity or similar interest in, or any interest convertible or exchangeable or exercisable for, any equity or similar interest in, any Person.

3.2 Authority. The Company and ACN have all requisite corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Company and ACN, subject only to the approval of the Merger by the Company's stockholders as contemplated by Section 6.1(a). This Agreement has been duly executed and delivered by the Company and ACN and constitutes the valid and binding obligation of each of the Company and ACN enforceable against each of the Company and ACN in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting or relating to creditors' rights generally, and subject to general principles of equity. The execution and delivery of this Agreement by the Company and ACN does not, and the consummation of the transactions contemplated hereby will not, conflict with, or result in any violation of or default under (with or without notice or lapse of time, or both), or give rise to a right of termination, cancellation or acceleration of any material obligation or loss of any material benefit under (i) any provision of the certificate of incorporation or bylaws of the Company or ACN or (ii) any mortgage, indenture, lease, contract or other agreement or instrument, permit, concession, franchise, license, judgment, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or ACN or any of their respective properties or assets, in the case of clause (ii), except as set forth in Section 3.2 of the Company Disclosure Schedule or for such conflicts, violations, defaults, rights of termination, cancellation or acceleration or losses as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company. No consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Entity is required by or with respect to the Company or ACN in connection with the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby, except for (a) the filing of the certificate of merger as provided in Section 2.2, (b) the filing by NetRatings of a Form D with the SEC in accordance with Regulation D following the Effective Time, (c) the filing by NetRatings of a Form 8-K with the

SEC, (d) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws and the securities laws of any foreign country, (e) such filings as may be required under Foreign Antitrust Laws, and (f) such other consents, approvals, orders, authorizations, registrations, declarations or filings which, if not obtained or made, could not reasonably be expected to have a Material Adverse Effect on the Company and could not reasonably be expected to prevent, or materially alter or delay any of the transactions contemplated by this Agreement.

3.3 Governmental Authorization. The Company or ACN has obtained each federal, state, county, local or foreign governmental consent, license, permit, grant, or other authorization of a Governmental Entity (i) pursuant to which the Company currently operates or holds any interest in any of its properties or (ii) that is required for the operation of the Company's business or the holding of any such interests, and all of such consents, grants, permits, licenses or other authorizations are in full force and effect, except where the failure to have obtained any such consents, licenses, permits, grants or other authorizations or maintain any of them in full force and effect could not reasonably be expected to have a Material Adverse Effect on the Company.

3.4 Financial Statements. The Company will deliver to NetRatings its audited balance sheets as of December 31, 1999 and 2000 and its audited statements of operations, cash flows and stockholders' equity for each of the fiscal years then ended (the "Company Audited Financial Statements") on or prior to November 5, 2001. The Company has previously delivered to NetRatings its unaudited balance sheet as of September 30, 2001 (the "Company Balance Sheet") and its unaudited statements of operations and cash flows for the nine-month period then ended (collectively with the Company Balance Sheet, the "Company Unaudited Financial Statements"). The Company Audited Financial Statements and the Company Unaudited Financial Statements are referred to collectively herein as the "Company Financial Statements." The Company Unaudited Financial Statements have been, and the Company Audited Financial Statements will be, prepared in accordance with generally accepted accounting principles (except as disclosed in the notes thereto and except that the Company Unaudited Financial Statements do not contain footnotes and are subject to normal year-end audit adjustments) applied on a consistent basis throughout the periods indicated and with each other. The Company Unaudited Financial Statements fairly present in all material respects the consolidated financial condition and operating results of the Company as of September 30, 2001 and for the nine-month period then ended, subject to normal year-end audit adjustments and the absence of footnotes. The Company Audited Financial Statements will fairly present in all material respects the consolidated financial condition and operating results of the Company as of the dates and for the periods indicated therein. The Company maintains and will continue to maintain a standard system of accounting established and administered in accordance with generally accepted accounting principles.

3.5 Capital Structure. The authorized capital stock of the Company consists of (a) 200,000,000 shares of Company Common Stock, of which 19,900,000 are issued and outstanding as of the date of this Agreement, and (b) 2,000,000 shares of Company Preferred Stock, (i) of which 50,000 shares are designated Company Class A Preferred Stock, one of which is issued and outstanding as of the date of this Agreement, and which, as of the date of this Agreement, is convertible into 80,100,000 shares of Company Common Stock, and (ii) of which 50,000 are designated Class B Preferred Stock, $0.001 par value per share, none of which are outstanding as of the date hereof. All outstanding shares of Company Common Stock and Company Class A Preferred Stock have been duly authorized and validly issued and are fully paid and non-assessable and free of any liens or encumbrances other than any liens or encumbrances created by or imposed upon the holders thereof (including those arising under the Company Stockholders Agreement, the Company Rights Agreement and the Company's certificate of incorporation), and are not subject to preemptive rights or rights of first refusal created by statute, the certificate of incorporation or bylaws of the

