Exhibit 4.5
REGISTRATION RIGHTS AGREEMENT
-----------------------------
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into as of
August __, 2002, by and among certain stockholders of Netvalue, S.A., a French
corporation ("Netvalue") as listed on the signature page hereto (each a "Holder"
and together, the "Holders") and NetRatings, Inc., a Delaware corporation (the
"Company").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company and the Holders are parties to that certain Share
Purchase and Contribution Agreement, dated as of August __, 2002 (the "Share
Purchase and Contribution Agreement") pursuant to which (among other things) the
Company will issue and sell to the Holders 266,148 shares (the "Shares") of
the Company's common stock, par value $0.001 per share (the "Company Common
Stock");
WHEREAS, the Company and the Holders desire to enter into this Agreement in
order to, among other things, set forth the rights of the Holders to cause the
Company and the obligations of the Company to use its commercially reasonable
efforts to register the Shares with the Securities and Exchange Commission (the
"SEC") for resale pursuant to the Securities Act of 1933, as amended (the
"Securities Act"); and
WHEREAS, the execution and delivery of this Agreement is a condition
precedent to the parties' obligations under the Share Purchase and Contribution
Agreement.
NOW, THEREFORE, in consideration of the mutual promises, agreements and
covenants hereinafter set forth, the parties hereto hereby agree as follows:
1. Definitions.
-----------
As used in this Agreement, the following terms shall have the respective
meanings set forth below:
"Agreement" has the meaning set forth in the preamble to this Agreement.
"Company" has the meaning set forth in the preamble to this Agreement.
"Company Common Stock" has the meaning set forth in the recitals to this
Agreement.
"Effectiveness Deadline" has the meaning set forth in Section 2 of this
Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Filing Deadline" has the meaning set forth in Section 2 of this Agreement.
"Holder" has the meaning set forth in the preamble to this Agreement.
1
"Holder Subsidiary" has the meaning set forth in Section 9 of this
Agreement.
"Indemnified Person" has the meaning set forth in Section 8 of this
Agreement.
"Indemnifying Person" has the meaning set forth in Section 8 of this
Agreement.
"Losses" has the meaning set forth in Section 8 of this Agreement.
"NASDAQ" means the National Association of Securities Dealers Automated
Quotation Service.
"Notice" has the meaning set forth in Section 8 of this Agreement.
"Person" means an individual, corporation, partnership, association, trust
or other entity or organization, including a government or political subdivision
or an agency or instrumentality thereof.
"Prospectus" has the meaning set forth in Section 3 of this Agreement.
"Register" (and "registered" and "registration") shall mean a registration
effected by preparing and filing the Registration Statement in compliance with
the Securities Act with the SEC, and the declaration or ordering of the
effectiveness by the SEC of such Registration Statement.
"Registrable Securities" means (a) the Shares issued and sold to Holders
under the Share Purchase and Contribution Agreement, (b) any Company Common
Stock issued or issuable with respect to the Shares in connection with any
conversion, stock split, stock dividend, recapitalization or similar event of
the Company and (c) any Company securities issued in exchange for or in
replacement of any of the foregoing.
"Registration Expenses" means all expenses incurred by the Company in
complying with its obligations hereunder, including, without limitation, all
registration, qualification and filing fees (including SEC filing fees),
printing expenses, escrow fees, fees and disbursements of counsel and
independent public auditors for the Company, blue sky fees and expenses (if
any), the expense of any special audits incident to or required by any such
registration.
"Registration Statement" has the meaning set forth in Section 2 of this
Agreement.
"SEC" has the meaning set forth in the recitals to this Agreement.
"Securities Act" has the meaning set forth in the recitals to this
Agreement.
"Seller Registrable Securities" has the meaning set forth in Section 2 of
this Agreement.
"Selling Expenses" shall mean all selling commissions and stock transfer
taxes applicable to the Registrable Securities sold by the Holder.
