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Exhibit 4.3
AMENDMENT TO SHAREHOLDERS' AGREEMENT
AMENDMENT, dated as of March 6, 2000, to Shareholders' Agreement dated
as of September 1, 1999 (the "SHAREHOLDERS' AGREEMENT"), by and among MMXI
Europe B.V., a private company with limited liability organized under the laws
of the Netherlands (the "COMPANY"), Media Metrix, Inc., a Delaware corporation,
("MMXI"), GfK AG, a German stock corporation ("GFK"), IPSOS SA, a French stock
corporation ("IPSOS"), and Osprey Research B.V. ("OSPREY"), a private company
with limited liability organized under the laws of the Netherlands and
wholly-owned subsidiary of SIFO Group AB, a Swedish corporation.
WHEREAS, MMXI, GfK and IPSOS are parties to the Shareholders' Agreement
and constitute the holders of all of the Company's share capital; and
WHEREAS, the Company is issuing additional share capital to Osprey as
of the date hereof; and
WHEREAS, the addition of Osprey as a party to the Shareholders'
Agreement is a condition to the issuance of such shares to Osprey.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto agree as follows:
1. CONTINUATION OF SHAREHOLDERS' AGREEMENT
The Shareholders' Agreement shall continue in full force and effect as
amended by this Amendment. All capitalized terms not otherwise defined in this
Amendment shall have the meanings given in the Shareholders' Agreement.
2. ADDITION OF OSPREY AS A SHAREHOLDER
The Shareholders' Agreement is hereby amended to add Osprey as a
Shareholder for all purposes thereunder.
3. COMPOSITION OF SUPERVISORY BOARD
The first three sentences of Section 3(a) of the Shareholders'
Agreement are hereby amended and restated to read as follows:
The Supervisory Board of the Company (the "SUPERVISORY BOARD")
shall be comprised of six members (each, a "SUPERVISORY
DIRECTOR"), each of whom shall have an equal vote on matters
brought before the
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Supervisory Board. The Shareholders agree that (i) MMXI shall
have the right to nominate three (3) Supervisory Directors;
(ii) GfK shall have the right to nominate one (1) Supervisory
Director; (iii) IPSOS shall have the right to nominate one (1)
Supervisory Director; and (iv) Osprey shall have the right to
nominate one (1) Supervisory Director.
4. MEETINGS AND RESPONSIBILITIES OF THE SUPERVISORY BOARD
Section 4(b)(xi) of the Shareholders' Agreement is hereby amended and
restated to read as follows:
Entering into any partnership, joint venture or similar
arrangement involving equity ownership with the competitors of
GfK, IPSOS or Osprey listed on Schedule B hereto, it being
specified that the contents of Schedule B may be modified by
GfK, IPSOS or Osprey from time to time;
5. SUPERVISORY BOARD VOTING
(a) The first sentence of Section 5(a) of the Shareholders' Agreement
is hereby amended and restated to read as follows:
Except as set forth in subsections (b), (c) and (d) below,
actions of the Supervisory Board shall be approved at a
meeting of the Supervisory Board by a majority per capita vote
so long as there is a quorum.
(b) Section 5(b) of the Shareholders' Agreement is hereby amended and
restated to read as follows:
In addition to any votes of the general meeting required by
applicable law, approval of matters listed in Sections
4(b)(ix)-(xxi) shall require the unanimous consent of all of
the Supervisory Directors then in office, whether present or
not at a meeting of the Supervisory Board; provided, however,
that Osprey shall cause the Supervisory Director it nominates
to the Supervisory Board to vote in favor of any matter listed
in Sections 4(b)(x)-(xxi) that is supported by all other
Supervisory Directors.
(c) The Shareholders' Agreement is hereby amended to add a new
Section5(d), to read as follows:
(d) The determination of whether to exercise the option to
purchase shares of RelevantKnowledge Holding AB from MMXI
pursuant to the terms of the Option to Purchase Shares, dated
as of
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March 6, 2000, shall be made by the unanimous vote of the
Supervisory Directors nominated by GfK and IPSOS. MMXI shall
cause the Supervisory Directors nominated by MMXI to abstain
from such vote.