Company or any agreement to which the Company is a party or by which it is bound, other than the Company Stockholders Agreement and the Company Rights Agreement. As of the date of this Agreement, there are 10,000,000 shares of Company Common Stock reserved for issuance under the Company Option Plan, of which 5,251,000 are subject to outstanding Company Options, none of which are or will be exercisable prior to the Effective Time. Except for the rights created pursuant to this Agreement, and the Company Options (and any stock option agreements issued in connection therewith) and other rights disclosed above in this Section 3.5 (including any rights under the Company Stockholders Agreement, the Company Option Plan or the Company Rights Agreement) and the Company Class A Preferred Stock, there are no options, warrants, calls, rights, commitments or agreements of any character to which the Company is a party or by which it is bound obligating the Company to issue, deliver, sell, repurchase or redeem or cause to be issued, delivered, sold, repurchased or redeemed, any shares of Company Capital Stock or obligating the Company to grant, extend, accelerate the vesting of, change the price of, or otherwise amend or enter into any such option, warrant, call, right, commitment or agreement. All shares of Company Common Stock issuable upon conversion of the Company Class A Preferred Stock or upon exercise of the Company Options described in this Section 3.5 will be, when issued pursuant to the respective terms of such Company Class A Preferred Stock or Company Options, as applicable, duly authorized, validly issued, fully paid and nonassessable. Other than the Company Stockholders Agreement, the Company Rights Agreement and the Company Option Plan (and any stock option agreements issued thereunder), there are no other contracts, commitments or agreements relating to voting, purchase or sale of the Company's capital stock (i) between or among the Company and any of its stockholders and (ii) to the knowledge of the Company or ACN, between or among any of the Company's stockholders. All shares of outstanding Company Common Stock and Company Class A Preferred Stock and the Company Options were issued in compliance with all applicable federal and state securities laws.

3.6 Absence of Certain Changes. From September 30, 2001 (the "Company Balance Sheet Date") through the date of this Agreement, the Company has conducted its business in the ordinary course consistent with past practice and there has not occurred, except as set forth in Section 3.6 of the Company Disclosure Schedule or as specifically contemplated by this Agreement: (i) any change, event or condition (whether or not covered by insurance) that has resulted in, or could reasonably be expected to result in, a Material Adverse Effect with respect to the Company; (ii) any acquisition, sale or transfer of any material asset of the Company other than in the ordinary course of business and consistent with past practice; (iii) any change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company or any revaluation by the Company of any of its assets, in each case, other than as required by changes in generally accepted accounting principles or other applicable principles of accounting or auditing; (iv) any declaration, setting aside, or payment of a dividend or other distribution with respect to the shares of the Company or any direct or indirect redemption, purchase or other acquisition by the Company of any of its shares of capital stock; (v) any Material Contract entered into by the Company, other than in the ordinary course of business and as provided to NetRatings, or any material amendment or termination of, or default under, any Material Contract; (vi) any amendment or change to the certificate of incorporation or bylaws of the Company; (vii) any increase in or modification of the compensation or benefits payable or to become payable by the Company to any of its directors or employees, other than in the ordinary course of business consistent with past practice; or (viii) any negotiation or agreement by the Company to do any of the things described in the preceding clauses (i) through (vii) (other than negotiations with NetRatings and its representatives regarding the transactions contemplated by this Agreement). At the Effective Time, there will be no accrued but unpaid dividends on shares of the Company's capital stock.

3.7 Absence of Undisclosed Liabilities. The Company has no material obligations or liabilities of any nature (matured or unmatured, fixed or contingent) other than (i) those set forth or adequately provided for in the Company Balance Sheet, (ii) those incurred in the ordinary course of business and not required to be set forth in the Company Balance Sheet under generally accepted accounting principles, (iii) those incurred in the ordinary course of business since the Company Balance Sheet Date and consistent with past practice, and (iv) those incurred in connection with the execution and performance of this Agreement, including those arising as Transition Costs or in connection with Transition Matters.

3.8 Litigation. Except as set forth in Section 3.8 of the Company Disclosure Schedule, as of the date of this Agreement, there is no private or governmental action, suit, proceeding, claim, arbitration or investigation pending before any Governmental Entity, foreign or domestic (excluding collection actions brought by the Company in the ordinary course consistent with past practice), or, to the knowledge of the Company or ACN, threatened in writing against the Company or any of its properties or any of its officers or directors (in their capacities as such), and as of the Effective Time there will be none pending against the Company or any of its properties that are material to the Company. As of the date of this Agreement, there is no judgment, decree or order against the Company, or, to the knowledge of the Company or ACN, any of its directors or officers (in their capacities as such), and as of the Effective Time there will be no judgment, decree or order against the Company that is material to the Company.

3.9 Restrictions on Business Activities. Except as set forth in Section 3.9 of the Company Disclosure Schedule, there is no agreement, judgment, injunction, order or decree binding upon the Company which has or could reasonably be expected to have the effect of prohibiting or materially impairing any current or future business practice of the Company, any acquisition of property by the Company or the conduct of business by the Company as currently conducted or as currently proposed to be conducted by the Company.

3.10 Intellectual Property.

(a) For purposes of this Agreement, "Intellectual Property" means:

(i) all United States and foreign issued patents, reissued or reexamined patents, revivals of patents, utility models, certificates of invention, registrations of patents and extensions thereof, regardless of country or formal name (collectively, "Issued Patents");

(ii) all United States and foreign published or unpublished provisional and substantive patent applications, reexamination proceedings, invention disclosures and records of invention (collectively "Patent Applications" and, with the Issued Patents, "Patents");

(iii) all United States and foreign copyrights and copyrightable works, including all rights of authorship, use, publication, reproduction, distribution, performance transformation, moral rights and rights of ownership of copyrightable works, and all rights to register and obtain renewals and extensions of registrations, together with all other interests accruing by reason of international copyright conventions (collectively, "Copyrights");

(iv) trademarks, registered trademarks, applications for registration of trademarks, service marks, registered service marks, applications for registration of service marks, trade names, registered trade names and applications for registrations of trade names (collectively, "Trademarks") and domain name registrations;

(v) all technology, ideas, inventions, designs, proprietary information, manufacturing and operating specifications, know-how, formulae, trade secrets, technical data, computer programs, software and processes; and

(vi) all other intangible assets, properties and rights (whether or not appropriate steps have been taken to protect, under applicable law, such other intangible assets, properties or rights).