"Shares" has the meaning set forth in the recitals to this Agreement.
2
"Share Purchase and Contribution Agreement" has the meaning set forth in
the recitals to this Agreement.
"Suspension Notice" has the meaning set forth in Section 4 of this
Agreement.
"Transfer" has the meaning set forth in Section 9 of the Agreement.
2. Registration of the Registrable Securities.
------------------------------------------
(a) As soon as practicable after the date hereof but in no event later than
35 calendar days after the date hereof (such 35th day, the "Filing Deadline"),
the Company shall file with the SEC a registration statement on Form S-3
pursuant to Rule 415 under the Securities Act (the "Registration Statement"),
relating to all Registrable Securities then held by each Holder, and shall use
its commercially reasonable efforts to cause such Registration Statement to
become effective as soon as practicable thereafter but in no event later than
120 calendar days after the date hereof (such 120th day, the "Effectiveness
Deadline").
(b) The Company shall use commercially reasonable efforts to keep the
Registration Statement continuously effective, supplemented and amended to the
extent necessary to ensure that it is available for sales of Registrable
Securities by each Holder, and the Company shall ensure that at all times the
Registration Statement conforms with the requirements of this Agreement, the
Securities Act and the policies, rules and regulations of the SEC as announced
from time to time, until the earliest of (i) the date on which all Registrable
Securities covered by such Registration Statement have been sold pursuant
thereto and (ii) in the case of any Holder who is not an affiliate of the
Company as defined under rule 144 of the Securities Act the date on which all
Registrable Securities may be sold in the United States of America by the Holder
pursuant to Rule 144(k) under the Securities Act (or any successor rule or
regulation).
(c) If the Registration Statement:
(i) has not been filed with the SEC on or prior to the Filing
Deadline, or
(ii) has not been declared effective by the SEC on or prior to the
Effectiveness Deadline, or
(iii) is filed with the SEC and declared effective, but shall
thereafter cease to be effective or fail to be usable for its intended
purpose without being succeeded immediately by a post-effective amendment
to such Registration Statement that cures such failure and that is itself
declared effective within five (5) trading days of filing such
post-effective amendment to the Registration Statement and during any other
period during which a Suspension Notice, is in effect (each such event
referred to in clauses (i) through (iii), a "Registration Default"),
then, each Holder shall have the right (a "Put Right"), by written notice given
to the Company (the "Put Notice") to sell his/her Registrable Securities to the
Company at a price per Registrable Security equal to (A) EUR 2 divided by (B)
0.278169, the original exchange ratio for conversion of Netvalue shares as
contained in the Share Purchase Agreement (which exchange ratio was calculated
as (A) 1.99 Euros converted into U.S. Dollars (based on the exchange rate as of
3
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), at such times and in the manner
described as following.
The Holder shall have the right to give the Put Notice at any time that the Put
Right is in effect. The Put Right shall be in effect (x) upon the occurrence of
a Registration Default described in Clause (c)(i) or (c)(ii) above until such
time as the Registration Statement shall be declared effective and (y) at any
time after a Registration Default described in Clause (c)(iii) above until the
Registration Statement is made effective again. If a Put Notice shall have been
given at such time as the Put Right is in effect, either the Company on the one
hand, or such Holder who has given the Put Notice, on the other hand, may
require that the sale pursuant to the Put Right be consummated, notwithstanding
a subsequent declaration of effectiveness of the Registration Statement which
occurs subsequent to such delivery and prior to the consummation of such sale,
and the Company and such Holder shall be deemed to have so required unless the
Company and such Holder agree in writing to rescind the related Put Notice prior
to the expiration of the applicable ten (10) calendar day period referred to in
the next sentence. The Company shall consummate such purchase by paying the
applicable price to the Holder who has given such Put Notice by wire transfer of
immediately available funds in Euros within ten calendar days after the date on
which such Put Notice is given.
