<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
SCHEDULE 14D-1
TENDER OFFER STATEMENT
PURSUANT TO SECTION 14(D)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
------------------------
NIELSEN MEDIA RESEARCH, INC.
(Name of Subject Company)
NINER ACQUISITION, INC.
VNU USA, INC.
VNU N.V.
(Bidders)
------------------------
COMMON STOCK, PAR VALUE $0.01 PER SHARE
(Title of Class of Securities)
------------------------
653929307
(CUSIP Number of Class of Securities)
------------------------
JAMES ROSS
VICE PRESIDENT AND
GENERAL COUNSEL
VNU USA, INC.
1515 BROADWAY
NEW YORK, NY 10036
TELEPHONE: (212) 536-6700
FACSIMILE: (212) 536-5243
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications on Behalf of Bidders)
COPY TO:
STEPHEN F. ARCANO, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
919 THIRD AVENUE
NEW YORK, NY 10022
TELEPHONE: (212) 735-3000
FACSIMILE: (212) 735-2000
<TABLE>
<CAPTION>
TRANSACTION VALUE* AMOUNT OF FILING FEE**
<S> <C>
$2,655,938,245 $531,188
</TABLE>
* Estimated solely for purposes of calculating the amount of the filing fee
only. The filing fee calculation assumes the purchase of 70,355,980 shares
of common stock, par value $0.01 per share, including the associated
preferred share purchase rights (the "Shares"), of Nielsen Media Research,
Inc. at a price of $37.75 per Share in cash, without interest. Such amount
reflects the purchase of 57,688,294 Shares outstanding and 12,667,686 Shares
issuable pursuant to the exercise of outstanding options.
** The amount of the filing fee calculated in accordance with Rule 0-11 under
the Securities Exchange Act of 1934, as amended, equals 1/50th of one
percent of the value of the transaction.
/ / Check box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the Form
or Schedule and the date of its filing.
Amount Previously Paid: Not applicable.
Form or Registration No.: Not applicable.
Filing Part: Not applicable.
Date Filed: Not applicable.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
CUSIP NO. 653929307
- --------------------------------------------------------------------------------
(1) NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Niner Acquisition, Inc. - 13-4073792
- --------------------------------------------------------------------------------
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
- --------------------------------------------------------------------------------
(3) SEC USE ONLY
- --------------------------------------------------------------------------------
(4) SOURCE OF FUNDS
AF
- --------------------------------------------------------------------------------
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM
2(e) OR 2(f)
/ /
- --------------------------------------------------------------------------------
(6) CITIZENSHIP OR PLACE OF ORIGIN
Delaware
- --------------------------------------------------------------------------------
(7) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
- --------------------------------------------------------------------------------
(8) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES CERTAIN SHARES
/ /
- --------------------------------------------------------------------------------
(9) PERCENT OF CLASS REPRESENTED TO AMOUNT IN ROW (7)
0.0%
- --------------------------------------------------------------------------------
(10) TYPE OF REPORTING PERSON
CO
- --------------------------------------------------------------------------------
2
<PAGE>
CUSIP NO. 653929307
- --------------------------------------------------------------------------------
(1) NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
VNU USA, Inc. - 22-2145575
- --------------------------------------------------------------------------------
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
- --------------------------------------------------------------------------------
(3) SEC USE ONLY
- --------------------------------------------------------------------------------
(4) SOURCE OF FUNDS
AF
- --------------------------------------------------------------------------------
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM
2(e) OR 2(f)
/ /
- --------------------------------------------------------------------------------
(6) CITIZENSHIP OR PLACE OF ORIGIN
New York
- --------------------------------------------------------------------------------
(7) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
- --------------------------------------------------------------------------------
(8) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES CERTAIN SHARES
/ /
- --------------------------------------------------------------------------------
(9) PERCENT OF CLASS REPRESENTED TO AMOUNT IN ROW (7)
0.0%
- --------------------------------------------------------------------------------
(10) TYPE OF REPORTING PERSON
CO
- --------------------------------------------------------------------------------
3
<PAGE>
CUSIP NO. 653929307
- --------------------------------------------------------------------------------
(1) NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY): N/A
VNU N.V. - N/A
- --------------------------------------------------------------------------------
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
- --------------------------------------------------------------------------------
(3) SEC USE ONLY
- --------------------------------------------------------------------------------
(4) SOURCE OF FUNDS
BK
- --------------------------------------------------------------------------------
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM
2(e) OR 2(f)
/ /
- --------------------------------------------------------------------------------
(6) CITIZENSHIP OR PLACE OF ORIGIN
The Netherlands
- --------------------------------------------------------------------------------
(7) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
- --------------------------------------------------------------------------------
(8) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES CERTAIN SHARES
/ /
- --------------------------------------------------------------------------------
(9) PERCENT OF CLASS REPRESENTED TO AMOUNT IN ROW (7)
0.0%
- --------------------------------------------------------------------------------
(10) TYPE OF REPORTING PERSON
00
- --------------------------------------------------------------------------------
4
<PAGE>
TENDER OFFER
This Tender Offer Statement on Schedule 14D-1 (this "Statement") refers to
the offer by Niner Acquisition, Inc., a Delaware corporation ("Purchaser") and
wholly owned subsidiary of VNU USA, Inc., a New York corporation ("Parent"), and
an indirect wholly owned subsidiary of VNU N.V., a company organized under the
laws of the Netherlands ("VNU"), to purchase all of the outstanding shares of
common stock, par value $0.01 per share (the "Common Stock"), of Nielsen Media
Research, Inc., a Delaware corporation (the "Company"), together with the
associated preferred share purchase rights (the "Rights" and, together with the
Common Stock, the "Shares") issued pursuant to the Rights Agreement, dated as of
October 15, 1996 (the "Rights Agreement"), between the Company and First Chicago
Trust Company of New York, as Rights Agent, at a price of $37.75 per share, net
to the seller in cash, without interest thereon, upon the terms and subject to
the conditions set forth in the Offer to Purchase, dated as of August 20, 1999
(the "Offer to Purchase"), a copy of which is attached hereto as Exhibit (a)(1),
and in the related Letter of Transmittal, a copy of which is attached hereto as
Exhibit (a)(2) (which, as they may be amended or supplemented from time to time,
together constitute the "Offer").
ITEM 1. SECURITY AND SUBJECT COMPANY.
(a) The name of the subject company is Nielsen Media Research, Inc., and the
address of its principal executive office is 299 Park Avenue, New York,
New York 10171. The telephone number at such address is (212) 708-7500.
(b) The information set forth in the "Introduction" to the Offer to Purchase
is incorporated herein by reference.
(c) The information set forth in "Section 6--Price Range of the Shares;
Dividends" of the Offer to Purchase is incorporated herein by reference.
ITEM 2. IDENTITY AND BACKGROUND.
<TABLE>
<S> <C>
(a)-(d),(g) This Statement is filed by Purchaser, Parent and VNU. The information set
forth in the "Introduction" and "Section 9--Certain Information Concerning
Purchaser, Parent and VNU" of the Offer to Purchase and Schedule I thereto
is incorporated herein by reference.
(e)-(f) During the past five years, none of Purchaser, Parent nor VNU nor, to the
best knowledge of Purchaser, Parent and VNU, any of the persons listed in
Schedule I of the Offer to Purchase has been (i) convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) or (ii)
party to a civil proceeding of a judicial or administrative body of
competent jurisdiction as a result of which any such person was or is
subject to a judgment, decree or final order enjoining future violations of,
or prohibiting activities subject to, federal or state securities laws or
finding any violation of such laws.
</TABLE>
5
<PAGE>
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE SUBJECT COMPANY.
<TABLE>
<S> <C>
(a)(1) Other than the transactions described in Item 3(b) below, none of Purchaser,
Parent nor VNU nor, to the best knowledge of Purchaser, Parent and VNU, any
of the persons listed in Schedule I of the Offer to Purchase has entered
into any transaction with the Company, or any of the Company's affiliates
which are corporations, since the commencement of the Company's third full
fiscal year preceding the date of this Statement, the aggregate amount of
which was equal to or greater than one percent of the consolidated revenues
of the Company for (i) the fiscal year in which such transaction occurred or
(ii) the portion of the current fiscal year which has occurred if the
transaction occurred in such year.
(a)(2) Other than the transactions described in Item 3(b) below, none of Purchaser,
Parent nor VNU nor, to the best knowledge of Purchaser, Parent and VNU, any
of the persons listed in Schedule I of the Offer to Purchase has entered
into any transaction since the commencement of the Company's third full
fiscal year preceding the date of this Statement, with the executive
officers, directors or affiliates of the Company which are not corporations,
in which the aggregate amount involved in such transaction or in a series of
similar transactions, including all periodic installments in the case of any
lease or other agreement providing for periodic payments or installments,
exceeds $40,000.
(b) The information set forth in the "Introduction," "Section 9--Certain
Information Concerning Purchaser, Parent and VNU," "Section 11--Background
of the Offer; Purpose of the Offer and the Merger; The Merger Agreement and
Certain Other Agreements" and "Section 12--Plans for the Company" of the
Offer to Purchase is incorporated herein by reference.
</TABLE>
ITEM 4. SOURCE AND AMOUNTS OF FUNDS OR OTHER CONSIDERATION.
<TABLE>
<S> <C>
(a)-(b) The information set forth in "Section 10--Sources and Amount of Funds" is
incorporated herein by reference.
(c) Not applicable.
</TABLE>
ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE BIDDER.
<TABLE>
<S> <C>
(a)-(e) The information set forth in the "Introduction," "Section 11--Background of
the Offer; Purpose of the Offer and the Merger; The Merger Agreement and
Certain Other Agreements," and "Section 12--Plans for the Company; Other
Matters" is incorporated herein by reference.
(f)-(g) The information set forth in "Section 7--Effect of the Offer on the Market
for the Shares; NYSE Quotation; Exchange Act Registration; Margin
Regulations" of the Offer to Purchase is incorporated herein by reference.
</TABLE>
ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
<TABLE>
<S> <C>
(a)-(b) The information set forth in "Section 9--Certain Information Concerning
Purchaser, Parent and VNU" and "Section 11--Background of the Offer; Purpose
of the Offer and the Merger; The Merger Agreement and Certain Other
Agreements" is incorporated herein by reference.
</TABLE>
6
<PAGE>
ITEM 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO THE SUBJECT COMPANY'S SECURITIES.
The information set forth in the "Introduction," "Section 10--Sources and
Amount of Funds," "Section 11--Background of the Offer; Purpose of the Offer and
the Merger; The Merger Agreement and Certain Other Agreements," "Section
12--Plans for the Company; Other Matters" and "Section 16--Fees and Expenses" of
the Offer to Purchase is incorporated herein by reference.
ITEM 8. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED.
The information set forth in "Section 16--Fees and Expenses" of the Offer to
Purchase is incorporated herein by reference.
ITEM 9. FINANCIAL STATEMENTS OF CERTAIN BIDDERS.
The information set forth in "Section 9--Certain Information Concerning
Purchaser, Parent and VNU" of the Offer to Purchase is incorporated herein by
reference.
ITEM 10. ADDITIONAL INFORMATION.
<TABLE>
<S> <C>
(a) Except as disclosed in Items 3 and 7 above, there are no present or proposed
material contracts, arrangements, understandings or relationships between
Purchaser, Parent and VNU, or to the best knowledge of Purchaser, Parent and
VNU, any of the persons listed in Schedule I of the Offer to Purchase, and
the Company, or any of its executive officers, directors, controlling
persons or subsidiaries.
(b)-(c) The information set forth in the "Introduction," "Section 14--Conditions to
the Offer," and "Section 15--Certain Legal Matters" is incorporated herein
by reference.
(d) The information set forth in "Section 7--Effects of the Offer on the Market
for the Shares; NYSE Quotation; Exchange Act Registration; Margin
Regulations" and "Section 15--Certain Legal Matters" is incorporated herein
by reference.
(e) None.
(f) The information set forth in the Offer to Purchase and the Letter of
Transmittal, copies of which are attached hereto as Exhibits (a)(1) and
(a)(2), respectively, to the extent not otherwise incorporated herein by
reference, is incorporated herein by reference.
</TABLE>
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
<TABLE>
<S> <C>
(a)(1) Offer to Purchase dated August 20, 1999.
(a)(2) Letter of Transmittal.
(a)(3) Notice of Guaranteed Delivery.
(a)(4) Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other
Nominees.
(a)(5) Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.
(a)(6) Guidelines for Taxpayer Certification Number on Substitute Form W-9.
(a)(7) Summary Advertisement dated August 20, 1999.
(b) Revolving Credit Facility Agreement, dated as of August 15, 1999, among VNU,
VNU Ireland, ABN AMRO Bank N.V., Merrill Lynch International and Merrill
Lynch Capital Corporation.
(c)(1) Agreement and Plan of Merger, dated as of August 15, 1999, among Purchaser,
Parent and the Company.
(c)(2) Confidentiality Agreement, dated as of July 28, 1999, among Parent and the
Company.
(c)(3) Guarantee, dated as of August 15, 1999, by VNU N.V.
(d) Not applicable.
(e) Not applicable.
</TABLE>
7
<PAGE>
SIGNATURE
After due inquiry and to the best of their knowledge and belief, the
undersigned certify that the information set forth in this statement is true,
correct and complete.
Dated: August 20, 1999
<TABLE>
<S> <C> <C>
NINER ACQUISITION, INC.
By: /s/ THOMAS A. MASTRELLI
-----------------------------------------
Name: Thomas A. Mastrelli
Title: President
VNU USA, INC.
By: /s/ GERALD HOBBS
-----------------------------------------
Name: Gerald Hobbs
Title: President and CEO
VNU N.V.
By: /s/ FRANS CREMERS
-----------------------------------------
Name: Frans Cremers
Title: Chief Financial Officer
</TABLE>
8
<PAGE>
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED PREFERRED SHARE PURCHASE RIGHTS)
OF
NIELSEN MEDIA RESEARCH, INC.
AT
$37.75 NET PER SHARE
BY
NINER ACQUISITION, INC.
AN INDIRECT WHOLLY OWNED SUBSIDIARY OF
VNU N.V.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON FRIDAY, SEPTEMBER 17, 1999, UNLESS THE OFFER IS EXTENDED.
THE OFFER IS BEING MADE PURSUANT TO AN AGREEMENT AND PLAN OF MERGER, DATED
AS OF AUGUST 15, 1999, BY AND AMONG VNU USA, INC. ("PARENT"), NINER ACQUISITION,
INC. ("PURCHASER") AND NIELSEN MEDIA RESEARCH, INC. (THE "COMPANY"). THE BOARD
OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY DETERMINED THAT THE OFFER AND THE
MERGER (EACH AS DEFINED HEREIN) ARE FAIR TO AND IN THE BEST INTERESTS OF THE
COMPANY'S STOCKHOLDERS, HAS UNANIMOUSLY APPROVED THE MERGER AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED THEREBY, INCLUDING THE OFFER AND THE MERGER, AND
UNANIMOUSLY RECOMMENDS THAT STOCKHOLDERS ACCEPT THE OFFER AND TENDER THEIR
SHARES (AS DEFINED HEREIN) PURSUANT TO THE OFFER.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION DATE (AS DEFINED HEREIN) A
NUMBER OF SHARES WHICH REPRESENTS AT LEAST A MAJORITY OF THE SHARES OUTSTANDING
(ON A FULLY DILUTED BASIS) ON THE DATE SHARES ARE ACCEPTED FOR PAYMENT. THE
OFFER IS ALSO SUBJECT TO OTHER TERMS AND CONDITIONS SET FORTH IN THIS OFFER TO
PURCHASE. THE OFFER IS NOT SUBJECT TO A FINANCING CONDITION. SEE SECTION 14.
------------------------------
IMPORTANT
Any stockholder desiring to tender all or any portion of such stockholder's
Shares should either (i) complete and sign the enclosed Letter of Transmittal
(or facsimile thereof) in accordance with the Instructions in the Letter of
Transmittal, have such stockholder's signature thereon guaranteed (if required
by Instruction 1 to the Letter of Transmittal), mail or deliver the Letter of
Transmittal (or a facsimile thereof) and any other required documents to the
Depositary (as defined herein) and either deliver the certificates for such
Shares to the Depositary or tender such Shares pursuant to the procedure for
book-entry transfer set forth in Section 3 of this Offer to Purchase or (ii)
request such stockholder's broker, dealer, commercial bank, trust company or
other nominee to effect the transaction for such stockholder. Any stockholder
whose Shares are registered in the name of a broker, dealer, commercial bank,
trust company or other nominee must contact such broker, dealer, commercial
bank, trust company or other nominee to tender such Shares.
Any stockholder who desires to tender Shares and whose certificates
evidencing such Shares are not immediately available, or who cannot comply with
the procedures for book-entry transfer on a timely basis, or who cannot deliver
all required documents to the Depositary prior to the expiration of the Offer,
may tender such Shares by following the procedures for guaranteed delivery set
forth in Section 3 of this Offer to Purchase.
Questions and requests for assistance may be directed to the Dealer Manager
or the Information Agent at their respective addresses and telephone numbers set
forth on the back cover of this Offer to Purchase. Requests for additional
copies of this Offer to Purchase, the Letter of Transmittal, the Notice of
Guaranteed Delivery and other tender offer materials may also be directed to the
Information Agent. A stockholder may also contact brokers, dealers, commercial
banks or trust companies for assistance.
------------------------------
THE DEALER MANAGER FOR THE OFFER IS:
MERRILL LYNCH & CO.
August 20, 1999
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
-----
<C> <S> <C>
INTRODUCTION.............................................................................................. 1
THE OFFER................................................................................................. 3
1. Terms of the Offer............................................................................. 3
2. Acceptance for Payment and Payment............................................................. 5
3. Procedures for Tendering Shares................................................................ 6
4. Withdrawal Rights.............................................................................. 9
5. Certain Federal Income Tax Consequences........................................................ 9
6. Price Range of the Shares; Dividends........................................................... 10
7. Effect of the Offer on the Market for the Shares; NYSE Quotation; Exchange Act Registration; 11
Margin Regulations...........................................................................
8. Certain Information Concerning the Company..................................................... 12
9. Certain Information Concerning Purchaser, Parent and VNU....................................... 15
10. Sources and Amount of Funds.................................................................... 16
11. Background of the Offer; Purpose of the Offer and the Merger; the Merger Agreement and Certain 16
Other Agreements.............................................................................
12. Plans for the Company; Other Matters........................................................... 29
13. Dividends and Distributions.................................................................... 31
14. Conditions to the Offer........................................................................ 31
15. Certain Legal Matters.......................................................................... 33
16. Fees and Expenses.............................................................................. 36
17. Miscellaneous.................................................................................. 36
Schedule I-- Information Concerning Directors and Executive Officers of 37
Purchaser, Parent and VNU......................................................................
</TABLE>
ii
<PAGE>
To the Holders of Common Stock of
Nielsen Media Research, Inc.:
INTRODUCTION
Niner Acquisition, Inc., a Delaware corporation ("Purchaser") and indirect
wholly owned subsidiary of VNU N.V., a company organized under the laws of the
Netherlands ("VNU"), hereby offers to purchase all outstanding shares of common
stock, par value $0.01 per share (the "Common Stock"), of Nielsen Media
Research, Inc., a Delaware corporation (the "Company"), including the associated
preferred share purchase rights (the "Rights" and, together with the Common
Stock, the "Shares") issued pursuant to the Rights Agreement, dated as of
October 15, 1996 (the "Rights Agreement"), between the Company and First Chicago
Trust Company of New York, at a price of $37.75 per Share (the "Offer Price"),
net to the seller in cash, without interest, upon the terms and subject to the
conditions set forth in this Offer to Purchase and in the related Letter of
Transmittal (which, as amended or supplemented from time to time, together
constitute the "Offer").
Tendering stockholders of record who tender Shares directly will not be
obligated to pay brokerage fees or commissions or, except as set forth in
Instruction 6 of the Letter of Transmittal, stock transfer taxes on the purchase
of Shares by Purchaser pursuant to the Offer. Stockholders who hold their Shares
through a bank or broker should check with such institution as to whether they
will charge any service fees. Purchaser will pay all fees and expenses of
Merrill Lynch, Pierce, Fenner & Smith Incorporated, which is acting as the
Dealer Manager for the Offer (in such capacity the "Dealer Manager"), The Bank
of New York, which is acting as the depositary for the Offer (in such capacity,
the "Depositary"), and MacKenzie Partners, Inc., which is acting as information
agent for the Offer (in such capacity, the "Information Agent"), incurred in
connection with the Offer and in accordance with the terms of the agreements
entered into between Purchaser and/or Parent and each such person. See Section
16.
The Offer is being made pursuant to an Agreement and Plan of Merger, dated
as of August 15, 1999 (the "Merger Agreement"), by and among VNU USA, Inc., a
New York corporation and wholly owned subsidiary of VNU ("Parent"), Purchaser
and the Company. Pursuant to the Merger Agreement, as soon as practicable, but
not later than the second business day, after the completion of the Offer and
satisfaction or waiver, if permissible, of all conditions to the Merger (as
defined below), including the purchase of Shares pursuant to the Offer
(sometimes referred to herein as the "consummation" of the Offer) and the
approval and adoption of the Merger Agreement by the stockholders of the Company
(if required by applicable law), Purchaser will be merged with and into the
Company (the "Merger") and the Company will be the surviving corporation in the
Merger (the "Surviving Corporation") in accordance with the Delaware General
Corporation Law, as amended (the "DGCL"). At the effective time of the Merger
(the "Effective Time"), each Share then outstanding (other than Shares held by
(i) the Company or any of its subsidiaries, (ii) Parent or any of its
subsidiaries, including Purchaser, and (iii) stockholders who properly perfect
their appraisal rights under the DGCL) will be converted into the right to
receive $37.75 in cash (the "Merger Consideration"), without interest. The
Merger Agreement is more fully described in Section 11.
THE BOARD OF DIRECTORS OF THE COMPANY (THE "COMPANY BOARD") HAS UNANIMOUSLY
DETERMINED THAT THE OFFER AND THE MERGER ARE FAIR TO AND IN THE BEST INTERESTS
OF THE COMPANY'S STOCKHOLDERS, HAS UNANIMOUSLY APPROVED THE MERGER AGREEMENT AND
THE TRANSACTIONS CONTEMPLATED THEREBY, INCLUDING THE OFFER AND THE MERGER, AND
UNANIMOUSLY RECOMMENDS THAT STOCKHOLDERS ACCEPT THE OFFER AND TENDER THEIR
SHARES PURSUANT TO THE OFFER.
Morgan Stanley & Co. Incorporated ("Morgan Stanley"), financial advisor to
the Company, has delivered to the Company Board its written opinion, dated as of
August 15, 1999 (the "Morgan Stanley Opinion"), to the effect that as of such
date, the cash consideration to be received by the holders of Shares pursuant to
the Offer and the Merger as provided in the Merger Agreement is fair from a
financial point of view to such holders. A copy of the Morgan Stanley Opinion is
attached as an exhibit to the Company's Solicitation/Recommendation Statement on
Schedule 14D-9 (the "Schedule 14D-9"), which has been filed by the Company with
the Securities and Exchange Commission (the "Commission") in connection with the
Offer and which is being mailed to holders of Shares herewith. Holders of Shares
are urged to read the Morgan Stanley Opinion carefully.
<PAGE>
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION DATE (AS DEFINED HEREIN) A
NUMBER OF SHARES REPRESENTING A MAJORITY OF THE SHARES OUTSTANDING (ON A FULLY
DILUTED BASIS) ON THE DATE SHARES ARE ACCEPTED FOR PAYMENT (THE "MINIMUM
CONDITION"). THE OFFER IS ALSO SUBJECT TO OTHER TERMS AND CONDITIONS. SEE
SECTION 14.
