Exhibit 4.10
MEDIA METRIX, INC.
STOCK OPTION AGREEMENT
AGREEMENT made as of the 1st day of September, 1999, by and
between Media Metrix, Inc., a Delaware corporation (the "Company"), and GfK AG,
a German stock corporation (the "Optionee").
W I T N E S S E T H
WHEREAS, the Company, the Optionee and IPSOS SA ("IPSOS" and
together with the Company and the Optionee, the "SHAREHOLDERS") are shareholders
of MMXI Europe B.V. ("MMXI EUROPE"); and
WHEREAS, the Company desires to grant to the Optionee, and the
Optionee desires to accept, an option (the "OPTION") to acquire shares of common
stock, $.01 par value, of the Company (the "COMMON STOCK") upon the terms and
conditions set forth in this agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. GRANT.
(a) Subject to the terms and conditions set forth in this
Stock Option Agreement, the Company hereby grants to the Optionee an Option to
exchange shares of MMXI Europe (the "SHARES") for shares of Common Stock at any
time during a five (5) year period commencing at 9.00 am (New York time) on May
7, 2000 and ending at 5.00 pm (New York time) on May 7, 2005 (the "EXCHANGE
PERIOD"). The maximum number of Shares which may be exchanged shall be
calculated on the basis of the Optionee's cash contributions with respect to
such shares, it being understood that such contributions shall not exceed an
aggregate of [EURO] 1,791,000. The number of shares of Common Stock to be issued
upon exercise of the Option shall be determined by dividing (i) the amount of
the cash capital contributions made to MMXI Europe with respect to the Shares to
be exchanged (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 exercise of the Option) by (ii) $21.25 (the "PER SHARE OPTION PRICE").
(b) If the Shareholders elect to finance MMXI Europe by making
loans rather than additional capital contributions, the Optionee may exchange
the notes evidencing any such loan (the "NOTES") for shares of Common Stock at
any time during the Exchange Period; PROVIDED, HOWEVER, that the aggregate
contribution with respect to the Shares and the nominal amount of the Notes
exchanged shall not exceed [EURO] 1,791,000. The number of shares of Common
Stock to be issued upon exercise of the Option shall be determined by
dividing (i) the principal amount of the Notes (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 exercise of the Option) by (ii)
the Per Share Option Price.
(c) If, upon the third anniversary of this Agreement, the
aggregate capital and loan contributions to MMXI Europe by the Company, the
Optionee and IPSOS are less than [EURO] 9,000,000, then the Optionee shall
have the option to purchase for cash, at the Per Share Option Price, an
amount of Common Stock equal to 19.9% of the difference between
[EURO] 9,000,000 and such aggregate capital and loan contributions.
(d) The Option may be exercised only if the revenues of MMXI
Europe exceed the targets agreed to among the Company, GfK and IPSOS.
(e) Upon a Change in Control (as such term is defined in the
Shareholders' Agreement, dated as of the date hereof, among the Optionee, IPSOS
and the Company) of the Optionee or following a deadlock as to which Sections 6
(b) (ii) or 6(e) of the Shareholders' Agreement apply, the Optionee shall
thereafter have the right to exercise the Option regardless of whether the date
of exercise precedes May 7, 2000 or the level of the revenues of MMXI Europe.
2. EXERCISE. The Option may be exercised in whole or in part
in accordance with Section 1 hereof by delivering to the Secretary of the
Company (a) a written notice specifying the number of shares to be acquired, and
(b) delivery of certificates representing the Shares and/or the Notes. It shall
be a condition to the issuance of the Common Stock certificates that an amount,
if any, deemed necessary by the Company to enable it to satisfy any income tax
withholding obligations with respect to the exercise shall be remitted to the
Company (unless other arrangements acceptable to the Company are made for the
satisfaction of such withholding obligations).
3. RESERVATION OF SHARES; LISTING. The Company agrees that,
prior to the expiration of this Option, the Company will at all times have
authorized and in reserve, and will keep available, solely for issuance or
delivery upon the exercise of this Option, the shares of the Common Stock and
other securities and properties as from time to time shall be receivable upon
the exercise of this Option, free and clear of all restrictions on sale or
transfer and free and clear of all preemptive rights and rights of first refusal
and keep the shares of the Common Stock receivable upon the exercise of this
Option authorized for listing on NASDAQ upon notice of issuance.
