Agreement - Netvalue SA and NetRatings Inc.
AGREEMENT
BETWEEN:
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- Netvalue S.A., a French stock corporation (societe anonyme) with an issued
share capital of EUR 2,213,807.50 registered with the Commercial Registry
of Nanterre under No. 418 508 115 and having its registered offices at 8
rue de l'Hotel de Ville 92200 Neuilly sur Seine (hereinafter referred to as
"Netvalue"), represented by Lennart Brag, its chairman,
(hereinafter referred to as the "Company" or "Netvalue")
AND:
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- NetRatings is a Delaware corporation with its principal offices at 890
Hillview Court, Milpitas, California, United States (Zip Code : 95035),
having an authorized share capital of 200,000,000 shares of USD 0.001 par
value, common stock.
Represented by Todd Sloan, Executive Vice President of Corporate
Development & CFO,
(hereinafter referred to as "NetRatings")
(The Company and NetRatings are hereinafter collectively referred to as the
"Parties")
WHEREAS:
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A. After discussions, NetRatings which is a key player in the market of
internet audience measurement and analysis of consumer behavior, and
Netvalue have decided that Netvalue should become part of the NetRatings
group. To that effect, NetRatings will acquire from certain shareholders of
Netvalue shares representing more than 50% of the issued and outstanding
share capital of Netvalue (and greater than 50% of the outstanding voting
power of Netvalue shares, as calculated after such acquisition) in exchange
(i) for cash at EUR 2 per share (the "Offer Price") or (ii) newly issued
shares of common stock of NetRatings, pursuant to a Share Purchase and
Contribution Agreement entered into on the date hereof (the "SPA"). To this
end NetRatings has engaged in a due diligence investigation on Netvalue and
appointed Credit Lyonnais as financial advisor. Credit Lyonnais will file
the OPA referred to in paragraph F
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2.
hereafter on behalf of NetRatings in accordance with the requirements set
forth in Article 5-1-4 of the CMF General Regulation.
B. The issued share capital of the Company is divided into 8,855,230 shares of
EUR 0.25 nominal value each, admitted to trading on the Nouveau Marche of
Euronext Paris S.A.
C. The shares of NetRatings are listed on the NASDAQ.
D. The Company has issued or granted to its employees and managers "bons de
souscription de parts de createur d'entreprise" (hereinafter "BCE"),
"options de souscription d'actions" (hereinafter "Stock Subscription
Options") and "options d'achat d'actions" (hereinafter "Stock Purchase
Options" and, together with the Stock Subscription Options, "Stock
Options") which give to the employee or manager benefiting from such issue
or grant (the "Beneficiary") the right, upon exercise, (i) with respect to
the BCE and the Stock Subscription Options, to subscribe for newly issued
shares of the Company at the BCE's or Stock Subscription Option's exercise
price or (ii) with respect to the Stock Purchase Options, to purchase from
the Company existing shares of the Company held by it as treasury shares at
the Stock Purchase Option's exercise price. The details of the various BCE
and Stock Option plans, including the names of Beneficiaries, the number of
BCE or Stock Options issued or granted to them and the main terms and
conditions upon which each Beneficiary can exercise his/her BCE or Stock
Option, are set forth in Exhibit 1 hereto.
E. The conseil d'administration of the Company has been informed of
NetRatings's offer to acquire more than 50% of the issued share capital of
the Company from certain of its shareholders and to launch as soon as
practicable thereafter a mandatory public purchase offer ("offre publique
d'achat" or "OPA"). The conseil d'administration of the Company has
resolved, at its meeting held on the date hereof, to recommend, taking into
account the document stating the general intents of NetRatings vis-a-vis
Netvalue, its key management and its employees provided by NetRatings to
the Netvalue Board, its shareholders to tender their shares to the proposed
OPA. The OPA would be in cash at a price of EUR 2 per share, subject to the
approval of the Conseil des Marches Financiers ("CMF").
F. On the date hereof, a Registration Rights Agreement is entered into by and
among certain stockholders of Netvalue and NetRatings by which NetRatings
undertakes to file an S-3 Registration Statement with the U.S. Securities
and Exchange Commission within 35 days after the signing of such agreement.