The Merger Agreement provides that, upon the purchase by Purchaser of at
least a majority of the Shares pursuant to the Offer and from time to time
thereafter, Parent shall be entitled to designate such number of directors,
rounded up to the next whole number, on the Company's Board of Directors so that
the percentage of Parent's nominees on the Company Board equals the percentage
of outstanding Shares beneficially owned by Parent and its affiliates. The
Company will, at such time, upon the request of Purchaser promptly take all
actions available to the Company to cause such persons designated by Parent to
be elected to the Board of Directors, including using its reasonable best
efforts to increase the size of the Board of Directors or secure resignations of
incumbent directors or both.
Consummation of the Merger is conditioned upon, among other things, the
approval and adoption by the requisite vote of stockholders of the Company of
the Merger Agreement, if required by the DGCL. Under the DGCL and pursuant to
the Company's Certificate of Incorporation, the affirmative vote of the holders
of a majority of the outstanding Shares is the only vote of any class or series
of the Company's capital stock that would be necessary to approve the Merger
Agreement and the Merger at any required meeting of the Company's stockholders.
IF THE MINIMUM CONDITION IS SATISFIED AND AS A RESULT OF THE PURCHASE OF SHARES
BY PURCHASER PURSUANT TO THE OFFER, PURCHASER AND ITS AFFILIATES WILL OWN AT
LEAST A MAJORITY OF THE OUTSTANDING SHARES, AND PURCHASER WILL BE ABLE TO EFFECT
THE MERGER WITHOUT THE AFFIRMATIVE VOTE OF ANY OTHER STOCKHOLDER. The Merger
Agreement is more fully described in Section 11.
Under Section 253 of the DGCL, if a corporation owns at least 90% of the
outstanding shares of each class of stock of a subsidiary corporation, the
corporation holding such stock may merge such subsidiary into itself, or itself
into such subsidiary, without any action or vote on the part of the board of
directors or the stockholders of such other corporation (a "short-form merger").
Pursuant to the Merger Agreement, in the event that Purchaser acquires at least
90% of the outstanding Shares in the Offer, Purchaser and Parent shall take all
necessary actions to cause the Merger to become effective, as soon as
practicable after the expiration of the Offer, without a meeting of the
stockholders of the Company. Even if Purchaser does not own 90% of the
outstanding Shares following consummation of the Offer, Parent or Purchaser
could seek to purchase additional Shares in the open market or otherwise in
order to reach the 90% threshold and to effect a short-form merger. The
consideration per Share paid for any Shares so acquired in open market purchases
may be greater or less than the Offer Price. Parent presently intends to effect
a short-form merger of Purchaser into the Company, if permitted to do so under
the DGCL. See Section 12.
The Company has issued one Right for each outstanding Share pursuant to the
Rights Agreement, dated as of October 15, 1996, between the Company and First
Chicago Trust Company of New York, as Rights Agent, as amended (the "Rights
Agreement"). The Company has represented in the Merger Agreement that it has
amended its Rights Agreement (the "Rights Amendment") to ensure that (a) neither
a "Distribution Date" nor a "Stock Acquisition Date" (in each case as defined in
the Rights Agreement) will occur, and none of Parent or Purchaser or any of
their "Affiliates" or "Associates" will be deemed to be an "Acquiring Person"
(in each case as defined in the Rights Agreement), by reason of the execution
and delivery of the Merger Agreement or the consummation of the transactions to
be effected pursuant to the Merger Agreement and (b) the Rights will expire
immediately prior to the consummation of the Offer. The Company has further
represented that the Rights Amendment is sufficient to render the Rights
inoperative with respect to (i) the acquisition of Shares by Parent, Purchaser
or their affiliates pursuant to the Merger Agreement and the Offer and (ii) the
Merger.
THIS OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN
IMPORTANT INFORMATION AND SHOULD BE READ CAREFULLY BEFORE ANY DECISION IS MADE
WITH RESPECT TO THE OFFER.
2
<PAGE>
THE OFFER
1. TERMS OF THE OFFER.
Upon the terms and subject to the conditions of the Offer (including, if the
Offer is extended or amended, the terms and conditions of such extension or
amendment), Purchaser will accept for payment and pay for all Shares validly
tendered prior to the Expiration Date, and not withdrawn in accordance with
Section 4. The term "Expiration Date" shall mean 12:00 Midnight, New York City
time, on Friday, September 17, 1999, unless and until Purchaser, in accordance
with the terms of the Merger Agreement, shall have extended the period of time
during which the Offer is open, in which event the term "Expiration Date" shall
mean the latest time and date at which the Offer, as so extended by Purchaser,
shall expire. In the Merger Agreement, the Company has agreed that if all
conditions to Purchaser's obligation to accept for payment and pay for Shares
pursuant to the Offer are not satisfied on the scheduled Expiration Date,
Purchaser may, in its sole discretion, extend the Offer for additional periods
(each of which is not to exceed 10 business days); provided, however, that
Purchaser may not extend the Offer beyond December 22, 1999 without the consent
of the Company.
The Offer is conditioned upon the satisfaction of the Minimum Condition, the
expiration or termination of all waiting periods imposed by the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), and the other conditions set forth in Section 14. If such conditions are
not satisfied prior to the Expiration Date, Purchaser reserves the right,
subject to the terms of the Merger Agreement and subject to complying with
applicable rules and regulations of the Commission, to (i) decline to purchase
any Shares tendered in the Offer and terminate the Offer and return all tendered
Shares to the tendering stockholders, (ii) waive any or all conditions to the
Offer (except the Minimum Condition as well as the conditions set forth in the
following paragraph) and, to the extent permitted by applicable law, purchase
all Shares validly tendered, (iii) extend the Offer and, subject to the right of
stockholders to withdraw Shares until the Expiration Date, retain all Shares
which have been tendered during the period or periods for which the Offer is
extended, or (iv) subject to the next paragraph, amend the Offer.
The Merger Agreement provides that, without the prior written consent of the
Company, Purchaser shall not (i) change the form of the consideration to be paid
in the Offer, decrease the amount of the consideration to be paid in the Offer
or decrease the number of Shares sought pursuant to the Offer, (ii) extend the
expiration date of the Offer beyond the initial Expiration Date, except (A) as
required by applicable law, (B) that if, immediately prior to the Expiration
Date (as it may be extended), the Shares tendered and not withdrawn pursuant to
the Offer constitute at least 80% but less than 90% of the outstanding Shares,
Purchaser may, in its sole discretion, extend the Offer for one or more periods
not to exceed an aggregate of five business days, notwithstanding that all
conditions to the Offer are satisfied as of such Expiration Date, (C) that if
any condition to the Offer has not been satisfied or waived, Purchaser may, in
its sole discretion, extend the Expiration Date for one or more periods (not in
excess of 10 business days each), but in no event later than December 22, 1999,
(D) that if Parent reasonably and in good faith believes, based on the written
advice of counsel to Parent, that legislation, Treasury regulations or any other
authoritative pronouncement (in proposed form or otherwise) is about to be
issued or enacted with a retroactive effective date, and such legislation,
regulations or pronouncement would have a Material Adverse Effect (as defined
below) on the Company as a result of the transactions contemplated by the Merger
Agreement, Purchaser may, in its sole discretion, pending the issuance of such
legislation, regulations or pronouncement, extend the Expiration Date for one or
more periods (not in excess of 10 business days each) until the earlier of (x)
the date Parent notifies the Company of its intent to proceed with the Offer
notwithstanding that such legislation, regulations or pronouncement have not
been issued, (y) five business days after the issuance of such legislation,
regulations or pronouncement or (z) December 15, 1999, or (E) as provided in the
following paragraph, (iii) waive the Minimum Condition, (iv) waive the condition
relating to the expiration of the waiting period under the HSR Act, the
condition
3
<PAGE>
relating to the opinion of counsel to be delivered to the Company and IMS Health
Incorporated or the condition relating to the non-termination of the Merger
Agreement, (v) amend any term or other condition of the Offer in any manner
adverse to holders of Shares, or (vi) impose any additional condition to the
Offer; provided, however, that, except as set forth above and subject to
applicable legal requirements, Purchaser may waive any condition to the Offer in
its sole discretion; and provided, further, that the Offer may be extended in
connection with an increase in the consideration to be paid pursuant to the
Offer so as to comply with applicable rules and regulations of the Commission.
If certain of the conditions to the Offer, including (i) the expiration or
termination of any applicable waiting period under the HSR Act; (ii) the absence
of any statute, regulation, judgment, order or injunction that is enacted,
entered, enforced, promulgated or deemed applicable to the Offer or the Merger,
other than the applicable waiting periods under the HSR Act, that would prohibit
or impose any material limitations on Parent's or Purchaser's acquisition of the
Shares or ownership or operation of all or a material portion of their of the
Company's business or assets; and (iii) the absence of certain disruptions in
the securities or banking markets, shall not have been satisfied or waived at
the initial Expiration Date, Parent will, at the request of the Company, cause
Purchaser to extend the Expiration Date for one or more periods (not in excess
of 10 business days each) but in no event later than December 22, 1999. If the
Offer shall not have been consummated on the scheduled Expiration Date due to
the failure to satisfy the condition relating to the Central Works' Council of
VNU (the "Works' Council"), Parent will, at the request of the Company, cause
Purchaser to extend the Expiration Date for one or more periods (not in excess
of 10 business days each), but in no event later than April 7, 2000. If the
Company reasonably and in good faith believes, based on written advice of
counsel, that legislation, Treasury regulations or any other authoritative
pronouncement (in proposed form or otherwise) is about to be issued or enacted
with a retroactive effective date, and such legislation, regulations or
pronouncement would have a Material Adverse Effect on the Company as a result of
the transactions contemplated by the Merger Agreement, Parent will, at the
request of the Company, cause Purchaser to extend the Expiration Date for one or
more periods until the earlier of (i) the date the Company notifies Parent of
the Company's intent to proceed with the Offer notwithstanding that such
legislation, regulations or pronouncement has not been issued, or (ii) five
business days after the issuance of such legislation, regulations or
pronouncement, but in no event shall the Company be entitled, pending the
issuance of such legislation, regulations or pronouncement, to request that
Parent cause Purchaser to extend the expiration date of the Offer beyond
December 15, 1999.
The Merger Agreement requires Purchaser to accept for payment and pay for
all Shares validly tendered and not withdrawn pursuant to the Offer if all
conditions to the Offer are satisfied on the Expiration Date.
Any extension, amendment or termination of the Offer will be followed as
promptly as practicable by public announcement thereof, the announcement in the
case of an extension to be issued no later than 9:00 a.m., New York City time,
on the next business day after the previously scheduled Expiration Date in
accordance with Rules 14d-4(c), 14d-6(d) and 14e-1(d) under the Exchange Act.
Without limiting the obligation of Purchaser under such Rules or the manner in
which Purchaser may choose to make any public announcement, Purchaser currently
intends to make announcements by issuing a press release to the Dow Jones News
Service. As used in this Offer to Purchase, "business day" has the meaning set
forth in Rule 14d-1 under the Exchange Act.
If Purchaser extends the Offer, or if Purchaser (whether before or after its
acceptance for payment of Shares) is delayed in its purchase of, or payment for,
Shares or is unable to pay for Shares pursuant to the Offer for any reason,
then, without prejudice to Purchaser's rights under the Offer, the Depositary
may retain tendered Shares on behalf of Purchaser, and such Shares may not be
withdrawn except to the extent tendering stockholders are entitled to withdrawal
rights as described in Section 4. However, the ability of Purchaser to delay the
payment for Shares which Purchaser has accepted for payment is limited by Rule
14e-1(c) under the Exchange Act, which requires that a bidder pay the
consideration offered or
4
<PAGE>
return the securities deposited by, or on behalf of, holders of securities
promptly after the termination or withdrawal of the Offer.
If Purchaser makes a material change in the terms of the Offer or the
information concerning the Offer or waives a material condition of the Offer,
Purchaser will disseminate additional tender offer materials and extend the
Offer to the extent required by Rules 14d-4(c), 14d-6(d) and 14e-1 under the
Exchange Act. The minimum period during which the Offer must remain open
following material changes in the terms of the Offer or information concerning
the Offer, other than a change in price or a change in percentage of securities
sought, will depend upon the facts and circumstances then existing, including
the relative materiality of the changed terms or information. In a public
release, the Commission has stated its view that an offer must remain open for a
minimum period of time following a material change in the terms of the Offer and
that waiver of a material condition, such as the Minimum Condition, is a
material change in the terms of the Offer. The release states that an offer
should remain open for a minimum of five business days from the date a material
change is first published, or sent or given to security holders and that, if
material changes are made with respect to information not materially less
significant than the offer price and the number of shares being sought, a
minimum of 10 business days may be required to allow adequate dissemination and
investor response. The requirement to extend the Offer will not apply to the
extent that the number of business days remaining between the occurrence of the
change and the then-scheduled Expiration Date equals or exceeds the minimum
extension period that would be required because of such amendment. If, prior to
the Expiration Date, Purchaser increases the consideration offered to holders of
Shares pursuant to the Offer, such increased consideration will be paid to all
holders whose Shares are purchased in the Offer whether or not such Shares were
tendered prior to such increase.
The Company has provided Purchaser with the Company's stockholder lists and
security position listings for the purpose of disseminating the Offer to holders
of Shares. This Offer to Purchase and the related Letter of Transmittal will be
mailed to record holders of Shares and will be furnished to brokers, dealers,
banks and similar persons whose names, or the names of whose nominees, appear on
the stockholder lists or, if applicable, who are listed as participants in a
clearing agency's security position listing, for subsequent transmittal to
beneficial owners of Shares.
2. ACCEPTANCE FOR PAYMENT AND PAYMENT.
Upon the terms and subject to the conditions of the Offer (including, if the
Offer is extended or amended, the terms and conditions of any such extension or
amendment), Purchaser will accept for payment and will pay for, as soon as
practicable after the Expiration Date, all Shares validly tendered prior to the
Expiration Date and not properly withdrawn in accordance with Section 4.
For purposes of the Offer, Purchaser will be deemed to have accepted for
payment, and thereby purchased, Shares properly tendered to Purchaser and not
withdrawn, if, as and when Purchaser gives oral or written notice to the
Depositary of Purchaser's acceptance for payment of such Shares. Payment for
Shares accepted for payment pursuant to the Offer will be made by deposit of the
purchase price therefor with the Depositary, which will act as agent for
tendering stockholders for the purpose of receiving payment from Purchaser and
transmitting payment to tendering stockholders. In all cases, payment for Shares
accepted for payment pursuant to the Offer will be made only after timely
receipt by the Depositary of (i) certificates for such Shares (or a timely Book
Entry Confirmation (as defined below) with respect thereto), (ii) a Letter of
Transmittal (or facsimile thereof), properly completed and duly executed, with
any required signature guarantees, or, in the case of a book-entry transfer, an
Agent's Message (as defined below), and (iii) any other documents required by
the Letter of Transmittal. Accordingly, payment may be made to tendering
stockholders at different times if delivery of the Shares and other required
documents occur at different times. The per share consideration paid to any
holder of Shares pursuant to the Offer will be the highest per share
consideration paid to any other holder of such Shares pursuant to the Offer.
5
<PAGE>
UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID ON THE PURCHASE PRICE TO BE
PAID BY PURCHASER FOR THE SHARES, REGARDLESS OF ANY EXTENSION OF THE OFFER OR
ANY DELAY IN MAKING SUCH PAYMENT.
Purchaser expressly reserves the right, in its sole discretion, to delay
acceptance for payment of, or payment for, Shares in order to comply in whole or
in part with any applicable law. If Purchaser is delayed in its acceptance for
payment of, or payment for, Shares or is unable to accept for payment or pay for
Shares pursuant to the Offer for any reason, then, without prejudice to
Purchaser's rights under the Offer (including such rights as are set forth in
Sections 1 and 14) (but subject to compliance with Rule 14e-1(c) under the
Exchange Act), the Depositary may, nevertheless, on behalf of Purchaser, retain
tendered Shares, and such Shares may not be withdrawn except to the extent
tendering stockholders are entitled to exercise, and duly exercise, withdrawal
rights as described in Section 4.
If any tendered Shares are not purchased pursuant to the Offer for any
reason, or if certificates are submitted representing more Shares than are
tendered, certificates evidencing Shares not tendered or not accepted for
purchase will be returned to the tendering stockholder, or such other person as
the tendering stockholder shall specify in the Letter of Transmittal, as
promptly as practicable following the expiration, termination or withdrawal of
the Offer. In the case of Shares delivered by book-entry transfer into the
Depositary's account at the Book-Entry Transfer Facility (as defined in Section
3) pursuant to the procedures set forth in Section 3, such Shares will be
credited to such account maintained at the Book-Entry Transfer Facility as the
tendering stockholder shall specify in the Letter of Transmittal, as promptly as
practicable following the expiration, termination or withdrawal of the Offer. If
no such instructions are given with respect to Shares delivered by book-entry
transfer, any such Shares not tendered or not purchased will be returned by
crediting the account at the Book-Entry Transfer Facility designated in the
Letter of Transmittal as the account from which such Shares were delivered.
Purchaser reserves the right to transfer or assign, in whole or in part,
from time to time, to one or more of its wholly owned subsidiaries, the right to
purchase Shares tendered pursuant to the Offer, but any such transfer or
assignment will not relieve Purchaser of its obligations under the Offer and
will in no way prejudice the rights of tendering stockholders to receive payment
for Shares validly tendered and accepted for payment pursuant to the Offer.
3. PROCEDURES FOR TENDERING SHARES.
VALID TENDER. For Shares to be validly tendered pursuant to the Offer,
either (i) a properly completed and duly executed Letter of Transmittal (or
facsimile thereof), together with any required signature guarantees, or in the
case of a book-entry transfer, an Agent's Message, and any other required
documents, must be received by the Depositary at one of its addresses set forth
on the back cover of this Offer to Purchase prior to the Expiration Date and
either certificates evidencing tendered Shares must be received by the
Depositary at one of such addresses or such Shares must be delivered to the
Depositary pursuant to the procedures for book-entry transfer set forth below
and a Book-Entry Confirmation (as defined below) must be received by the
Depositary, in each case prior to the Expiration Date, or (ii) the tendering
stockholder must comply with the guaranteed delivery procedures described below.
BOOK-ENTRY TRANSFER. The Depositary will establish an account with respect
to the Shares at The Depository Trust Company (the "Book-Entry Transfer
Facility") for purposes of the Offer within two business days after the date of
this Offer to Purchase. Any financial institution that is a participant in the
Book-Entry Transfer Facility's system may make book-entry delivery of Shares by
causing the Book-Entry Transfer Facility to transfer such Shares into the
Depositary's account in accordance with such Book-Entry Transfer Facility's
procedures for such transfer. However, although delivery of Shares may be
effected through book-entry transfer into the Depositary's account at the
Book-Entry Transfer Facility, the Letter of Transmittal (or facsimile thereof),
properly completed and duly executed, with any required signature
6
<PAGE>
guarantees, or an Agent's Message, and any other required documents must, in any
case, be transmitted to, and received by, the Depositary at one of its addresses
set forth on the back cover of this Offer to Purchase prior to the Expiration
Date, or the tendering stockholder must comply with the guaranteed delivery
procedures described below. The confirmation of a book-entry transfer of Shares
into the Depositary's account at the Book-Entry Transfer Facility as described
above is referred to herein as a "Book-Entry Confirmation."
DELIVERY OF THE LETTER OF TRANSMITTAL AND ANY OTHER REQUIRED DOCUMENTS TO
THE BOOK-ENTRY TRANSFER FACILITY WILL NOT CONSTITUTE DELIVERY TO THE DEPOSITARY.
The term "Agent's Message" means a message transmitted by the Book-Entry
Transfer Facility to, and received by, the Depositary and forming a part of a
Book-Entry Confirmation, which states that such Book-Entry Transfer Facility has
received an express acknowledgment from the participant in such Book-Entry
Transfer Facility tendering the Shares that such participant has received and
agrees to be bound by the terms of the Letter of Transmittal and that Purchaser
may enforce such agreement against such participant.
THE METHOD OF DELIVERY OF SHARES, THE LETTER OF TRANSMITTAL AND ALL OTHER
REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH THE BOOK-ENTRY TRANSFER FACILITY,
IS AT THE ELECTION AND RISK OF THE TENDERING STOCKHOLDER. SHARES WILL BE DEEMED
DELIVERED ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY (INCLUDING, IN THE CASE
OF A BOOK-ENTRY TRANSFER, BY BOOK-ENTRY CONFIRMATION). IF DELIVERY IS BY MAIL,
REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED.
IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
SIGNATURE GUARANTEES. No signature guarantee is required on the Letter of
Transmittal (i) if the Letter of Transmittal is signed by the registered
holder(s) (which term, for purposes of this Section, includes any participant in
the Book Entry Transfer Facility's systems whose name appears on a security
position listing as the owner of the Shares) of Shares tendered therewith and
such registered holder has not completed either the box entitled "Special
Delivery Instructions" or the box entitled "Special Payment Instructions" on the
Letter of Transmittal or (ii) if such Shares are tendered for the account of a
financial institution (including most commercial banks, savings and loan
associations and brokerage houses) that is a participant in the Security
Transfer Agents Medallion Program, the New York Stock Exchange Medallion
Signature Guarantee Program or the Stock Exchange Medallion Program (each, an
"Eligible Institution" and, collectively, "Eligible Institutions"). In all other
cases, all signatures on Letters of Transmittal must be guaranteed by an
Eligible Institution. See Instructions 1 and 5 to the Letter of Transmittal. If
the certificates for Shares are registered in the name of a person other than
the signer of the Letter of Transmittal, or if payment is to be made, or
certificates for Shares not tendered or not accepted for payment are to be
returned, to a person other than the registered holder of the certificates
surrendered, then the tendered certificates for such Shares must be endorsed or
accompanied by appropriate stock powers, in either case, signed exactly as the
name or names of the registered holders or owners appear on the certificates,
with the signatures on the certificates or stock powers guaranteed as aforesaid.
See Instruction 5 to the Letter of Transmittal.
GUARANTEED DELIVERY. If a stockholder desires to tender Shares pursuant to
the Offer and such stockholder's certificates for Shares are not immediately
available or the procedures for book-entry transfer cannot be completed on a
timely basis or time will not permit all required documents to reach the
Depositary prior to the Expiration Date, such stockholder's tender may be
effected if all the following conditions are met:
7
<PAGE>
(1) such tender is made by or through an Eligible Institution;
(2) a properly completed and duly executed Notice of Guaranteed Delivery,
substantially in the form provided by Purchaser, is received by the
Depositary, as provided below, prior to the Expiration Date; and
(3) the certificates for (or a Book-Entry Confirmation with respect to) such
Shares, together with a properly completed and duly executed Letter of
Transmittal (or facsimile thereof), with any required signature
guarantees, or, in the case of a book-entry transfer, an Agent's Message,
and any other required documents, are received by the Depositary within
three trading days after the date of execution of such Notice of
Guaranteed Delivery. A "trading day" is any day on which the New York
Stock Exchange (the "NYSE") is open for business.
The Notice of Guaranteed Delivery may be delivered by hand to the Depositary
or transmitted by telegram, facsimile transmission or mailed to the Depositary
and must include a guarantee by an Eligible Institution in the form set forth in
such Notice of Guaranteed Delivery.
BINDING AGREEMENT. The valid tender of Shares pursuant to one of the
procedures described above will constitute a binding agreement between the
tendering stockholder and Purchaser upon the terms and subject to the conditions
of the Offer.
