Share Purchase and Contribution Agreement - Netvalue SA and NetRatings Inc.
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SHARE PURCHASE AND CONTRIBUTION AGREEMENT
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DATED AUGUST 5, 2002
BETWEEN
CERTAIN SHAREHOLDERS OF NETVALUE S.A.
AND
NETRATINGS INC.
<PAGE>
SHARE PURCHASE AND CONTRIBUTION AGREEMENT
This Share Purchase and Contribution Agreement is entered into on August 5, 2002
between:
A. The following shareholders of Netvalue S.A.
1- Mr. Bernard Ochs, whose address is 24 rue Edgar Faure 75015 Paris
2- Mr. Herve Le Jouan, whose address is 12 rue Sylvain Vigneras 92380 Garches
3- Mr. Guy Lagache, whose address is 82 bd Nice 13008 Marseille
4- Mr. Lennart Brag, whose address is 67 rue Jean Mermoz 78620 L'Etang La Ville
5- Mr. Gaetan Japy, whose address is 24 rue Cortambert 75016 Paris
6- ABN AMRO Developpement (named before NSM Developpement), a stock corporation
(societe anonyme) with a issued share capital of EUR 40 590 990 euros, having
its registered offices at 23 rue Balzac a Paris (75008), and registered with the
commercial Registry of Paris under No. B 582 041 653; duly represented by Herve
Claquin
7- Placement Continuite, Funds (Fonds commun de Placement a Risques)
represented by its societe de gestion ABN AMRO CAPITAL France, a stock
corporation (societe anonyme) with a issued share capital of EUR 1 550 000
having its registered offices at 23 rue Balzac a Paris (75008), and registered
with the commercial Registry of Paris under No. 418 938 528; duly represented
by Herve Claquin
8- Placement Actions Developpement 1, Funds (Fonds commun de Placement a
Risques) represented by its societe de gestion ABN AMRO CAPITAL France, a stock
corporation (societe anonyme) with a issued share capital of EUR 1 550 000
having its registered offices at 23 rue Balzac a Paris (75008), and registered
with the commercial Registry of Paris under No. 418 938 528; duly represented
by Herve Claquin
9- France Innovation N(degree) 1, Funds (Fonds commun de Placement dans
l'Innovation), represented by its societe de gestion ABN AMRO CAPITAL France, a
stock corporation (societe anonyme) with a issued share capital of EUR 1 550 000
having its registered offices at 23 rue Balzac a Paris (75008), and registered
with the Commercial Registry of Paris under No. 418 938 528; duly represented
by Herve Claquin
<PAGE>
2.
10- France Innovation N(degree) 2, Funds (Fonds commun de Placement dans
l'Innovation) represented by its societe de gestion ABN AMRO CAPITAL France, a
stock corporation (societe anonyme) with a issued share capital of EUR 1 550 000
having its registered offices at 23 rue Balzac a Paris (75008), and registered
with the commercial Registry of Paris under No. 418 938 528; duly represented
by Herve Claquin
11- ABN AMRO CAPITAL INVESTISSEMENT France, a stock corporation (societe
anonyme) with a issued share capital of EUR 14 507 312, having its registered
offices at 23 rue Balzac a Paris (75008), and registered with the commercial
Registry of Paris under No. B 572 092 427; represented by Herve Claquin
12- FINEPAR, societe civile with a issued share capital of EUR 1.600 euros,
having its registered offices at 7 bld Edgar Quinet, 92700 Colombes, and
registered with the commercial Registry of Nanterre under No. D 423 199 942,
duly represented by Herve Claquin
13- FCP MATIGNON Investissement, Funds (Fonds commun de Placement) represented
by its societe de gestion Matignon Investissement et Gestion SA a stock
corporation (societe anonyme) with a issued share capital of EUR 800.000 having
its registered offices at 5 avenue Matignon a Paris (75008) and registered with
the commercial Registry of Paris under No. B 404 380 305, duly represented by
14- COMIR a stock corporation (Societe par actions simplifiee) with an issued
share capital of EUR 13.775.000, having its registered offices at 27 Avenue
Etienne Audibert 60300 SENLIS, and registered with the commercial Registry of
Senlis under No. B 349 015 669 duly represented by
15- INNOVACOM 3 a stock corporation (societe anonyme) with an issued share
capital of EUR 29.085.849, having its registered offices at 23 rue Royale a
Paris (75008), and registered with the commercial Registry of Paris under No. B
419 838 198, duly represented by
16- EG INVESTMENTS LTD, UK a Limited company having its registered office at 38
Hertford Street London W1Y 7 TG, duly represented by
17- T - TELEMATIK VENTURE Beteiligungsgesellschaft mbH, a German Company having
its registered office at Gotenstr. 156 D-53175 Bonn and registered with the
commercial Registry of BONN under No. HRB 7767, duly represented by
18- CHAMPAGNE CAPITAL (named before La Champagne SA) a stock corporation
(societe par actions simplifiee) with a issued share capital of EUR 150.000,
having its registered offices at 91 Rue du Faubourg-saint-honore 75008 PARIS,
and registered with the commercial Registry of Paris under No. B 876 150 285,
duly represented by
the above acting individually, and not jointly and severally
(hereinafter individually referred to as a "Shareholder"
and collectively as the "Shareholders")
<PAGE>
3.
and:
B. 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").
WHEREAS:
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A. Netvalue S.A. is a French stock corporation (societe anonyme) listed on the
Nouveau Marche of Euronext Paris S.A., 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"), with an outstanding issued share capital of EUR
2,213,807.50 consisting of 8,855,230 shares of EUR 0.25 nominal value each
(collectively the "Netvalue Shares" or individually an "Netvalue Share").
B. Each Shareholder owns at the date hereof the number of Netvalue Shares and
voting rights in Netvalue set out against its name in the table attached as
Exhibit 1.
C. NetRatings is listed on the NASDAQ.
D. NetRatings wishes to acquire control of Netvalue, and therefore wishes to
acquire from the Shareholders their respective shareholding in Netvalue.