(b) The Company owns and has good and marketable title to, or possesses legally enforceable rights to use, all material Intellectual Property used in the business of the Company as currently conducted by the Company, subject to such exceptions as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company. The Intellectual Property owned by and licensed to the Company collectively constitutes all of the Intellectual Property necessary to enable the Company to conduct its business as such business is currently being conducted, subject to such exceptions as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company. Other than NetRatings or, as set forth on Section 3.10(b) of the Company Disclosure Schedule, ACN, no current or former officer, director, stockholder, employee, consultant or independent contractor has any right, claim or interest in or with respect to any Company Intellectual Property. Except as set forth in Section 3.10(b) of the Company Disclosure Schedule, there are no royalties, fees or other payments payable by the Company to any Person (other than NetRatings) under any written or oral contract or understanding by reason of the ownership, use, sale or disposition of Company Intellectual Property. Notwithstanding anything to the contrary in this Agreement, NetRatings and Merger Sub hereby acknowledge and agree that, to the extent that any Company Intellectual Property is owned by NetRatings or is licensed from NetRatings, neither the Company nor ACN shall be liable for any breach, default or misrepresentation in or under this Section 3.10 which arises from or in connection with any defect in said Intellectual Property or any rights associated therewith, where such defect or absence of rights was the result of or arises out of any action or inaction on the part of NetRatings. Further, notwithstanding anything to the contrary in this Agreement, it shall under no circumstances constitute a breach, default or misrepresentation by the Company or ACN of or under any representation or warranty set forth in this Section 3.10, if any such representation or warranty shall be inaccurate or incorrect or incomplete due to any breach, default or misrepresentation by NetRatings in, of, or under any contract or agreement or other understanding between NetRatings and the Company, or the inaccuracy or incorrectness of any representation or warranty set forth in any such contract or agreement or understanding.

(c) With respect to each item of Intellectual Property incorporated into any product of the Company or otherwise used in the business of the Company (except "off the shelf" or other software widely available through regular commercial distribution channels at a cost not exceeding $10,000 on standard terms and conditions and any Intellectual Property licensed from or contributed by NetRatings), as modified for the Company's operations ("Company Intellectual Property"), Schedule 3.10(c) of the Company Disclosure Schedule lists:

(i) all Patents and Patent Applications, all registered Trademarks and pending trademark registrations and all registered Copyrights (in each case only to the extent any of the foregoing are owned by or have been assigned to the Company), including the jurisdictions in which each such Intellectual Property has been issued or registered or in which any such application for such issuance or registration has been filed; and

(ii) the following agreements relating to the Company Intellectual Property other than any such agreements to which NetRatings is a party: (A) any exclusive licenses of

Intellectual Property to or from the Company; (B) agreements pursuant to which the amounts actually paid or payable under firm commitments to the Company are $50,000 or more; (C) joint development agreements; (D) any agreement by which the Company grants any ownership right to any Company Intellectual Property owned by the Company (other than with customers or panelists entered into in the ordinary course of business); (E) any option relating to any Company Intellectual Property; and (F) agreements pursuant to which any party is granted any rights to access source code or to use source code to create derivative works of Company Intellectual Property.

(d) Section 3.10(d) of the Company Disclosure Schedule lists all licenses, sublicenses and other agreements to which the Company is a party and pursuant to which the Company is authorized to use any Intellectual Property owned by any third party, excluding (i) "off the shelf" or other software at a cost not exceeding $10,000 and widely available through regular commercial distribution channels on standard terms and conditions and (ii) any Intellectual Property licensed from or contributed by NetRatings ("Third Party Intellectual Property").

(e) To the knowledge of the Company and ACN, as of the date of this Agreement, there is no unauthorized use, disclosure, infringement or misappropriation of any material Company Intellectual Property, including any Third Party Intellectual Property, by any third party, including any employee or former employee of the Company or ACN. There will be no such unauthorized use, disclosure, infringement or misappropriation at any time between the date of this Agreement and the Effective Time, subject to such exceptions as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company. Except as set forth in Section 3.10(e) of the Company Disclosure Schedule, the Company has not entered into any agreement to indemnify any other person against any charge of infringement of any Intellectual Property, other than indemnification provisions contained in standard sales or agreements to end users arising in the ordinary course of business, the forms of which have been delivered to NetRatings or its counsel and indemnification provisions contained in any agreements between the Company and NetRatings. There are no royalties, fees or other payments payable to the Company by any Person by reason of the ownership, use, sale or disposition of Intellectual Property.

(f) The Company is not in breach in any material respect of any license, sublicense or other agreement relating to the Company Intellectual Property or Third Party Intellectual Property which is material to the Company, or where such breach could reasonably be expected to result in material harm or a material loss to the Company. Except as set forth in Section 3.10(f) of the Company Disclosure Schedule, neither the execution, delivery nor performance of this Agreement or any ancillary agreements contemplated hereby, nor the consummation of the Merger or any of the other transactions contemplated by this Agreement, will violate, or conflict with in any material respect, or result in an infringement on the Company's right to own or use any Company Intellectual Property, including any Third Party Intellectual Property, which is material to the Company or where such violation, conflict or infringement could reasonably be expected to result in material harm or a material loss to the Company.