APPOINTMENT. By executing the Letter of Transmittal as set forth above
(including delivery through an Agent's Message), the tendering stockholder will
irrevocably appoint designees of Parent as such stockholder's attorneys-in-fact
and proxies in the manner set forth in the Letter of Transmittal, each with full
power of substitution, to the full extent of such stockholder's rights with
respect to the Shares tendered by such stockholder and accepted for payment by
Purchaser and with respect to any and all non-cash dividends, distributions,
rights, other Shares or other securities issued or issuable in respect of such
Shares on or after August 15, 1999 (collectively, "Distributions"). All such
proxies will be considered coupled with an interest in the tendered Shares. Such
appointment will be effective if, as and when, and only to the extent that,
Purchaser accepts for payment Shares tendered by such stockholder as provided
herein. All such powers of attorney and proxies will be irrevocable and will be
deemed granted in consideration of the acceptance for payment by Purchaser of
Shares tendered in accordance with the terms of the Offer. Upon such
appointment, all prior powers of attorney, proxies and consents given by such
stockholder with respect to such Shares (and any and all Distributions) will,
without further action, be revoked and no subsequent powers of attorney,
proxies, consents or revocations may be given by such stockholder (and, if
given, will not be deemed effective). The designees of Parent will thereby be
empowered to exercise all voting and other rights with respect to such Shares
(and any and all Distributions), including, without limitation, in respect of
any annual or special meeting of the Company's stockholders (and any adjournment
or postponement thereof), actions by written consent in lieu of any such meeting
or otherwise, as each such attorney-in-fact and proxy or his substitute shall in
his sole discretion deem proper. Purchaser reserves the right to require that,
in order for Shares to be deemed validly tendered, immediately upon Purchaser's
acceptance for payment of such Shares, Purchaser must be able to exercise full
voting, consent and other rights with respect to such Shares (and any and all
Distributions), including voting at any meeting of stockholders.
DETERMINATION OF VALIDITY. All questions as to the validity, form,
eligibility (including time of receipt) and acceptance for payment of any tender
of Shares will be determined by Purchaser, in its sole discretion, which
determination will be final and binding. Purchaser reserves the absolute right
to reject any or all tenders of any Shares determined by it not to be in proper
form or the acceptance for payment of which, or payment for which, may, in the
opinion of Purchaser's counsel, be unlawful. Purchaser also reserves the
absolute right, in its sole discretion, subject to the provisions of the Merger
Agreement, to waive any defect or irregularity in any tender of Shares of any
particular stockholder, whether or not similar defects or irregularities are
waived in the case of other stockholders. No tender of Shares will be deemed to
have
8
<PAGE>
been validly made until all defects or irregularities relating thereto have been
cured or waived. None of Purchaser, Parent, the Depositary, the Information
Agent or any other person will be under any duty to give notification of any
defects or irregularities in tenders or incur any liability for failure to give
any such notification. Subject to the terms of the Merger Agreement, Purchaser's
interpretation of the terms and conditions of the Offer in this regard
(including the Letter of Transmittal and the instructions thereto) will be final
and binding.
BACKUP WITHHOLDING. Under the "backup withholding" provisions of federal
income tax law, unless a tendering registered holder, or its assignee (in either
case, the "Payee"), satisfies the conditions described in Instruction 10 of the
Letter of Transmittal or is otherwise exempt, the cash payable as a result of
the Offer may be subject to backup withholding tax at a rate of 31% of the gross
proceeds. To prevent backup withholding, each Payee should complete and sign the
Substitute Form W-9 provided in the Letter of Transmittal. See Instruction 10 to
the Letter of Transmittal.
4. WITHDRAWAL RIGHTS.
Except as otherwise provided in this Section 4 or as provided by applicable
law, tenders of Shares are irrevocable. Shares tendered pursuant to the Offer
may be withdrawn pursuant to the procedures set forth below at any time prior to
the Expiration Date and, unless theretofore accepted for payment and paid for by
Purchaser pursuant to the Offer, may also be withdrawn at any time after October
15, 1999.
To be effective, a written, telegraphic or facsimile transmission notice of
withdrawal must be timely received by the Depositary at one of its addresses set
forth on the back cover of this Offer to Purchase. Any such notice of withdrawal
must specify the name of the person who tendered the Shares to be withdrawn, the
number of Shares to be withdrawn and the name of the registered holder of the
Shares to be withdrawn, if different from the name of the person who tendered
the Shares. If certificates evidencing Shares to be withdrawn have been
delivered or otherwise identified to the Depositary, then, prior to the physical
release of such certificates, the serial numbers shown on such certificates must
be submitted to the Depositary and, unless such Shares have been tendered by an
Eligible Institution, the signatures on the notice of withdrawal must be
guaranteed by an Eligible Institution. If Shares have been delivered pursuant to
the procedures for book-entry transfer as set forth in Section 3, any notice of
withdrawal must also specify the name and number of the account at the
Book-Entry Transfer Facility to be credited with the withdrawn Shares and
otherwise comply with such Book-Entry Transfer Facility's procedures.
Withdrawals of tendered Shares may not be rescinded, and any Shares
withdrawn will thereafter be deemed not validly tendered for purposes of the
Offer. However, withdrawn Shares may be retendered by again following one of the
procedures described in Section 3 at any time prior to the Expiration Date.
All questions as to the form and validity (including time of receipt) of
notices of withdrawal will be determined by Purchaser, in its sole discretion,
which determination will be final and binding. None of Purchaser, Parent, the
Depositary, the Dealer Manager, the Information Agent or any other person will
be under any duty to give notification of any defects or irregularities in any
notice of withdrawal or incur any liability for failure to give any such
notification.
5. CERTAIN FEDERAL INCOME TAX CONSEQUENCES.
The following is a general summary of certain federal income tax
consequences of the Offer and the Merger relevant to a beneficial holder of
Shares whose Shares are tendered and accepted for payment pursuant to the Offer
or whose Shares are converted to cash in the Merger (a "Holder"). This
discussion is for general information only and does not purport to consider all
aspects of federal income taxation that may be relevant to holders of Shares.
The discussion is based on the provisions of the Internal Revenue Code of 1986,
as amended (the "Code"), existing regulations promulgated thereunder and
administrative and judicial interpretations thereof, all as in effect as of the
date hereof and all of which are subject to change (possibly with retroactive
effect). This discussion applies only to Holders that hold Shares as
9
<PAGE>
"capital assets" within the meaning of Section 1221 of the Code (generally,
property held for investment), and does not apply to Shares acquired pursuant to
the exercise of employee stock options or otherwise as compensation, Shares held
as part of a "straddle," "hedge," "conversion transaction," "synthetic security"
or other integrated investment, or to certain types of Holders (including,
without limitation, financial institutions, insurance companies, tax-exempt
organizations and dealers in securities) that may be subject to special rules.
This discussion does not address the federal income tax consequences to a Holder
that, for federal income tax purposes, is a non-resident alien individual, a
foreign corporation, a foreign partnership or a foreign estate or trust, nor
does it consider the effect of any state, local, foreign or other tax laws.
EACH HOLDER SHOULD CONSULT ITS TAX ADVISOR AS TO THE PARTICULAR TAX
CONSEQUENCES TO IT OF THE SALE OF ITS SHARES, INCLUDING THE APPLICATION AND
EFFECT OF FEDERAL, STATE, LOCAL AND FOREIGN TAX LAWS AND POSSIBLE CHANGES IN TAX
LAWS.
The receipt of cash for Shares pursuant to the Offer or the Merger will be a
taxable transaction for federal income tax purposes and may also be a taxable
transaction under applicable state, local and foreign income and other tax laws.
For federal income tax purposes, a Holder who sells Shares pursuant to the Offer
or receives cash in exchange for Shares pursuant to the Merger will generally
recognize capital gain or loss equal to the difference (if any) between the
amount of cash received and the Holder's adjusted tax basis in Shares sold or
surrendered in the Merger. Gain or loss must be determined separately for each
block of Shares tendered pursuant to the Offer or surrendered for cash pursuant
to the Merger (for example, Shares acquired at the same cost in a single
transaction). Such capital gain or loss will be long-term capital gain or loss
if the Holder has held such Shares for more than one year at the time of the
consummation of the Offer or the Merger. For federal income tax purposes, net
capital gain recognized by individuals (or an estate or certain trusts) from the
sale of property held for more than twelve months will generally be taxed at a
maximum tax rate of 20%. There are limitations on the deductibility of capital
losses.
Payments in connection with the Offer or Merger may be subject to "backup
withholding" at a rate of 31% unless a Holder of Shares (i) provides a correct
taxpayer identification number ("TIN") (which, for an individual Holder, is the
Holder's social security number) and any other required information, or (ii) is
a corporation or comes within certain other exempt categories and, when
required, demonstrates this fact, and otherwise complies with applicable
requirements of the backup withholding rules. A Holder that does not provide a
correct TIN may be subject to penalties imposed by the Internal Revenue Service
(the "IRS"). Stockholders may prevent backup withholding by completing and
signing the Substitute Form W-9 included as part of the Letter of Transmittal.
Any amount paid as backup withholding does not constitute an additional tax and
will be creditable against the Holder's federal income tax liability, provided
that the required information is given to the IRS. Each Holder should consult
its tax advisor as to such Holder's qualification for exemption from backup
withholding and the procedure for obtaining such exemption.
6. PRICE RANGE OF THE SHARES; DIVIDENDS.
The Shares are traded through the NYSE under the symbol "NMR." The following
table sets forth, for each of the fiscal quarters indicated, the high and low
reported sales price per Share on the NYSE.
<TABLE>
<CAPTION>
COMMON STOCK
--------------------
<S> <C> <C>
HIGH LOW
--------- ---------
Fiscal Year Ended December 31, 1998
Third Quarter Ended September 30, 1998....................................................... $ 15.38 $ 8.06
Fourth Quarter Ended December 31, 1998....................................................... 18.00 8.13
Fiscal Year Ending December 31, 1999
First Quarter Ended March 31, 1999........................................................... $ 25.88 $ 15.13
Second Quarter Ended June 30, 1999........................................................... 30.75 22.88
Third Quarter Ending September 30, 1999 (through August 13, 1999)............................ 33.00 27.00
</TABLE>
10
<PAGE>
On August 13, 1999, the last full trading day prior to the public
announcement of the execution of the Merger Agreement, the last reported sales
price of the Shares on the NYSE was $32.81 per Share. On August 19, 1999, the
last full trading day prior to the commencement of the Offer, the last reported
sales price of the Shares on the NYSE was $37.25 per Share. Stockholders are
urged to obtain a current market quotation for the Shares.
The Company did not declare or pay any cash dividends during any of the
periods indicated in the above table. In addition, under the terms of the Merger
Agreement, the Company is not permitted to declare or pay dividends with respect
to the Shares without the prior written consent of Parent, and Parent does not
intend to consent to any such declaration or payment.
7. EFFECT OF THE OFFER ON THE MARKET FOR THE SHARES; NYSE QUOTATION; EXCHANGE
ACT REGISTRATION; MARGIN REGULATIONS.
MARKET FOR THE SHARES. The purchase of Shares by Purchaser pursuant to the
Offer will reduce the number of holders of Shares and the number of Shares that
might otherwise trade publicly and, which, depending upon the number of Shares
so purchased, could adversely affect the liquidity and market value of the
remaining Shares held by the public. Purchaser cannot predict whether the
reduction in the number of Shares that might otherwise trade publicly would have
an adverse or beneficial effect on the market price for, or marketability of,
the Shares or whether it would cause future market prices to be greater or less
than the Offer Price.
STOCK LISTING. The Shares are listed on the NYSE. After consummation of the
Offer and depending upon the aggregate market value and the per Share price of
any Shares not purchased pursuant to the Offer, the Shares may no longer meet
the requirements for continued listing on the NYSE. According to the NYSE's
published guidelines, the NYSE may delist the Shares if, among other things: (i)
the number of total stockholders falls below 400; (ii) the number of total
stockholders falls below 1,200 and the average monthly trading volume is less
than 100,000 shares (for the most recent 12 months); (iii) the number of
publicly held Shares (exclusive of holdings of officers and directors of the
Company and their immediate families and other concentrated holdings of 10% or
more ("Excluded Holdings")) should fall below 600,000; or (iv) the aggregate
market value of such publicly held Shares (exclusive of Excluded Holdings)
should fall below $8 million. If as a result of the purchase of Shares pursuant
to the Offer, Shares no longer meet the requirements of the NYSE for continued
listing and the listing of the Shares is discontinued, the market for the Shares
could be adversely affected. According to the Company, as of August 18, 1999,
there were approximately 4,812 holders of record of the Shares and 57,688,294
Shares outstanding.
If the NYSE were to delist the Shares, it is possible that the Shares would
continue to trade on other securities exchanges or in the over-the-counter
market and that price quotations would be reported by such exchanges or through
the Nasdaq Stock Market or other sources. The extent of the public market for
the Shares and the availability of such quotations would depend, however, upon
such factors as the number of stockholders and/or the aggregate market value of
the publicly traded Shares remaining at such time, the interest in maintaining a
market in the Shares on the part of securities firms, the possible termination
of registration under the Exchange Act as described below, and other factors.
Purchaser cannot predict whether the reduction in the number of Shares that
might otherwise trade publicly would have an adverse or beneficial effect on the
market price for, or marketability of, the Shares or whether it would cause
future market prices to be greater or lesser than the Offer Price.
11
<PAGE>
EXCHANGE ACT REGISTRATION. The Shares are currently registered under the
Exchange Act. Registration of the Shares under the Exchange Act may be
terminated upon application of the Company to the Commission if the Shares are
neither listed on a national securities exchange nor held by 300 or more holders
of record. Termination of registration of the Shares under the Exchange Act
would substantially reduce the information required to be furnished by the
Company to its stockholders and to the Commission and would make certain
provisions of the Exchange Act no longer applicable to the Company, such as the
short-swing profit recovery provisions of Section 16(b), the requirement of
furnishing a proxy statement pursuant to Section 14(a) in connection with
stockholders' meetings and the related requirement of furnishing an annual
report to stockholders and the requirements of Rule 13e-3 under the Exchange Act
with respect to "going private" transactions. Furthermore, the ability of
"affiliates" of the Company and persons holding "restricted securities" of the
Company to dispose of such securities pursuant to Rule 144 or Rule 144A
promulgated under the Securities Act of 1933, as amended (the "Securities Act"),
may be impaired or eliminated.
MARGIN REGULATIONS. The Shares are presently "margin securities" under the
regulations of the Board of Governors of the Federal Reserve System (the
"Federal Reserve Board"), which status has the effect, among other things, of
allowing brokers to extend credit on the collateral of the Shares. Depending
upon factors similar to those described above regarding stock exchange listing
and market quotations, it is possible that, following the Offer, the Shares
would no longer constitute "margin securities" for the purposes of the margin
regulations of the Federal Reserve Board and therefore could no longer be used
as collateral for loans made by brokers. In addition, if registration of the
Shares under the Exchange Act were terminated, the Shares would no longer
constitute "margin securities."
Purchaser currently intends to seek delisting of the Shares from the NYSE
and the termination of the registration of the Shares under the Exchange Act
promptly after the completion of the Offer, provided that the requirements for
such delisting and termination are met. If the NYSE listing and the Exchange Act
registration of the Shares are not terminated prior to the Merger, then the
Shares will be delisted from the NYSE and the registration of the Shares under
the Exchange Act will be terminated following the consummation of the Merger.
8. CERTAIN INFORMATION CONCERNING THE COMPANY.
GENERAL. The information concerning the Company contained in this Offer to
Purchase, including that set forth below under the caption "Selected Financial
Information," has been furnished by the Company or has been taken from or based
upon publicly available documents and records on file with the Commission and
other public sources. None of VNU, Parent, Purchaser or the Information Agent
assumes responsibility for the accuracy or completeness of the information
concerning the Company contained in such documents and records or for any
failure by the Company to disclose events which may have occurred or may affect
the significance or accuracy of any such information but which are unknown to
VNU, Parent, Purchaser or the Information Agent.
The Company is the leading source of television audience measurement and
related services in the United States and Canada. Customers have used the
Company's television audience research information in the United States for
nearly 50 years. Through its core ratings business, the Company estimates
television audience size and demographics and reports this and related
information to a diverse customer base on a subscription basis. Customers
include advertisers, advertising agencies, broadcast networks, cable networks,
program syndicators, cable operators, sports organizations, televisions stations
and station representatives. The Company's ratings serve as the "currency" for
national and local television advertising. In 1998, advertisers spent
approximately $44 billion in the United States on national and local television
advertising, according to McCann-Erickson Worldwide, to bring a variety of
advertising messages to approximately 99 million U.S. television households. The
Company offers rating services in four principal areas: (i) National Ratings
Services; (ii) Local Ratings Services; (iii) U.S. Hispanic Ratings Services; and
(iv) Canadian Ratings Services. The Company also offers services that enable
advertisers to
12
<PAGE>
manage their media spending by linking television ratings to commercial
occurrences, and that provide Internet and web page usage analysis to the
expanding interactive media industry.
The Company's principal offices are located at 299 Park Avenue, New York,
New York 10171 and its telephone number at such address is (212) 708-7500.
SELECTED FINANCIAL INFORMATION. Set forth below is certain selected
consolidated financial information with respect to the Company, excerpted or
derived from the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998 and its Quarterly Report on Form 10-Q for the quarter ended
June 30, 1999, each as filed with the Commission pursuant to the Exchange Act.
Prior to June 30, 1998, when IMS Health Incorporated was spun off from
Cognizant, the Company was operated as a subsidiary of Cognizant Corporation
("Cognizant"), and prior to November 1, 1996, Cognizant was operated as a
division of The Dun & Bradstreet Corporation ("D&B"). The financial statement
data presented below have been prepared for the Company on a standalone basis.
For periods prior to the June 30, 1998 spin-off of IMS Health Incorporated by
Cognizant, the Company's results of operations reflect an allocation of
Cognizant and D&B corporate and other expenses.
More comprehensive financial information is included in such reports and in
other documents filed by the Company with the Commission. The following summary
is qualified in its entirety by reference to such reports and other documents
and all of the financial information (including any related notes) contained
therein. Such reports, documents and financial information may be inspected and
copies may be obtained from the Commission in the manner set forth below.
SELECTED CONSOLIDATED FINANCIAL INFORMATION
NIELSEN MEDIA RESEARCH, INC. AND SUBSIDIARIES
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
SIX MONTHS ENDED FISCAL YEAR
JUNE 30, ENDED DECEMBER 31,
---------------------- ----------------------------------
<S> <C> <C> <C> <C> <C>
1999 1998 1998 1997 1996
---------- ---------- ---------- ---------- ----------
<CAPTION>
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Operating revenue.................................... $ 219,918 $ 193,995 $ 401,932 $ 358,594 $ 319,404
Operating costs...................................... 111,185 93,312 195,301 164,516 146,981
Selling and Administrative Expenses.................. 38,638 41,440 80,867 75,154 65,233
Depreciation and Amortization........................ 17,901 14,913 31,385 28,663 25,229
Operating income..................................... 52,194 44,330 94,379 90,261 81,961
Income before provision for income taxes............. 45,632 49,930 94,231 90,261 81,961
Net income........................................... 26,512 29,009 54,748 52,475 47,605
Earnings per share
Basic.............................................. $ 0.46 $ 0.53 $ 0.99 $ 0.95 $ 0.84
Diluted............................................ $ 0.43 $ 0.49 $ 0.92 $ 0.92 $ 0.84
Shares used in per share calculation
Basic.............................................. 57,046 54,343 55,159 55,054 56,648
Diluted............................................ 61,746 59,648 59,505 57,117 56,891
</TABLE>
<TABLE>
<CAPTION>
JUNE 30, DECEMBER 31,
---------------------- ----------------------------------
<S> <C> <C> <C> <C> <C>
1999 1998 1998 1997 1996
---------- ---------- ---------- ---------- ----------
BALANCE SHEET DATA:
Total assets..................................... $ 233,429 $ 231,555 $ 232,165 $ 192,434 $ 170,331
Total liabilities................................ 336,083 408,289 380,027 90,851 0
Stockholders' equity (deficit)................... (102,654) (176,734) (147,862) 101,583 99,353
</TABLE>
13
<PAGE>
COMPANY PROJECTIONS. To the knowledge of VNU, Parent and Purchaser, the
Company does not as a matter of course make public forecasts as to its future
financial performance. However, in connection with the discussions and
negotiations described in Section 11--"Background of the Offer; Purpose of the
Offer and the Merger; The Merger Agreement and Certain Other Agreements," the
Company furnished Parent with certain financial projections which Parent and
Purchaser believe are not publicly available. Neither Parent nor Purchaser has
verified the accuracy of such financial projections. According to the
projections, the Company has estimated that it will have operating revenue of
approximately $454 million and prior to year 2000 compliance costs, operating
income of approximately $117 million and net income of approximately $60 million
for the year ending December 31, 1999 and that its operating revenue will grow
to approximately $652 million, its operating income will grow to approximately
$159 million, and its net income will grow to approximately $85 million, in each
case for the year ending December 31, 2002.
It is the understanding of Parent and Purchaser that the projections were
not prepared with a view to public disclosure or compliance with published
guidelines of the commission or the guidelines established by the American
Institute of Certified Public Accountants regarding projections or forecasts and
are included herein only because such information was provided to Parent and
Purchaser.
THESE FORWARD-LOOKING STATEMENTS ARE SUBJECT TO CERTAIN RISKS AND
UNCERTAINTIES THAT COULD CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY FROM THE
PROJECTIONS. THE COMPANY HAS ADVISED VNU, PURCHASER AND PARENT THAT ITS INTERNAL
FINANCIAL FORECASTS (UPON WHICH THE PROJECTIONS PROVIDED TO PARENT WERE BASED IN
PART) ARE, IN GENERAL, PREPARED SOLELY FOR INTERNAL USE AND CAPITAL BUDGETING
AND OTHER MANAGEMENT DECISIONS, AND ARE SUBJECTIVE IN MANY RESPECTS AND THUS
SUSCEPTIBLE TO INTERPRETATIONS AND PERIODIC REVISION BASED ON ACTUAL EXPERIENCE
AND BUSINESS DEVELOPMENTS. THE PROJECTIONS ALSO REFLECT NUMEROUS ASSUMPTIONS
(NOT ALL OF WHICH WERE PROVIDED TO PARENT), ALL MADE BY MANAGEMENT OF THE
COMPANY, WITH RESPECT TO INDUSTRY PERFORMANCE, GENERAL BUSINESS, ECONOMIC,
MARKET AND FINANCIAL CONDITIONS AND OTHER MATTERS, ALL OF WHICH ARE DIFFICULT TO
PREDICT, MANY OF WHICH ARE BEYOND THE COMPANY'S CONTROL AND NONE OF WHICH WERE
SUBJECT TO APPROVAL BY VNU, PARENT OR PURCHASER. ACCORDINGLY, THERE CAN BE NO
ASSURANCE THAT THE ASSUMPTIONS MADE IN PREPARING THE PROJECTIONS WILL PROVE
ACCURATE, AND ACTUAL RESULTS MAY BE MATERIALLY GREATER OR LESS THAN THOSE
CONTAINED IN THE PROJECTIONS. THE INCLUSION OF THE PROJECTIONS HEREIN SHOULD NOT
BE REGARDED AS AN INDICATION THAT ANY OF VNU, PARENT, PURCHASER, THE COMPANY OR
THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES CONSIDERED OR CONSIDER THE
PROJECTIONS TO BE A RELIABLE PREDICTION OF FUTURE EVENTS, AND THE PROJECTIONS
SHOULD NOT BE RELIED UPON AS SUCH. NONE OF VNU, PARENT, PURCHASER, THE COMPANY
OR ANY OF THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES ASSUMES ANY
RESPONSIBILITY FOR THE VALIDITY, REASONABLENESS, ACCURACY OR COMPLETENESS OF THE
PROJECTIONS. NONE OF VNU, PARENT, PURCHASER, THE COMPANY OR ANY OF THEIR
RESPECTIVE AFFILIATES OR REPRESENTATIVES HAS MADE, OR MAKES, ANY REPRESENTATION
TO ANY PERSON REGARDING THE INFORMATION CONTAINED IN THE PROJECTIONS AND NONE OF
THEM INTENDS TO UPDATE OR OTHERWISE REVISE THE PROJECTIONS TO REFLECT
CIRCUMSTANCES EXISTING AFTER THE DATE WHEN MADE OR TO REFLECT THE OCCURRENCE OF
FUTURE EVENTS EVEN IN THE EVENT THAT ANY OR ALL OF THE ASSUMPTIONS UNDERLYING
THE PROJECTIONS ARE SHOWN TO BE IN ERROR.