E. Each Shareholder wishes to transfer to NetRatings its respective
shareholding in Netvalue in exchange, as the case may be pursuant to
Articles 1 and 2 hereafter, (i) for cash or (ii) newly issued shares of
common stock of NetRatings.
F. NetRatings also wishes and, upon completion of the transactions
contemplated by this agreement, will be under the obligation, as per the
French Conseil des Marches Financiers ("CMF") General Regulation (Reglement
General du CMF), to acquire through a public tender offer the balance of
the remaining Netvalue outstanding shares.
G. On the basis of a document delivered by NetRatings to the conseil
d'administration of Netvalue on the date hereof and stating the general
intents of NetRatings regarding Netvalue, its key managers and its
employees, the conseil d'administration of Netvalue has recommended to the
other shareholders of Netvalue to tender their shares to NetRatings's
public tender offer. The board of directors of NetRatings has approved the
execution and delivery of this agreement and the other agreements entered
into in pursuance of this agreement and the transactions contemplated
therein.
<PAGE>
4.
H. NetRatings undertakes to file a mandatory public purchase offer in cash
(offre publique d'achat obligatoire) with the CMF with a view to acquiring
all the issued and outstanding shares not otherwise acquired pursuant to
this agreement making up the capital of Netvalue (the "Offer") at a price
of EUR 2 per share which will be subject to the approval of the CMF (the
"Offer Price").
I. NetRatings has appointed Credit Lyonnais as its financial advisor for the
transactions contemplated herein. Credit Lyonnais will file the Offer on
behalf of NetRatings in accordance with the requirements set forth in
Article 5-1-4 of the CMF General Regulation.
J. NetRatings has and shall have at the Settlement Date (as this term is
defined below), sufficient authorized share capital in order to issue the
aforementioned NetRatings shares to the concerned Shareholders.
K. Immediately after execution of this agreement (the "Agreement"), NetRatings
and Netvalue shall enter into an agreement in the form attached as Exhibit
2.
L. Simultaneously to the execution of this Agreement, NetRatings and certain
shareholders of Netvalue shall enter into a Registration Rights Agreement
in the form attached as Exhibit 4.
IT HAS BEEN AGREED AS FOLLOWS:
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ARTICLE 1. SALE OF NETVALUE SHARES
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1.1 Sale
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Each of the Shareholders listed in column (I) of the table attached as
Exhibit 1 hereby sells to NetRatings, which accepts, on the terms and
conditions stated herein, the number of Netvalue Shares set out against
its name in column (IV) of such table, and hereby undertakes to
irrevocably instruct its custodian (the "Transfer Agent") to (i) convert
its nominative shares (if any) under the bearer form and (ii) transfer
his/her Netvalue Shares against payment of the price set forth in clause
1.2 hereafter to NetRatings on the Settlement Date.
Such Netvalue Shares are hereinafter referred to as the "Sold Shares".
<PAGE>
5.
1.2 Price
1.2.1 The purchase price for each Sold Share shall be EUR 2 and the aggregate
purchase price for all the Sold Shares owned by any given Shareholder
shall be as set out against such Shareholder's name in column (VIII) of
the table attached as Exhibit 1.
1.2.2 The purchase price of the Sold Shares shall be paid in cash in full in EUR
by wire transfer of immediately available funds at the Settlement Date (as
this term is defined below).
ARTICLE 2. CONTRIBUTION OF NETVALUE SHARES TO NETRATINGS
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2.1 Contribution
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Each of the Shareholders listed in column (I) of the table attached as
Exhibit 1 hereby contributes ("apporte") to NetRatings, which accepts, on
the terms and conditions stated herein, the number of Netvalue Shares set
out against its name in column (V) of such table, and hereby undertakes to
irrevocably instruct its Transfer Agent to (i) convert its nominative
shares (if any) under the bearer form and (ii) transfer those Netvalue
Shares to NetRatings against the delivery of the NetRatings Shares set
forth in clause 2.2.1 hereafter on the Settlement Date.
Such Netvalue Shares are hereinafter referred to as the "Contributed
Shares".
2.2 Consideration
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2.2.1 In acquiring the Netvalue shares from the Shareholders, the total number
of Netvalue shares set out in column (V) of the table contained in Exhibit
1 are exchanged for NetRatings shares at an exchange ratio per Netvalue
share (which exchange ratio was calculated as (A) 1.99 Euros converted
into U.S. Dollars (based on the exchange rate as of August 1, 2002,
rounded to the nearest cent) divided by (B) the weighted average U.S.
Dollar closing price for NetRatings common stock as quoted on NASDAQ for
the ten trading days ending on August 1, 2002). Therefore, in
consideration for the contribution of their Contributed Shares, each
Shareholder listed in column (I) of the table attached as Exhibit 1 will
be allocated newly issued shares of common stock of NetRatings, par value
US$ 0.001 per share (the "NetRatings Shares") in a number determined
pursuant to an exchange ratio of 0.278169 NetRatings Shares per one
Netvalue Shares with the resulting number of shares to be issued to any
Shareholder to be rounded down to a whole number of shares and no
fractional shares of NetRatings stock will be issued (the "Exchange
Ratio"), i.e. as stated for each contributing Shareholder in column (VII)
of the table attached as Exhibit 1.
2.2.2 The NetRatings Shares shall be issued and allocated to each contributing
Shareholder at the Settlement Date (as this term is defined below).
<PAGE>
6.
ARTICLE 3. SETTLEMENT
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3.1 Each Shareholder and NetRatings will make their best efforts to
respectively (i) transfer the ownership of both its Sold Shares and its
Contributed Shares, if any, to NetRatings against payment of the price set
forth in clause 1.2 and, if applicable pursuant to article 2 above,
delivery of the NetRatings Shares, and (ii) pay the price set forth in
article 1.2 above against delivery of the Sold Shares and deliver the
NetRatings Shares against the transfer of the Contributed Shares pursuant
to article 2 above (the "Settlement"), as soon as practicable after
execution of this Agreement (the "Settlement Date") and with a targeted
date of Friday, 9 August 2002. The Settlement Date shall be set on a day
that is not a Saturday, a Sunday or other day on which banks are usually
closed in New York or Paris (a "Business Day").