4. PROTECTION AGAINST DILUTION.
(a) In case the Company shall hereafter (i) pay a dividend or
make a distribution on its capital stock in shares of Common Stock, (ii)
subdivide its outstanding shares of Common Stock into a greater number of
shares, (iii) combine its outstanding shares of Common Stock into a smaller
number of shares or (iv) issue by reclassification of its Common Stock any
shares of capital stock of the Company, the Per Share Option Price shall be
adjusted so that the Optionee upon the exercise hereof shall be entitled to
receive the number of shares of Common Stock or other capital stock of the
Company which it would have owned immediately following such action had such
Option been exercised immediately prior thereto. An adjustment made pursuant to
this Subsection 4(a) shall become effective immediately after the record date in
the case of a
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dividend or distribution and shall become effective immediately after the
effective date in the case of a subdivision, combination or reclassification.
(b) If, at any time or from time to time after the date of
this Option, the Company shall issue or distribute to the holders of shares of
Common Stock evidences of its indebtedness, any other securities of the Company
or any cash, property or other assets (excluding a subdivision, combination or
reclassification, or dividend, and also excluding cash dividends or cash
distributions paid out of net profits legally available therefor if the full
amount thereof, together with the value of other dividends and distributions
made substantially concurrently therewith or pursuant to a plan which includes
payment thereof, is equivalent to not more than 5% of the Company's net worth)
(any such nonexcluded event being herein called a "SPECIAL DIVIDEND"), the Per
Share Option Price shall be adjusted by multiplying the Per Share Option Price
then in effect by a fraction, the numerator of which shall be the then current
market price of the Common Stock (defined as the average for the five
consecutive business days immediately prior to the record date of the daily
closing price of the Common Stock as reported by the national securities
exchange upon which the Common Stock is then listed or if not listed on any such
exchange, the average of the closing prices as reported by NASDAQ) less the fair
market value (as determined by the Company's Board of Directors) of the
evidences of indebtedness, cash, securities or property, or other assets issued
or distributed in such Special Dividend applicable to one share of Common Stock
and the denominator of which shall be such then current market price per share
of Common Stock. An adjustment made pursuant to this Subsection 4(b) shall
become effective immediately after the record date of any such Special Dividend.
(c) In case of any capital reorganization or reclassification,
or any consolidation or merger to which the Company is a party other than a
merger or consolidation in which the Company is the continuing corporation, or
in case of any sale or conveyance to another entity of the property of the
Company as an entirety or substantially as an entirety, or in the case of any
statutory exchange of securities with another corporation (including any
exchange effected in connection with a merger of a third corporation into the
Company), the Optionee shall have the right thereafter to receive on the
exercise of this Option the kind and amount of securities, cash or other
property which the holder would have owned or have been entitled to receive
immediately after such reorganization, reclassification, consolidation, merger,
statutory exchange,
sale or conveyance had this Option been exercised
immediately prior to the effective date of such reorganization,
reclassification, consolidation, merger, statutory exchange, sale or conveyance
and in any such case, if necessary, appropriate adjustment shall be made in the
application of the provisions set forth in this Section 4 with respect to the
rights and interests thereafter of the Optionee to the end that the provisions
set forth in this Section 4 shall thereafter correspondingly be made applicable,
as nearly as may reasonably be, in relation to any shares of stock or other
securities or property thereafter deliverable on the exercise of this Option.
The above provisions of this Subsection 4(c) shall similarly apply to successive
reorganizations, reclassifications, consolidations, mergers, statutory
exchanges, sales or conveyances. The issuer of any shares of stock or other
securities or property thereafter deliverable on the exercise of this Option
shall be responsible for all of the agreements and obligations of the Company
hereunder. Notice of any such reorganization, reclassification, consolidation,
merger, statutory exchange,
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sale or conveyance and of said provisions so proposed to be made, shall be
mailed to the holders of the Options not less than 30 days prior to such event.
A sale of all or substantially all of the assets of the Company for a
consideration consisting primarily of securities shall be deemed a consolidation
or merger for the foregoing purposes.
(d) No adjustment in the Per Share Option Price shall be
required unless such adjustment would require an increase or decrease of at
least $0.05 per share of Common Stock; PROVIDED, HOWEVER, that any adjustments
which by reason of this Subsection 4(d) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment; PROVIDED
FURTHER, however, that adjustments shall be required and made in accordance with
the provisions of this Section 4 (other than this Subsection 4(d)) not later
than such time as may be required in order to preserve the tax-free nature of a
distribution to the Optionee or Common Stock issuable upon exercise hereof. All
calculations under this Section 4 shall be made to the nearest cent or to the
nearest 1/l00th of a share, as the case may be. Anything in this Section 4 to
the contrary notwithstanding, the Company shall be entitled to make such
reductions in the Per Share Option Price, in addition to those required by this
Section 4, as it in its discretion shall deem to be advisable in order that any
stock dividend, subdivision of shares or distribution of rights to purchase
stock or securities convertible or exchangeable for stock hereafter made by the
Company to its stockholders shall not be taxable.