AVAILABLE INFORMATION. The Company is subject to the informational filing
requirements of the Exchange Act and, in accordance therewith, is obligated to
file reports, proxy statements and other information with the Commission
relating to its business, financial condition and other matters. Information as
of particular dates concerning the Company's directors and officers, their
remuneration, options granted to them, the principal holders of the Company's
securities and any material interests of such persons in transactions with the
Company is required to be disclosed in proxy statements distributed to the
Company's stockholders and filed with the Commission. Such reports, proxy
statements and other information are available for inspection at the public
reference facilities of the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the regional offices of the Commission located at Seven World
Trade Center, Suite 1300, New York, NY 10048 and Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, IL 60661. Copies of such information are
also obtainable by mail, upon payment of the Commission's customary charges, by
writing to the Commission's principal office at 450 Fifth Street, N.W.,
Washington, D.C. 20549. The Commission also maintains a website on the Internet
at
14
<PAGE>
http://www.sec.gov that contains reports, proxy statements and other information
relating to the Company which have been filed via the Commission's EDGAR System.
9. CERTAIN INFORMATION CONCERNING PURCHASER, PARENT AND VNU.
GENERAL. Purchaser is a newly formed Delaware corporation and is a wholly
owned subsidiary of Parent, which in turn is a wholly owned subsidiary of VNU.
Purchaser was organized in connection with the Offer and the Merger and has not
carried on any significant activities other than in connection with the Offer
and the Merger. Until immediately prior to the time Shares are purchased
pursuant to the Offer, it is not anticipated that Purchaser will have any
significant assets or liabilities or engage in any significant activities other
than those incident to its formation and capitalization and the transactions
contemplated by the Offer and the Merger.
Parent is a New York corporation and a wholly owned subsidiary of VNU.
Parent conducts VNU's business operations in the United States, including
publishing and information services activities.
The principal offices of Purchaser and Parent are located at 1515 Broadway,
New York, New York 10036. The telephone number of Purchaser and Parent at such
location is (212) 536-6700.
VNU is a company organized under the laws of the Netherlands, with
securities listed on the AEX-Stock Exchange. VNU is a major international
publisher of consumer magazines, newspapers, telephone directories and
educational materials, as well as a provider of other information services. The
principal offices of VNU are located at Ceylonpoort 5-25, 2037 AA Haarlem, P.O.
Box 1, 2000MA Haarlem, the Netherlands. The telephone number of VNU at such
location is 011 31 23 546 3463.
Except as set forth in this Offer to Purchase, none of Purchaser, Parent nor
VNU has any contract, arrangement, understanding or relationship with any other
person with respect to any securities of the Company, including, but not limited
to, any contract, arrangement, understanding or relationship concerning the
transfer or the voting of any securities of the Company, joint ventures, loan or
option arrangements, puts or calls, guarantees of loans, guarantees against loss
or the giving or withholding of proxies.
Except as set forth in this Offer to Purchase, none of Purchaser, Parent or
VNU, any of their respective affiliates, nor, to the best knowledge of
Purchaser, Parent or VNU, any of the persons listed on Schedule I, has had,
since January 1, 1996, any business relationships or transactions with the
Company or any of its executive officers, directors or affiliates that would be
required to be reported under the rules of the Commission. Except as described
in this Offer to Purchase, there have been no contacts, negotiations or
transactions between Purchaser, Parent or VNU, any of their respective
affiliates or, to the best knowledge of Purchaser, Parent or VNU, any of the
persons listed on Schedule I and the Company or its affiliates concerning a
merger, consolidation or acquisition, tender offer or other acquisition of
securities, election of directors or a sale or other transfer of a material
amount of assets.
AVAILABLE INFORMATION. Pursuant to Rule 14d-3 under the Exchange Act, VNU,
Parent and Purchaser have filed with the Commission the Schedule 14D-1, together
with exhibits, including this Offer to Purchase and the Merger Agreement, which
provides certain additional information with respect to the Offer. The Schedule
14D-1 and any amendments thereto, including exhibits, are available for
inspection and copies are obtainable at the public reference facilities of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, and at the
regional offices of the Commission located at Seven World Trade Center, Suite
1300, New York, New York, 10048 and Citicorp Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661. Copies of such information are obtainable
by mail, upon payment of the Commission's customary charges, by writing to the
Commission's principal office at 450 Fifth Street, N.W., Washington, D.C. 20549
or by accessing the Commission's website at http://www.sec.gov.
15
<PAGE>
10. SOURCES AND AMOUNT OF FUNDS.
The Offer is not conditioned upon any financing arrangements. The total
amount of funds required by Purchaser to consummate the Offer and the Merger and
pay the fees and expenses of the Offer and the Merger expected to be incurred by
Parent, is estimated to be approximately $2.6 billion. Purchaser will obtain all
such funds from Parent, either directly or indirectly, in the form of capital
contributions and/or loans from VNU and its affiliates. VNU will obtain all such
funds pursuant to a Revolving Credit Facility Agreement, dated as of August 15,
1999 (the "Credit Agreement"), among VNU and VNU Ireland, as borrowers, VNU, as
guarantor, ABN AMRO Bank N.V. ("ABN") and Merrill Lynch International, as
arrangers, ABN as agent and the banks from time to time parties thereto (the
"Banks"). This summary is not a complete description of the terms and conditions
of the Credit Agreement, and is qualified in its entirety by reference to the
full text of the Credit Agreement, a copy of which has been filed with the
Commission as an exhibit to the Schedule 14D-1. The Credit Agreement may be
examined, and copies obtained, in the manner set forth in Sections 8 and 9 of
this Offer to Purchase.
Under the Credit Agreement, the Banks have made available to VNU and VNU
Ireland a 364-day revolving credit facility of up to $3 billion (or, from time
to time, its equivalent in Euros). Loans under the Credit Agreement (the
"Loans") may be utilized to finance the transactions contemplated under the
Merger Agreement, to refinance certain indebtedness of VNU and its subsidiaries,
and to refinance certain indebtedness of the Company and its subsidiaries. VNU
is currently considering various refinancing alternatives that may be pursued
following consummation of the Offer, which may include an equity offering by
VNU, other borrowings or the use of other cash resources. Such refinancing is
not necessary to consummate the Offer or the Merger.
Loans bear interest at LIBOR or, in the case of loans denominated in Euros,
EURIBOR, plus the applicable margin, which is 0.35% per annum through December
30, 1999 and 0.60% per annum thereafter. VNU and VNU Ireland are obligated to
pay a commitment fee on the undrawn portion of the credit facility under the
Credit Agreement at a rate per annum equal to 50% of the applicable margin.
The Loans are subject to mandatory repayment in certain limited
circumstances. Voluntary prepayments of the Loans and voluntary reductions of
the credit facility are permitted, in whole or in part, at the option of VNU and
VNU Ireland in minimum principal amounts, without premium or penalty, subject to
reimbursement of certain of the Banks' costs under certain conditions.
The obligations of VNU Ireland under the Credit Agreement have been
unconditionally guaranteed by VNU, acting in its capacity as guarantor. Neither
the Loans nor VNU's guarantee obligation are secured by any collateral. The
Credit Agreement contains representations and warranties, conditions precedent,
covenants, events of default and other provisions customarily found in similar
agreements.
11. BACKGROUND OF THE OFFER; PURPOSE OF THE OFFER AND THE MERGER; THE MERGER
AGREEMENT AND CERTAIN OTHER AGREEMENTS.
BACKGROUND OF THE OFFER.
Early in 1999, Gerald Hobbs, the Chief Executive Officer of Parent, met with
John Dimling, the Chief Executive Officer of the Company, to discuss their
respective businesses and VNU's U.S. strategy. Mr. Hobbs had first been
introduced to Mr. Dimling in December 1998, at which time they had discussed
their respective businesses. At the early 1999 meeting, Mr. Hobbs also inquired
as to whether Mr. Dimling would support an acquisition of the Company by Parent
if such proposal were authorized by VNU in the future. Mr. Dimling informed Mr.
Hobbs that the Company was not for sale.
In February 1999, the Executive Board of VNU met and authorized Parent and
its advisors to begin a strategic and business review of the Company as a
possible acquisition candidate. This review was begun by Parent and its advisors
in late April with the results of such review reported to VNU's Executive and
Supervisory Boards in June 1999. On July 12, 1999, the Executive and Supervisory
Boards of VNU authorized Mr. Hobbs to approach Mr. Dimling with a proposal to
acquire the Company.
16
<PAGE>
On July 14, 1999, Mr. Hobbs met with Mr. Dimling and indicated that Parent
was prepared to make an offer to acquire the Company for $36 per share in cash.
Mr. Hobbs indicated that the offer would not be subject to a financing condition
and would be made on a friendly basis only. Mr. Hobbs also requested that
discussions between the Company and Parent be conducted on an exclusive basis.
Mr. Dimling again responded that the Company was not interested in pursuing such
a transaction but indicated that he would discuss the proposal with the
Company's Board of Directors and its financial and legal advisors.
On July 21 and 22, 1999, the Board of Directors of the Company met to
consider, among other things, Parent's proposal. At such meetings, the Board of
Directors of the Company authorized management to communicate to Parent that the
Company would not be interested in pursuing discussions unless Parent was
prepared to pay a price which is meaningfully higher than its current proposal
and to minimize uncertainty as to the consummation of a transaction, including
risks relating to the absence of binding agreements relating to NetRatings, Inc.
("NetRatings").
On July 23, 1999, representatives of the Company's financial advisors,
Morgan Stanley & Co. Incorporated ("Morgan Stanley") contacted Mr. Hobbs to
convey the Company's position with respect to price and other matters. On July
26, representatives of Parent's financial advisor, Merrill Lynch & Co. ("Merrill
Lynch"), responded to Morgan Stanley that Parent was not willing to pay the $40
per share price being sought by the Company and that only with additional due
diligence and satisfactory resolution of certain issues, could Parent consider
meaningfully raising the price of its offer. Merrill Lynch also indicated that
Parent was willing to address the Company's concerns with respect to certainty
of closing. Morgan Stanley responded that preliminary discussions between the
companies could proceed based upon Parent's willingness to meet the Company's
other conditions and subject to the understanding that price would ultimately
have to be meaningfully raised.
On July 28, 1999, the Company and VNU entered into a confidentiality and
standstill agreement. On that date, Mr. Dimling, Mr. Thomas Young, the Chief
Financial Officer of the Company, and Stephen Boatti, Senior Vice President and
General Counsel of the Company and representatives of Morgan Stanley met with
Mr. Hobbs, Mr. Thomas Mastrelli, the Chief Operating Officer of Parent, and
other executives of Parent and VNU and representatives of Merrill Lynch to
discuss the Company's strategic plan and its business affairs and prospects as a
prelude to further due diligence.
At a subsequent meeting held on August 2 attended by management and
financial advisors of the two parties, Mr. Hobbs stated that Parent was prepared
to offer $38 per share in a two-step tender offer and merger transaction,
subject to due diligence review of the Company and satisfactorily resolving
other issues. Mr. Hobbs also indicated that a transaction would need to address
Parent's concern regarding the number of outstanding management stock options
and the possible impact on management retention. Mr. Hobbs also indicated that
Parent and its representatives were prepared to commence confidential,
confirmatory due diligence of the Company.
On August 2, 1999, the Company's Board of Directors met to discuss the
status of the transaction, and authorized the Company's senior management to
continue discussions with Parent and VNU.
On August 3, 1999, representatives of Morgan Stanley conveyed to
representatives of Merrill Lynch that Parent's proposal was insufficient and
that the Company was seeking to have Parent increase its offer to $40 per share
or more. After consultation with Parent, Merrill Lynch advised Morgan Stanley
that Parent was not prepared to pay $40 per share but might be prepared to pay
more than $38 per share without conducting further due diligence and resolving
the principal terms of the merger agreement.
On August 4, 1999, Parent's legal advisors delivered a draft merger
agreement to the Company's legal advisors. From August 4, 1999 to August 15,
1999, VNU and Parent and their financial and legal advisors conducted a
financial and legal due diligence review of the Company. During this period, the
parties and their legal and financial advisors negotiated the terms of the
Merger Agreement.
17
<PAGE>
On August 9, 1999, representatives of Morgan Stanley inquired of Merrill
Lynch whether, in light of the progress made with respect to due diligence and
negotiation of the merger agreement, Parent was prepared to increase its offer.
Merrill Lynch replied that, subject to completion of due diligence and resolving
certain open items including the status of the definitive documentation relating
to the Company's joint venture with NetRatings, Parent was prepared to enter
into a merger agreement at a price of $38.50 per share.
On August 10, 1999, Messrs. Dimling and Young attended a previously
scheduled meeting with the management of NetRatings and were informed that
NetRatings was no longer willing to accept the Company's planned joint venture
investments on the terms contemplated by a previously negotiated term sheet
between the Company and NetRatings.
On August 11, 1999, the respective managements and financial and legal
advisors of the Company and Parent met to discuss the developments with respect
to NetRatings and its potential implications on the transaction with Parent. At
the conclusion of this meeting, Parent requested that the Company attempt to
clarify its understanding with NetRatings and indicated that once such
understanding was clarified, Parent would determine at what price and other
terms it would be prepared to proceed.
On August 13, 1999, based on the progress of the Company's discussions with
NetRatings, Merrill Lynch, after consultation with Parent, communicated that
Parent was prepared to enter into a transaction at $37.50 per share, subject to
the execution of an agreement with NetRatings as a precondition to the execution
of the merger agreement. Merrill Lynch explained Parent's view that the
restructured NetRatings transaction diminished Parent's valuation of the Company
by over $2.50 per share but, that notwithstanding, Parent was prepared to
proceed at a price of $37.50 per share, ($1.00 below its earlier offer).
Representatives of Morgan Stanley countered with a price of $38 per share and
various other conditions. After additional discussions, the Company's management
agreed to present to the Board of Directors a price of $37.75. Between August 13
and August 15, the management and financial and legal advisors of the two
parties completed the negotiation of the remaining issues in the merger
agreement.
On August 14, 1999, the Company and NetRatings entered into a definitive
agreement which contemplated a series of investments by which the Company would
acquire a majority of the common stock of NetRatings at the time of an initial
public offering of NetRatings.
On August 15, 1999, the Board of Directors of the Company met to consider
the final terms of Parent's proposal. At such meeting, the Board of Directors
heard presentations by the Company's senior management, legal advisors and
Morgan Stanley, including Morgan Stanley's opinion that the consideration to be
received by the holders of the Company's common stock pursuant to the Offer and
the Merger as provided in the Merger Agreement is fair, from a financial point
of view, to such holders. Following such presentations, the Company's Board of
Directors, (i) unanimously determined that the Offer and the Merger are fair to
and in the best interests of the Company's stockholders; (ii) unanimously
approved the Merger Agreement and the transactions contemplated thereby,
including the Offer and the Merger, and (iii) unanimously declared the
advisability of the Merger Agreement and resolved to recommend that the holders
of the Company's outstanding shares accept the Offer and adopt the Merger
Agreement. Thereafter, Parent, Purchaser and the Company executed the Merger
Agreement.
PURPOSE OF THE OFFER AND THE MERGER. The purpose of the Offer and the
Merger is to enable Parent to acquire control of, and the entire equity interest
in, the Company. The Offer is being made pursuant to the Merger Agreement and is
intended to increase the likelihood that the Merger will be effected. The
purpose of the Merger is to acquire all of the outstanding Shares not purchased
pursuant to the Offer.
Stockholders of the Company who sell their Shares in the Offer will cease to
have any equity interest in the Company or any right to participate in its
earnings and future growth. If the Merger is consummated, non-tendering
stockholders will no longer have an equity interest in the Company and instead
will have only the right to receive cash consideration pursuant to the Merger
Agreement or to exercise
18
<PAGE>
statutory appraisal rights under Section 262 of the DGCL. See Section 12.
Similarly, after selling their Shares in the Offer or the subsequent Merger,
stockholders of the Company will not bear the risk of any decrease in the value
of the Company.
The primary benefits of the Offer and the Merger to the stockholders of the
Company are that such stockholders are being afforded an opportunity to sell all
of their Shares for cash at a price which represents a premium of approximately
15.0% over the closing sales price of the Shares on August 13, 1999, the last
full trading day prior to the initial public announcement that the Company,
Purchaser and Parent had executed the Merger Agreement.
MERGER AGREEMENT
The following is a summary of certain provisions of the Merger Agreement.
This summary is not a complete description of the terms and conditions of the
Merger Agreement and is qualified in its entirety by reference to the full text
of the Merger Agreement filed with the Commission as an exhibit to the Schedule
14D-1 and is incorporated herein by reference. Capitalized terms not otherwise
defined below shall have the meanings set forth in the Merger Agreement. The
Merger Agreement may be examined, and copies obtained, as set forth in Section 9
of this Offer to Purchase.
REPRESENTATIONS AND WARRANTIES. In the Merger Agreement, the Company has
made customary representations and warranties to Parent and Purchaser with
respect to, among other things, corporate organization, subsidiaries, authority
to enter into the Merger Agreement, no conflicts between the Merger Agreement
and the Company's organizational documents, agreements or applicable law, the
receipt of required consents, capital structure, filings with the Commission,
financial statements, absence of certain changes or events, undisclosed
liabilities, the accuracy of certain disclosures, real property, Year 2000
computer system preparedness, intellectual property, material contracts,
litigation, compliance with applicable laws, environmental matters, tax matters,
benefit plans, labor matters, brokers' and finders' fees, receipt of the Morgan
Stanley Opinion, votes required to approve the Merger Agreement and actions
necessary under the Rights Agreement. Notwithstanding anything to the contrary
contained in the Merger Agreement, the Company makes no representation nor
warranty with respect to any matter which is covered by an indemnification
obligation of IMS Health Incorporated pursuant to the Distribution Agreement,
dated as of July 30, 1998, between the Company and IMS Health Incorporated.
In the Merger Agreement, each of Parent and Purchaser has made customary
representations and warranties to the Company with respect to, among other
things, corporate organization, authority to enter into the Merger Agreement, no
conflicts between the Merger Agreement and Parent's and Purchaser's
organizational documents, agreements or applicable law, the receipt of required
consents, the accuracy of certain disclosures, availability of funds and
non-ownership of Shares.
Certain representations and warranties in the Merger Agreement are qualified
as to "materiality" or "Material Adverse Effect". For the purposes of the Merger
Agreement and this Offer to Purchase, "Material Adverse Effect" with respect to
any person means a material adverse effect on (i) the ability of such person to
perform its obligations under the Merger Agreement or to consummate the
transactions contemplated thereby or (ii) the financial condition, business or
results of operations of such person and its subsidiaries taken as a whole;
other than any change, circumstance or effect relating to (w) the economy or
securities markets in general, (x) the industries in which such person operates
and not specifically relating to such person, (y) the performance of the Merger
Agreement or the transactions contemplated thereby and (z) the failure of any
stockholder of NetRatings, Inc. to enter into certain agreements to the extent
the rights of the Company or Net Ratings are dependent on any such stockholder
executing such agreements.
CONDITIONS TO THE MERGER. The respective obligations of each party to
effect the Merger are subject to the satisfaction or written waiver on or prior
to the Closing Date of the following conditions: (i) Purchaser shall have
accepted for payment and paid for all Shares validly tendered in the Offer and
not withdrawn; provided, that the condition contained in this clause may not be
invoked by Parent or Purchaser if
19
<PAGE>
Purchaser shall have failed to purchase Shares so tendered and not withdrawn in
violation of the terms of the Merger Agreement or the Offer; (ii) the Merger
Agreement shall have been adopted by the affirmative vote of the holders of the
requisite number of shares of capital stock of the Company if such vote is
required pursuant to the Company's certificate of incorporation, the DGCL or
other applicable law; (iii) no temporary restraining order, injunction or other
order issued by any court of competent jurisdiction or other legal restraint or
prohibition preventing the consummation of the Merger shall be in effect;
provided, however, that prior to invoking this condition the party so invoking
this condition shall have used its best efforts to lift or remove such order,
injunction, restraint or prohibition; and (iv) all necessary waiting periods
under the HSR Act applicable to the Merger shall have expired or been earlier
terminated.
DIRECTORS. Promptly after the purchase of and payment for any Shares by
Purchaser pursuant to the Offer, Parent shall be entitled to designate such
number of directors, rounded up to the next whole number, on the Company's Board
as is equal to the product of the total number of directors on such Board (after
giving effect to any increase in the size of such Board) multiplied by the
percentage that the number of Shares beneficially owned by Purchaser at such
time (including Shares so accepted for payment) bears to the total number of
Shares then outstanding; provided that the Parent Designees will constitute a
majority of the entire Board of Directors. In furtherance thereof, the Company
shall, upon request of Parent, use its reasonable best efforts promptly either
to increase the size of its Board of Directors or to secure the resignations of
such number of its incumbent directors, or both, as is necessary to enable such
designees of Parent to be so elected or appointed to the Company Board, and the
Company shall take all actions available to the Company to cause such designees
of Parent to be so elected or appointed. At such time, the Company shall, if
requested by Parent, also take all action necessary to cause persons designated
by Parent to constitute at least the same percentage (rounded up to the next
whole number) as Parent is entitled to designate on the Company's Board of
Directors of (i) each committee of the Company's Board of Directors, (ii) each
board of directors (or similar body) of each subsidiary of the Company and (iii)
each committee (or similar body) of each such board.
Notwithstanding the foregoing, the parties to the Merger Agreement shall use
their respective best efforts to ensure that at least two of the members of the
Board shall, at all times prior to the Effective Time, be directors of the
Company who were directors of the Company on the date of the Merger Agreement
(the "Continuing Directors"), provided, that, if there shall be in office less
than two Continuing Directors for any reason, the Board of Directors shall cause
the person designated by the remaining Continuing Director to fill such vacancy
who shall be deemed to be a Continuing Director for all purposes of the Merger
Agreement, or if no Continuing Directors then remain, the other directors of the
Company then in office shall designate two persons to fill such vacancies who
will not be officers or employees or affiliates of the Company, Parent, VNU or
any of their respective subsidiaries and such persons shall be deemed to be
Continuing Directors for all purposes of the Merger Agreement. From and after
the time, if any, that Parent Designees constitute a majority of the Company
Board and prior to the Effective Time, any amendment or modification of the
Merger Agreement, any amendment to the Company's Certificate of incorporation or
by-laws, any termination of the Merger Agreement by the Company, any extension
of time for performance of any of the obligations of Parent or Purchaser under
the Merger Agreement, any waiver of any condition to the Company's obligations
under the Merger Agreement or any of the Company's rights under the Merger
Agreement or other action by the Company under the Merger Agreement which
adversely affects the holders of shares other than Parent or Purchaser may be
effected only if there are in office one or more Continuing Directors and such
action is approved by the action of unanimous vote of the entire Board of
Directors.
STOCKHOLDERS' MEETING. The Merger Agreement provides that, if required by
applicable law to consummate the Merger, the Company shall: (i) as soon as
practicable following the purchase of Shares by Purchaser pursuant to the Offer,
with the cooperation of Parent take all action necessary to convene and hold a
special meeting of the stockholders of the Company (the "Stockholders Meeting")
for the purposes of considering and voting upon the Merger Agreement and to
solicit proxies pursuant to the Proxy
20
<PAGE>
Statement (as defined below) in connection therewith, and (ii) if requested by
Parent, promptly prepare and file with the Commission a proxy statement or
information statement (together with any amendment or supplement thereto, the
"Proxy Statement") relating to the Stockholders Meeting in accordance with the
Exchange Act and the rules and regulations thereunder. The Company shall (x) use
its best efforts to respond to all comments made by the Commission with respect
to the Proxy Statement and, subject to compliance with Commission rules and
regulations, cause the Proxy Statement to be mailed to its stockholders at the
earliest practicable date, and (y) recommend that the stockholders of the
Company vote in favor of the adoption of the Merger Agreement at the
Stockholders Meeting and cause such recommendation to be included in the Proxy
Statement. Notwithstanding the foregoing, in the event that Purchaser shall
acquire at least 90% of the outstanding Shares in the Offer, Parent and
Purchaser shall take all necessary actions to cause the Merger to become
effective, as soon as practicable after the expiration of the Offer, without a
meeting of stockholders of the Company, in accordance with Section 253 of the
DGCL.