3.2 The transfer of the Sold Shares and the Contributed Shares shall be made
in compliance with all applicable French Stock Exchange Regulations,
including when applicable to French Shareholders Article 4-1-32-1 of the
CMF General Regulation.
3.3 On the date hereof:
(a) NetRatings is simultaneously herewith entering into the
Registration Rights Agreement referred to in article 7 hereafter.
(b) NetRatings is simultaneously herewith delivering to each
Shareholder and to Netvalue, which is acknowledged by them, a legal
opinion by Gray Cary Ware & Freidenrich, LLP in the form attached as
Exhibit 3.
(c) NetRatings is simultaneously herewith delivering to each
Shareholder, which is acknowledged by it, a copy of the relevant share
certificate(s) representing the NetRatings Shares that each such
Shareholder is allocated pursuant to article 2 hereabove. The original of
each share certificate will be delivered to each Shareholder on the
Settlement Date.
(d) NetRatings is simultaneously herewith delivering to each
Shareholder, which is acknowledged by it, a certified true copy of the
minutes of NetRatings' board of directors authorizing the execution of
this Agreement and all other agreements or documents to be executed in
connection therewith and the consummation of the transactions contemplated
herein, including the issue of the NetRatings Shares to the Shareholders
and the repurchase from the Shareholders of such NetRatings Shares as
contemplated by Section 2(c) of the Registration Rights Agreement.
(e) Each Shareholder is simultaneously herewith delivering to
NetRatings, which is acknowledged by it, a copy of its irrevocable
instruction letter given to the Transfer Agent in order to (i) convert its
nominative shares (if any) under the bearer form and (ii) to transfer to
NetRatings its Sold Shares and Contributed Shares, if any, pursuant to the
terms and conditions of this Agreement.
<PAGE>
7.
(f) NetRatings is simultaneously herewith delivering to each
Shareholder, which is acknowledged by it, a copy of its irrevocable
instruction letter given to Credit Lyonnais in order to pay to the
Shareholders the price of the Sold Shares and to allocate the newly issued
NetRatings Shares to the Shareholders at the Settlement Date.
(g) A draft of letters of resignation of 6 current members of the
board of directors (excluding Lennard Brag who will be confirmed as
chairman of the board of directors) from their offices as directors of
Netvalue; it being precised that Mr Lennart Brag, acting as the chairman
of the board of directors, undertakes to convene a meeting of the board of
directors of Netvalue for the purpose of co-opting 3 new directors
proposed by NetRatings so that the Netvalue board shall consist of three
(3) persons proposed by NetRatings, and Lennart Brag as chairman. Each
Shareholder being represented at such board meeting shall cause its
representative to vote in favor of the co-opting of the 3 directors
proposed by NetRatings.
3.4 Each Shareholder covenants and agrees that by entering into this agreement
and signing its irrevocable instruction letter to transfer its Netvalue
Shares against payment of the purchase price of said shares and delivery
of NetRatings Shares (if applicable), it irrevocably transfers the
ownership of its Netvalue Shares to NetRatings. Therefore each Shareholder
covenants and agrees to be obliged to deliver its Netvalue Shares to
NetRatings on the Settlement Date and, in the event of a non-delivery
(except when such non-delivery is due to the non-payment of the purchase
price and/or the non-delivery of the NetRatings Shares, if applicable),
NetRatings shall have the right to sue such Shareholder with a view to
obtain the specific performance ("execution forcee") of such Shareholder's
obligation to deliver the Netvalue shares against payment of the purchase
price and delivery of NetRatings shares (if applicable) on the Settlement
date.
The defaulting Shareholder will reimburse NetRatings for any legal or any
other expenses incurred by it in connection with any claim, liability,
action or proceeding relating to such non-delivery.
3.5 NetRatings convenants and agrees that by entering into this agreement and
signing its irrevocable instruction letter to transfer to each Shareholder
(i) the relevant purchase price of its Sold Shares against delivery of
such Shares and (ii) the ownership of the NetRatings Shares against
delivery of its Contributed Shares (if applicable), NetRatings irrevocably
transfers the ownership of a cash amount equivalent to the purchase price
of such Sold Shares and the ownership of the NetRatings Shares (if
applicable) to such Shareholder. Therefore NetRatings covenants and agrees
to be obliged to deliver such purchase price amount and the NetRatings
shares (if applicable) to each Shareholder on the Settlement Date and, in
the event of a non-delivery of the purchase price and/or (if applicable)
the NetRatings Shares (except when such non-delivery is due to the
non-delivery of the relevant Netvalues Shares), each Shareholder shall
have the right to sue NetRatings with a view to obtain the specific
performance ("execution forcee") of such NetRatings's obligations to
effectively pay the purchase price and deliver the NetRatings shares on
the Settlement Date.
<PAGE>
8.
NetRatings will reimburse the Shareholder for any legal or any other
expenses incurred by it in connection with any, claim, liability, action
or proceeding relating to such default.
ARTICLE 4. OFFER TO THE MINORITY SHAREHOLDERS
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NetRatings shall file and implement the Offer in accordance with all
applicable French Stock Exchange Regulations, including Title V of the CMF
General Regulation and Regulation No. 2002-04 of the French Commission des
Operations de Bourse ("COB"). NetRatings will proceed with such filing as
soon as practicable after execution hereof and in any event within the
time limit agreed upon with the CMF.
NetRatings will acquire all of the Netvalue shares tendered during the
Offer, including any Netvalue shares stemming from the exercise, on or
before the expiry date of the Offer, of any exercisable bons de
souscription de parts de createur d'enterprise ("BCE") or employee or
management stock options.
ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
--------------------------------------------------
5.1 Shareholders
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Each Shareholder represents and warrants to the other parties that each
and every of the following is true, accurate and complete as at the date
hereof and as at the Settlement Date:
o If not a natural person or a mutual fund, it is duly organized and
validly existing under the laws of the jurisdiction in which it was
incorporated.
o The execution and delivery of this Agreement (and the other agreements
and documents to be executed in connection therewith and to which it
is a party) by it and the consummation by it of the transactions
contemplated by this Agreement (and by such other agreements and
documents) have been duly authorized by all necessary corporate action
(or other action if applicable) on its part and no other corporate
proceedings (or other proceedings if applicable) on its part are
necessary to authorize this Agreement (and the other agreements and
documents to be executed in connection therewith) or to consummate the
transactions contemplated by this Agreement (and by such other
agreements and documents). This Agreement (and the other agreements
and documents to be executed in connection therewith and to which such
Shareholder is a party) has been duly executed and delivered by such
Shareholder and, assuming the due authorization, execution and
delivery by the other parties hereto and thereto, constitutes a legal,
valid and binding obligation of such Shareholder, enforceable against
it in accordance with its terms except insofar as enforceability may
be limited by applicable bankruptcy or insolvency laws.
<PAGE>
9.
o The execution and delivery of this Agreement (and the other agreements
and documents to be executed in connection therewith and to which such
Shareholder is a party) do not, and the consummation of the
transactions contemplated by this Agreement (and by such other
agreements and documents) and compliance by such Shareholder with the
provisions of this Agreement (and of such other agreements and
documents) will not, conflict with, or result in any violation on the
part of such Shareholder of any other agreement to which it is a party
or any law or regulation applicable to it.
5.2 Representations and warranties as to the Sold Shares and the Contributed
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Shares
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Such Shareholder represents that the Netvalue Shares it is selling or
contributing to NetRatings are fully paid up, that it holds good and valid
title thereto and that such Netvalue Shares are not encumbered by any
charge, pledge or other security interest.
5.3 Investment Representations - subject to agreement on an effective
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repurchase agreement of the NetRatings Shares in the absence of S-3
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registration within 120 days of Settlement
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Each Shareholder hereby severally represents and warrants to NetRatings
with respect to the purchase of Shares as follows:
(a) U.S. Person. Each Shareholder is not a "U.S. person", as such term
is defined in Rule 902 of Regulation S of the securities Act and is not
acquiring the NetRatings Shares for the account of benefit of a U.S.
person.
(b) Investment Experience. It has received copies furnished by
NetRatings of its periodic reports, as required to be filed by the United
States Securities and Exchange Commission and has had the opportunity to
ask questions and receive answers with respect thereto.
(c) Regulation S and Rule 144. It acknowledges that the Shares must be
held indefinitely unless the Shares are subsequently registered under the
Securities Act of 1933, as amended (the "Securities Act"), such as on a
registration statement on Form S-3, or unless an exemption from such
registration is available, such as resales permitted in accordance with
Regulation S, as promulgated under the Securities Act. It is aware that
the Shares are treated under Regulation S as `restricted securities' and
that, unless the NetRatings Shares are registered under the Securities
Act, the provisions of Rule 144, as promulgated under the Securities Act,
apply which permit limited resale of shares purchased in a private
placement subject to the satisfaction of certain conditions, including,
among other things:
o the existence of a public market for the shares;
o the availability of certain current public information about
NetRatings;
o the resale occurring not less than one year after the security was
last held by NetRatings or an affiliate of NetRatings;
<PAGE>
10.
o the sale being effected through a "broker's transaction" or in
transactions directly with a "market maker"; and
o the number of shares being sold during any three-month period not
exceeding specified limitations.
(d) Legends. It is understood that the certificates evidencing the
Shares may bear one or all of the following legends:
(i) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISTRIBUTED DIRECTLY OR
INDIRECTLY, IN THE UNITED STATES, ITS TERRITORIES, POSSESSIONS, OR AREAS
SUBJECT TO ITS JURISDICTION, OR TO OR FOR THE ACCOUNT OR BENEFIT OF A
"U.S. PERSON" AS THAT TERM IS DEFINED IN RULE 901 OF REGULATION S OF THE
ACT, EXCEPT (I) IN CONJUNCTION WITH AN EFFECTIVE REGISTRATION STATEMENT
FOR THE SHARES UNDER SUCH ACT, OR (II) IN COMPLIANCE WITH AN EXEMPTION
FROM REGISTRATION UNDER SUCH ACT. ANY SALES, TRANSFERS OR DISTRIBUTIONS OF
THE SECURITIES MUST BE MADE IN ACCORDANCE WITH THE PROVISIONS OF EITHER
REGULATION S OR RULE 144 OF THE ACT."
(ii) Notwithstanding the provisions of paragraphs (a) and (b) above,
no such registration statement or opinion of counsel shall be necessary
for a transfer without value by a Shareholder to an affiliate (as such
term is defined in Rule 405 under the Securities Act) of such Shareholder,
if the transferee agrees in writing to be subject to the terms hereof to
the same extent as if he were an original Shareholder hereunder.
ARTICLE 6. REPRESENTATIONS AND WARRANTIES OF NETRATINGS
--------------------------------------------
NetRatings represents and warrants to the various Shareholders that each
and every of the following is true, accurate and complete as at the date
hereof and as at the Settlement Date:
6.1 Representations and Warranties as to Due Incorporation and Authorization
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NetRatings is duly organized, validly existing and in good standing under
the laws of Delaware.