(d) The Company represents and warrants that as of the date hereof it is
eligible to utilize Form S-3 to register securities of the same class as the
Registrable Securities, and that securities of such class are authorized for
quotation on the NASDAQ National Quotation System.
3. Company Procedures. In connection with the Registration Statement, the
------------------
Company shall:
(a) Use commercially reasonable efforts to effect such registration to
permit the sale of the Registrable Securities being sold in accordance with the
intended method or methods of distribution thereof (as indicated in the
information furnished to the Company pursuant to Section 4 hereof), within the
time periods and otherwise in accordance with the provisions of this Agreement
and the Securities Act and the rules and regulations of the SEC thereunder, and
pursuant thereto the Company will prepare and file with the SEC the Registration
Statement under the Securities Act. The Company shall not include in the
Registration Statement any securities other than the Registrable Securities.
(b) Notwithstanding the foregoing, upon the occurrence of any event that
would cause the Registration Statement or the prospectus included therein (the
"Prospectus") (i) to contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading or (ii) not to be effective and usable for
resale of Registrable Securities during the period required by this Agreement,
the Company shall file promptly an appropriate amendment to the Registration
Statement (and appropriate supplement to the Prospectus) curing such defect,
and, if SEC review is required, use its commercially reasonable efforts to cause
such amendment to be declared effective as soon as practicable.
4
(c) Prepare and file with the SEC such amendments and post-effective
amendments to the Registration Statement and take all such other actions as may
be necessary to keep the Registration Statement continuously effective for the
period specified in Section 2(b) of this Agreement, cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 under the Securities Act, and to comply fully with
Rules 424, 430A and 462, as applicable, under the Securities Act in a timely
manner; and comply with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities covered by the Registration Statement
during the applicable period in accordance with the intended method or methods
of distribution by each Holder (as indicated in the information furnished to the
Company pursuant to Section 4 hereof).
(d) Advise each Holder promptly and, if requested by such Persons, confirm
such advice in writing, (i) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to the Registration
Statement or any post-effective amendment thereto, when the same has been
declared effective by the SEC, (ii) of any request by the SEC for amendments to
the Registration Statement or amendments or supplements to the Prospectus or for
additional information relating thereto, (iii) of the issuance by the SEC of any
stop order suspending the effectiveness of the Registration Statement under the
Securities Act or of the suspension by any state securities commission of the
qualification of the Registrable Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of the preceding
purposes, (iv) of the existence of any fact or the happening of any event that
makes any statement of a material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto or any document incorporated by
reference therein untrue, or that requires the making of any additions to or
changes in the Registration Statement in order that it will include the
information required to be included therein or to make the statements therein
not misleading, or that requires the making of any additions to or changes in
the Prospectus in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If at any time the SEC
shall issue any stop order suspending the effectiveness of the Registration
Statement, or any state securities commission or other regulatory authority
shall issue an order suspending the qualification or exemption from
qualification of the Registrable Securities under state securities or blue sky
laws, the Company shall use commercially reasonable efforts to obtain the
withdrawal or lifting of such order at the earliest possible time.
(e) Subject to Section 3(b) of this Agreement, if any fact or event
contemplated by Section 3(d)(iv) above shall exist or have occurred, prepare a
supplement or post-effective amendment to the Registration Statement or related
Prospectus or any document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the purchasers of
Registrable Securities, the Registration Statement will contain the information
required to be included therein, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
(f) Furnish to each Holder such reasonable number of copies of the
Registration Statement, preliminary Prospectus, final Prospectus and such other
documents as such Persons may request in order to facilitate the public offering
of the Registrable Securities.
5
(g) Use its commercially reasonable efforts to register and qualify the
Registrable Securities covered by the Registration Statement under the
securities laws of such jurisdictions as shall be reasonably appropriate for the
distribution of the Registrable Securities covered by the Registration
Statement; provided that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such jurisdiction.