(e) If the Board of Directors of the Company shall (i) declare
any dividend or other distribution with respect to the Common Stock, other than
a cash dividend subject to the first parenthetical in Subsection 4(b), (ii)
offer to the holders of shares of Common Stock any additional shares of Common
Stock, any securities convertible into or exercisable for shares of Common Stock
or any rights to subscribe thereto, or (iii) propose a dissolution, liquidation
or winding up of the Company, the Company shall mail notice thereof to the
Optionee not less than 15 days prior to the record date fixed for determining
stockholders entitled to participate in such dividend, distribution, offer or
subscription right or to vote on such dissolution, liquidation or winding up.
(f) If, as a result of an adjustment made pursuant to this
Section 4, the holder of any Option thereafter surrendered for exercise shall
become entitled to receive shares of two or more classes of capital stock or
shares of Common Stock and other capital stock of the Company, the Board of
Directors (whose determination shall be conclusive and shall be described in a
written notice to the holder of any Option promptly after such adjustment) shall
determine the allocation of the adjusted Per Share Option Price between or among
shares or such classes of capital stock or shares of Common Stock and other
capital stock.
(g) Upon each adjustment of the Per Share Option Price
pursuant to the provisions of this Section 4, the number of shares of Common
Stock issuable upon the exercise of the Option at the adjusted Per Share Option
Price shall be adjusted to the nearest full amount by multiplying a number equal
to the Per Share Option Price in effect immediately prior to such adjustment by
the number of shares of Common Stock issuable upon exercise of the Option
immediately prior to such adjustment and dividing the product so obtained by the
adjusted Per Share Option Price.
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5. RIGHTS AS STOCKHOLDER. No shares of Common Stock shall be
sold or delivered hereunder, nor shall the Optionee become a stockholder, until
there has been full compliance with Section 2 hereof. Except as otherwise
provided herein, no adjustment shall be made for dividends or distributions of
other rights for which the record date is prior to the date such stock
certificate is issued.
6. LIMITED TRANSFERABILITY. This Option may not be sold,
transferred, assigned or hypothecated by the Optionee except in compliance with
the provisions of the Securities Act of 1933, as amended. Upon exercise of this
Option, as requested by law, the Shares shall be transferred by the Optionee to
the Company by means of a notarial deed of transfer ("NOTARIELE AKTE HOUDENDE
XXXXXXXX") of the Shares (the "DEED OF TRANSFER"), to be executed before civil
law notaries ("NOTARISSEN") . Delivery of the Shares and/or Notes required under
Section 2 hereof shall take place simultaneously with the execution of the Deed
of Transfer. The Company may treat the registered holder as he or it appears on
the Company's books at any time as the holder for all purposes. The Company
shall permit any Optionee or his duly authorized attorney, upon written request
during ordinary business hours, to inspect and copy or make extracts from its
books showing the registered holders of Options. All Options issued upon the
transfer or assignment of this Option will be dated the same date as this
Option, and all rights of the holder thereof shall be identical to those of the
Optionee.
7. MISCELLANEOUS.
(a) This agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors and permitted
assigns.
(b) This agreement shall be governed by and construed in
accordance with the laws of the State of Delaware. Except as specified in
Section 1 (d) and, to the extent specified in Section 1 (e), in the
Shareholders' Agreement, this agreement constitutes the entire agreement between
the parties with respect to the subject matter hereof and may not be modified
except by written instrument executed by the parties.
(c) All disputes arising out of this Option, including,
without limitation, disputes concerning the existence and validity thereof,
shall be resolved by binding arbitration in accordance with the rules of the
Netherlands Arbitration Institute (NETHERLANDS ARBITRAGE INSTITUUT, the "NAI")
and in accordance with the following:
(i) the arbitral tribunal shall be comprised of two
arbitrators, one of whom shall be appointed by MMXI
and one of whom shall be appointed by the Optionee;
(ii) the place of arbitration shall be Amsterdam, The
Netherlands;
(iii) all proceedings shall be conducted in the English
language;
(iv) the tribunal shall make its determination in
accordance with the rules of the law;
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(v) the proceedings may not be consolidated with any
other arbitration proceedings pursuant to Section
1046 of the Code of the Civil Procedure (WETBOEK VAN
URGERLIJKE RECHTSVORDERING), unless such other
proceedings are conducted exclusively between the
parties to this Option; and
(vi) the arbitral judgment may not be published by the
NAI.
IN WITNESS WHEREOF, this agreement has been executed as of the
date first above written.
MEDIA METRIX, INC.
By:
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GfK AG
By:
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