The execution and delivery of this Agreement (and the other agreements and
documents to be executed in connection therewith) by NetRatings and the
consummation by NetRatings of the transactions contemplated by this
Agreement (and by such other agreements and documents) have been duly
authorized by all necessary corporate action on the part of NetRatings and
no other corporate proceedings on the part of NetRatings are necessary to
authorize this Agreement (and the other agreements and documents to be
executed in connection therewith) or to consummate the transactions
contemplated by this Agreement (and by such other agreements and
documents). This Agreement (and the other agreements and
<PAGE>
11.
documents to be executed in connection therewith) has been duly executed
and delivered by NetRatings and, assuming the due authorization, execution
and delivery by the other parties hereto and thereto, constitutes a legal,
valid and binding obligation of NetRatings, enforceable against it in
accordance with its terms except insofar as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditor's rights generally. The execution and
delivery of this Agreement (and the other agreements and documents to be
executed in connection therewith) do not, and the consummation of the
transactions contemplated by this Agreement (and by such other agreements
and documents) and compliance by NetRatings with the provisions of this
Agreement (and of such other agreements and documents including, without
limitation, the Registration Rights Agreement) will not, conflict with, or
result in any violation of any other agreement to which NetRatings is a
party, any law or regulation applicable to NetRatings (including, without
limitation, section 160 the Delaware General Corporation Law) or any
judgment, decree or order binding on NetRatings.
6.2 Other Representations and Warranties of NetRatings
--------------------------------------------------
- The NetRatings Shares that are being issued to the Purchasers
hereunder, when issued, sold and delivered in accordance with the
terms hereof for the consideration expressed herein, will be duly and
validly issued, fully paid and nonassessable and free of any
restrictions on transfer whatsoever other than restrictions on
transfer under this Agreement or as stated in article 5.3 hereabove
and applicable state and federal securities laws and will not be
encumbered by any charge, pledge or other security interest.
- Immediately prior to the date hereof, the authorized capital stock of
NetRatings consisted solely of 200,000,000 shares of common stock of
which [o] shares of common stock were issued and outstanding
Except as is otherwise expressly disclosed in this Agreement, the
common stock is not entitled to cumulative voting rights, preemptive
rights, antidilution rights or, except as disclosed in NetRatings SEC
Reports, registration rights under the Securities Act. The common
stock has the preferences, voting powers, qualifications and special
or relative rights or privileges set forth in NetRatings Certificate
of Incorporation.
- Except as is expressly set forth in NetRatings SEC Reports and except
for additional options which exercise would not cause the issue of
more than 500,000 shares, NetRatings does not have, is not bound by
and has no obligation to grant or enter into, any (i) outstanding
subscriptions, options, warrants, calls, commitments or agreements of
any character calling for it to issue, deliver or sell, or cause to be
issued, delivered or sold, any shares of its capital stock or any
other equity or debt security, or any securities described in the
following clause, or (ii) securities convertible into, exchangeable
for or representing the right to subscribe for, purchase or otherwise
acquire any shares of its capital stock or any other equity or debt
security.
<PAGE>
12.
- Except as is expressly described in NetRatings SEC Reports, and except
as is provided by this Agreement, NetRatings (i) has no outstanding
obligations, contractual or otherwise, to repurchase, redeem or
otherwise acquire any shares of its capital stock, or other equity or
debt securities of NetRatings, (ii) is not a party to or bound by, and
has no knowledge of, any agreement or instrument relating to the
voting of any of its securities, and (iii) is not a party to or bound
by any agreement or instrument under which any person has the right to
require it to effect or include any securities held by such person in
any registration under the Securities Act.
- The NetRatings Shares issued pursuant to this agreement are the same
class and have the same rights as the currently existing shares of
common stock of NetRatings that are listed and traded on the NASDAQ.
6.3 Financial Statements; Disclosure.
---
NetRatings SEC Reports include (a) the audited financial statements of
NetRatings for the fiscal year ended December 31, 2001, and (b) the
unaudited financial statements of NetRatings for the three month period
ended March 31, 2002 (the financial statements described in clauses (a)
and (b), collectively, the "Financial Statements"). The Financial
Statements have been prepared in accordance with generally accepted
accounting principles, and fairly and accurately present the financial
position of NetRatings as of their respective dates, and the results of
the operations of NetRatings for such periods, and reflect the consistent
application of such accounting principles throughout the periods involved.
6.4 Litigation.
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No action, suit, claim or proceeding by or before any federal, state or
local court, government agency, commission or administrative or regulatory
authority is pending or is threatened in writing which (a) seeks to
restrain, prevent, or materially delay or restructure the transactions
contemplated by the Agreement and the other agreements and documents to be
executed in connection therewith (in particular the Registration Rights
Agreement to be signed further to Section 7), (b) seeks to obtain any
material damages in respect of a claim in connection with the transactions
contemplated by the Agreement and the other agreements and documents to be
executed in connection therewith (in particular the Registration Rights
Agreement to be signed further to Section 7), or (c) otherwise questions
the validity or legality of any of the transactions contemplated by the
Agreement and the other agreements and documents to be executed in
connection therewith (in particular the Registration Rights Agreement to
be signed further to Section 7).
6.5 Company Disclosure.
---
No representation or warranty by NetRatings in the Agreement or any of the
other agreements and documents to be executed in connection therewith,
when taken together with the statements made in NetRatings SEC Reports,
taken as a whole, contains any untrue statement of a material fact or
omits to state a material fact required to be stated herein or therein or
necessary to make a statement contained herein or therein not misleading,
or that requires the making of any addition or
<PAGE>
13.
changes herein or therein in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
ARTICLE 7. REGISTRATION AND RESALE OF NETRATINGS SHARES
--------------------------------------------
On the date hereof, NetRatings and the Shareholders shall enter into a
Registration Rights Agreement (in the form attached as Exhibit 4 setting
forth in detail the rights and obligations of each party with respect to
the resale and registration of the NetRatings Shares.
ARTICLE 8. MISCELLANEOUS
-------------
8.1 Fees and Expenses
-----------------
Subject to the provisions of the Registration Rights Agreement, 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.
8.2 Confidentiality
---------------
None of the parties hereto shall release any press bulletins, statements
to the press, government agencies or workers' organizations or any other
third party related to this agreement, unless required by law or stock
exchange regulations, without the prior written consent of the other
parties.
Each of the parties hereto shall keep secret and confidential any and all
confidential information received from the other parties, whenever
obtained, and shall not disclose any part thereof to any third party, nor
shall it use this information for its own purposes without the prior
written consent of the respective other parties, unless required by law or
stock exchange regulations.