STOCK OPTIONS. The Merger Agreement provides that (i) vested options under
the Company's benefit plans shall, immediately prior to the Effective Time, be
cancelled by the Company and in consideration of such cancellation, the Company
shall pay to holders thereof an amount equal to the product of (a) the excess,
if any, of the Merger Consideration over the exercise price per share subject to
such vested stock option and (b) the number of shares subject to such vested
options immediately prior to its cancellation (such payment shall be less any
withholding taxes and without interest); and (ii) unvested stock options under
the Company's benefit plans shall, immediately prior to the Effective Time but
subject to the Company's obtaining any necessary waivers, be cancelled by the
Company and in consideration of such cancellation, the Company shall pay to
holders thereof an amount equal to the product of (a) the excess, if any, of the
Merger Consideration over the exercise price per share subject to such unvested
stock option and (b) the number of shares subject to such unvested stock options
immediately prior to its cancellation (such payment shall be less any
withholding taxes and without interest), provided that such payments shall be
payable in four equal installments over a two-year period following the
Effective Time of the Merger, subject to certain continuing employment
requirements, except that (x) the payment with respect to the portion of stock
options granted in November 1996 that would otherwise vest in November 1999 will
be paid in November 1999 and (y) the payment with respect to the portion of
stock options granted under the 1996 Replacement Plan for Certain Employees
Holding The Dun & Bradstreet Corporation Equity Based Awards and the 1996
Non-Employee Directors' Stock Incentive Plan will be paid immediately prior to
the Effective Time.
EMPLOYEE BENEFIT MATTERS. The Merger Agreement provides that for a period
of twelve months following the Effective Time, Parent shall, or shall cause the
Surviving Corporation to, provide each individual who is employed by the Company
or its subsidiaries immediately prior to the Effective Time (each, an "Affected
Employee") with employee benefits that are no less favorable in the aggregate
than those provided to each such Affected Employee immediately prior to the
Effective Time, provided that Parent shall not be required to provide
equity-based compensation to any employees. Parent shall, for a period of twelve
months following the Effective Time, maintain (or cause its subsidiaries to
maintain) a severance pay practice, program or arrangement for the benefit of
each Affected Employee that is no less favorable than such practice, program or
arrangement in effect immediately prior to the Effective Time with respect to
such Affected Employee.
Parent shall, or shall cause the Surviving Corporation to, give Affected
Employees full credit for purposes of eligibility, vesting and benefit accruals
(except benefit accruals under any defined benefit pension plan), under such
employee benefit plans or arrangements maintained by the Parent or the Surviving
Corporation in which such Affected Employees participate for such Affected
Employees' service with the Company or any subsidiary of the Company to the same
extent recognized by the Company or such subsidiary immediately prior to the
Effective Time.
21
<PAGE>
Parent shall, or shall cause the Surviving Corporation to, (i) waive all
limitations as to preexisting conditions exclusions and waiting periods with
respect to participation and coverage requirements applicable to the Affected
Employees under any welfare benefit plans in which such Affected Employees may
be eligible to participate after the Effective Time, other than limitations or
waiting periods that are already in effect with respect to such Affected
Employees and that have not been satisfied as of the Effective Time under any
welfare plan maintained for the Affected Employees immediately prior to the
Effective Time, and (ii) provide each Affected Employee with credit for any
co-payments and deductibles paid prior to the Effective Time in satisfying any
applicable deductible or out-of-pocket requirements under any welfare plans that
such Affected Employees are eligible to participate in after the Effective Time.
INTERIM OPERATIONS. The Merger Agreement provides that, except as expressly
provided in the Merger Agreement, the Company shall, and shall cause each of its
subsidiaries to, act and carry on its business in the ordinary course of
business consistent with past practice and, to the extent consistent therewith,
use its reasonable best efforts to preserve intact its current business
organizations, keep available the services of its current key officers and
employees and preserve the goodwill of those engaged in material business
relationships with the Company. Without limiting the generality of the
foregoing, subject to certain exceptions, the Company shall not, and shall not
permit any of its subsidiaries to, without the prior consent of Parent:
(1) (i) declare, set aside or pay any dividends on, or make any other
distributions (whether in cash, securities or other property) in respect
of, any of its outstanding capital stock (other than, with respect to a
subsidiary of the Company, to its corporate parent), (ii) split, combine
or reclassify any of its outstanding capital stock or issue or authorize
the issuance of any other securities in respect of, in lieu of or in
substitution for shares of its outstanding capital stock, or (iii)
purchase, redeem or otherwise acquire any shares of outstanding capital
stock or any rights, warrants or options to acquire any such shares,
except, in the case of this clause (iii), for the acquisition of Shares
from holders of stock options in full or partial payment of the exercise
price payable by such holder upon exercise of stock options;
(2) issue, sell, grant, pledge or otherwise encumber any shares of its
capital stock, any other voting securities or any securities convertible
into or exchangeable for, or any rights, warrants or options to acquire,
any such shares, voting securities or convertible or exchangeable
securities, other than (A) upon the exercise of vested stock options
outstanding on the date of the Merger Agreement and (B) the sale of up to
60,000 Shares in accordance with the terms of the Employee Stock Purchase
Plan consistent with past practice but only to the extent such Shares are
sold pursuant to elections made on or before June 30, 1999;
(3) amend its Certificate of Incorporation, By-Laws or other comparable
charter or organizational documents;
(4) directly or indirectly acquire, make any investment (other than
investments not exceeding $1,000,000 in the aggregate) in, or make any
capital contributions to, any person (other than a subsidiary of the
Company) other than in the ordinary course of business and other than
investments contemplated under existing agreements with NetRatings;
(5) make any new capital expenditure or expenditures in excess of $1,000,000
in the aggregate, other than as set forth in the Company's budget for
capital expenditures made available to Parent;
(6) enter into, amend or terminate any material contract involving expenses
of at least $1,000,000 per year other than in the ordinary course of
business consistent with past practice;
(7) directly or indirectly sell, pledge or otherwise dispose of or encumber
any of its properties or assets that are material to its business, except
for sales, pledges or other dispositions or encumbrances in the ordinary
course of business consistent with past practice;
22
<PAGE>
(8) (i) incur any indebtedness for borrowed money or guarantee any such
indebtedness of another person, other than indebtedness owing to or
guarantees of indebtedness owing to the Company or any direct or indirect
wholly owned subsidiary of the Company or (ii) make any loans or advances
to any other person, other than to the Company or to any direct or
indirect wholly owned subsidiary of the Company and other than routine
advances to employees consistent with past practice, except, in the case
of clause (i), for borrowings under the Company's existing credit
facilities in the Company's ordinary course of business;
(9) grant or agree to grant to any director or employee (other than
officers, employees and consultants who receive less than $200,000 in
total annual cash compensation) any increase in wages or bonus,
severance, profit sharing, retirement, deferred compensation, insurance
or other compensation or benefits to such officers and employees, or
establish any new compensation or benefit plans or arrangements, or amend
or agree to amend any existing benefit plans;
(10) except as set forth in the Merger Agreement and except as required
under the existing benefit plans, accelerate the payment, right to
payment or vesting of any bonus, severance, profit sharing, retirement,
deferred compensation, stock option, insurance or other compensation or
benefits;
(11) enter into or amend any employment, consulting, severance or similar
agreement with any existing officers or employees (other than officers
and employees who receive less than $200,000 in total annual cash
compensation);
(12) make or rescind any tax election or settle or compromise any income tax
liability of the Company or its subsidiaries with any governmental entity
or settle any action, suit, claim, investigation or proceeding with any
government entity (legal, administrative or arbitrative) in an amount in
excess of $500,000;
(13) pay, discharge or satisfy any claims, liabilities or obligations, other
than the payment, discharge or satisfaction (a) of any such claims,
liabilities or obligations in the ordinary course of business or (b) of
claims, liabilities or obligations reflected or reserved against in, or
contemplated by, the consolidated financial statements (or the notes
thereto) of the Company and its consolidated subsidiaries or (c) other
than settlements which involve solely the payment of money that would not
result in an uninsured or underinsured payment by or liability of the
Company in excess of $2,000,000 in the aggregate above reserves
established therefor on the books of the Company;
(14) except as disclosed in the Company's publicly filed documents or
required by a governmental entity or generally accepted accounting
principles, make any change in any method of accounting or accounting
practice or policy, except as required by generally accepted accounting
principles;
(15) enter into any agreement, understanding or commitment that materially
restrains, limits or impedes the Company's ability to compete with or
conduct any material line of business, including, but not limited to,
geographic limitations on the Company's activities;
(16) plan, announce, implement or effect any reduction in force, lay-off,
early retirement program, severance program or other program or effort
concerning the termination of employment of employees of the Company or
its subsidiaries (excluding routine employee terminations);
(17) amend or modify in any material respect, waive any rights under or
terminate any agreements existing as of the date of the Merger Agreement
between the Company and NetRatings; or
(18) authorize any of, or commit or agree to take any of, the foregoing
actions, except to the extent such action is otherwise expressly
contemplated by the Merger Agreement.
NO SOLICITATION. The Merger Agreement provides that the Company shall not
(whether directly or indirectly through advisors, agents or other
intermediaries), and the Company shall use its reasonable best efforts to cause
its officers, directors, advisors, representatives and other agents not to,
directly or
23
<PAGE>
indirectly (i) solicit, initiate or knowingly encourage any inquiries relating
to, or the submission of, any Acquisition Proposal (as defined below), (ii)
participate in any discussions or negotiations regarding any Acquisition
Proposal, or, in connection with any Acquisition Proposal, furnish to any person
any information or data with respect to or access to the properties of the
Company or any of its subsidiaries, or take any other action to facilitate the
making of any proposal that constitutes, or may reasonably be expected to lead
to, any Acquisition Proposal or (iii) enter into any agreement with respect to
any Acquisition Proposal or approve or resolve to approve any Acquisition
Proposal; provided that, if the Board of Directors of the Company has concluded
in good faith, based on the advice of outside counsel, that such action is
reasonably necessary for the Board of Directors to act in a manner consistent
with its fiduciary duties under applicable law, then the Company may furnish
information with respect to the Company and its subsidiaries and participate in
discussions or negotiations regarding such Acquisition Proposal, in which case
the Company will not disclose any information to such person without entering
into a confidentiality agreement substantially identical to the confidentiality
agreement previously executed by the Company and Parent (it being understood
that the Company may enter into a confidentiality agreement without a standstill
or with a standstill provision less favorable to the Company if it waives or
similarly modifies the standstill provision in the confidentiality agreement
with Parent). The Company will promptly (but in no case later than 24 hours
after receipt) provide Parent with a copy of any written Acquisition Proposal
received and a written statement with respect to any non-written Acquisition
Proposal received, which statement shall include the identity of the parties
making the Acquisition Proposal and the material terms thereof. The Company
shall keep Parent informed on a current basis of the status and content of any
discussions regarding any Acquisition Proposal with a third party.
For purposes of the Merger Agreement, "Acquisition Proposal" means any offer
or proposal for a merger, consolidation, share exchange, recapitalization,
liquidation or other business combination involving the Company or any of its
subsidiaries or the acquisition or purchase of 20% or more of any class of
equity securities of the Company or any of its subsidiaries, or any tender offer
(including self-tenders) or exchange offer that if consummated would result in
any person beneficially owning 20% or more of any class of equity securities of
the Company or any of its subsidiaries, or a substantial portion of the assets
of, the Company or any of its subsidiaries, other than the transactions
contemplated by the Merger Agreement.
A "Superior Proposal" is defined as an Acquisition Proposal which the Board
of Directors determines, in good faith after consultation with an independent,
nationally recognized investment banking firm, (x) if consummated would result
in a transaction more favorable to the Company's stockholders, from a financial
point of view, than the transactions contemplated by the Merger Agreement and
(y) is reasonably capable of being financed by the person making such
Acquisition Proposal.
Nothing contained in the Merger Agreement shall prohibit the Company or the
Company's Board of Directors from taking and disclosing to the Company's
stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated
under the Exchange Act (or any similar communications in connection with the
making or amendment of a tender offer or exchange offer) or from making any
disclosure required by applicable law or, prior to the consummation of the
Offer, from taking any action contemplated by paragraph (d)(i) under
"Termination" below, including having the Board of Directors take such actions
as are necessary to approve or resolve to approve the intention to enter into an
agreement with respect to a Superior Proposal (or any announcement in connection
therewith) or enter into an agreement with respect to a Superior Proposal
concurrently with termination pursuant to paragraph (d)(i) under "Termination"
below.
TERMINATION. The Merger Agreement may be terminated and the Merger may be
abandoned at any time prior to the Effective Time:
24
<PAGE>
(a) By the mutual written consent of Parent and the Company; provided that
if Parent shall have nominated a majority of the directors of the Company
Board, such consent of the Company may only be given if unanimously
approved by the entire Board of Directors of the Company.
(b) By either of Parent or the Company if (i) a statute, rule or executive
order shall have been enacted, entered or promulgated prohibiting the
transactions contemplated by the Merger Agreement or (ii) any
governmental entity shall have issued an order, decree or ruling or taken
any other action (which order, decree, ruling or other action the parties
hereto shall use their reasonable best efforts (or, in connection with
obtaining antitrust approval from any governmental entity, best efforts)
to lift), in each case permanently restraining, enjoining or otherwise
prohibiting the transactions contemplated by the Merger Agreement and
such order, decree, ruling or other action shall have become final and
non-appealable.
(c) By either of Parent or the Company if the consummation of the Offer
shall not have occurred on or before December 22, 1999 (the "Termination
Date"); provided that the party seeking to terminate the Merger Agreement
has not breached in any material respect its obligations under the Merger
Agreement. The Termination Date will be extended to such later date (but
in no event later than April 7, 2000) as the Offer shall have been
extended by Purchaser at the request of the Company in connection with
the failure of the condition relating to the Works' Council to have been
satisfied, unless another condition shall not have been satisfied and
either (x) Parent can reasonably demonstrate that such failure to be
satisfied resulted from a reason other than the failure of the condition
relating to the Works' Council to be satisfied or (y) such condition
failed to be satisfied as a result of a material breach by the Company of
its obligations under the Merger Agreement. The Works' Council has
provided Positive Advice to VNU.
(d) By the Company:
(i) if, prior to the purchase of the Shares pursuant to the Offer, (A)
the Board of Directors of the Company directs the Company to notify
Parent in writing that it intends to enter into an agreement with
respect to a Superior Proposal, (B) Parent does not make, within four
business days of receipt of the Company's written notification of its
intention to enter into a binding agreement for a Superior Proposal,
an offer that the Board of Directors of the Company determines, in
good faith after consultation with its financial advisors, is at
least as favorable to the stockholders of the Company as such
Superior Proposal and (C) the Company prior to such termination
pursuant to this clause (d)(i) pays to Parent in immediately
available funds the Termination Fee (as defined below); or
(ii) if Parent or Purchaser shall have terminated the Offer or the Offer
expires without Parent or Purchaser purchasing any Shares pursuant
thereto; provided that the Company may not terminate the Merger
Agreement pursuant to this paragraph (d)(ii) if it is in material
breach of the Merger Agreement; or
(iii) prior to the consummation of the Offer, if (A) there shall be a
breach of any representation or warranty of Parent or Purchaser in
the Merger Agreement that is qualified as to Material Adverse Effect,
(B) there shall be a breach in any material respect of any
representation or warranty of Parent or Purchaser in the Merger
Agreement that is not so qualified, other than any such breaches
which, in the aggregate, have not had or would not reasonably be
likely to have a Material Adverse Effect on Parent and Purchaser,
taken as a whole, or (C) there shall be a material breach by Parent
or Purchaser of any of its covenants or agreements contained in this
Agreement, which breach, in the case of clause (A), (B) or (C),
either is not reasonably capable of being cured or, if it is
reasonably capable of being cured, has not been cured within the
earlier of (x) 10 days after giving of notice to Parent of such
breach and (y) the expiration of the Offer, provided that the Company
may not terminate the Merger
25
<PAGE>
Agreement pursuant to this paragraph (d)(iii) if it is in material
breach of the Merger Agreement.
(e) By Parent or Purchaser:
(i) if, prior to the purchase of the Shares pursuant to the Offer, the
Board of Directors of the Company withdraws, or modifies or changes
in a manner adverse to Parent or Purchaser, its approval or
recommendation of the Offer, the Merger Agreement or the Merger or
shall have recommended or approved an Acquisition Proposal, provided
that neither a notice of the Company's intent to terminate the Merger
Agreement pursuant to the foregoing paragraph (d)(i) and any
subsequent public announcement of such notice nor any communication
by the Board of Directors of the Company to the stockholders of the
Company pursuant to Rule 14d-9(e)(3) under the Exchange Act (or any
similar communication to the stockholders of the Company in
connection with the making or amendment of a tender offer or exchange
offer) shall entitle Parent to terminate the Merger Agreement
pursuant to this paragraph (e)(i), unless the Company enters into a
definitive agreement with respect to an Acquisition Proposal; or
(ii) if there shall have been a material breach by the Company of any
provision described under "No Solicitation" above;
(iii) if the Offer has expired or terminated without Parent or Purchaser
purchasing any Shares thereunder and Purchaser is neither required to
accept and pay for the Shares tendered in the Offer nor extend the
expiration date of the Offer, provided that Parent or Purchaser may
not terminate the Merger Agreement pursuant to this paragraph
(e)(iii) if Parent or Purchaser is in material breach of the Merger
Agreement; or
(iv) if the Company shall have (i) exempted for purposes of Section 203
of the DGCL any acquisition of Shares by any person or "group" (as
defined in Section 13(d)(3) of the Exchange Act), other than Parent,
Purchaser or their affiliates, or (ii) amended (or agreed to amend)
its Rights Agreement or redeemed (or agreed to redeem) its
outstanding Rights thereunder for the purpose of exempting an
acquisition of Shares from such Rights Agreement and Rights; or
(v) prior to the consummation of the Offer if (A) there shall be a breach
of any representation or warranty of the Company in the Merger
Agreement that is qualified as to Material Adverse Effect, (B) there
shall be a breach in any material respect of any representation or
warranty of the Company in the Merger Agreement that is not so
qualified other than any such breaches which, in the aggregate, have
not had or would not reasonably be likely to have a Material Adverse
Effect on the Company, or (C) there shall be a material breach by the
Company of any of its covenants or agreements contained in the Merger
Agreement, which breach, in the case of clause (A), (B) or (C),
either is not reasonably capable of being cured or, if it is
reasonably capable of being cured, has not been cured within the
earlier of (x) 10 days after giving of written notice to the Company
of such breach and (y) the expiration of the Offer; provided,
further, that Parent or Purchaser may not terminate this Agreement
pursuant to this paragraph (e)(v) if Parent or Purchaser is in
material breach of the Merger Agreement.
TERMINATION FEE. If (i) Parent or Purchaser terminates the Merger Agreement
pursuant to clauses (e)(i) or (iv) under the heading "Termination" above or (ii)
the Company terminates the Merger Agreement pursuant to clause (d)(i) under the
heading "Termination" above, then in each case, the Company shall pay, or cause
to be paid to Parent, an amount equal to $70 million (the "Termination Fee"). In
addition, if (i) the Merger Agreement is terminated pursuant to clause (e)(ii),
(e)(iii), or (d)(ii) under the heading "Termination" above (unless (A) the only
conditions to the Offer that were not satisfied were
26
<PAGE>
the condition relating to tax opinions and those conditions that either (x) the
Company can reasonably demonstrate were not satisfied due to the failure of the
condition relating to tax opinions to be satisfied or (y) were not satisfied as
a result of a material breach by Parent or Purchaser of its obligations
hereunder and (B) the condition relating to tax opinions was not satisfied
solely because of the occurrence of an event set forth in clause (x) of
paragraph (ii) under "Section 14--Conditions to the Offer" and/or the failure of
Parent to deliver the representation letter referred to in clause (y) of
paragraph (iii) under "Section 14-- Conditions to the Offer"); (ii) on the date
of such termination no condition to the Offer has failed to be satisfied as a
result of a material breach of the Merger Agreement by Parent or Purchaser and
prior thereto there shall have been publicly announced, and not withdrawn in
good faith, an Acquisition Proposal; and (iii) within fifteen months after such
termination, the Company shall enter into an agreement with respect to any
Acquisition Proposal, then the Company shall pay the Termination Fee
concurrently with entering into any such agreement.
If the condition relating to the Works' Council is not satisfied and the
Merger Agreement is terminated pursuant to paragraph (c) under the heading
"Termination" above, unless another condition to the Offer shall not have been
satisfied and either (x) Parent can reasonably demonstrate that such failure to
be satisfied resulted from a reason other than the failure of the condition
relating to the Works' Council to be satisfied or (y) such condition to be
satisfied was a result of a material breach by the Company of its obligations
under the Merger Agreement, then Parent shall pay, or cause to be paid, to the
Company an amount equal to $70 million which shall be paid (x) at or prior such
termination by Parent and as a condition to such termination or (y) not later
than two business days following such termination by the Company.
In addition, if (i) the only conditions to the consummation of the Offer
that were not satisfied were the condition relating to the delivery of a tax
opinion and such other conditions, that either (x) Parent can reasonably
demonstrate were not satisfied due to the failure of the tax opinion condition
to have been satisfied or (y) were not satisfied as a result of a material
breach of the Merger Agreement by the Company, and (ii) the tax opinion
condition was not satisfied solely because of the failure of an appropriate
officer of the Company to deliver a representation letter to counsel to Parent
and counsel to the Company, then Parent will be entitled to receive from the
Company, as liquidated damages, an amount not to exceed $10,000,000 equal to the
out-of-pocket expenses of Parent, Purchaser and VNU incurred in connection with
the Merger Agreement and the transactions contemplated thereby. Similarly, if
(i) the only conditions to the consummation of the Offer that were not satisfied
were the condition relating to the delivery of a tax opinion and such other
conditions that either (x) the Company can reasonably demonstrate were not
satisfied due to the failure of the tax opinion condition to have been satisfied
or (y) were not satisfied as a result of a material breach of the Merger
Agreement by Parent, and (ii) the tax opinion condition was not satisfied solely
because of the failure of an appropriate officer of VNU to deliver a
representation letter to counsel to the Company, then the Company will be
entitled to receive from Parent, as liquidated damages, an amount not to exceed
$10,000,000 equal to the out-of pocket expenses of the Company in connection
with the Merger Agreement and the consummation of the transactions contempleted
thereby.
INDEMNIFICATION. Pursuant to the Merger Agreement, Parent and Purchaser
have agreed that, for a period of six years after the Effective Time, the
provisions with respect to indemnification, exculpation, and advancement of
expenses set forth in the certificate of incorporation and by-laws of the
Company as in effect on the date of the Merger Agreement shall not be amended,
repealed or otherwise modified in any manner that would adversely affect the
rights thereunder of individuals who at any time prior to the Effective Time
were directors or officers of the Company in respect of actions or omissions
occurring at or prior to the Effective Time (including without limitation the
transactions contemplated by the Merger Agreement), unless such modification is
required by law.
