Exhibit 99(c)(3)
GUARANTEE
As an inducement to Xxxxxxx Media Research, Inc., a Delaware
corporation ("Nielsen"), to enter into, and consummate the transactions
contemplated by, the Agreement and Plan of Merger, dated as of August 15, 1999
(the "Merger Agreement"), by and among Nielsen, VNU USA, Inc., a New York
corporation ("Parent"), and Niner Acquisition, Inc., a Delaware corporation
("Purchaser"), VNU N.V., a corporation organized under the laws of the
Netherlands ("VNU"), hereby unconditionally, absolutely and irrevocably
guarantees to Nielsen and any third party beneficiaries under the Merger
Agreement (to the extent of their third party beneficiary rights thereunder) the
full payment and performance of all covenants, agreements, obligations and
liabilities of Parent, Purchaser and the Surviving Corporation (as defined in
the Merger Agreement) contained in the Merger Agreement (including, without
limitation, Section 3.2 thereof). This is a guarantee of payment and performance
and not collectibility. VNU is the primary obligor under this Guarantee. VNU
hereby waives diligence, presentment, demand of performance, filing of any
claim, any right to require any proceeding for and against Parent, Purchaser or
the Surviving Corporation, protest, notice and all demands whatsoever in
connection with the performance of its obligations herein.
VNU hereby represents and warrants that:
(a) VNU is a corporation duly incorporated, validly existing
and in good standing under the laws of the Netherlands and has all corporate
power and authority to carry on its business as now being conducted and is duly
qualified to do business and is in good standing in each jurisdiction in which
the nature of its business or the ownership or leasing of its properties makes
such qualification necessary other than in such jurisdictions where the failure
to be so qualified would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect (as defined in the Merger Agreement)
on VNU or a material adverse effect on the ability of VNU to perform its
obligations hereunder or consummate the transactions contemplated hereby.
(b) VNU has the requisite corporate power and authority to
enter into this Guarantee. The execution and delivery of this Guarantee by VNU
has been duly authorized by the Board of Executive Directors of VNU, and no
other corporate proceedings on the part of VNU is necessary to authorize this
Guarantee or the performance by VNU of its obligations hereunder.
(c) This Guarantee has been duly executed and delivered by VNU
and constitutes a valid and binding obligation of VNU, enforceable against VNU
in accordance with its terms.
(d) The execution and delivery of the Guarantee by VNU do not
and the performance of its obligations hereunder and compliance with the
provisions hereof will not (x) violate any of the provisions of the certificate
of incorporation or by-laws (or similar documents) of VNU or any of its
Subsidiaries (as defined in the Merger Agreement), in each case as amended to
the date of this Agreement, (y) subject to the governmental filings and other
matters referred to in Section 4.2(c)(ii) of the Merger Agreement, violate,
result in a breach of or default (with or without notice or lapse of time, or
both) under, or give rise to a material obligation, a right of termination,
cancellation or acceleration of any obligation or loss of a material benefit
under, or require the consent of any person under, any indenture, or other
agreement, permit, concession, franchise, license or other instrument or
undertaking to which VNU or any of its Subsidiaries is a party or by which VNU
or any of its Subsidiaries or any of their respective assets is bound or
affected, or (z) subject to the governmental filings and other matters referred
to in Section 4.2(c)(ii), violate any law, rule or regulation applicable to VNU,
or any order, writ, judgment, injunction, decree, determination or award
applicable to VNU currently in effect, which, in the case of clauses (y) and (z)
above, would reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect on VNU or its ability to perform under the Guarantee.
(e) No consent, approval, order or authorization of, or
declaration, registration or filing with, or notice to, any Governmental Entity
(as defined in the Merger Agreement) which has not been received or made is
required by or with respect to VNU or any of its Subsidiaries in connection with
the execution and delivery of this Guarantee by VNU or the performance by VNU of
its obligations hereunder, except for the governmental filings and other matters
referred to in Section 4.2(c)(ii) of the Merger Agreement.
This Guarantee shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without reference to its
conflict of laws provisions, and the VNU hereby (i) submits to the exclusive
jurisdiction of the Court of Chancery in and for New Castle County in the State
of Delaware (or, if such court lacks subject matter jurisdiction, any
appropriate state or federal court in New Castle County in the State of
Delaware), for purposes of any action arising from, relating to, or growing out
of this Guarantee, (ii) agrees that it shall not attempt to deny or defeat such
jurisdiction by motion or other request for leave from any such court, and (iii)
agrees that it shall not bring any such action other than in the Court of
Chancery in and for New Castle County in the State
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of Delaware (or if such court lacks subject matter jurisdiction, any
appropriate state or federal court in New Castle County of the State of
Delaware). VNU acknowledges that service or delivery to Corporation Trust
Company at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, whom VNU hereby
appoints as its agent for service of process, shall constitute good and
sufficient service. Such appointment by VNU shall be solely for the purposes
set forth in this Guarantee and shall not be deemed an appointment for any
other purpose. VNU's agreement to be subject to service of process as
provided above shall be effective only for the purpose of Xxxxxxx'x
enforcement of this agreement and no third party beneficiary rights shall
arise to any third party beneficiary for it to seek to use this agreement as
VNU's admission for any other matter that VNU is doing business in Delaware
or that VNU is subject to service of process in Delaware for any other
purpose. Nothing herein shall be construed to require VNU to maintain any
assets in the United States.
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IN WITNESS WHEREOF, XXX has executed and delivered this
Guarantee as of the ____ day of August, 1999.
VNU NV
By:
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Name:
Title:
In the presence of:
By:
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Name:
Title:
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