(h) Cause all Registrable Securities registered pursuant to the
Registration Statement to be (i) listed on each securities exchange on which the
Company Common Stock is then listed or (ii) authorized for quotation on the
NASDAQ National Market System if the Company Common Stock is then so authorized
for quotation, in each case as of the effective date of the Registration
Statement.
(i) Provide a transfer agent and registrar for all Registrable Securities
registered pursuant to the Registration Statement and a CUSIP number for all
such Registrable Securities, in each case not later than the date that the SEC
has declared the Registration Statement effective.
4. Holder Procedures.
-----------------
(a) Each Holder shall, upon receipt of the notice referred to in Section
3(d)(iii) or any notice from the Company of the existence of any fact of the
kind described in Section 3(d)(iv) of this Agreement (in each case, a
"Suspension Notice"), forthwith discontinue disposition of the Registrable
Securities pursuant to the applicable Registration Statement until (i) the
Holder has received copies of the supplemented or amended Prospectus
contemplated by Section 3(e) of this Agreement, or (ii) such Holder is advised
in writing by the Company that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings that are incorporated
by reference in the Prospectus. Upon the Holder receiving a Suspension Notice,
each Holder will either (i) destroy any Prospectuses, other than permanent file
copies, then in such Holder's possession which have been replaced by the Company
with more recently dated Prospectuses or (ii) deliver to the Company (at the
Company's expense) all copies, other than permanent file copies, then in such
Holder's possession of the Prospectus covering such Registrable Securities that
was current at the time of receipt of the Suspension Notice. Nothing in this
Section 4(a) shall limit the rights of any Holder pursuant to Section 9(b).
(b) In connection with the filing of the Registration Statement, each
Holder shall furnish to the Company in writing, (i) the information with respect
to such Holder specified in Item 507 and 508 of Regulation S-K, as applicable,
of the Securities Act for use in connection with the Registration Statement or
any Prospectus and (ii) any additional information with respect to such Holder
required to be disclosed in order to make the information previously furnished
to the Company by such Holder not materially misleading.
5. Expenses of Registration and Sale.
---------------------------------
(a) Subject to Section 5(b), all Registration Expenses shall be borne by
the Company and all Selling Expenses relating to Registrable Securities
registered on behalf of any such Holder shall be borne individually by such
Holder.
6
(b) All stock transfer taxes in respect of the resale to the Company of any
Registrable Securities pursuant to Section 2(c) shall be borne by the Company.
6. Rule 144 Reporting. With a view to making available the benefits of the
------------------
rules and regulations of the SEC which may at any time permit the sale of the
Registrable Securities to the public without registration, the Company agrees to
use commercially reasonable efforts to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act, for so long as the
Company remains subject to the reporting requirements of the Securities Act or
the Exchange Act;
(b) file with the SEC in a timely manner all reports and other documents
required of the Company under the Securities Act and the Exchange Act, for so
long as the Company remains subject to such reporting requirements; and
(c) so long as any Holder owns any Registrable Securities, furnish to each
such Holder forthwith upon request, a written statement by the Company as to its
compliance with the reporting requirements of Rule 144 under the Securities Act,
a copy of the most recent annual or quarterly report of the Company, and such
other reports and documents of the Company and other information in the
possession of, or reasonably obtainable by, the Company as each such Holder may
reasonably request in availing itself of any rule or regulation of the
Commission allowing each such Holder to sell any Registrable Securities pursuant
to an exemption from registration.
7. Termination of Registration Rights. The registration rights granted to
----------------------------------
any Holder pursuant to this Agreement shall terminate from and after the time
when all of the Registrable Securities held by such Holder could be sold in the
United States of America pursuant to Rule 144(k) under the Securities Act (or
any successor rule or regulation).