(g) All material Patents and registered Trademarks and Copyrights owned by or assigned to the Company are valid and subsisting. All maintenance and annual fees have been fully paid and all fees paid during prosecution and after issuance of any Patent comprising or relating to such item have been paid in the correct entity status amounts. The Company is not infringing, misappropriating or making unlawful use of, and has not received any written notice or other written communication of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any proprietary asset owned or used by any third party, where such infringement, misappropriation or use could reasonably be expected to

result in material harm or a material loss to the Company or is known to the Company or ACN as of the date of this Agreement. As of the date of this Agreement, except as set forth in Section 3.10(g) of the Company Disclosure Schedule, to the knowledge of the Company and ACN, there is no proceeding pending or threatened in writing against the Company, nor has any written claim or demand been made to the Company or ACN, which challenges the legality, validity, enforceability or ownership of any item of Company Intellectual Property or Third Party Intellectual Property or alleges a claim of infringement by the Company of any Intellectual Property of any third party. As of the Effective Time, no proceeding will be pending against the Company or will have been threatened against the Company in writing to the Company or ACN, nor will any written claim or demand have been made upon the Company or ACN, which challenges the legality, validity, enforceability or ownership of any item of Company Intellectual Property or Third Party Intellectual Property or alleges a claim of infringement by the Company of any Intellectual Property of any third party, in each case subject to such exceptions as could not reasonably be expected to have a Material Adverse Effect on the Company. The Company has not brought a proceeding alleging infringement of Company Intellectual Property or breach of any license or agreement involving Intellectual Property against any third party.

(h) All current and former officers and employees of the Company who have or had access to any Company Intellectual Property have executed and delivered to the Company an agreement regarding the protection of proprietary information and the assignment to the Company of any Intellectual Property arising from services performed for the Company by such persons, except where the failure by the Company to have obtained such agreement could not reasonably be expected to have a Material Adverse Effect on the Company. All current and former consultants and independent contractors to the Company involved in the development or modification of Company Intellectual Property have executed and delivered to the Company an agreement regarding the protection of proprietary information and the assignment to the Company of any intellectual property arising from services performed for the Company by such persons, except where the failure by the Company to have obtained such agreement could not reasonably be expected to have a Material Adverse Effect on the Company. To the knowledge of the Company, no employee or independent contractor of the Company is in violation of any term of any patent disclosure agreement or employment contract or any other contract or agreement relating to the relationship of any such employee or independent contractor with the Company, subject only to such exceptions as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company. Except for NetRatings or, as set forth in Section 3.10(h) of the Company Disclosure Schedule, ACN, no current or former officer, director, stockholder, employee, consultant or independent contractor has any right, claim or interest in or with respect to any Company Intellectual Property, subject only to such exceptions as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company.

(i) The Company has taken commercially reasonable and customary measures and precautions as necessary to protect and maintain the confidentiality of all Company Intellectual Property (except such Company Intellectual Property whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the full value of all Company Intellectual Property it owns or uses, subject only to such exceptions as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company. The Company has not disclosed confidential proprietary information of the Company to any third party, either directly or through a third party, except pursuant to the terms of a written confidentiality agreement between the Company and such third party and, to the knowledge of the Company and ACN, no disclosure or use of any such information by or on behalf of a third party has occurred without the Company's consent or as otherwise

permitted under such confidentiality agreements, in each case, subject to such exceptions as could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect on the Company.

(j) As of the date of this Agreement, the Company is not subject to any proceeding or outstanding decree, order, judgment, or stipulation restricting in any manner the use, transfer or licensing by the Company of any Company Intellectual Property which is material to the Company which could reasonably be expected to materially and adversely affect the validity, use or enforceability of such Company Intellectual Property. As of the Effective Time, the Company will not be subject to any proceeding or outstanding decree, order, judgment, or stipulation restricting in any manner the use, transfer or licensing of any Company Intellectual Property which is material to the Company by the Company or which could reasonably be expected to materially and adversely affect the validity, use or enforceability of such Company Intellectual Property, subject in each case to such exceptions as could not reasonably be expected to have a Material Adverse Effect on the Company. Other than agreements to which NetRatings is a party, the Company is not subject to any agreement which restricts in any material respect the use, transfer, delivery or licensing by the Company of any Company Intellectual Property or any products or services of the Company.

3.11 Interested Party Transactions. The Company is not indebted to any director, officer, or employee of the Company (except for amounts due as normal salaries and bonuses and in reimbursement of expenses incurred in the ordinary course of business), and no such person is indebted to the Company. Other than as set forth in Section 3.11 of the Company Disclosure Schedule or as contemplated by this Agreement, and except for transactions with NetRatings, there have been no transactions since inception which would require disclosure if the Company were subject to disclosure under Item 404 of Regulation S-K under the Securities Act.

3.12 Minute Books. The minute books of the Company made available to NetRatings contain a materially complete and accurate summary of all meetings of directors and stockholders or actions by written consent since the time of incorporation of the Company through the date of this Agreement, and reflect all material transactions referred to in such minutes accurately in all material respects.

3.13 Material Contracts. All Material Contracts to which the Company is a party as of the date of this Agreement are listed in Section 3.13 of the Company Disclosure Schedule, excluding Material Contracts to which NetRatings is a party. With respect to each Material Contract, (x) except as set forth in Section 3.13 of the Company Disclosure Schedule and (y) except for Material Contracts which expire or are terminated in accordance with their terms after the date hereof or are terminated after the date hereof in connection with a Transition Matter, and (z) other than, as to clauses (ii) and (iii), Material Contracts to which NetRatings is a party: (i) the Material Contract is legal, valid, binding and enforceable and in full force and effect with respect to the Company, subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and except as the availability of equitable remedies may be limited by general principles of equity; (ii) to the knowledge of the Company and ACN, the Material Contract is legal, valid, binding, enforceable and in full force and effect with respect to each other party thereto, subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and except as the availability of equitable remedies may be limited by general principles of equity; (iii) the Material Contract will continue to be legal, valid, binding and enforceable and in full force and effect immediately following the Effective Time in accordance with the terms thereof as in effect prior to the Effective Time, subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and except as the availability of equitable remedies may be limited by general principles of equity; and (iv) neither