The Merger Agreement also provides that, from and after the Effective Time,
Parent shall cause the Surviving Corporation to, indemnify, defend and hold
harmless each person who is now, or has been at any
27
<PAGE>
time prior to the date of the Merger Agreement or who becomes prior to the
Effective Time, an officer or director of the Company (the "Covered Parties")
against all losses, claims, damages, costs, expenses (including reasonable
attorneys' fees and expenses), liabilities or judgments or amounts that are paid
in settlement with the approval of the indemnifying party (which approval shall
not be unreasonably withheld or delayed) incurred in connection with any
threatened or actual action, suit or proceeding based in whole or in part on or
arising in whole or in part out of the fact that such person is or was a
director or officer of the Company ("Indemnified Liabilities"), including all
Indemnified Liabilities based in whole or in part on, or arising in whole or in
part out of, the Merger Agreement or the transactions contemplated thereby, in
each case, to the full extent that a corporation is permitted under the DGCL to
indemnify its own directors or officers, as the case may be. In the event any
such claim, action, suit, proceeding or investigation is brought against any
Covered Party, the indemnifying party shall assume and direct all aspects of the
defense thereof, including settlement, and the Covered Party shall cooperate in
the vigorous defense of any such matter. The Covered Party shall have a right to
participate in (but not control) the defense of any such matter with its own
counsel and at its own expense. The indemnifying party shall not settle any such
matter unless (i) the Covered Party gives prior written consent, which shall not
be unreasonably withheld or delayed, or (ii) the terms of the settlement provide
that the Covered Party shall have no responsibility for the discharge of any
settlement amount and impose no other obligations or duties on the Covered Party
and the settlement discharges all rights against the Covered Party with respect
to such matter. In no event shall the indemnifying party be liable for any
settlement effected without its prior written consent. Any Covered Party wishing
to claim indemnification under the Merger Agreement, upon learning of any such
claim, action, suit, proceeding or investigation, shall promptly notify Parent
and the Surviving Corporation (but the failure so to notify shall not relieve
the indemnifying party from any liability which it may have under the Merger
Agreement except to the extent such failure materially prejudices such
indemnifying party), and shall deliver to Parent and the Surviving Corporation
the undertaking contemplated by Section 145(e) of the DGCL. The Covered Parties
as a group will be represented by a single law firm (plus no more than one local
counsel in any jurisdiction) with respect to each such matter unless there is,
under applicable standards of professional conduct, a conflict on any
significant issue between the positions of any two or more Covered Parties. The
rights to indemnification under the Merger Agreement shall continue in full
force and effect for a period of six years from the Effective Time; provided,
however, that all rights to indemnification in respect of any Indemnified
Liabilities asserted or made within such period shall continue until the
disposition of such Indemnified Liabilities.
The Merger Agreement provides that, for a period of six years after the
Effective Time, Parent shall cause to be maintained in effect policies of
directors' and officers' liability insurance, for the benefit of those persons
who are covered by the Company's directors' and officers' liability insurance
policies at the Effective Time, providing coverage with respect to matters
occurring prior to the Effective Time that is at least equal to the coverage
provided under the Company's current directors' and officers' liability
insurance policies, to the extent that such liability insurance can be
maintained at an annual cost to Parent not greater than 200 percent of the
premium for the current Company directors' and officers' liability insurance;
provided that if such insurance cannot be so maintained at such cost, Parent
shall maintain as much of such insurance as can be so maintained at a cost equal
to 200 percent of the current annual premiums of the Company for such insurance.
GUARANTEE. Pursuant to a Guarantee, dated as of August 15, 1999, VNU has
unconditionally, absolutely and irrevocably guaranteed to the Company 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 contained in the Merger Agreement, including the
provisions described above under "Stock Options" and "Indemnification."
28
<PAGE>
12. PLANS FOR THE COMPANY; OTHER MATTERS.
PLANS FOR THE COMPANY
If, as and to the extent that Purchaser acquires control of the Company,
Purchaser intends to conduct a detailed review of the Company and its assets,
corporate structure, capitalization, operations, properties, policies,
management and personnel and to consider and determine what, if any, changes
would be desirable in light of the circumstances which then exist. Such changes
could include, among other things, changes in the Company's business, corporate
structure, Certificate of Incorporation, By-laws, capitalization, management or
dividend policy.
Assuming the Minimum Condition is satisfied and Purchaser purchases Shares
pursuant to the Offer, Parent intends to exercise promptly its rights under the
Merger Agreement to obtain majority representation on, and control of, the
Company Board. See "Section 11-Merger Agreement-The Company Board" above. Parent
will exercise such rights by causing the Company to elect to the Company Board
the following individuals: Rob van den Bergh, Gerald Hobbs, Thomas A. Mastrelli
and James Ross. Information with respect to such directors is contained in
Schedule I hereto and in Schedule I to the Schedule 14D-9. The Merger Agreement
provides that, upon the purchase of and payment for any Shares by Parent or any
of its subsidiaries pursuant to the Offer, Parent shall be entitled to designate
such number of directors, rounded up to the next whole number, on the Company
Board such that the percentage of its designees on the Company Board shall equal
the percentage of the outstanding Shares beneficially owned by Parent and its
affiliates at such time. See Section 11. The Merger Agreement provides that the
directors of Purchaser and the officers of the Company at the Effective Time of
the Merger will, from and after the Effective Time, be the initial directors and
officers, respectively, of the Surviving Corporation.
Purchaser or an affiliate of Purchaser may, following the consummation or
termination of the Offer, seek to acquire additional Shares through open market
purchases, privately negotiated transactions, a tender offer or exchange offer
or otherwise, upon such terms and at such prices as it shall determine, which
may be more or less than the price to be paid pursuant to the Offer. Purchaser
and its affiliates also reserve the right to dispose of any or all Shares
acquired by them, subject to the terms of the Merger Agreement.
Except as disclosed in this Offer to Purchase, and except as may be effected
in connection with the integration of operations referred to above, none of
Purchaser, Parent or VNU has any present plans or proposals that would result in
an extraordinary corporate transaction, such as a merger, reorganization,
liquidation, relocation of operations, or sale or transfer of a material amount
of assets, involving the Company or any of its subsidiaries, or any material
changes in the Company's capitalization, corporate structure, business or
composition of its management or the Company Board.
OTHER MATTERS
STOCKHOLDER APPROVAL. Under the DGCL, the approval of the Company Board and
the affirmative vote of the holders of a majority of the outstanding Shares are
required to adopt and approve the Merger Agreement and transactions contemplated
thereby. The Company has represented in the Merger Agreement that the execution
and delivery of the Merger Agreement by the Company and the consummation by the
Company of the transactions contemplated by the Merger Agreement have been duly
authorized by all necessary corporate action on the part of the Company, subject
to the approval of the Merger by the Company's stockholders in accordance with
the DGCL. The Company has also approved the Merger Agreement for purposes of
Section 203 of the DGCL and has represented to Parent and Purchaser that the
restrictions on certain business combinations contained in Section 203 of the
DGCL are not applicable to the Merger Agreement and the transactions
contemplated thereby. In addition, the Company has represented that the
affirmative vote of the holders of a majority of the outstanding Shares is the
only vote of the holders of any class or series of the Company's capital stock
which is necessary to approve the Merger Agreement and the transactions
contemplated thereby, including the Merger. Therefore, unless
29
<PAGE>
the Merger is consummated pursuant to the short-form merger provisions under the
DGCL described below (in which case no further corporate action by the
stockholders of the Company will be required to complete the Merger), the only
remaining required corporate action of the Company will be the approval of the
Merger Agreement and the transactions contemplated thereby by the affirmative
vote of the holders of a majority of the Shares. The Merger Agreement provides
that Parent will vote, or cause to be voted, all of the Shares then owned by
Parent, Purchaser or any of Parent's other subsidiaries and affiliates in favor
of the approval of the Merger and the adoption of the Merger Agreement. In the
event that Parent, Purchaser and Parent's other subsidiaries acquire in the
aggregate at least a majority of the Shares entitled to vote on the approval of
the Merger and the Merger Agreement, they would have the ability to effect the
Merger without the affirmative votes of any other stockholders.
SHORT-FORM MERGER. Section 253 of the DGCL provides that if a corporation
owns at least 90% of the outstanding shares of each class of stock of another
corporation, the corporation holding such stock may merge itself into such
corporation without any action or vote on the part of the board of directors or
the stockholders of such other corporation (a "short-form merger"). In the event
that Parent, Purchaser and any other subsidiaries of Parent acquire in the
aggregate at least 90% of the outstanding Shares, pursuant to the Offer or
otherwise, then, at the election of Parent, a short-form merger could be
effected without any approval of the Company Board or the stockholders of the
Company, subject to compliance with the provisions of Section 253 of the DGCL.
Additionally, if, immediately prior to the Expiration Date of the Offer (as it
may be extended), the Shares tendered and not withdrawn pursuant to the Offer
constitute at least 80% but less than 90% of the outstanding Shares, Purchaser
may extend the Offer for one or more periods not to exceed an aggregate of five
business days, notwithstanding that all conditions to the Offer are satisfied as
of such Expiration Date of the Offer, in order to obtain tenders of a sufficient
number of additional Shares to allow it to effect a short-form merger. Even if
Parent and Purchaser do not own 90% of the outstanding Shares following
consummation of the Offer, Parent and Purchaser could seek to purchase
additional Shares in the open market or otherwise in order to reach the 90%
threshold and employ a short-form merger. The consideration per Share paid for
any Shares so acquired may be greater or less than that paid in the Offer.
Parent presently intends to effect a short-form merger if permitted to do so
under the DGCL.
APPRAISAL RIGHTS. Holders of the Shares do not have appraisal rights in
connection with the Offer. However, if the Merger is consummated, holders of the
Shares at the Effective Time will have certain rights pursuant to the provisions
of Section 262 of the DGCL including the right to dissent and demand appraisal
of, and to receive payment in cash of the fair value of, their Shares. Under
Section 262 of the DGCL, dissenting stockholders of the Company who comply with
the applicable statutory procedures will be entitled to receive a judicial
determination of the fair value of their Shares (exclusive of any element of
value arising from the accomplishment or expectation of the Merger) and to
receive payment of such fair value in cash, together with a fair rate of
interest thereon, if any. Any such judicial determination of the fair value of
the Shares could be based upon factors other than, or in addition to, the price
per Share to be paid in the Merger or the market value of the Shares. The value
so determined could be more or less than the price per Share to be paid in the
Merger.
THE FOREGOING SUMMARY OF THE RIGHTS OF DISSENTING STOCKHOLDERS UNDER THE
DGCL DOES NOT PURPORT TO BE A COMPLETE STATEMENT OF THE PROCEDURES TO BE
FOLLOWED BY STOCKHOLDERS DESIRING TO EXERCISE ANY APPRAISAL RIGHTS AVAILABLE
UNDER THE DGCL. THE PRESERVATION AND EXERCISE OF APPRAISAL RIGHTS REQUIRE STRICT
ADHERENCE TO THE APPLICABLE PROVISIONS OF THE DGCL.
RULE 13E-3. The Commission has adopted Rule 13e-3 under the Exchange Act
which is applicable to certain "going private" transactions and which may under
certain circumstances be applicable to the Merger or another business
combination following the purchase of Shares pursuant to the Offer in which
Purchaser seeks to acquire the remaining Shares not held by it. Purchaser
believes, however, that
30
<PAGE>
Rule 13e-3 will not be applicable to the Merger because it is anticipated that
the Merger would be effected within one year following consummation of the Offer
and in the Merger stockholders would receive the same price per Share as paid in
the Offer. If Rule 13e-3 were applicable to the Merger, it would require, among
other things, that certain financial information concerning the Company, and
certain information relating to the fairness of the proposed transaction and the
consideration offered to minority stockholders in such a transaction, be filed
with the Commission and disclosed to minority stockholders prior to consummation
of the transaction.
13. DIVIDENDS AND DISTRIBUTIONS.
As described above, the Merger Agreement provides that during the period
from the date of the Merger Agreement to the Effective Time, the Company shall
not, and shall not permit any of its subsidiaries to, without the prior consent
of Parent, (A) declare, set aside or pay any dividends on, or make any other
distributions (whether in cash, securities or other property) in respect of, any
of its outstanding capital stock (other than, with respect to a subsidiary of
the Company, to its corporate parent), (B) split, combine or reclassify any of
its outstanding capital stock or issue or authorize the issuance of any other
securities in respect of, in lieu of or in substitution for shares of its
outstanding capital stock, or (C) purchase, redeem or otherwise acquire any
shares of outstanding capital stock or any rights, warrants or options to
acquire any such shares, except, in the case of this clause (C), for the
acquisition of Shares from holders of Options in full or partial payment of the
exercise price payable by such holder upon exercise of Options.
14. CONDITIONS TO THE OFFER.
Notwithstanding any other provision of the Offer and subject to the terms of
the Merger Agreement, Purchaser shall not be required to accept for payment or,
subject to any applicable rules and regulations of the Commission, including
Rule 14e-1(c) under the Exchange Act (relating to Purchaser's obligation to pay
for or return tendered Shares promptly after termination or withdrawal of the
Offer), pay for, and may delay the acceptance for payment of or, subject to the
restriction referred to above, the payment for, any tendered Shares, and may
amend the Offer consistent with the terms of the Merger Agreement or terminate
the Offer and not accept for payment any tendered Shares, if
(i) there shall not have been validly tendered and not withdrawn prior to
the expiration of the Offer such number of Shares which would constitute
at least a majority of the Shares outstanding on a fully diluted basis on
the date of purchase ("on a fully-diluted basis" meaning the number of
Shares outstanding, together with the Shares which the Company may be
required to issue pursuant to warrants, options or other outstanding
obligations),
(ii) any applicable waiting period under the HSR Act shall not have expired
or been terminated,
(iii) there shall not have been delivered to the Company and IMS Health
Incorporated ("IMS") an opinion of counsel to the Company to the effect
that the transactions contemplated by the Merger Agreement will not
result in (A) the June 30, 1998 spin-off of IMS (the "Spinoff") failing
to qualify under Section 355(a) of the Internal Revenue Code (the "Code")
or (B) the shares of common stock of IMS failing to qualify as qualified
property for purposes of Section 355(c)(2) of the Code by reason of
Section 355(e) of the Code; provided, however, that this condition (iii)
shall not be deemed satisfied if (1) prior to the expiration of the
Offer, either (x) there shall have been issued, in proposed form or
otherwise, legislation, Treasury regulations or any other published
pronouncement with an effective date that would apply to the consummation
of the Offer and which would apply to the Spinoff as a result of the
transactions contemplated by the Merger Agreement or (y) there shall not
have been executed by appropriate officers of Parent and the Company and
Robert Weissman, Chairman of IMS, representation letters addressed to
counsel to Parent and the Company and dated immediately prior to the
expiration of the Offer, in form and substance not materially different
from the form of representation letters agreed upon
31
<PAGE>
by Parent and the Company on or prior to the date of the Merger
Agreement, and (2) notwithstanding that counsel to the Company has
delivered (or is prepared to deliver) an opinion to the effect
contemplated by the foregoing clauses (A) and (B), counsel to Parent
advises Parent and the Company in writing (which includes the specific
reasons therefor) that, based solely on any material change (proposed or
otherwise) in legislation, regulations or published pronouncement (if
clause (x) is applicable) and/or any material change in the executed
representation letters dated immediately prior to the expiration of the
Offer from the form of representation letters agreed upon by Parent and
the Company on or prior to the date of the Merger Agreement (if clause
(y) is applicable), such counsel would be unable to render an opinion
(after consultation with VNU and its other tax advisors), which is in all
material respects the same as the opinion of counsel to the Company
contemplated by the foregoing clauses (A) and (B),
(iv) None of the following conditions shall have been satisfied: (A) VNU
shall have received the unconditional positive advice of the Works'
Council regarding the bank facility to be entered into by VNU in
connection with the financing of the Offer (the "Facility") and the
issuance of the guarantee of VNU related thereto (the "Facility
Guarantee") (any such unconditional positive advice referred to herein as
"Positive Advice"); or (B) VNU shall have received conditional positive
advice of the Works' Council with respect to the Financing and the
Financing Guarantee and the fulfillment of the conditions specified
therein would not result in material detriment to VNU and its
subsidiaries, or result in material restrictions on the business
activities thereof (any such conditional positive advice referred to
herein as "Acceptable Conditional Advice"); or (C) VNU shall have
received advice from the Works' Council that is not Positive Advice or
Acceptable Conditional Advice regarding the Facility to be entered into
and the Facility Guarantee to be issued and either (i) 35 days shall have
elapsed from the date that VNU has received written advice from the
Works' Council that is not Positive Advice or Acceptable Conditional
Advice, provided that the Works' Council shall not have commenced any
appeal or other legal proceeding in respect of the Facility or the
Facility Guarantee or (ii) the Works' Council shall have notified VNU in
writing or publicly announced that it will disclaim its right to appeal
or take any other legal action in connection with the Facility to be
entered into or the Facility Guarantee to be issued,
(v) the Merger Agreement shall have been terminated in accordance with its
terms, or
(vi) at any time on or after the date of the Merger Agreement and prior to
the expiration date of the Offer, any of the following events shall occur
and be continuing and shall not have resulted from the breach by Parent
or Purchaser of any of their obligations under the Merger Agreement:
(a) there shall be any statute, rule, regulation, judgment, order or
injunction enacted, entered, enforced, promulgated or deemed
applicable to the Offer or the Merger, other than the application to
the Offer or the Merger of applicable waiting periods under the HSR
Act, that shall (i) prohibit or impose any material limitations on
Parent's or Purchaser's ownership or operation (or that of any of
their respective subsidiaries or affiliates) of all or a material
portion of their or the Company's businesses or assets, (ii)
challenge the acquisition by Parent or Purchaser of any Shares
pursuant to the Offer, (iii) prohibit the making or consummation of
the Offer or the Merger or the performance of any of the transactions
contemplated by the Merger Agreement, or (iv) impose material
limitations on the ability of Purchaser, or render Purchaser unable,
to accept for payment, pay for or purchase some or all of the Shares
pursuant to the Offer and the Merger, or effectively to exercise full
rights of ownership of the Shares, including, without limitation, the
right to vote the Shares purchased by Purchaser or Parent on all
matters properly presented to the Company's stockholders; or
(b) (i) any representation or warranty of the Company contained in the
Merger Agreement that is qualified as to Material Adverse Effect
shall not be true and correct; or (ii) any
32
<PAGE>
representation or warranty of the Company in the Merger Agreement
that is not so qualified shall not be true and correct in all
material respects, in each case as of the date of consummation of the
Offer as though made on or as of such date (other than
representations and warranties that by their terms address matters
only as of another specified date, which shall be true and correct
only as of such other specified date), except where (x) the failure
of such representations and warranties (other than those relating to
the number of shares and/or options, warrants or other rights to
acquire capital stock) referred to in clause (ii) to be so true and
correct, in the aggregate, have not had and would not reasonably be
expected to have a Material Adverse Effect on the Company or (y)
where the failure of such representations and warranties (other than
those relating to the number of shares and/or options, warrants or
other rights to acquire capital stock) to be so true and correct
would not, in the aggregate, relate to an inaccuracy in excess of
150,000 shares and/or options, warrants or other rights to acquire
capital stock; or
(c) the Company shall have breached or failed in any material respect to
perform any material obligation or to comply with any material
agreement or covenant of the Company to be performed by or complied
with by it under the Merger Agreement; or
(d) there shall have occurred (i) any general suspension of trading in,
or limitation on prices for, securities on the New York Stock
Exchange or in the Nasdaq National Market System, for a period in
excess of three hours (excluding suspensions or limitations resulting
solely from physical damage or interference with such exchanges not
related to market conditions), (ii) a declaration of a banking
moratorium or any suspension of payments in respect of banks in the
United States or outside the United States (whether or not
mandatory), (iii) any limitation (whether or not mandatory) by any
United States or foreign governmental authority on the extension of
credit by banks or other financial institutions or (iv) in the case
of any of the foregoing existing at the time of the commencement of
the Offer, a material acceleration or worsening thereof; or
(e) except as disclosed in the documents filed by the Company with the
Securities and Exchange Commission prior to the date of the Merger
Agreement or in the Company's disclosure letter to Parent delivered
in connection with the Merger Agreement, there shall have occurred an
event, change, occurrence, or development of a state of facts or
circumstances having, or which would reasonably be expected to have,
a Material Adverse Effect on the Company;
which in the reasonable judgment of Parent or Purchaser, in any such case, and
regardless of the circumstances (including any action or inaction by Parent or
Purchaser) giving rise to such condition makes it inadvisable to proceed with
the Offer and/or with such acceptance for payment of, or payment for, Shares.
On August 20, 1999, VNU received Positive Advice from the Works' Council
regarding the Facility and the Facility Guarantee.
Subject to the terms of the Merger Agreement, the foregoing conditions are
for the sole benefit of Parent and Purchaser and may be waived by Parent or
Purchaser, in whole or in part, at any time and from time to time, in the sole
discretion of Parent or Purchaser. The failure by Parent or Purchaser at any
time to exercise any of the foregoing rights shall not be deemed a waiver of any
right and each such right shall be deemed an ongoing right which may be asserted
at any time and from time to time.
15. CERTAIN LEGAL MATTERS.
GENERAL. Except as described in this Section 15, based on information
provided by the Company, none of the Company, Purchaser or Parent is aware of
(i) any license or regulatory permit that appears to be material to the business
of the Company and its subsidiaries, taken as a whole, that might be adversely
33
<PAGE>
affected by the acquisition of Shares by Parent or Purchaser pursuant to the
Offer, the Merger or otherwise, or (ii) except as set forth herein, any approval
or other action by any governmental, administrative or regulatory agency or
authority, domestic or foreign, that would be required prior to the acquisition
of Shares by Purchaser pursuant to the Offer, the Merger or otherwise. Should
any such approval or other action be required, Purchaser and Parent presently
contemplate that such approval or other action will be sought, except as
described below under "State Antitakeover Statutes." While, except as otherwise
described in this Offer to Purchase, Purchaser does not presently intend to
delay the acceptance for payment of, or payment for, Shares tendered pursuant to
the Offer pending the outcome of any such matter, there can be no assurance that
any such approval or other action, if needed, would be obtained or would be
obtained without substantial conditions or that failure to obtain any such
approval or other action might not result in consequences adverse to the
Company's business or that certain parts of the Company's business might not
have to be disposed of, or other substantial conditions complied with, in the
event that such approvals were not obtained or such other actions were not taken
or in order to obtain any such approval or other action. If certain types of
adverse action are taken with respect to the matters discussed below, Purchaser
could decline to accept for payment, or pay for, any Shares tendered. See
Section 14 for certain conditions to the Offer, including conditions with
respect to governmental actions.
STATE ANTITAKEOVER STATUTES. Section 203 of the DGCL, in general, prohibits
a Delaware corporation, such as the Company, from engaging in a "Business
Combination" (defined to include a variety of transactions, including mergers)
with an "Interested Stockholder" (defined generally as a person that is the
beneficial owner of 15% or more of the outstanding voting stock of the subject
corporation) for a period of three years following the date that such person
became an Interested Stockholder unless, prior to the date such person became an
Interested Stockholder, the board of directors of the corporation approved
either the Business Combination or the transaction that resulted in the
stockholder becoming an Interested Stockholder. The provisions of Section 203 of
the DGCL are not applicable to any of the transactions contemplated by the
Merger Agreement because the Merger Agreement and the transactions contemplated
thereby were approved by the Company Board prior to the execution thereof.
A number of states have adopted laws and regulations that purport to apply
to attempts to acquire corporations that are incorporated in such states, or
whose business operations have substantial economic effects in such states, or
which have substantial assets, security holders, employees, principal executive
offices or principal places of business in such states. In Edgar v. MITE Corp.,
the Supreme Court of the United States (the "Supreme Court") invalidated on
constitutional grounds the Illinois Business Takeover statute, which, as a
matter of state securities law, made certain corporate acquisitions more
difficult. However, in 1987, in CTS Corp. v. Dynamics Corp. of America, the
Supreme Court held that the State of Indiana may, as a matter of corporate law
and, in particular, with respect to those aspects of corporate law concerning
corporate governance, constitutionally disqualify a potential acquirer from
voting on the affairs of a target corporation without the prior approval of the
remaining stockholders. The state law before the Supreme Court was by its terms
applicable only to corporations that had a substantial number of stockholders in
the state and were incorporated there.