8. Indemnification.
---------------
(a) The Company agrees to indemnify and hold harmless each Holder, its
directors, officers and each Person, if any, who controls such Holder (within
the meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act), from and against any and all losses, claims, damages, liabilities,
judgments, (including, without limitation, reimbursement for any legal or other
expenses incurred in connection with investigating or defending any matter,
including any action that could give rise to any such losses, claims, damages,
liabilities or judgments (collectively, "Losses")) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, preliminary Prospectus or final Prospectus (or any
amendment or supplement thereto) or caused by any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading or caused by any violation of the
Securities Act or the Exchange Act or any breach by the Company of its
obligations under Section 2(c) of this Agreement; provided however, that the
Company does not agree to indemnify and hold harmless each Holder, its
directors, its officers and each Person, if any who controls any Holder (within
the meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act), insofar as such Losses are caused by an untrue statement or omission or
alleged untrue statement or
7
omission that is based upon information relating to such Holder and furnished by
such Holder in writing pursuant to Section 4(b) of this Agreement.
(b) Each Holder severally and not jointly agrees to indemnify and hold
harmless the Company and its directors and officers, and each person, if any,
who controls (within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act) the Company, from and against any Losses caused by any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, preliminary Prospectus or final Prospectus (or any
amendment or supplement thereto) or caused by any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading or caused by any violation of the
Securities Act or the Exchange Act, but only to the extent that such Losses are
caused by an untrue statement or omission or alleged untrue statement or
omission that is based upon (and in conformity with) information relating to
such Holder and furnished by such Holder in writing pursuant to Section 4(b) of
this Agreement; provided, however, that in no event shall such Holder, its
directors, its officers or any Person, if any, who controls any Holder be (in
the aggregate) liable or responsible for Losses in an amount in excess of the
net proceeds actually received by such Holder in the sale of its Registrable
Securities pursuant to the Registration Statement.
(c) In the event that any Person shall incur or suffer any Losses in
respect of which indemnification may be sought hereunder, such Person (the
"Indemnified Person") may assert a claim for indemnification by providing
written notice to the party from whom indemnification is being sought (the
"Indemnifying Person"), stating the amount of Losses, if known, and the nature
and basis of such claim (the "Notice"). In the case of Losses that arise or may
arise by reason of any third-party claim, promptly after receipt by an
Indemnified Person of written notice of the assertion of any claim or the
commencement of any action with respect to any matter in respect of which
indemnification may be sought hereunder, the Indemnified Person shall give
Notice to the Indemnifying Person and shall thereafter keep the Indemnifying
Person reasonably informed with respect thereto; provided that failure of the
Indemnified Person to give the Indemnifying Person prompt notice as provided
herein shall not relieve the Indemnifying Person of any of its obligations
hereunder, except to the extent that the Indemnifying Person is materially
prejudiced by such failure. In case any such claim is made or action is brought
against any Indemnified Person, the Indemnifying Person shall be entitled to
assume the defense thereof, by written notice of its intention to do so to the
Indemnified Person within 30 days after receipt of the Notice. If the
Indemnifying Person shall assume the defense of such claim or action, it shall
have the right to settle such claim or action; provided, however, that it shall
not settle such claim or action without the prior written consent of the
Indemnified Person (which consent shall not be unreasonably withheld or delayed)
if such settlement (i) does not include as an unconditional term thereof the
giving by the claimant or the plaintiff of a release of the Indemnified Person
from all liability with respect to such claim or action or (ii) involves the
imposition of equitable remedies or the imposition of any obligations on such
Indemnified Person other than financial obligations for which such Indemnified
Person will be indemnified in full hereunder. As long as the Indemnifying Person
is contesting any such claim or action in good faith, the Indemnified Person