the Company nor, to the knowledge of the Company and ACN, any other party, is in material breach or default, and no event has occurred which (with notice or lapse of time) would constitute a material breach or default by the Company or, to the knowledge of the Company or ACN, by any such other party, or permit termination, or material modification or acceleration, under the Material Contract. Notwithstanding anything to the contrary in this Section 3.13, it shall under no circumstances constitute a breach, misrepresentation or default by the Company or ACN of or under any representation or warranty set forth in this Agreement, if any such representation or warranty shall be inaccurate or incorrect or incomplete due to any breach, default or misrepresentation by NetRatings in, of or under any contract, agreement or other understanding between NetRatings and the Company. "Material Contract" means any contract, agreement or commitment to which the Company is a party (i) with expected receipts or expenditures in excess of $50,000, (ii) required to be listed on the Company Disclosure Schedule pursuant to Section 3.10(c)(ii) or Section 3.10(d), (iii) requiring the Company to indemnify any Person, except for agreements substantially similar to the standard forms of end-user licenses previously delivered by the Company to NetRatings, (iv) granting any exclusive rights to any party, (v) evidencing indebtedness for borrowed or loaned money of $50,000 or more, including guarantees of any such indebtedness, or (vi) which could reasonably be expected to have a Material Adverse Effect on the Company, if breached by the Company in such a manner as would (A) permit any other party to cancel or terminate the same (with or without notice of passage of time) or (B) provide a basis for any other party to claim money damages (either individually or in the aggregate with all other such claims under that contract) from the Company or (C) give rise to a right of acceleration of any material obligation or loss of any material benefit under any such contract, agreement or commitment.

3.14 Accounts Receivable. Subject to any reserves set forth in the Company Financial Statements, the accounts receivable shown on the Company Financial Statements, have arisen solely out of bona fide sales and deliveries of goods, performance of services, and other business transactions in the ordinary course of business consistent with past practices, are not, except as set forth in Section 3.14 of the Company Disclosure Schedule, subject to any prior assignment, lien or security interest and, to the knowledge of the Company or ACN, are not subject to valid defenses, set-offs or counter claims. The reserves for doubtful accounts on the Company Financial Statements have been booked in accordance with generally accepted accounting principles applied in a manner consistent with the Company's past practice, were reasonable in amount at the time they were established, and are believed by the Company and ACN to be reasonable in amount as of the date of this Agreement.

3.15 Customers and Suppliers. Since January 1, 2001 through the date of this Agreement, except as set forth in Section 3.15 of the Company Disclosure Schedule, no customer or supplier of the Company whose aggregate payments to or from the Company during the 12 months ended September 30, 2001 were not less than $50,000 or whose agreements or arrangements with the Company contemplate such aggregate payments during the 12 months immediately following September 30, 2001 has canceled or otherwise terminated, or made any written threat to the Company to cancel or otherwise terminate, its relationship with the Company, and to the knowledge of the Company or ACN, no such supplier or customer has indicated in writing its intention to cancel or otherwise terminate its relationship with the Company or to decrease materially its services or supplies to the Company or its usage of the services or products of the Company, as the case may be.

3.16 Employees and Consultants. Section 3.16 of the Company Disclosure Schedule contains, as of the date of this Agreement, (a) a list of the names and positions of (i) all full-time employees of the Company and (ii) employees of ACN and its affiliates leased by the Company who devote their full work time to the Company, (b) their respective salaries or wages and 2001

bonus targets and (c) the dates on which they started working for the Company. Section 3.16 of the Company Disclosure Schedule lists all employees of ACN who, as of the date of this Agreement, provide material services to the Company other than individuals who provide Shared Services, as such term is defined in the Services Agreement.

3.17 Title to Property. The Company has (a) good and marketable title to all of its tangible assets and personal properties reflected as owned in the Company Balance Sheet or acquired after the date of the Company Balance Sheet (except properties and assets which have been sold or otherwise disposed of, or have become obsolete, since the Company Balance Sheet Date in the ordinary course of business), and (b) with respect to leased real and tangible personal properties and assets, valid leasehold interests therein, free and clear of all mortgages, liens, pledges, charges or encumbrances of any kind or character, except (i) liens for current taxes not yet due and payable, (ii) such imperfections of title, liens and easements as do not and will not materially detract from or interfere with the use of the properties subject thereto or affected thereby, or otherwise materially impair business operations involving such properties, (iii) liens securing debt which are reflected on the Company Balance Sheet and (iv) such other mortgages, liens, pledges, charges or encumbrances as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company. The plants, property and equipment of the Company that are used in the operations of its business are in all material respects in good operating condition and repair, subject to normal wear and tear. All properties used in the operations of the Company as of September 30, 2001 are reflected in the Company Balance Sheet to the extent required by generally accepted accounting principles. All leases with respect to real and tangible personal property to which the Company is a party are in full force and effect and are valid, binding and enforceable in accordance with their respective terms, on the Company and, to the knowledge of the Company and ACN, the other party or parties thereto, in each case, subject to the effect of bankruptcy, insolvency, reorganization, moratorium, or other similar laws affecting the enforcement of creditors' rights generally and except as the availability of equitable remedies may be limited by general principles of equity. True and correct copies of all leases with respect to tangible personal property that contemplate payments by the Company exceeding $50,000 per year and all leases with respect to real property have been provided to NetRatings. The Company owns no real property.

3.18 Environmental Matters. To the knowledge of the Company and ACN, the Company is not in violation of any applicable statute, law or regulation relating to the environment or occupational health and safety, and to each of their knowledge, no material expenditures are or will be required in order to comply with any such existing statute, law or regulation.