Parent and Purchaser do not believe that the antitakeover laws and
regulations of any state other than the State of Delaware will by their terms
apply to the Offer, and, except as set forth above with respect to Section 203
of the DGCL, neither Parent nor Purchaser has attempted to comply with any state
antitakeover statute or regulation. Purchaser reserves the right to challenge
the applicability or validity of any state law purportedly applicable to the
Offer and nothing in this Offer to Purchase or any action taken in connection
with the Offer is intended as a waiver of such right. If it is asserted that any
state antitakeover statute is applicable to the Offer and an appropriate court
does not determine that it is inapplicable or invalid as applied to the Offer,
Purchaser might be required to file certain information with, or to receive
approvals from, the relevant state authorities, and Purchaser might be unable to
accept for payment or pay for Shares tendered pursuant to the Offer or may be
delayed in consummating the
34
<PAGE>
Offer. In such case, Purchaser may not be obligated to accept for payment, or
pay for, any Shares tendered pursuant to the Offer. See Section 14.
ANTITRUST. The Offer and the Merger are subject to the HSR Act, which
provides that certain acquisition transactions may not be consummated unless
certain information has been furnished to the Antitrust Division of the
Department of Justice (the "DOJ") and the Federal Trade Commission (the "FTC")
and certain waiting period requirements have been satisfied.
Parent filed its Notification and Report Form with respect to the Offer
under the HSR Act on August 17, 1999. The waiting period under the HSR Act with
respect to the Offer will expire at 11:59 p.m., New York City time, on September
1, 1999, the fifteenth day after the date Parent's form was filed, unless early
termination of the waiting period is granted. However, the DOJ or the FTC may
extend the waiting period by requesting additional information or documentary
material from Parent or the Company. If such a request is made, such waiting
period will expire at 11:59 p.m., New York City time, on the tenth day after
substantial compliance by Parent with such request. Only one extension of the
waiting period pursuant to a request for additional information is authorized by
the HSR Act. Thereafter, such waiting period may be extended only by court order
or with the consent of Parent. In practice, complying with a request for
additional information or material can take a significant amount of time. In
addition, if the DOJ or the FTC raises substantive issues in connection with a
proposed transaction, the parties frequently engage in negotiations with the
relevant governmental agency concerning possible means of addressing those
issues and may agree to delay consummation of the transaction while such
negotiations continue. Purchaser will not accept for payment Shares tendered
pursuant to the Offer unless and until the waiting period requirements imposed
by the HSR Act with respect to the Offer have been satisfied. See Section 14.
The FTC and the DOJ frequently scrutinize the legality under the Antitrust
Laws (as defined below) of transactions such as Purchaser's acquisition of
Shares pursuant to the Offer and the Merger. At any time before or after
Purchaser's acquisition of Shares, the DOJ or the FTC could take such action
under the Antitrust Laws as it deems necessary or desirable in the public
interest, including seeking to enjoin the acquisition of Shares pursuant to the
Offer or otherwise seeking divestiture of Shares acquired by Purchaser or
divestiture of substantial assets of Parent or its subsidiaries. Private
parties, as well as state governments, may also bring legal action under the
Antitrust Laws under certain circumstances. Based upon an examination of
information provided by the Company relating to the businesses in which Parent
and the Company are engaged, Parent and Purchaser believe that the acquisition
of Shares by Purchaser will not violate the Antitrust Laws. Nevertheless, there
can be no assurance that a challenge to the Offer or other acquisition of Shares
by Purchaser on antitrust grounds will not be made or, if such a challenge is
made, of the result. See Section 14 for certain conditions to the Offer,
including conditions with respect to litigation and certain governmental
actions.
As used in this Offer to Purchase, "Antitrust Laws" shall mean and include
the Sherman Act, as amended, the Clayton Act, as amended, the HSR Act, the
Federal Trade Commission Act, as amended, and all other Federal and state
statutes, rules, regulations, orders, decrees, administrative and judicial
doctrines, and other laws that are designed or intended to prohibit, restrict or
regulate actions having the purpose or effect of mo nopolization or restraint of
trade.
FEDERAL RESERVE BOARD REGULATIONS. Regulations T, U and X (the "Margin
Regulations") of the Federal Reserve Board restrict the extension or maintenance
of credit for the purpose of buying or carrying margin stock, including the
Shares, if the credit is secured directly or indirectly by margin stock. Such
secured credit may not be extended or maintained in an amount that exceeds the
maximum loan value of all the direct and indirect collateral securing the
credit, including margin stock and other collateral.
35
<PAGE>
16. FEES AND EXPENSES.
Parent has engaged Merrill Lynch & Co. ("Merrill Lynch") to act as its
financial advisor and Dealer Manager in connection with the Offer and the
Merger. Parent will pay Merrill Lynch customary compensation for its financial
advisory services in connection with the Offer and the Merger. Parent has agreed
to reimburse Merrill Lynch for all reasonable out-of-pocket fees, expenses and
costs, including reasonable fees and expenses of legal counsel, and to indemnify
Merrill Lynch and certain related persons against certain liabilities and
expenses in connection with the Offer and the Merger, including certain
liabilities under the federal securities laws. Merrill Lynch has from time to
time provided financial advisory services to Parent.
Purchaser and Parent have retained MacKenzie Partners, Inc. to serve as the
Information Agent and The Bank of New York to serve as the Depositary in
connection with the Offer. The Information Agent may contact holders of Shares
by personal interview, mail, telephone, telex, telegraph and other methods of
electronic communication and may request brokers, dealers, commercial banks,
trust companies and other nominees to forward the Offer materials to beneficial
holders. The Information Agent and the Depositary will each receive reasonable
and customary compensation for their services, be reimbursed for certain
reasonable out-of-pocket expenses and be indemnified against certain liabilities
in connection with their services, including certain liabilities and expenses
under the federal securities laws.
Except as set forth above, neither Parent nor Purchaser will pay any fees or
commissions to any broker or dealer or other person or entity in connection with
the solicitation of tenders of Shares pursuant to the Offer. Brokers, dealers,
banks and trust companies will be reimbursed by Purchaser for customary mailing
and handling expenses incurred by them in forwarding the Offer materials to
their customers.
17. MISCELLANEOUS.
Purchaser is not aware of any state where the making of the Offer is
prohibited by administrative or judicial action pursuant to any valid state
statute. If Purchaser becomes aware of any valid state statute prohibiting the
making of the Offer or the acceptance of the Shares pursuant thereto, Purchaser
shall make a good faith effort to comply with such statute or seek to have such
statute declared inapplicable to the Offer. If, after such good faith effort,
Purchaser cannot comply with such state statute, the Offer will not be made to
(nor will tenders be accepted from or on behalf of) holders of Shares in such
state.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION ON BEHALF OF PARENT OR PURCHASER NOT CONTAINED HEREIN OR IN THE
LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED.
Purchaser and Parent have filed with the Commission the Schedule 14D-1
pursuant to Rule 14d-3 under the Exchange Act, together with exhibits,
furnishing certain additional information with respect to the Offer. In
addition, the Company has filed with the Commission the Schedule 14D-9 pursuant
to Rule 14d-9 under the Exchange Act, setting forth its recommendation with
respect to the Offer and the reasons for its recommendation and furnishing
certain additional related information. Such Schedules and any amendments
thereto, including exhibits, should be available for inspection and copies
should be obtainable in the same manner set forth in Section 9 of this Offer to
Purchase (except that such material will not be available at the regional
offices of the Commission).
NINER ACQUISITION, INC.
August 20, 1999
36
<PAGE>
SCHEDULE I
INFORMATION CONCERNING DIRECTORS AND EXECUTIVE OFFICERS OF
PURCHASER, PARENT AND VNU
1. DIRECTORS AND EXECUTIVE OFFICERS OF PURCHASER. The following table sets
forth the name and present principal occupation or employment, and material
occupations, positions, offices or employments for the past five years, of each
director and executive officer of Purchaser. Unless otherwise indicated, each
such person is a citizen of the United States of America, and the business
address of each such person is c/o VNU USA, Inc., 1515 Broadway, New York, New
York 10036. Unless otherwise indicated, each such person has held his or her
present occupation as set forth below, or has been an executive officer of
Purchaser, or the organization indicated, for the past five years.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ------------------------------------------ ---------------------------------------------------------------------
<S> <C>
Thomas A. Mastrelli....................... Mr. Mastrelli has been the sole director and President of Purchaser
since August 1999. See Part 2 of this Schedule I.
Rosalee Lovett............................ Ms. Lovett has been the Chief Financial Officer of Purchaser since
August 1999. See Part 2 of this Schedule I.
James Ross................................ Mr. Ross has been the Vice President and General Counsel of Purchaser
since August 1999. See Part 2 of this Schedule I.
</TABLE>
2. DIRECTORS AND EXECUTIVE OFFICERS OF PARENT. The following table sets
forth the name and present principal occupation or employment, and material
occupations, positions, offices or employments for the past five years, of each
director and executive officer of Parent. Unless otherwise indicated, each such
person is a citizen of the United States of America and the business address of
each such person is c/o VNU USA, Inc., 1515 Broadway, New York, New York 10036.
Unless otherwise indicated, each occupation set forth opposite an individual's
name refers to employment with Parent. Unless otherwise indicated, each such
person has held his or her present occupation as set forth below, or has been an
executive officer at Parent for the past five years.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ------------------------------------------ ---------------------------------------------------------------------
<S> <C>
Gerald S. Hobbs........................... Mr. Hobbs has been the Chairman of the Board of Directors and Chief
Executive Officer of Parent since 1994. See Part 3 of this Schedule
I.
Frans J.G.M. Cremers...................... Mr. Cremers has been a member of the Executive Board of Directors of
VNU and Vice Chairman of the Executive Board of VNU since 1996. See
Part 3 of this Schedule I.
Mr. Rob F. van den Bergh.................. Mr. van den Bergh has been a member of Executive Board of Directors
of VNU and Vice Chairman of the Executive Board of VNU since 1998.
See Part 3 of this Schedule I.
Thomas A. Mastrelli....................... Mr. Mastrelli has been Chief Operating Officer of Parent since
January 1, 1999. From April 16, 1998 to December 31, 1998, Mr.
Mastrelli served as Executive Vice President and General Manager of
Parent. Beginning in 1981, he was a partner at the public accounting
and consulting firm of Leslie Sufrin and Company. See Part 1 of this
Schedule I.
</TABLE>
37
<PAGE>
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ------------------------------------------ ---------------------------------------------------------------------
<S> <C>
Frederick A. Steinmann.................... Mr. Steinmann has been Vice President and Assistant Treasurer of
Parent for the past five years. Mr. Steinmann has served as the Vice
President and Director of Taxes of Parent since October 1994. Prior
to joining Parent, Mr. Steinmann was engaged in practice as an
independent certified public accountant.
James Ross................................ Mr. Ross has been Vice President, General Counsel and Secretary of
Parent for the past five years. See Part 1 of this Schedule I.
Rosalee Lovett............................ Ms. Lovett has been the Treasurer and Chief Financial Officer of
Parent for the past five years. In addition, Ms. Lovett has been the
Chief Financial Officer for BPI Communications, a wholly owned
subsidiary of Parent, for the past five years. See Part 1 of this
Schedule I.
</TABLE>
3. DIRECTORS AND EXECUTIVE OFFICERS OF VNU. The following table sets forth
the name and present principal occupation or employment, and material
occupations, positions, offices or employments for the past five years, of each
director and executive officer of VNU. Unless otherwise indicated, each such
person is a citizen of the Netherlands, and the business address of each such
person is c/o VNU N.V., Ceylonpoort 5-25, 2037 AA Haarlem, the Netherlands.
Unless otherwise indicated, each occupation set forth opposite an individual's
name refers to employment with VNU. Unless otherwise indicated, each such person
has held his or her present occupation as set forth below, or has been an
executive officer at VNU, or the organization indicated, for the past five
years.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ------------------------------------------ ---------------------------------------------------------------------
<S> <C>
Piet A.W. Roef............................ Mr. Roef has been Chairman of the Supervisory Board of Directors of
VNU since 1988. Mr. Roef also serves as the Chairman of the
Supervisory Boards of Directors of P&C Groep N.V. and Parcom, and a
Member of Supervisory Boards of Directors of Gamma Holdings N.V.,
Hagemeyer N.V., Koninklijke Numico N.V. and Robeco N.V.
Ge van Schaik............................. Mr. van Schaik has been Vice Chairman of the Supervisory Board of
Directors of VNU since 1988. Mr. van Schaik also serves as Chairman
of the Supervisory Boards of Directors of Koninklijke Verkade N.V.,
Martinair Holland N.V. and Koninklijke Wessanen N.V., President of
the Supervisory Directors of Aegon N.V., member of the Supervisory
Boards of Directors of DSM N.V. and United Biscuits (Holdings) PLC.
Peter J. van Dun.......................... Mr. van Dun has been a member of the Supervisory Board of Directors
of VNU since 1996. Mr. van Dun also serves as Member of the
Supervisory Board of Directors of Macintosh N.V., Member of
Foundation Ahold Continuity, and Member of the Board of Advice of
Foundation PION.
</TABLE>
38
<PAGE>
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ------------------------------------------ ---------------------------------------------------------------------
<S> <C>
Aad G. Jacobs............................. Mr. Jacobs has been a member of the Supervisory Board of Directors of
VNU since 1998. Mr. Jacobs also serves as Chairman of the Supervisory
Board of Directors of Vedior N.V., Vice-Chairman of the Supervisory
Board of Directors of Dutch Participation Company N.V., Member of the
Supervisory Boards of Directors of Amsterdam Exchanges, Burhman N.V.,
IHC Caland N.V., ING Groep N.V., Koninklijke Nederlandsche Petroleum
Maatschappij N.V., National Investment Bank N.V. and N.V.
Struktongroep.
Frank L.V. Meysman ....................... Mr. Meysman has been a member of the Supervisory Board of Directors
(CITIZEN OF BELGIUM) of VNU since 1995. Mr. Meysman currently serves as a director and
Executive Vice President of Sara Lee Corp. During the past five
years, Mr. Meysman has served as a Member of the Board of the
American Chamber of Commerce in the Netherlands, and Director of
Zeneca Group PLC and GIMV N.V. (Belgie).
Lien M.W.M. Vos-van Gortel................ Ms. Vos-van Gortel has been a member of the Supervisory Board of
Directors of VNU since 1995. Ms. Vos-van Gortel also serves as a
Member of the Council of State. She also serves as a Member of the
Supervisory Board of Directors of NCM Holding N.V., Chairman of the
Supervision Boards on the Lotteries and the National Nature Historich
Museum, and member of the Boards of Advice of Association of Holders
of Shares VEB and the Dutch Cancer Institute.
Joep L. Brentjens......................... Mr. Brentjens has been Chairman of the Executive Board of Directors
of VNU since 1981. He has also served as Chairman of the Supervisory
Boards of Directors of Heijmans N.V. and Arboned, member of the
Supervisory Boards of Directors of Roto Smeets de Boer N.V. and
Koninklijke Emballage Industrie Van Leer N.V., member of the
Executive Board of P. Bakker Hillegom B.V., Member of the Foundation
Katholieke Universiteit Nijmegen and Member of the Board of Advice of
ABN AMRO Bank N.V.
Rob F. van den Bergh...................... Mr. van den Bergh has served as the Vice Chairman of the Executive
Board of Directors of VNU since 1998. He also served on the
Supervisory Boards of Directors of Philips Nederland, CVI, and
Boompers. See Part 2 of this Schedule I.
Frans J.G.M. Cremers...................... Mr. Cremers has been a member of the Executive Board of Directors of
VNU since 1996. Mr. Cremers served as Financial Director and Member
of the Board of Shell Expro UK until 1996. See Part 2 of this
Schedule I.
</TABLE>
39
<PAGE>
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ------------------------------------------ ---------------------------------------------------------------------
<S> <C>
Gerald S. Hobbs........................... Mr. Hobbs has served as a member of the Executive Board of Directors
of VNU. Prior to joining VNU, Mr. Hobbs was the Chief Executive
Officer of BPI Communications, a wholly owned subsidiary of Parent.
He has also served as both the Chairman of the Board and a Director
of the American Business Press, and is currently a Director of the
Advertising Council, Inc., BPA International, Jobson Publishing and
the Construction Market Data Group.
Michael M.I. Cohen de Lara................ Mr. de Lara has served as the Secretary to the Board of VNU since
1997. Prior to 1997, he served as Director of Special Projects of VNU
B.V. and VNU International B.V.
</TABLE>
40
<PAGE>
Facsimile copies of the Letter of Transmittal, properly completed and duly
executed, will be accepted. The Letter of Transmittal, certificates for Shares
and any other required documents should be sent or delivered by each stockholder
of the Company or his broker, dealer, commercial bank, trust company or other
nominee to the Depositary, at the applicable address set forth below:
THE DEPOSITARY FOR THE OFFER IS:
THE BANK OF NEW YORK
<TABLE>
<S> <C> <C>
BY MAIL: BY FACSIMILE TRANSMISSION: BE HAND OR OVERNIGHT COURIER:
Tender and Exchange (212) 815-6213 Tender and Exchange
Department (For Eligible Institutions Department
P.O. Box 11248 Only) 101 Barclay Street
Church Street Station Confirm Facsimile by Receive and Deliver Window
New York, New York 10286-1248 Telephone: New York, New York 10286
(800) 507-9357
</TABLE>
Any questions or requests for assistance or additional copies of this Offer
to Purchase, the Letter of Transmittal, the Notice of Guaranteed Delivery and
the other tender offer materials may be directed to the Information Agent at its
address and telephone number set forth below. Stockholders may also contact
their broker, dealer, commercial bank, trust company or other nominee for
assistance concerning the Offer.
THE INFORMATION AGENT FOR THE OFFER IS:
abcdef
156 Fifth Avenue
New York, New York 10010
(212) 929-5500 (call collect)
or
Call Toll Free: (800) 322-2885
THE DEALER MANAGER FOR THE OFFER IS:
MERRILL, LYNCH & CO.
World Financial Center
North Tower
New York, New York 10281-1305
(212) 449-8971 (call collect)
41
<PAGE>
LETTER OF TRANSMITTAL
TO TENDER SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED PREFERRED SHARE PURCHASE RIGHTS)
OF
NIELSEN MEDIA RESEARCH, INC.
PURSUANT TO THE OFFER TO PURCHASE
DATED AUGUST 20, 1999
BY
NINER ACQUISITION, INC.
AN INDIRECT WHOLLY OWNED SUBSIDIARY OF
VNU N.V.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON FRIDAY,
SEPTEMBER 17, 1999, UNLESS THE OFFER IS EXTENDED.
<TABLE>
<S> <C> <C>
THE DEPOSITARY FOR THE OFFER IS:
THE BANK OF NEW YORK
BY MAIL: BY FACSIMILE TRANSMISSION: BY HAND OR OVERNIGHT COURIER:
Tender & Exchange Department (212) 815-6213 Tender & Exchange Department
P.O. Box 11248 (For Eligible Institutions Only) 101 Barclay Street
Church Street Station FOR CONFIRMATION TELEPHONE: Receive and Delivery Window
New York, New York 10286-1248 (800) 507-9357 New York, New York 10286
</TABLE>
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS, OR TRANSMISSION OF
INSTRUCTIONS VIA FACSIMILE TO A NUMBER OTHER THAN AS SET FORTH ABOVE, WILL NOT
CONSTITUTE A VALID DELIVERY TO THE DEPOSITARY.
THE INSTRUCTIONS CONTAINED WITHIN THIS LETTER OF TRANSMITTAL SHOULD BE READ
CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
<PAGE>
This Letter of Transmittal is to be used by stockholders of Nielsen Media
Research, Inc. if certificates for Shares (as such term is defined below) are to
be forwarded herewith or, unless an Agent's Message (as defined in Instruction 2
below) is utilized, if delivery of Shares is to be made by book-entry transfer
to an account maintained by the Depositary at the Book-Entry Transfer Facility
(as defined in, and pursuant to the procedures set forth in, Section 3 of the
Offer to Purchase). Stockholders who deliver Shares by book-entry transfer are
referred to herein as "Book-Entry Stockholders" and other stockholders who
deliver Shares are referred to herein as "Certificate Stockholders."
Stockholders whose certificates for Shares are not immediately available or
who cannot deliver either the certificates for, or a Book-Entry Confirmation (as
defined in Section 3 of the Offer to Purchase) with respect to, their Shares and
all other documents required hereby to the Depositary prior to the Expiration
Date (as defined in Section 1 of the Offer to Purchase) must tender their Shares
pursuant to the guaranteed delivery procedures set forth in Section 3 of the
Offer to Purchase. See Instruction 2. DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY
TRANSFER FACILITY WILL NOT CONSTITUTE DELIVERY TO THE DEPOSITARY.
/ /CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER TO
THE DEPOSITARY'S ACCOUNT AT THE BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE
FOLLOWING (ONLY PARTICIPANTS IN A BOOK-ENTRY TRANSFER FACILITY MAY DELIVER
SHARES BY BOOK-ENTRY TRANSFER):
Name of Tendering Institution________________________________________________
Account Number_______________________________________________________________
Transaction Code Number______________________________________________________
/ / CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE
FOLLOWING:
Name(s) of Registered Owner(s)______________________________________________
Window Ticket Number (if any)_______________________________________________
Date of Execution of Notice of Guaranteed Delivery__________________________
Name of Institution that Guaranteed Delivery________________________________
If delivered by Book-Entry Transfer, check box: / /
Account Number______________________________________________________________
Transaction Code Number_____________________________________________________
2
<PAGE>
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------
DESCRIPTION OF SHARES SURRENDERED
- ----------------------------------------------------------------------------------------------------
NAME(S) AND ADDRESS(ES) OF REGISTERED
HOLDER(S)
(PLEASE FILL IN, IF BLANK EXACTLY AS NAME(S) SHARE CERTIFICATE(S) ENCLOSED
APPEAR(S) ON CERTIFICATE(S)) (ATTACH ADDITIONAL SIGNED LIST IF NECESSARY)
- -----------------------------------------------------------------------------------------------------
TOTAL NUMBER
OF SHARES
REPRESENTED BY NUMBER OF
SHARE CERTIFICATE SHARE SHARES
NUMBER(S)(1) CERTIFICATE(S)(1) TENDERED(2)
<S> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
TOTAL SHARES
- ------------------------------------------------------------------------------------
</TABLE>
(1) Need not be completed by Book-Entry Stockholders.
(2) Unless otherwise indicated, it will be assumed that all Shares represented
by Share certificates delivered to the Depositary are being tendered hereby.
See Instruction 4.
3
<PAGE>
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE INSTRUCTIONS SET
FORTH IN THIS LETTER OF TRANSMITTAL CAREFULLY.
Ladies and Gentlemen:
The undersigned hereby tenders to Niner Acquisition, Inc., a Delaware
corporation ("Purchaser") and indirect wholly owned subsidiary of VNU N.V., a
company organized under the laws of the Netherlands ("VNU"), the above-described
shares of common stock, par value $0.01 per share (the "Common Stock"),
including the associated preferred share purchase rights (the "Rights" and,
together with the Common Stock, the "Shares"), of Nielsen Media Research, Inc.,
a Delaware corporation (the "Company"), pursuant to Purchaser's offer to
purchase all of the outstanding Shares at a price of $37.75 per Share, net to
the seller in cash, without interest thereon (the "Offer Price") upon the terms
and subject to the conditions set forth in the Offer to Purchase dated August
20, 1999 and in this Letter of Transmittal (which, together with any amendments
or supplements thereto or hereto, collectively constitute the "Offer"). The
undersigned understands that Purchaser reserves the right to transfer or assign,
in whole at any time, or in part from time to time, to one or more wholly owned
subsidiaries of VNU USA, Inc., a New York corporation and wholly owned
subsidiary of VNU ("Parent"), the right to purchase all or any portion of the
Shares tendered pursuant to the Offer, but any such transfer or assignment will
not relieve Purchaser of its obligations under the Offer and will in no way
prejudice the rights of tendering stockholders to receive payment for Shares
validly tendered and accepted for payment pursuant to the Offer. Receipt of the
Offer is hereby acknowledged.