Each of the parties hereto shall forthwith notify the other parties hereto
in writing if and when any part of confidential information is disclosed
and such party has become aware of same.
The parties agree that they will jointly announce the transaction on a
date mutually agreed by the parties. It is agreed that except as required
by law or by court order there shall be no disclosure of any information
concerning any provision of this agreement without the prior written
consent of both parties. The form and the contents of any disclosure shall
be subject to the prior approval of both parties which could not be
unreasonably withheld.
<PAGE>
14.
8.3 Entire agreement
----------------
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.
8.4 Waiver of rights/compromise
---------------------------
No exercise or failure to exercise or delay by any party in exercising any
right, power or remedy under this agreement shall constitute a waiver by
such party of any other right, power or remedy.
The release or compromise by any party of the liability of any of the
other parties or the grant to such other parties of time or other
indulgence shall not affect any other rights, duties or obligations
conferred by this agreement.
8.5 Amendments
----------
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.
8.6 Severability
------------
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.
8.7 Notices
-------
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 2 hereof
Attn.: (a) with respect to parties not being natural persons: to the
attention of each such party's respective representative
for the purposes of entering into this agreement;
<PAGE>
15.
(b) with respect to parties being natural persons: to the
attention of each such party in person
or at such other address as the party to be served may have notified as
its address for service.
8.8 Governing law and disputes
--------------------------
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.
<PAGE>
16.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused this Agreement to be duly executed by their respective authorized
officers as of the day and year first above written
NetRatings, Inc.
/s/ Todd Sloan
--------------------------------------
By: Todd Sloan
Title: Executive Vice President,
Corporate Development and
Chief Financial Officer
Date: August 9, 2002
Address:
890 Hillview Court
Milpitas, CA USA
[SIGNATURE PAGE TO THE SHARE PURCHASE AND CONTRIBUTION AGREEMENT]
<PAGE>
17.
/s/ Bernard Ochs
--------------------------------------
By: Mr. Bernard Ochs
Date: August 9, 2002
Address:
24 Rue Edgar Faure
75015 Paris France
[SIGNATURE PAGE TO THE SHARE PURCHASE AND CONTRIBUTION AGREEMENT]
<PAGE>
18.
/s/ Herve Le Jouan
--------------------------------------
By: Mr. Herve Le Jouan
Date: August 9, 2002
[SIGNATURE PAGE TO THE SHARE PURCHASE AND CONTRIBUTION AGREEMENT]
<PAGE>
19.
/s/ Guy Lagache
--------------------------------------
By: Mr. Guy Lagache
Date: August 9, 2002
[SIGNATURE PAGE TO THE SHARE PURCHASE AND CONTRIBUTION AGREEMENT]
<PAGE>
20.
/s/ Lennart Brag
--------------------------------------
By: Mr. Lennart Brag
Date: August 9, 2002
[SIGNATURE PAGE TO THE SHARE PURCHASE AND CONTRIBUTION AGREEMENT]
<PAGE>
21.
/s/ Gaetan Japy
--------------------------------------
By: Mr. Gaetan Japy
Date: August 9, 2002
[SIGNATURE PAGE TO THE SHARE PURCHASE AND CONTRIBUTION AGREEMENT]
<PAGE>
22.
ABN AMRO Developpement
/s/ Christine Stourdze
--------------------------------------
Name: Christine Stourdze
Title: Chief Financial Officer
Date: August 9, 2002
Address:
23 rue Balzac
75008 Paris
France
[SIGNATURE PAGE TO THE SHARE PURCHASE AND CONTRIBUTION AGREEMENT]
<PAGE>
23.
Placement Continuite
By: /s/ Francine Stourdze
--------------------------------------------
Name: Francine Stourdze
Title: Chief Financial Officer
Date: August 9, 2002
Address:
23 rue Balzac
75008, Paris
France
[SIGNATURE PAGE TO THE SHARE PURCHASE AND CONTRIBUTION AGREEMENT]
<PAGE>
24.
Placement Actions Developpement 1
/s/ Christine Stourdze
--------------------------------------
By: Christine Stourdze
Title: Chief Financial Officer
Date: August 9, 2002
Address:
23 rue Balzac
75008 Paris
France
[SIGNATURE PAGE TO THE SHARE PURCHASE AND CONTRIBUTION AGREEMENT]
<PAGE>
25.
France Innovation No. 1
By: /s/ Francine Stourdze
--------------------------------------------
Name: Francine Stourdze
Title: Chief Financial Officer
Date: August 9, 2002
Address:
23 rue Balzac
75008, Paris
France
[SIGNATURE PAGE TO THE SHARE PURCHASE AND CONTRIBUTION AGREEMENT]
<PAGE>
26.
France Innovation No. 2
By: /s/ Francine Stourdze
--------------------------------------------
Name: Francine Stourdze
Title: Chief Financial Officer
Date: August 9, 2002
Address:
23 rue Balzac
75008, Paris
France
[SIGNATURE PAGE TO THE SHARE PURCHASE AND CONTRIBUTION AGREEMENT]
<PAGE>
27.
ABN AMRO CAPITAL INVESTISSEMENT France
/s/ Christine Stourdze
--------------------------------------
By: Christine Stourdze
Title: Chief financial Officer
Date: August 9, 2002
Address:
23 rue Balzac
75008 Paris
France
[SIGNATURE PAGE TO THE SHARE PURCHASE AND CONTRIBUTION AGREEMENT]
<PAGE>
28.
FINEPAR
By: /s/ Francine Stourdze
--------------------------------------------
Name: Francine Stourdze
Title: Chief Financial Officer
Date: August 9, 2002
Address:
7 Bd Edgard Quiner
92 700
Colombes, France
[SIGNATURE PAGE TO THE SHARE PURCHASE AND CONTRIBUTION AGREEMENT]
<PAGE>
29.