shall not pay or settle such claim or action. Following delivery of notice of
its intention to assume the defense of any claim or action hereunder, the
Indemnifying Person shall not be liable hereunder for any legal or other
expenses subsequently incurred by the Indemnified Person in connection with the
defense thereof; provided that if the
8
defendants in any action shall include both an Indemnifying Person and any
Indemnified Person and such Indemnified Person shall have reasonably concluded
that counsel selected by the Indemnifying Person has a conflict of interest
because of the availability of different or additional defenses to such
Indemnified Person, such Indemnified Person shall have the right to separate
counsel to participate in the defense of such action on its behalf, at the
expense of the Indemnifying Person; provided, however, that the Indemnifying
Person shall not be obligated to pay the expenses of more than one separate
counsel for all Indemnified Parties, taken together, in connection with a
particular Loss. If the Indemnifying Person shall fail to notify the Indemnified
Person of its desire to assume the defense of any claim or action within the
prescribed period of time, or shall notify the Indemnified Person that it will
not assume the defense thereof, then the Indemnified Person may assume the
defense of such claim or action, in which event it may do so acting in good
faith, and the Indemnifying Person shall be bound by any determination made in
any such action, provided, however, that the Indemnified Person shall not be
permitted to settle any such action without the consent of the Indemnifying
Person, which consent shall not be unreasonably withheld or delayed. No such
determination or settlement shall affect the right of the Indemnifying Person to
dispute the Indemnified Person's claim for indemnification hereunder. The
Indemnifying Person shall be permitted to participate in the defense of such
claim or action and to employ counsel at its own expense. If the Indemnifying
Person chooses to assume the defense of any claim or action pursuant hereto, the
Indemnified Person shall cooperate in such defense, which cooperation shall
include the retention and the provision to the Indemnifying Person of records
and information which are reasonably relevant to such defense, and making
employees available on a mutually convenient basis to provide additional
information and explanation of any materials provided hereunder, including
providing such employees to serve as witnesses.
(d) If the indemnification provided for in this Section 8 is held by a
court of competent jurisdiction to be unavailable to, or unenforceable for any
reason by, an Indemnified Person with respect to any Loss, or if contribution is
otherwise required of the parties hereto, then the Indemnifying Person, in lieu
of indemnifying such Indemnified Person hereunder, shall contribute to the
amount paid or payable by such Indemnified Person as a result of such Loss in
such proportion as is appropriate to reflect the relative fault of the
Indemnifying Person, on the one hand, and of the Indemnified Person, on the
other, in connection with the statements or omissions that resulted in such Loss
as well as any other relevant equitable considerations. The relative fault of
the Indemnifying Person and of the Indemnified Person shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission to state a material fact relates to
information supplied by the Indemnifying Person or by the Indemnified Person and
the parties' relative intent, knowledge, access to information, and opportunity
to correct or prevent such statement or omission. In no event shall any
contribution by such Holder under this Section 8(d), together with any amounts
paid by such Holder under Section 8(b), exceed the net proceeds actually
received by such Holder in the sale of its Registrable Securities pursuant to
the Registration Statement.
(e) The obligations of the Company under this Section shall survive any
sale of the Registrable Securities.
9. Lock-up.
-------
9
(a) The Holders agree that they will not sell, transfer, dispose of, pledge
or hypothecate any Registrable Securities (any such transaction, a "Transfer")
until the date on which the SEC declares the Registration Statement effective.
(b) Notwithstanding Section 9(a), any Holder may Transfer any or all of the
Registrable Securities (i) at any time to any wholly-owned subsidiary of the
Holder (a "Holder Subsidiary"); provided however, that such Holder Subsidiary
agrees to be bound (as a Holder) to the provisions of this Agreement; or (ii) to
the Company pursuant to Section 2(c) above; or (iii) after a Registration
Default and during such time as such Registration Default remains uncured,
pursuant to any applicable exemption under the Securities Act in any manner
permitted by such exemption.