Upon the effectiveness of such Form S-3,which NetRatings undertakes to
cause within 120 days after the date hereof, the recipients of the
NetRatings shares will be permitted to sell such shares in the U.S.
securities markets. In addition, NetRatings agrees to purchase the
NetRatings shares from the recipients if the S-3 Registration Statement has
not been declared effective by 120 days after the date hereof at a price
equal to (a)2 divided by the exchange ratio used as a basis of the
above-mentioned offer.
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3.
THEREFORE IT HAS NOW BEEN AGREED AS FOLLOWS:
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ARTICLE 1. TREATMENT OF BCE AND STOCK OPTIONS
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For the purposes of this Article 1 :
"In-the-Money" means, in relation to BCE or Stock Options, any BCE or Stock
Option which as of the date hereof has an exercise price of less than the
Offer Price per share;
"Out-of-the-Money" means, in relation to BCE or Stock Options, any BCE or
Stock Option which as of the date hereof has an exercise price equal to the
Offer Price per share or more.
1.1 BCE and Stock Subscription Options exercisable prior to the closing
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("cloture") of the OPA
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The OPA to be launched by NetRatings shall cover all the outstanding
Netvalue shares in existence as of the date hereof, as well as any other
newly issued Netvalue shares resulting from the exercise of BCE and Stock
Subscription Options prior to the closing ("cloture") of the OPA (the
"Closing of the Offer").
1.2 In-the-Money BCE and Stock Options not exercisable prior to the Closing of
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the Offer
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NetRatings hereby undertakes, as a "stipulation pour autrui" made for the
benefit of each Beneficiary in accordance with Article 1121 of the French
Civil Code, on the terms and conditions set out in this Article 3.2, to
purchase from each Beneficiary, if such Beneficiary so requests, the
Netvalue shares stemming from the exercise by him/her of any In-the-Money
BCE or Stock Option that are (i) legally not exercisable prior to the
Closing of the Offer, or (ii) exercisable without the benefit of a
favorable tax regim, at a price equal to the Offer Price (the "Purchase
Price"), provided such BCE or Stock Options become exercisable and are
indeed exercised after the Closing of the Offer.
The Purchase Price will be adjusted, especially on the basis of any
adjustment provided by French law, for any stock split or grouping or other
restructuring affecting Netvalue's share capital, so that the Beneficiary
shall receive the same price for its Netvalue shares stemming from the
exercise by him/her of any In-the-Money BCE or Stock Option as if the
acquisition of said shares would have been made prior to such
restructuring.
Each Beneficiary shall have a period of 90 calendar days from the date of
exercise of any of its BCE or Stock Option covered by the present liquidity
commitment to request NetRatings, by written notice, to purchase the
Netvalue shares resulting from the exercise of such BCE or Stock Options.
Failing such request in writing within such period, NetRatings shall not
have any more obligation to purchase such Netvalue shares.
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4.
1.3 Out-of-the-Money BCE and Stock Options
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NetRatings hereby undertakes, as a "stipulation pour autrui" made for the
benefit of each Beneficiary in accordance with Article 1121 of the French
Civil Code, on the terms and conditions set out in this Article 3.3, to pay
to each Beneficiary holding Out-of-the-Money BCE or Stock Option and
irrevocably waiving his/her rights to receive Netvalue share(s) under any
of his/her Out-of-the-Money BCE or Stock Options, an amount in cash in EUR
equal to EUR 0.2 per each Netvalue share which such BCE or Stock Option
gives the right to subscribe for or purchase, as indemnification for such
irrevocable waiver.
The waiver shall be drafted in a customary form reasonably acceptable to
NetRatings and duly executed in writing prior to the Closing of the Offer
in order to entitle the Beneficiary to receive the indemnification amount.
1.4 Proposal to the Beneficiaries
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As soon as practicable after the signature of this Agreement, the Company
will, with the assistance and co-operation of NetRatings, (i) inform each
Beneficiary concerned by the liquidity commitment referred to in Article
3.2 of such liquidity commitment and the methods of implementation of such
commitment and (ii) propose to each Beneficiary concerned by the
indemnification undertaking referred to in Article 3.3 to execute a waiver
as contemplated in Article 3.3. If any such Beneficiary fails to execute in
writing the proposed waiver at the latest on the date of the Closing of the
Offer, the undertaking of NetRatings under Article 3.3 shall terminate with
respect to such Beneficiary on such date.