FCP MATIGNON Investissement
/s/ Dominique Crozier
--------------------------------------
By: Dominique Crozier
Title: Director
Date: August 9, 2002
Address:
5 Avenue Matignon
75008 Paris France
[SIGNATURE PAGE TO THE SHARE PURCHASE AND CONTRIBUTION AGREEMENT]
<PAGE>
30.
COMIR
/s/ Christian Haas
--------------------------------------
By: Christian Haas
Title: Chief Executive Officer
Date: August 9, 2002
Address:
27 Avenue Eheime Audibort
60300 Senlis France
[SIGNATURE PAGE TO THE SHARE PURCHASE AND CONTRIBUTION AGREEMENT]
<PAGE>
31.
INNOVACOM 3
/s/ Jaryus Meheut
--------------------------------------
By: Jaryus Meheut
Title: General Partner and
Executive Member
Date: August 9, 2002
Address:
23 Rue Royale
75008 Paris France
[SIGNATURE PAGE TO THE SHARE PURCHASE AND CONTRIBUTION AGREEMENT]
<PAGE>
32.
EG INVESTMENTS LTD
/s/ Pierce Laughlan
--------------------------------------
By: Pierce Laughlan
Title: Director
Date: August 9, 2002
Address:
38 Hertford St.
London W1J 7SG United Kingdom
[SIGNATURE PAGE TO THE SHARE PURCHASE AND CONTRIBUTION AGREEMENT]
<PAGE>
33.
T - TELEMATIK VENTURE
/s/ Oliver Hoessberg
--------------------------------------
By: Oliver Hoessberg
Title: Investment Director
Date: August 9, 2002
Address:
Beteiligungsgesellschaft mbH
Gotenstrasse 156
53175 Bonn, Germany
[SIGNATURE PAGE TO THE SHARE PURCHASE AND CONTRIBUTION AGREEMENT]
<PAGE>
34.
CHAMPAGNE CAPITAL
/s/ Gaetan Japy
--------------------------------------
By: Gaetan Japy
Title:
Date: August 9, 2002
Address:
Avenue du Faubourg Saint Honore
75008 Paris France
[SIGNATURE PAGE TO THE SHARE PURCHASE AND CONTRIBUTION AGREEMENT]
<PAGE>
35.
LIST OF EXHIBITS
Exhibit 1: Selling and Contributing Shareholders, number of Sold and Contributed
Shares, purchase price allocation and Newton Shares allocation
Exhibit 2: Form of Agreement between NetValue and NetRatings
Exhibit 3: Form of legal opinion by Gray Cary Ware & Freidenrich, LLP
Exhibit 4: Form of Registration Rights Agreement
<PAGE>
36.
EXHIBIT 1
Selling and Contributing Shareholders, number of Sold and
Contributed Shares, purchase price allocation and NetRatings
Shares allocation
[See table attached hereafter]
N.B.: As a consequence of the transfer to NetRatings of the Sold Shares
and the Contributed Shares, the benefit of any double voting rights
attaching to certain of such shares will automatically be lost. The total
number of voting rights which NetRatings will hold immediately after
Settlement will therefore be reduced to the total number of NetValue
Shares acquired at Settlement by NetRatings (i.e. 4,603,069 shares).
<PAGE>
37.
EXHIBIT 2
FORM OF AGREEMENT
BETWEEN NETVALUE AND NETRATINGS
[See attached]
<PAGE>
38.
EXHIBIT 3
FORM OF LEGAL OPINION BY GRAY CARY WARE &
FREIDENRICH, LLP
DRAFT
-----
August 5, 2002
To the Shareholders listed on the
Share Purchase Agreement dated
as of August 5, 2002 by and among
NetRatings, Inc. and said Purchasers
And to Netvalue:
We are legal counsel to NetRatings, Inc., a Delaware corporation (the
"Company"), and we are rendering this opinion in connection with the Share
Purchase Agreement (the "Purchase Agreement") dated as of August 5, 2002 by and
among the Company and certain shareholders (the "Shareholders") in connection
with the purchase by the Company of the shares of the Shareholders of Netvalue,
S.A., a French company ("Netvalue"), and the issuance of shares of the Company's
Common Stock (the "Shares"), as partial consideration for the shares of Netvalue
stock being contributed by some of you as listed in the Agreement. Capitalized
terms used in this opinion, unless specifically defined herein, have the
meanings assigned to them in the Purchase Agreement.
As to factual matters, we have relied solely upon, and assumed the
accuracy, completeness, and genuineness of, a certificate of officers of the
Company (the "Certificate"), certificates of public officials and oral and
written representations made to us by officers of the Company. We have made no
independent investigation of any of the facts stated in any such certificate or
representation; however, we have no knowledge that would lead us to believe that
such facts are inaccurate. With respect to our opinion in Paragraph 2 hereof
regarding the Agreements (as defined below), we have assumed the genuineness and
authenticity of each such individual's signature on the Agreements (other than
signatures on behalf of the Company). With respect to our opinion in Paragraph 6
hereof regarding issued and outstanding shares of capital stock of the Company,
we have relied solely upon our review of a certificate of the Company's transfer
agent. With respect to our opinion in Paragraph 4 concerning agreements or
instruments of the Company, we have relied solely upon representations made to
us in certificates executed by officers of the Company that the Company has
supplied us with copies of all documents listed in Instruction 10 of Item 601 of
Regulation S-K, we have examined only those copies supplied to us by the Company
and, we have no reason to believe that such representations are inaccurate. With
respect to our opinion in Paragraph 4 regarding judgments, decrees and orders,
we have relied solely upon a representation made to us in the Certificate to the
effect that, except as may otherwise be set forth in the Agreement and the
Exhibits thereto, there are no judgments, decrees or orders binding upon the
Company.
<PAGE>
39.