3.19 Taxes. Except as set forth in Section 3.19 of the Company Disclosure Schedule:

(a) As used in this Agreement, the terms "Tax" and, collectively, "Taxes" mean any and all federal, state and local taxes of any country, assessments and other governmental charges, duties, impositions and liabilities, including taxes based upon or measured by gross receipts, income, profits, sales, use and occupation, and value added, ad valorem, stamp transfer, franchise, withholding, payroll, recapture, employment, excise and property taxes, together with all interest, penalties and additions imposed with respect to such amounts and any obligations under any agreements or arrangements with any other person with respect to such amounts and including any liability for taxes of a predecessor entity.

(b) The Company has prepared and timely filed all material returns, estimates, information statements and reports required to be filed by the Company prior to the Effective Time with any taxing authority ("Returns") relating to any and all Taxes concerning or attributable to the Company or its operations with respect to Taxes for any period ending on

or before the Closing Date and such Returns are true and correct in all material respects and have been completed in all material respects in accordance with applicable law.

(c) The Company, as of the Closing Date: (i) will have paid all Taxes shown to be payable on such Returns covered by Section 3.19(b) and (ii) will have withheld with respect to its employees all Taxes required to be withheld.

(d) There is no material Tax deficiency outstanding or assessed or, to the knowledge of the Company or ACN, proposed in writing against the Company that is not reflected as a liability on the Company Balance Sheet nor has the Company executed any agreements or waivers extending any statute of limitations on or extending the period for the assessment or collection of any Tax.

(e) The Company has no material liabilities for unpaid Taxes that have not been accrued for or reserved on the Company Balance Sheet in accordance with generally accepted accounting principles, whether asserted or unasserted, contingent or otherwise and neither the Company nor ACN has any knowledge of any basis for the assertion of any such material liability attributable to the Company, its assets or operations.

(f) The Company is not a party to any tax-sharing agreement or similar arrangement with any other party, and the Company has not assumed an obligation to pay any Tax obligations of, or with respect to any transaction relating to, any other person or agreed to indemnify any other person with respect to any Tax.

(g) The Company's Returns have never been audited by a government or taxing authority, nor is any such audit in process or pending, and the Company has not been notified in writing of any request for such an audit or other examination.

(h) The Company has never been a member of an affiliated group of corporations filing a consolidated federal income tax return other than a group the common parent of which is ACN or ACN Holdings, Inc.

(i) The Company has disclosed to NetRatings (i) any Tax exemption, Tax holiday or other Tax sparing arrangement that the Company has in any jurisdiction, including the nature, amount and lengths of such Tax exemption, Tax holiday or other Tax-sparing arrangement and (ii) any expatriate tax programs or policies affecting the Company. The Company is in compliance in all material respects with all terms and conditions required to maintain such Tax exemption, Tax holiday or other Tax-sparing arrangement and the consummation of the transactions contemplated hereby will not have any adverse effect on the continuing validity and effectiveness of any such Tax exemption, Tax holiday or other Tax-sparing arrangement or order.

(j) The Company has made available to NetRatings copies of all material Returns filed for all periods since its inception.

(k) The Company has not filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(4) apply to any disposition of assets owned by the Company.

(l) The Company has not been at any time a United States Real Property Holding Corporation within the meaning of Section 897(c)(2) of the Code.

(m) The Company does not have any liability for the Taxes of any corporation or other business entity (other than the Company), other than any Person that is or was a member of a group the common parent of which is ACN or ACN Holdings, Inc., as contemplated by Section 3.19(h), under Treasury Regulation § 1.1502-6 or any similar provision of state, local or foreign law.

3.20 Employee Benefit Plans.

(a) Section 3.20 of the Company Disclosure Schedule contains a complete and accurate list of each material plan, program, policy, practice, contract, agreement or other arrangement providing for employment, compensation, retirement, deferred compensation, loans, severance, separation, relocation, repatriation, expatriation, visas, work permits, termination pay, performance awards, bonus, incentive, stock option, stock purchase, stock bonus, phantom stock, stock appreciation right, supplemental retirement, fringe benefits, cafeteria benefits, or other benefits, whether written or unwritten, including, without limitation, each "employee benefit plan" within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), which is or has been sponsored, maintained, contributed to, or required to be contributed to by the Company or maintained for the benefit of employees of the Company and, with respect to any such plans which are subject to Code Section 401(a), any trade or business (whether or not incorporated) which is or, at any relevant time, was treated as a single employer with the Company within the meaning of Section 414(b), (c), (m) or (o) of the Code (an "ERISA Affiliate"), (collectively, the "Company Employee Plans"). Except as otherwise disclosed in Section 3.20 of the Company Disclosure Schedule, such Section separately lists each Company Employee Plan that has been adopted or maintained by the Company, whether formally or informally, for the benefit of employees outside the United States ("Company International Employee Plans").

(b) The Company has furnished to NetRatings true and complete copies of documents embodying each of the Company Employee Plans (other than the Company International Employee Plans) and summary plan descriptions of such Plans, and Form 5500 (Annual Report) for the most recent plan year. The Company has furnished NetRatings with the most recent Internal Revenue Service determination letter issued with respect to each such Company Employee Plan, and to the knowledge of the Company, nothing has occurred since the issuance of each such letter which could reasonably be expected to cause the loss of the tax-qualified status of any Company Employee Plan subject to Code Section 401(a).