10. Miscellaneous.
-------------
(a) Notices. Unless otherwise provided herein, all notices, requests,
claims, demands and other communications hereunder shall be in writing and shall
be given (and shall be deemed to have been duly given upon receipt) by delivery
in Person, by facsimile transmission (with such facsimile transmission confirmed
by sending a copy of such notice, request, claim, demand or other communication
by certified mail, postage prepaid, return receipt requested), or mailed by
certified mail (postage prepaid, return receipt requested, provided that the
date of receipt of the facsimile copy shall in such event be deemed the date of
receipt) or by a nationally recognized courier service as follows:
if to the Company, to:
NetRatings, Inc.
000 Xxxxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxx, Esq.
Facsimile: (000) 000-0000
with a copy to:
Xxxx Xxxx Xxxx & Freidenrich LLP
000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
if to the Holders, to the addresses listed on the signature page hereto;
or to such other place and with such other copies as either party may designate
as to itself by written notice to each party in accordance with this Section
10(a).
(b) Amendments; No Waivers. The provisions of this Agreement may only be
amended or waived pursuant to a writing executed by the Company and Holders
representing a 2/3 majority or greater of the shares of Registrable Securities
which remain subject to registration under this Agreement. No failure or delay
by any party in exercising any right, power or privilege hereunder shall operate
as a waiver thereof, nor shall any single or partial
10
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by law.
(c) Successors and Assigns. Except as otherwise provided in this Agreement,
no party hereto shall assign this Agreement or any rights or obligations
hereunder without the prior written consent of the other party hereto and any
such attempted assignment without such prior written consent shall be void and
of no force and effect; provided however, that (i) if the Registration Statement
is not filed by the Filing Deadline or if the Registration Statement is not
effective prior to the Effectiveness Deadline, the Holder may assign its rights
hereunder without the consent of the Company to any transferee of Registrable
Securities that (A) is a transferee of at least 5.00% of the Registrable
Securities and (B) agrees to be bound (as a Holder) to the provisions of this
Agreement provided, however, that the assignment of the rights to cause the
Company to repurchase Registrable Securities contained in Section 2(c) hereof
may be transferred to persons acquiring less than 5.00% who agree to be bound by
the terms of this Agreement. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
(d) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA OTHER THAN
CONFLICT OF LAWS PRINCIPLES THEREOF DIRECTING THE APPLICATION OF ANY LAW OTHER
THAN THAT OF THE STATE OF CALIFORNIA.
(e) Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH
PARTY HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
PROCEEDING (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY TRANSACTION OR AGREEMENT CONTEMPLATED HEREBY
OR THE ACTIONS OF ANY PARTY HERETO IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE OR ENFORCEMENT HEREOF.
(f) Disputes. Each of the parties hereto irrevocably consents to the
exclusive jurisdiction and venue of any court within Xxxxx Xxxxx Xxxxxx, Xxxxx
xx Xxxxxxxxxx, Xxxxxx Xxxxxx, in connection with any matter based upon or
arising out of this Agreement or the matters contemplated herein, agrees that
process may be served upon them in any manner authorized by the laws of the
State of California or the United States and waives and covenants not to assert
or plead any objection which they might otherwise have to such jurisdiction,
venue and such process.
(g) Counterparts; Effectiveness. This Agreement may be signed in any number
of counterparts (including by facsimile), each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received a counterpart hereof signed by the other party hereto.
11
(h) No Third Party Beneficiaries; Severability. This Agreement is not
intended to confer upon any Person other than the parties hereto any rights or
remedies hereunder. If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law or public policy, all
other terms and provisions of this Agreement shall nevertheless remain in full
force and effect.
(i) Headings; Interpretation. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement. The parties have
participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties, and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Agreement.
(j) No Joint and Several Liability of the Holders. The Holders shall not be
jointly and severally liable hereunder vis-a-vis the Company. The Agreement is
made for the benefit of each Holder individually. Compliance with the
obligations of any Holder hereunder shall not constitute a condition of the
obligations of the Company to any other Holder hereunder.
[Remainder of Page Intentionally Left Blank]
12
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
NETRATINGS, INC.