Where we render an opinion "to our knowledge" or concerning an item "known
to us" or our opinion otherwise refers to our knowledge, it is intended to
indicate that, during the course of our representation of the Company, no
information that would give us current actual knowledge of the inaccuracy of
such statement has come to the attention of those attorneys in this firm who
have rendered or are rendering substantive legal services to the Company in the
transactions contemplated by the Agreements. However, except as otherwise
expressly indicated, we have not undertaken any independent investigation to
determine the accuracy of such statement and any limited inquiry undertaken by
us during the preparation of this opinion letter should not be regarded as such
an investigation; no inference as to our knowledge of any matters bearing on the
accuracy of any such statement should be drawn from the fact of our
representation of the Company.
In addition, we have assumed that the representations and warranties as to
factual matters made by each of you in Article 5 of the Purchase Agreement, are
true and correct. We have also assumed the genuineness and authenticity of all
documents submitted to us as originals, the conformity to originals of all
documents submitted to us as copies, the due execution and delivery of the
Agreements and all other documents referenced therein by any party other than
the Company when due execution and delivery are a prerequisite to the
effectiveness thereof, that you have received all of the documents that you were
required to receive under the Agreements, and that the Agreements and all other
documents referenced therein are binding obligations of each of you.
The opinions hereinafter expressed are subject to the following
qualifications:
A. We express no opinion as to the effect of general principles of equity,
including, but not limited to, concepts of materiality, reasonableness, good
faith and fair dealing, and the possible unavailability of specific performance
or injunctive relief (regardless of whether such remedy is considered in a
proceeding in equity or at law);
B. We express no opinion as to the effect on the enforceability of any
contract of applicable bankruptcy, insolvency, reorganization, moratorium and
other similar federal and state laws affecting the rights of creditors
generally;
C. We express no opinion as to compliance with the anti-fraud provisions
of state and federal laws, rules and regulations concerning the issuance of
securities;
D. We are members of Bar of the State of California and we are not
expressing any opinion relating to any jurisdiction other than the laws of the
United States of America and the laws of the State of California and the
Delaware General Corporation Law. In rendering our opinions in Paragraphs 4 and
5 below, to the extent that such opinion relates to judgments, orders, decrees,
statutes, laws, ordinances, rules or regulations or consents, waivers, approval
or authorizations of, or filings with, any governmental entity applicable to the
Company, it is understood that we have not conducted any special investigation
of statues, laws, ordinances, rules or regulations, and our opinion with respect
thereto is limited to such United States and California statutes, laws,
ordinances, rules, regulations, approvals and filings and provisions of the
Delaware General Corporation Law as in our experience are normally applicable to
a transaction of the type contemplated by the Agreements.
<PAGE>
40.
E. We call your attention to the fact that the Purchase Agreement and the
agreement dated August 5, 2002 between Newton and Netvalue (the "Agreement")
state that they are governed by and construed in accordance with the laws of
France and that we are not rendering any opinion with respect to French Law. We
have not examined the question of what law would govern the interpretation or
enforcement of the Purchase Agreement or the Agreement and our opinion is based
on the assumption that the internal laws of the State of California and federal
law would govern the provisions of the Purchase Agreement and the Agreement and
the transactions contemplated thereby and that the laws of France are, in
substance, identical to the laws of the State of California and federal law
regarding the enforceability of the Purchase Agreement and the Agreement. We
note that if the Purchase Agreement and the Agreement are not, in fact, legal,
valid, binding and enforceable under the laws of France, the Purchase Agreement
and the Agreement may not be enforced by a California court under applicable
conflicts of law principles. We express no opinion with respect to any questions
of choice of law, choice of venue or conflict of laws.
F. We express no opinion with respect to the enforceability of the
provisions of the Registration Rights Agreement regarding indemnification of you
and the Company with respect to the registration of the sale of the Company's
securities with the Securities and Exchange Commission to the extent that such
provisions may be found to contravene applicable public policy and therefore to
be unenforceable.
Subject to the foregoing, it is our opinion that as of the date hereof:
1. The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware. The Company has all
requisite corporate power to own and operate its properties and assets and to
carry on its business as presently conducted.
2. The Company has all requisite corporate power to issue and sell the
Shares, to enter into the Purchase Agreement, the Registration Rights Agreement
and the Agreement (collectively the "Agreements"), and to carry out and perform
its obligations under the terms thereof. The Agreements have been duly
authorized by all necessary corporate action on the part of the Company and have
been duly executed and delivered by the Company. The Agreements are valid and
binding obligations of the Company, enforceable in accordance with their terms.
3. The Shares, when issued in compliance with the provisions of the
Purchase Agreement, will be duly authorized, validly issued, fully paid and
nonassessable. Except as described or disclosed in the Agreements, the issuance
of the Shares is not subject to any preemptive rights or, to our knowledge,
rights of first refusal created by the Company. The Securities have been duly
and validly reserved.
4. The execution, delivery and performance of the Agreements, and the
issuance of the Shares, will not violate any term of the Company's Restated
Certificate of Incorporation or Bylaws, and, such transactions will not, in any
material respect, violate any statute, rule or regulation of United States
federal or Delaware Corporate Law applicable to the Company or conflict with or
constitute a default under the provisions of any material agreement, judgment,
decree or order, that, to our knowledge, is binding upon the Company.
<PAGE>
41.
5. All consents, approvals and authorizations of and filings with any
federal or California State and Delaware State governmental authority required
on the part of the Company, if any, in connection with the valid execution and
delivery of the Agreements and the consummation of the transactions contemplated
thereby have been obtained or made, except, if required, filings to be made
under the Securities Act of 1933, as amended, after the sale of the Shares.
6. The authorized capital stock of the Company consists of Two Hundred
Million (200,000,000) shares of Common Stock of which [o] shares of Common
Stock were issued and outstanding of record as of the date hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
42.
The foregoing opinion is intended solely for your benefit and is not to be
made available to or be relied upon by any other person, firm, or entity without
our express prior written consent.
Very truly yours,
/s/ GRAY CARY WARE & FREIDENRICH LLP
<PAGE>
43.
EXHIBIT 4
FORM OF REGISTRATION RIGHTS AGREEMENT
[See attached]