6. DEADLOCKS
Section 6(b) of the Shareholders Agreement is hereby amended and
restated to read as follows:
Should the matter not be resolved by the required majority or
supermajority vote at the Second Board meeting, GfK, IPSOS
and/or Osprey (the "DISAGREEING PARTY"), as the case may be,
shall have the right (such right, a "DISAGREEING PARTY
RIGHT"):
(i) to offer the Shares owned by such Disagreeing
Party to the other Shareholders or to the Company at a price
determined in accordance with Paragraph 6(e) below; or
(ii) to exercise such Disagreeing Party's right to
exchange its Shares for shares of MMXI common stock in
accordance with the Option Agreement (the "OPTION AGREEMENT")
between MMXI and such Shareholder; or
(iii) if neither the other Shareholders nor the
Company are willing (and permitted in accordance with
applicable law) to purchase the Shares, to offer its Shares to
a third party in accordance with the provisions of Paragraph
11(e) of this Agreement.
7. SHAREHOLDER VOTING
Each Shareholder shall vote all of its Shares as necessary to make
changes to the Company's Articles of Association to conform the Articles of
Association to the terms and provisions of this Amendment to the extent
permitted under the law of the Netherlands.
8. MANAGING BOARD
The Shareholders agree to vote their Shares to elect ▇▇▇▇ ▇▇▇▇▇▇▇▇ as
an additional member of the Managing Board promptly following the date hereof to
serve as provided in the Agreement and the Articles of Association.
9. CAPITAL CONTRIBUTIONS IN THE COMPANY
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(a) On the date hereof, Osprey has contributed cash to the Company in
the amount of (euro) 173,913 and has been issued 1,739 Shares.
(b) Section 10(b)(v) of the Shareholders' Agreement is hereby amended
to increase the maximum aggregate amount of Additional Contributions from
(euro) 7,000,000 to (euro) 7,782,609 and to increase the Maximum Commitment from
(euro) 9,000,000 to (euro) 9,782,609.
(c) The first sentence of Section 10(c) of the Shareholders' Agreement
is hereby amended and restated to read as follows:
If the Shareholders elect to make an Additional Contribution
in excess of the Maximum Commitment, MMXI shall grant to each
of IPSOS, GfK and Osprey an option to exchange the Shares or
evidence of indebtedness issued in respect of such Additional
Contribution for the number of shares of common stock, par
value $.01 per share, of MMXI ("MMXI COMMON STOCK") determined
by dividing (i) the amount of the Additional Contribution made
by such Shareholder (expressed in U.S. Dollars at the rate at
which Euros are converted into U.S. Dollars as posted in The
Wall Street Journal the business day prior to the Additional
Contribution) by (ii) $59.96, in the case of GfK and IPSOS,
and 100% of the closing price of the MMXI Common Stock on the
Nasdaq National Market on the date hereof, in the case of
Osprey.
10. CHANGE IN CONTROL
(a) Section 12(a) of the Shareholders' Agreement is hereby amended and
restated to read as follows:
Upon a Change in Control at GfK, IPSOS, Osprey or SIFO Group
AB (the "DEPARTING SHAREHOLDER"), the remaining Shareholders
(other than MMXI) shall have the right to purchase such Shares
at a purchase price determined in the manner provided for in
Paragraph 6(e) hereof (except that in the event of a Change in
Control of SIFO Group AB, Osprey shall have no right to
purchase such Shares). The Departing Shareholder shall notify
such remaining Shareholders and the Company promptly of a
Change of Control or a pending Change of Control. If the
Departing Shareholder and such remaining Shareholders are not
able to agree upon a price for the Shares within ten (10)
days, an independent auditor shall determine the fair market
value of the Shares in accordance with Paragraph 6(e), and
each such remaining Shareholder shall have ten (10) days from
the date of the determination of the price to notify the
Departing Shareholder of its
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intention to purchase such Shares (or if both such remaining
Shareholders desire to purchase such Shares, its intention to
purchase its pro rata portion of such Shares) in accordance
with the procedures established under Paragraph 11 hereof. If
such remaining Shareholders do not exercise such right, the
Company shall have an opportunity to repurchase, to the extent
permitted under the law of the Netherlands, the Departing
Shareholder's shares in accordance with the procedures
established under Paragraph 11 hereof; provided, however, that
neither such remaining Shareholders nor the Company will have
a right to purchase or repurchase the Shares if the Departing
Shareholder exercises its right under the Option Agreement to
exchange its Shares for MMXI Common Stock.