ARTICLE 2. Other covenants
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Prior to the signing of this agreement, Lennard Brag, Nicolas de Saint
Etienne and Herve Le Jouan have agreed the principal terms and conditions
of the offer and have undertaken to provide NetRatings on the date hereof
with a commitment either to surrender their Out-of-the-Money Stock Options
and BCE against indemnification as mentioned in article 1.3 above, and, for
the exercisable In-the-Money Stock Options and BCE, tender the shares
resulting from the exercise of such Stock-Options and BCE in the offer as
mentioned in article 1.1 above.
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5.
ARTICLE 3. MISCELLANEOUS
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3.1 Fees and Expenses
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The parties shall each pay their own costs, charges and expenses in
relation to the negotiation, preparation, execution and implementation of
this agreement including, without limitation, filing fees and fees and
expenses of attorneys, accountants, financial advisors, lenders or brokers.
3.2 Entire agreement
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This agreement constitutes the entire and only agreement between the
parties in relation to its subject matter and replaces and extinguishes all
prior agreements, undertakings, arrangements, understandings or statements
of any nature made by the parties or any of them whether oral or written
(and, if written whether or not in draft form) with respect to such subject
matter.
3.3 Amendments
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The agreement may not be amended, supplemented or changed, nor may any
provision hereof be waived, except by a written instrument making specific
reference to this agreement and signed by each of the parties.
3.4 Severability
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If any portion of provision or this agreement, shall for any reason or to
any extent, be invalid or unenforceable, such invalidity or
unenforceability shall not in any manner affect or render invalid or
unenforceable the other provisions or portions of provisions of this
agreement. In the event of the invalidity or unenforceability of any
(portion or) provision of this agreement, any party shall, at the request
of the other parties, negotiate in good faith to agree on changes or
amendments to this agreement that may be required to carry out the
intention and accomplish the purpose of this agreement in light of such
invalidity or unenforceability.
3.5 Notices
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Any notice to be given by any party in respect of this agreement shall be
in writing and shall be deemed duly served if delivered personally or by
registered letter with recorded delivery which shall take effect on
reception or on transmission if such transmission is preceded by the
transmission of the text by facsimile to addressee at the relevant address
of the following:
To: Each party's respective address, as stated on page 1 hereof
Attn.: Each such party's respective representative for the purposes of
entering into this agreement.
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6.
or at such other address as the party to be served may have notified as its
address for service.
3.6 Governing law and disputes
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This agreement shall be governed and construed in accordance with French
law.
All disputes arising from this agreement or its interpretation or
performance shall be subject to the exclusive jurisdiction of the Tribunal
de Commerce de Paris.
NetRatings hereby consents to the jurisdiction of the Tribunal de Commerce
de Paris for such purpose and consents to service of process on NetRatings
in any such dispute that is effected by registered mail in the manner
provided for the giving of notice to NetRatings hereunder or otherwise in
accordance with the Hague Convention on the Service Abroad of Judicial and
Extrajudicial Documents in Civil or Commercial Matters. NetRatings hereby
waives any objection that it might otherwise have to the subject matter or
in personam jurisdiction of such court or to service of process on
NetRatings that is effected in such manner, and waives any objection to the
venue of such court on the grounds of forum non conveniens or otherwise, in
connection with any such dispute, and agrees that any judgment rendered by
such court shall be enforceable against NetRatings in any court in the
United States in accordance with applicable law.
Executed in Paris, on August 5, 2002, in two
originals, one for each of the parties.
Netvalue NetRatings
/s/ Lennart Brag /s/ Todd Sloan
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By: Lennart Brag By: Todd Sloan
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7.
LIST OF EXHIBIT
Exhibit 1: Details relating to Netvalue BCE and Stock Option plans
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8.
EXHIBIT 1
DETAILS RELATING TO NETVALUE BCE AND STOCK OPTION PLANS
[See attached]