By: /s/ Xxxx Xxxxx
--------------------------------------------
Name: Xxxx Xxxxx
Title: Executive Vice President,
Corporate Development and
Chief Financial Officer
[SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT]
13
XXXX Xxxxxxx
By: /s/ Xxxxxxx Xxxx
--------------------------------------------
Name: Xxxxxxx Xxxx
Address:
00 Xxx Xxxxx Xxxxx
00000 Xxxxx Xxxxxx
[SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT]
14
ABN AMRO Developpement
By: /s/ Xxxxxxxx Xxxxxxxx
--------------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Chief Financial Officer
Address:
00 xxx Xxxxxx
00000, Xxxxx
Xxxxxx
[SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT]
15
Placement Continuite
By: /s/ Xxxxxxxx Xxxxxxxx
--------------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Chief Financial Officer
Address:
00 xxx Xxxxxx
00000, Xxxxx
Xxxxxx
[SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT]
16
Placement Actions Developpement 1
By: /s/ Xxxxxxxx Xxxxxxxx
--------------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Chief Financial Officer
Address:
00 xxx Xxxxxx
00000, Xxxxx
Xxxxxx
[SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT]
17
France Innovation No 1
By: /s/ Xxxxxxxx Xxxxxxxx
--------------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Chief Financial Officer
Address:
00 xxx Xxxxxx
00000, Xxxxx
Xxxxxx
[SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT]
18
France Innovation No 2
By: /s/ Xxxxxxxx Xxxxxxxx
--------------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Chief Financial Officer
Address:
00 xxx Xxxxxx
00000, Xxxxx
Xxxxxx
[SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT]
00
XXX XXXX XXXXXXX XXXXXXXXXXXXXX
Xxxxxx
By: /s/ Xxxxxxxx Xxxxxxxx
--------------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Chief Financial Officer
Address:
00 xxx Xxxxxx
00000, Xxxxx
Xxxxxx
[SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT]
20
FINEPAR
By: /s/ Xxxxxxxx Xxxxxxxx
--------------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Chief Financial Officer
Address:
0 Xx Xxxxxx Xxxxxx
00 000
Xxxxxxxx, Xxxxxx
[SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT]
21
FCP MATIGNON Investissement
By: /s/ Xxxxxxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Director
Address:
0 Xxxxxx Xxxxxxxx
00000 Xxxxx Xxxxxx
[SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT]
22
COMIR
By: /s/ Xxxxxxxxx Xxxx
--------------------------------------------
Name: Xxxxxxxxx Xxxx
Title: Chief Executive Officer
Address:
27 Avenue Eheime Audibort
00000 Xxxxxx Xxxxxx
[SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT]
23
INNOVACOM 3
By: /s/ Jaryus Meheut
--------------------------------------------
Name: Jaryus Meheut
Title: General Partner and Executive Member
Address:
00 Xxx Xxxxxx
00000 Xxxxx Xxxxxx
[SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT]
24
EG INVESTMENTS LTD
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Director
Address:
00 Xxxxxxxx Xx.
Xxxxxx X0X 0XX Xxxxxx Xxxxxxx
[SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT]
25
T - TELEMATIK VENTURE
Beteiligungsgesellschaft mbH
By: /s/ Xxxxxx Hoessberg
----------------------------------------------
Name: Xxxxxx Hoessberg
Title: Investment Director
Address:
Beteiligungsgesellschaft mbH
Xxxxxxxxxxxx 000
00000 Xxxx, Xxxxxxx
[SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT]
26
CHAMPAGNE CAPITAL
By: /s/ Xxxxxx Xxxx
----------------------------------------------
Name: Xxxxxx Xxxx
Title: President and CEO
Address:
Xxxxxx xx Xxxxxxxx Xxxxx Xxxxxx
00000 Xxxxx Xxxxxx
[SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT]
27