(c) Except as set forth in Section 3.20(c) of the Company Disclosure Schedule, (i) each Company Employee Plan (other than the Company International Employee Plans) has been administered in accordance with its terms and in compliance with the requirements prescribed by any and all statutes, rules and regulations (including ERISA and the Code), except, in each case, as could not reasonably be expected to have, in the aggregate, a Material Adverse Effect on the Company, and the Company and each ERISA Affiliate have performed all material obligations required to be performed by them under, are not in material respect in default under or violation of and have no knowledge of any material default or violation by any other party to, any such Company Employee Plans; (ii) any Company Employee Plan intended to be qualified under Section 401(a) of the Code has either obtained from the Internal Revenue Service a favorable determination letter as to its qualified status under the Code, including all amendments to the Code which are currently effective, or has time remaining to apply under applicable Treasury Regulations or Internal Revenue Service pronouncements for a determination or opinion letter and to make any amendments necessary to obtain a favorable determination or opinion letter; (iii) none of the Company Employee Plans maintained in the United States promises or provides retiree medical or other retiree welfare benefits to any person employed or formerly employed by the Company; (iv) there has been no "prohibited transaction," as such term is defined in Section 406 of ERISA or Section 4975 of the Code, with respect to any Company Employee Plan, subject to such exceptions as could not reasonably be expected to have a Material Adverse Effect on the Company; (v) none of the Company or any ERISA Affiliate is subject to any liability or penalty under Sections 4976 through 4980 of the Code or Title I of ERISA with respect to any Company Employee Plan,

subject to such exceptions as could not reasonably be expected to have a Material Adverse Effect on the Company; (vi) all contributions required to be made by the Company to any Company Employee Plan have been paid or accrued on the Company Financial Statements or the books of the Company; (vii) with respect to each Company Employee Plan, no "reportable event" within the meaning of Section 4043 of ERISA (excluding any such event for which the thirty (30) day notice requirement has been waived under the regulations to Section 4043 of ERISA) nor any event described in Section 4062, 4063 or 4041 or ERISA has occurred, subject to such exceptions as could not reasonably be expected to have a Material Adverse Effect on the Company; (viii) each Company Employee Plan subject to ERISA, has prepared in good faith and timely filed all requisite governmental reports (which were true and correct as of the date filed) and has properly and timely filed and distributed or posted all notices and reports to employees required to be filed, distributed or posted with respect to each such Company Employee Plan, subject to such exceptions as could not reasonably be expected to have a Material Adverse Effect on the Company; (ix) no suit, administrative proceeding, action or other litigation has been brought, or, to the knowledge of the Company or ACN is threatened in writing, against or with respect to any such Company Employee Plan, including any audit or inquiry by the IRS or United States Department of Labor; and (x) there has been no amendment to, written interpretation or announcement by the Company which could reasonably be expected to materially increase the expense of maintaining any Company Employee Plan above the level of expense incurred with respect to that plan for the most recent fiscal year included in the Company Financial Statements.

(d) Except as provided in Section 3.20(d) of the Company Disclosure Schedule, neither the Company nor ACN maintains, sponsors, participates in, contributes to, or is obligated to contribute to, or has otherwise incurred any obligation or liability (including, without limitation, any contingent liability) under any "multiemployer plan" (as defined in Section 3(37) of ERISA) or to any "pension plan" (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA or Section 412 of the Code. None of the Company or any ERISA Affiliate has any actual or potential withdrawal liability (including, without limitation, any contingent liability) for any complete or partial withdrawal (as defined in Sections 4203 and 4205 of ERISA) from any multiemployer plan (as defined in Section 3(37) of ERISA), subject to such exceptions as could not reasonably be expected to have a Material Adverse Effect on the Company.

(e) With respect to each Company Employee Plan, the Company has complied with (i) the applicable health care continuation and notice provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") and the regulations thereunder or any state law governing health care coverage extension or continuation; (ii) the applicable requirements of the Family and Medical Leave Act of 1993 and the regulations thereunder; (iii) the applicable requirements of the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"); and (iv) the applicable requirements of the Cancer Rights Act of 1998, in each case, except to the extent that such failure to comply could not reasonably be expected to have, in the aggregate, a Material Adverse Effect on the Company. The Company has no material unsatisfied obligations to any employees, former employees, or qualified beneficiaries pursuant to COBRA, HIPAA, or any state law governing health care coverage extension or continuation.

(f) Except as set forth in Section 3.20(f) of the Company Disclosure Schedule, the consummation of the transactions contemplated by this Agreement (other than Transition Matters) will not (i) entitle any current or former employee, independent contractor or consultant of or to the Company or any ERISA Affiliate to material severance benefits or any other material payment (including, without limitation, unemployment compensation, golden

parachute, bonus or benefits under any Company Employee Plan), except as expressly provided in this Agreement or (ii) accelerate the time of payment or vesting of any such benefits or increase the amount of compensation due any such employee, independent contractor or consultant. No benefit payable or which may become payable by the Company pursuant to any Company Employee Plan or as a result of or arising under this Agreement shall constitute an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code) which is subject to the imposition of an excise Tax under Section 4999 of the Code or the deduction for which would be disallowed by reason of Section 280G of the Code. Except as set forth in Section 3.20(f) of the Company Disclosure Schedule, each Company Employee Plan can be amended, terminated or otherwise discontinued after the Effective Time in accordance with its terms, without material liability to NetRatings or the Company (other than ordinary administration expenses typically incurred in a termination event).

(g) Except as set forth in Section 3.20(g) of the Company Disclosure Schedule, each Company International Employee Plan has been established, maintained and administered in compliance in all material respects with its terms and conditions and with the requirements prescribed by any and all statutory or regulatory laws that are applicable to such International Company Employee Plan. No Company International Employee Plan has unfunded liabilities, that, as of the Effective Time, will not be offset by insurance or fully accrued on the Company Financial Statements or the books of the Company. Except as required by law, no condition exists that would result in material liability to the Company or NetRatings should any International Company Employee Plan (other than the Company Option Plan) be terminated or amended at any time for any reason.