(b) Section 12(b) of the Shareholders' Agreement is hereby amended and
restated to read as follows:
Upon a Change of Control at MMXI during the term of the Option
Agreements between MMXI and each of GfK, IPSOS and Osprey,
GfK, IPSOS and Osprey shall have the right to exchange all of
their respective Shares for shares of MMXI Common Stock in
accordance with the Option Agreements. Upon a Change in
Control at MMXI following the expiration of the Option
Agreements, each of GfK, IPSOS and Osprey shall have the
option to sell all of their respective Shares, and MMXI hereby
agrees to purchase such Shares, for a purchase price
determined in the manner provided for in Paragraph 6(e)
hereof.
11. TERMINATION OF CERTAIN PROVISIONS
Upon the earlier of (a) the exercise of the Option granted by IPSOS to
GfK pursuant to Section 13 of the Shareholders' Agreement and (b) June 4, 2000,
Section 13 of the Shareholders' Agreement shall be deleted and shall have no
further effect.
12. NON-COMPETITION; NON-SOLICITATION
The final sentence of Section 17(a) of the Shareholders' Agreement is
hereby amended and restated to read as follows:
The Company agrees that neither it nor any of its officers,
directors or subsidiaries will, directly or indirectly engage
in the business of audience measurement in television, radio,
newspaper and magazines for so long as GfK, IPSOS or Osprey
are parties to this Agreement
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and for two years thereafter.
13. ARBITRATION
Section 22(c)(i) of the Shareholders' Agreement is hereby amended and
restated to read as follows:
The arbitral tribunal shall be comprised of three arbitrators,
one of whom shall be appointed by MMXI, one of whom shall be
appointed by GfK, IPSOS and Osprey voting in proportion to
their respective shareholdings, and one of whom shall be
appointed by the other two arbitrators;
14. TRANSFER OF SHARES
Notwithstanding Section 11 of the Shareholders' Agreement, Osprey shall
have the right to sell its Shares to SIFO Group AB so long as SIFO Group AB has
agreed to become a party to, and be bound by, the Shareholders' Agreement. Upon
such an event, all of Osprey's rights and obligations under the Shareholders'
Agreement shall be assigned to SIFO Group AB. Upon such transfer, MMXI, GfK and
IPSOS each agree not to exercise any preemptive right set forth in the Company's
Articles of Association.
15. MISCELLANEOUS
(a) Any notices, consents or other communication required to be sent or
given to Osprey hereunder or under the Shareholders' Agreement by any of the
parties shall in every case be delivered at the addresses as set forth below or
at such other addresses as may be furnished in writing:
Osprey Research B.V.
c/o SIFO Group AB
World Trade Center
Box 70408, ▇▇-▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇ Kessiakoff
Facsimile: ▇▇▇ ▇ ▇▇▇ ▇▇▇▇
With a copy to:
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇-▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
Facsimile: ▇▇▇ ▇ ▇▇▇ ▇▇▇▇
(b) This Amendment shall be governed exclusively by and construed and
enforced in accordance with the internal laws of The Netherlands. This Amendment
shall be binding upon and inure to the benefit of the parties signatory hereto
and their respective successors and assigns.
(c) This Amendment may be executed in a number of counterparts, all of
which together shall for all purposes constitute one agreement, binding on all
the parties hereto notwithstanding that all such parties have not signed the
same counterpart.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date and year first above written.
MMXI EUROPE B.V.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
__________________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
MEDIA METRIX, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
__________________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer
GFK AG
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
__________________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Member of the Board
IPSOS SA
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
__________________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chairman and Chief Executive Officer
OSPREY RESEARCH B.V.
By: /s/ ▇▇▇-▇▇▇▇ Jannsson
__________________________________________
Name: ▇▇▇-▇▇▇▇ Jannsson
Title: Director
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SCHEDULE B
COMPETITORS OF SIFO GROUP AB
@Plan
▇.▇. ▇▇▇▇▇▇▇
AEGIS
AGB Italia Group
Arbitron
ENIGMA
▇▇▇▇▇▇▇▇ Research
▇▇▇▇▇▇▇▇▇ Research
Gallup
Gartner Group
Icon
INRA
IntelliQuest Inc.
International Data Corporation
Jupiter Communications
Mediametrie
NetRatings
NetValue
NFO Infratest ▇▇▇▇▇ Group
▇▇▇▇▇▇▇ Media Research
PC Data Primedia
Information Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇ SOFRES
The Gallup Organization
United Information Group
VNU
Westat
WPP Group