3.21 Employee Matters. The Company and, as to employees of ACN and its affiliates (other than NetRatings) that render services to the Company and are listed in Section 3.16 of the Company Disclosure Schedule ("Leased Employees"), ACN and its affiliates (other than NetRatings) are in compliance in all material respects with all currently applicable laws and regulations respecting terms and conditions of employment including, without limitation, applicant and employee background checking, immigration laws, discrimination laws, verification of employment eligibility, employee leave laws, classification of workers as employees and independent contractors, wage and hour laws, and occupational safety and health laws. As of the date of this Agreement, there are no proceedings pending or, to the knowledge of the Company or ACN, threatened in writing, between the Company and any of its current or former employees or Leased Employees. As of the Effective Time, there will be no such proceedings pending or, to the knowledge of the Company or ACN, threatened in writing, subject to such exceptions as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company. As of the date of this Agreement, there are no claims pending, or, to the knowledge of the Company or ACN, threatened in writing, against the Company under any workers' compensation or long term disability plan or policy. As of the Effective Time, there will be no such claims pending or, to the knowledge of the Company or ACN, threatened in writing, subject to such exceptions as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company. Except as set forth in Section 3.20(a) of the Company Disclosure Schedule, the Company is not a party to any collective bargaining agreement or other labor union contract in the United States and, to the Company's and ACN's knowledge, is not a party to such agreement or contract outside of the United States, except for those imposed by statute or local law or disclosed on Section 3.20(a) of the Company Disclosure Schedule, nor does the Company have knowledge of any activities or proceedings of any labor union to organize its employees. The Company has provided all employees, and ACN and its affiliates have provided all Leased Employees, with all wages, benefits, relocation benefits, stock options, bonuses and incentives, and all other compensation which became due and payable through the date of this Agreement.

3.22 Insurance. On the date of this Agreement, the Company has or is currently covered by, and until immediately prior to the Effective Time will have or will be covered by, policies of insurance and bonds of the type and in amounts customarily carried by persons conducting businesses or owning assets similar to those of the Company. There is no material claim relating to the Company pending under any of such policies or bonds as to which coverage has been denied or disputed by the underwriters of such policies or bonds. All premiums due and payable under all such policies and bonds have been paid, and the Company is otherwise in compliance in all material respects with the terms of such policies and bonds.

3.23 Compliance with Laws. The Company has complied in all material respects with, is not in material violation of and has not received any notices of material violation with respect to, any federal state, local or foreign statute, law or regulation with respect to the conduct of its business, or the ownership or operation of its business.

3.24 Brokers' and Finders' Fees. Except as set forth in Section 3.24 of the Company Disclosure Schedule, neither ACN nor the Company has incurred any obligation for any brokerage or finders' fees or agents' commissions or investment bankers' fees or any similar charges in connection with the Merger, this Agreement or any transaction contemplated hereby for which NetRatings or the Surviving Corporation will be liable.

3.25 Privacy Policy.

(a) For purposes of this Section 3.25:

(i) "Written Panelist Privacy Statement" means the Company's privacy policy statement applicable to information collected from the Company's panel subjects, which statement is delivered in written form to such panel subjects.

(ii) "Electronic Panelist Privacy Statement" means the Company's privacy policy statement applicable to information collected from the Company's panel subjects, which statement is presented electronically to the person installing the software which enables the gathering of the information described in the statement.

(iii) "Public Website Privacy Statement" means the Company's privacy policy statement on its public site on the World Wide Web applicable to information collected via the Company's public site on the World Wide Web.

(b) Panel Subjects.

(i) The Written Panelist Privacy Statement and Electronic Panelist Privacy Statement are accurate and consistent in all material respects with the Company's actual practices with respect to the collection and disclosure of personally identifiable information of the Company's panel subjects. The Company does not use or disclose information obtained from panelists unless, at the time the Company's data collection software is installed, the installer of such software accepts, by means of a click-through, the Company's Electronic Panelist Privacy Statement. The Written Panelist Privacy Statement and Electronic Panelist Privacy Statement comply in all material respects with all applicable privacy laws and regulations regarding the disclosure of personal data as applicable to personally identifiable data collected by the Company of the Company's panel subjects. The Company's use and distribution of all personally identifiable data collected by the Company from the Company's panel subjects is governed by law and the Written Panelist Privacy Statement and Electronic Panelist Privacy Statement pursuant to which the data was collected. Attached as Section 3.25(b) of the Company Disclosure Schedule are true and correct copies of: (i) the Electronic Panelist Privacy Statement in

English, and (ii) a Written Panelist Privacy Statement that is substantially similar in all material respects to the actual versions delivered to panelists.

(ii) Other than such technological and procedural measures which have been implemented by NetRatings or are otherwise under NetRatings' control, the Company has commercially reasonable technological and procedural measures in place to protect data collected from the Company's panel subjects against loss, theft, unauthorized access or disclosure. The Company does not sell, or rent to third parties any personally identifiable data submitted by the Company's panel subjects. Other than as constrained by the Written Panelist Privacy Statement and Electronic Panelist Privacy Statement and by applicable laws and regulations, the Company is not restricted in its use and/or distribution of personal data collected by the Company from its panelists. The Company has not received written notice of any material claims that have arisen regarding the Written Panelist Privacy Statement and Electronic Panelist Privacy Statement or the implementation thereof.

(i) The Company maintains a link to the Public Website Privacy Statem

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