The Company has distributed one Right for each outstanding Share pursuant to
the Rights Agreement (as defined in the Offer to Purchase). The Rights are
currently evidenced by and trade with certificates evidencing the Common Stock.
The Company has taken such action so as to make the Rights Agreement
inapplicable to Purchaser, Parent, VNU and their respective affiliates and
associates in connection with the transactions contemplated by the Merger
Agreement (as defined in the Offer to Purchase).
The Offer is being made pursuant to an Agreement and Plan of Merger, dated
as of August 15, 1999 (the "Merger Agreement"), by and among Purchaser, Parent
and the Company.
Upon the terms and subject to the conditions of the Offer (and if the Offer
is extended or amended, the terms of any such extension or amendment), subject
to, and effective upon, acceptance for payment of, and payment for, the Shares
tendered herewith in accordance with the terms of the Offer, the undersigned
hereby sells, assigns and transfers to, or upon the order of, Purchaser all
right, title and interest in and to all the Shares that are being tendered
hereby (and any and all non-cash dividends, distributions, rights, other Shares
or other securities issued or issuable in respect thereof on or after August 15,
1999 (collectively, "Distributions")) and irrevocably constitutes and appoints
the Depositary the true and lawful agent and attorney-in-fact of the undersigned
with respect to such Shares (and all Distributions), with full power of
substitution (such power of attorney being deemed to be an irrevocable power
coupled with an interest), to (i) deliver certificates for such Shares (and any
and all Distributions), or transfer ownership of such Shares (and any and all
Distributions) on the account books maintained by the Book-Entry Transfer
Facility, together, in any such case, with all accompanying evidences of
transfer and authenticity, to or upon the order of Purchaser, (ii) present such
Shares (and any and all Distributions) for transfer on the books of the Company,
and (iii) receive all benefits and otherwise exercise all rights of beneficial
ownership of such Shares (and any and all Distributions), all in accordance with
the terms of the Offer.
By executing this Letter of Transmittal, the undersigned hereby irrevocably
appoints Thomas Mastrelli and James Ross, in their respective capacities as
officers of Purchaser, and any individual who shall thereafter succeed to any
such office of Purchaser, and each of them, as the attorneys-in-fact and proxies
of the undersigned, each with full power of substitution and resubstitution, to
vote at any annual or special meeting of the Company's stockholders or any
adjournment or postponement thereof or otherwise in such manner as each such
attorney-in-fact and proxy or his substitute shall in his sole discretion deem
proper with respect to, to execute any written consent concerning any matter as
each such attorney-in-fact and proxy or his substitute shall in his sole
discretion deem proper with respect to, and to otherwise act as each such
attorney-in-fact and proxy or his substitute shall in his sole discretion deem
proper with respect to, all of the Shares (and any and all Distributions)
tendered hereby and accepted for payment by Purchaser. This appointment will be
effective if and when, and only to the extent that, Purchaser accepts such
Shares for payment pursuant to the Offer. This power of attorney and proxy are
irrevocable and are granted in consideration of the acceptance for payment of
such Shares in accordance with the terms of the Offer. Such acceptance for
payment shall, without further action, revoke any prior powers of attorney and
proxies granted by the undersigned at any time with respect to such Shares (and
any and all Distributions), and no subsequent powers of attorney, proxies,
consents
4
<PAGE>
or revocations may be given by the undersigned with respect thereto (and, if
given, will not be deemed effective). Purchaser reserves the right to require
that, in order for Shares (or other Distributions) to be deemed validly
tendered, immediately upon Purchaser's acceptance for payment of such Shares,
Purchaser must be able to exercise full voting, consent and other rights with
respect to such Shares (and any and all Distributions), including voting at any
meeting of the Company's stockholders.
The undersigned hereby represents and warrants that the undersigned has full
power and authority to tender, sell, assign and transfer the Shares tendered
hereby and all Distributions, that the undersigned owns the Shares tendered
hereby within the meaning of Rule 14e-4 promulgated under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), that the tender of the
tendered Shares complies with Rule 14e-4 under the Exchange Act, and that when
the same are accepted for payment by Purchaser, Purchaser will acquire good,
marketable and unencumbered title thereto and to all Distributions, free and
clear of all liens, restrictions, charges and encumbrances and the same will not
be subject to any adverse claims. The undersigned will, upon request, execute
and deliver any additional documents deemed by the Depositary or Purchaser to be
necessary or desirable to complete the sale, assignment and transfer of the
Shares tendered hereby and all Distributions. In addition, the undersigned shall
remit and transfer promptly to the Depositary for the account of Purchaser all
Distributions in respect of the Shares tendered hereby, accompanied by
appropriate documentation of transfer, and, pending such remittance and transfer
or appropriate assurance thereof, Purchaser shall be entitled to all rights and
privileges as owner of each such Distribution and may withhold the entire
purchase price of the Shares tendered hereby or deduct from such purchase price,
the amount or value of such Distribution as determined by Purchaser in its sole
discretion.
All authority herein conferred or agreed to be conferred shall survive the
death or incapacity of the undersigned, and any obligation of the undersigned
hereunder shall be binding upon the heirs, executors, administrators, personal
representatives, trustees in bankruptcy, successors and assigns of the
undersigned. Except as stated in the Offer to Purchase, this tender is
irrevocable.
The undersigned understands that the valid tender of Shares pursuant to any
one of the procedures described in Section 3 of the Offer to Purchase and in the
Instructions hereto will constitute a binding agreement between the undersigned
and Purchaser upon the terms and subject to the conditions of the Offer (and if
the Offer is extended or amended, the terms or conditions of any such extension
or amendment). Without limiting the foregoing, if the price to be paid in the
Offer is amended in accordance with the terms of the Merger Agreement, the price
to be paid to the undersigned will be the amended price notwithstanding the fact
that a different price is stated in this Letter of Transmittal. The undersigned
recognizes that under certain circumstances set forth in the Offer to Purchase,
Purchaser may not be required to accept for payment any of the Shares tendered
hereby.
Unless otherwise indicated under "Special Payment Instructions," please
issue the check for the purchase price of all Shares purchased and/or return any
certificates for Shares not tendered or accepted for payment in the name(s) of
the registered holder(s) appearing above under "Description of Shares Tendered."
Similarly, unless otherwise indicated under "Special Delivery Instructions,"
please mail the check for the purchase price of all Shares purchased and/or
return any certificates for Shares not tendered or not accepted for payment (and
any accompanying documents, as appropriate) to the address(es) of the registered
holder(s) appearing above under "Description of Shares Tendered." In the event
that the boxes entitled "Special Payment Instructions" and "Special Delivery
Instructions" are both completed, please issue the check for the purchase price
of all Shares purchased and/or return any certificates evidencing Shares not
tendered or not accepted for payment (and any accompanying documents, as
appropriate) in the name(s) of, and deliver such check and/or return any such
certificates (and any accompanying documents, as appropriate) to, the person(s)
so indicated. Unless otherwise indicated herein in the box entitled "Special
Payment Instructions," please credit any Shares tendered herewith by book-entry
transfer that are not accepted for payment by crediting the account at the
Book-Entry Transfer Facility designated above. The undersigned recognizes that
Purchaser has no obligation, pursuant to the "Special Payment Instructions," to
transfer any Shares from the name of the registered holder thereof if Purchaser
does not accept for payment any of the Shares so tendered.
5
<PAGE>
/ / CHECK HERE IF ANY OF THE CERTIFICATES REPRESENTING SHARES THAT YOU OWN HAVE
BEEN LOST, DESTROYED OR STOLEN AND SEE INSTRUCTION 11.
NUMBER OF SHARES REPRESENTED BY LOST, DESTROYED OR STOLEN CERTIFICATES: ________
- ------------------------------------------------
SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if the check for the purchase price of Shares
accepted for payment is to be issued in the name of someone other than the
undersigned or if Shares tendered hereby and delivered by book-entry
transfer that are not accepted for payment are to be returned by credit to
an account maintained at the Book Entry Transfer Facility other than the
account indicated.
Issue check and/or Share certificates to:
Name _______________________________________________________________________
(PLEASE PRINT)
Address ____________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
(INCLUDE ZIP CODE)
__________________________________________________________________________
(TAX IDENTIFICATION OR SOCIAL SECURITY NUMBER)
CREDIT SHARES DELIVERED BY BOOK-ENTRY TRANSFER AND NOT
PURCHASED TO THE
BOOK-ENTRY TRANSFER FACILITY ACCOUNT
__________________________________________________________________________
ACCOUNT NUMBER
- ------------------------------------------------------------
- ------------------------------------------------------------
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if certificates for Shares not tendered or not
accepted for payment and/or the check for the purchase price of Shares
accepted for payment are to be sent to someone other than the undersigned or
to the undersigned at an address other than that shown under "Description of
Shares Tendered."
Mail check and/or Share certificates to:
Name _______________________________________________________________________
(PLEASE PRINT)
Address ____________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
(INCLUDE ZIP CODE)
__________________________________________________________________________
(TAXPAYER IDENTIFICATION OR SOCIAL SECURITY NUMBER)
-----------------------------------------------------------
6
<PAGE>
- --------------------------------------------------------------------------------
IMPORTANT
STOCKHOLDER SIGN HERE
(Also Complete Substitute Form W-9 Below)
____________________________________________________________________________
____________________________________________________________________________
(SIGNATURE(S) OF OWNER(S))
Must be signed by registered holder(s) exactly as name(s) appear(s) on the
Share certificate(s) or on a security position listing or by person(s)
authorized to become registered holder(s) by certificates and documents
transmitted herewith. If signature is by a trustee, executor, administrator,
guardian, attorney-in-fact, officer of a corporation or other person acting
in a fiduciary or representative capacity, please set forth full title. See
Instruction 5. (For information concerning signature guarantees, see
Instruction 3.)
Dated: ____________, 1999
Name(s) ____________________________________________________________________
____________________________________________________________________________
(PLEASE PRINT)
Capacity (full title) ______________________________________________________
(SEE INSTRUCTION 4)
Address ____________________________________________________________________
____________________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone Number______________________________________________
Taxpayer Identification or Social Security No.______________________________
(COMPLETE THE SUBSTITUTE FORM
W-9 CONTAINED HEREIN)
SIGNATURE GUARANTEE
(SEE INSTRUCTIONS 1 AND 5)
Authorized Signature _______________________________________________________
Name(s) ____________________________________________________________________
(PLEASE PRINT)
Title ______________________________________________________________________
Name of Firm _______________________________________________________________
Address ____________________________________________________________________
Area Code and Telephone No. ________________________________________________
----------------------------------------------------------------------------
7
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. GUARANTEE OF SIGNATURES. No signature guarantee is required on this
Letter of Transmittal (a) if this Letter of Transmittal is signed by the
registered holder(s) (which term, for purposes of this Instruction 1, includes
any participant in any of the Book-Entry Transfer Facilities' systems whose name
appears on a security position listing as the owner of the Shares) of Shares
tendered herewith, unless such registered holder(s) have completed either the
box entitled "Special Payment Instructions" or the box entitled "Special
Delivery Instructions" on the Letter of Transmittal or (b) if such Shares are
tendered for the account of a financial institution (including most commercial
banks, savings and loan associations and brokerage houses) that is a participant
in the Security Transfer Agents Medallion Program, the New York Stock Exchange
Medallion Signature Guarantee Program or the Stock Exchange Medallion Program
(each, an "Eligible Institution"). In all other cases, all signatures on this
Letter of Transmittal must be guaranteed by an Eligible Institution. See
Instruction 5.
2. DELIVERY OF LETTER OF TRANSMITTAL AND SHARES; GUARANTEED DELIVERY
PROCEDURES. This Letter of Transmittal is to be completed by stockholders of
the Company either if Share certificates are to be forwarded herewith or, unless
an Agent's Message is utilized, if delivery of Shares is to be made by
book-entry transfer pursuant to the procedures set forth herein and in Section 3
of the Offer to Purchase. For a stockholder to validly tender Shares pursuant to
the Offer, either (a) a properly completed and duly executed Letter of
Transmittal (or facsimile thereof), together with any required signature
guarantees or an Agent's Message (in connection with book-entry transfer) and
any other required documents, must be received by the Depositary at one of its
addresses set forth herein prior to the Expiration Date and either (i)
certificates for tendered Shares must be received by the Depositary at one of
such addresses prior to the Expiration Date or (ii) Shares must be delivered
pursuant to the procedures for book-entry transfer set forth herein and in
Section 3 of the Offer to Purchase and a Book-Entry Confirmation must be
received by the Depositary prior to the Expiration Date or (b) the tendering
stockholder must comply with the guaranteed delivery procedures set forth herein
and in Section 3 of the Offer to Purchase.
Stockholders whose certificates for Shares are not immediately available or
who cannot deliver their certificates and all other required documents to the
Depositary prior to the Expiration Date or who cannot comply with the book-entry
transfer procedures on a timely basis may tender their Shares by properly
completing and duly executing the Notice of Guaranteed Delivery pursuant to the
guaranteed delivery procedure set forth herein and in Section 3 of the Offer to
Purchase.
Pursuant to such guaranteed delivery procedures, (i) such tender must be
made by or through an Eligible Institution, (ii) a properly completed and duly
executed Notice of Guaranteed Delivery, substantially in the form provided by
Purchaser, must be received by the Depositary prior to the Expiration Date and
(iii) the certificates for all tendered Shares, in proper form for transfer (or
a Book-Entry Confirmation with respect to all tendered Shares), together with a
properly completed and duly executed Letter of Transmittal (or a facsimile
thereof), with any required signature guarantees, or, in the case of a
book-entry transfer, an Agent's Message, and any other required documents must
be received by the Depositary within three trading days after the date of
execution of such Notice of Guaranteed Delivery. A "trading day" is any day on
which the New York Stock Exchange is open for business.
The term "Agent's Message" means a message, transmitted by the Book-Entry
Transfer Facility to, and received by, the Depositary and forming a part of a
Book-Entry Confirmation, which states that such Book-Entry Transfer Facility has
received an express acknowledgment from the participant in such Book-Entry
Transfer Facility tendering the Shares, that such participant has received and
agrees to be bound by the terms of the Letter of Transmittal and that Purchaser
may enforce such agreement against the participant.
The signatures on this Letter of Transmittal cover the Shares tendered
hereby.
THE METHOD OF DELIVERY OF THE SHARES, THIS LETTER OF TRANSMITTAL AND ALL
OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH ANY BOOK-ENTRY TRANSFER
FACILITY, IS AT THE ELECTION AND RISK OF THE TENDERING STOCKHOLDER. THE SHARES
WILL BE DEEMED DELIVERED ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY
(INCLUDING, IN THE CASE OF A BOOK-ENTRY TRANSFER, BY BOOK-ENTRY CONFIRMATION).
IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY
INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO
ENSURE TIMELY DELIVERY.
8
<PAGE>
No alternative, conditional or contingent tenders will be accepted, and no
fractional Shares will be purchased. All tendering stockholders, by executing
this Letter of Transmittal (or facsimile thereof), waive any right to receive
any notice of acceptance of their Shares for payment.
3. INADEQUATE SPACE. If the space provided herein under "Description of
Shares Tendered" is inadequate, the number of Shares tendered and the Share
certificate numbers with respect to such Shares should be listed on a separate
signed schedule attached hereto.
4. PARTIAL TENDERS. (Not applicable to stockholders who tender by
book-entry transfer). If fewer than all the Shares evidenced by any Share
certificate delivered to the Depositary herewith are to be tendered hereby, fill
in the number of Shares that are to be tendered in the box entitled "Number of
Shares Tendered." In any such case, new certificate(s) for the remainder of the
Shares that were evidenced by the old certificates will be sent to the
registered holder, unless otherwise provided in the appropriate box on this
Letter of Transmittal, as soon as practicable after the Expiration Date or the
termination of the Offer. All Shares represented by certificates delivered to
the Depositary will be deemed to have been tendered unless otherwise indicated.
5. SIGNATURES ON LETTER OF TRANSMITTAL; STOCK POWERS AND ENDORSEMENTS. If
this Letter of Transmittal is signed by the registered holder(s) of the Shares
tendered hereby, the signature(s) must correspond with the name(s) as written on
the face of the certificate(s) without alteration, enlargement or any change
whatsoever.
If any of the Shares tendered hereby are held of record by two or more joint
owners, all such owners must sign this Letter of Transmittal.
If any of the tendered Shares are registered in different names on several
certificates, it will be necessary to complete, sign and submit as many separate
Letters of Transmittal as there are different registrations of certificates.
If this Letter of Transmittal or any Share certificate or stock power is
signed by a trustee, executor, administrator, guardian, attorney-in-fact,
officer of a corporation or other person acting in a fiduciary or representative
capacity, such person should so indicate when signing, and proper evidence
satisfactory to Purchaser of the authority of such person so to act must be
submitted.
If this Letter of Transmittal is signed by the registered holder(s) of the
Shares listed and transmitted hereby, no endorsements of Share certificates or
separate stock powers are required unless payment or certificates for Shares not
tendered or not accepted for payment are to be issued in the name of a person
other than the registered holder(s). Signatures on any such Share certificates
or stock powers must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered holder(s) of the Shares evidenced by certificates listed and
transmitted hereby, the Share certificates must be endorsed or accompanied by
appropriate stock powers, in either case signed exactly as the name(s) of the
registered holder(s) appear(s) on the Share certificates. Signature(s) on any
such Share certificates or stock powers must be guaranteed by an Eligible
Institution.
6. STOCK TRANSFER TAXES. Except as otherwise provided in this Instruction
6, Purchaser will pay all stock transfer taxes with respect to the transfer and
sale of any Shares to it or its order pursuant to the Offer. If, however,
payment of the purchase price of any Shares purchased is to be made to, or if
certificates for Shares not tendered or not accepted for payment are to be
registered in the name of, any person other than the registered holder(s), or if
tendered certificates are registered in the name of any person other than the
person(s) signing this Letter of Transmittal, the amount of any stock transfer
taxes (whether imposed on the registered holder(s) or such other person) payable
on account of the transfer to such other person will be deducted from the
purchase price of such Shares purchased unless evidence satisfactory to
Purchaser of the payment of such taxes, or exemption therefrom, is submitted.
Except as provided in this Instruction 6, it will not be necessary for
transfer tax stamps to be affixed to the Share certificates evidencing the
Shares tendered hereby.
7. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS; WIRE TRANSFERS. If a check
for the purchase price of any Shares accepted for payment is to be issued in the
name of, and/or Share certificates for Shares not accepted for payment or not
tendered are to be issued in the name of and/or returned to, a person other than
the signer of this Letter of Transmittal or if a check is to be sent, and/or
such certificates are to be returned, to a person other than the signer of this
Letter of Transmittal, or to an address other than that shown above, the
appropriate boxes on this Letter of Transmittal should be completed. Any
stockholder(s) delivering Shares by book-entry transfer may request that Shares
not purchased be credited to such account maintained at a Book-Entry Transfer
Facility as such stockholder(s) may designate in the box entitled "Special
Payment Instructions." If no such instructions are given, any such Shares not
9
<PAGE>
purchased will be returned by crediting the account at the Book-Entry Transfer
Facility designated above as the account from which such Shares were delivered.
8. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions and requests
for assistance or additional copies of the Offer to Purchase, this Letter of
Transmittal, the Notice of Guaranteed Delivery and the Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9 may be
directed to the Information Agent at its address and phone number set forth
below, or from brokers, dealers, commercial banks or trust companies.
9. WAIVER OF CONDITIONS. Subject to the Merger Agreement, Purchaser
reserves the absolute right in its sole discretion to waive, at any time or from
time to time, any of the specified conditions of the Offer (with certain
exceptions as specified in Section 1 of the Offer to Purchase), in whole or in
part, in the case of any Shares tendered.
10. BACKUP WITHHOLDING. In order to avoid "backup withholding" of federal
income tax on payments of cash pursuant to the Offer, a stockholder surrendering
Shares in the Offer must, unless an exemption applies, provide the Depositary
with such stockholder's correct taxpayer identification number ("TIN") on
Substitute Form W-9 in this Letter of Transmittal and certify, under penalties
of perjury, that such TIN is correct and that such stockholder is not subject to
backup withholding.
Backup withholding is not an additional income tax. Rather, the amount of
the backup withholding can be credited against the federal income tax liability
of the person subject to the backup withholding, provided that the required
information is given to the IRS. If backup withholding results in an overpayment
of tax, a refund can be obtained by the stockholder upon filing an income tax
return.
The stockholder is required to give the Depositary the TIN (i.e., social
security number or employer identification number) of the record owner of the
Shares. If the Shares are held in more than one name or are not in the name of
the actual owner, consult the enclosed "Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9" for additional guidance on which
number to report.
The box in Part 3 of the Substitute Form W-9 may be checked if the tendering
stockholder has not been issued a TIN and has applied for a TIN or intends to
apply for a TIN in the near future. If the box in Part 3 is checked, the
stockholder or other payee must also complete the Certificate of Awaiting
Taxpayer Identification Number below in order to avoid backup withholding.
Notwithstanding that the box in Part 3 is checked and the Certificate of
Awaiting Taxpayer Identification Number is completed, the Depositary will
withhold 31% on all payments made prior to the time a properly certified TIN is
provided to the Depositary. However, such amounts will be refunded to such
stockholder if a TIN is provided to the Depositary within 60 days.
Certain stockholders (including, among others, all corporations and certain
foreign individuals and entities) are not subject to backup withholding.
Noncorporate foreign stockholders should complete and sign the main signature
form and a Form W-8, Certificate of Foreign Status, a copy of which may be
obtained from the Depositary, in order to avoid backup withholding. See the
enclosed "Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9" for more instructions.
11. LOST, DESTROYED OR STOLEN SHARE CERTIFICATES. If any certificate(s)
representing Shares has been lost, destroyed or stolen, the stockholder should
promptly notify the Depositary by checking the box immediately preceding the
special payment/special delivery instructions and indicating the number of
Shares lost. The stockholder will then be instructed as to the steps that must
be taken in order to replace the Share certificate(s). This Letter of
Transmittal and related documents cannot be processed until the procedures for
replacing lost, destroyed or stolen Share certificates have been followed.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR FACSIMILE HEREOF) TOGETHER WITH
ANY REQUIRED SIGNATURE GUARANTEES, OR, IN THE CASE OF A BOOK-ENTRY TRANSFER, AN
AGENT'S MESSAGE, AND ANY OTHER REQUIRED DOCUMENTS, MUST BE RECEIVED BY THE
DEPOSITARY PRIOR TO THE EXPIRATION DATE AND EITHER CERTIFICATES FOR TENDERED
SHARES MUST BE RECEIVED BY THE DEPOSITARY OR SHARES MUST BE DELIVERED PURSUANT
TO THE PROCEDURES FOR BOOK-ENTRY TRANSFER, IN EACH CASE PRIOR TO THE EXPIRATION
DATE, OR THE TENDERING STOCKHOLDER MUST COMPLY WITH THE PROCEDURES FOR
GUARANTEED DELIVERY.
10
<PAGE>
IMPORTANT TAX INFORMATION
Under federal income tax law, a stockholder whose tendered Shares are
accepted for payment is required to provide the Depositary (as payer) with such
stockholder's correct taxpayer identification number on Substitute Form W-9
below. If such stockholder is an individual, the taxpayer identification number
is his or her social security number. If a tendering stockholder is subject to
backup withholding, such stockholder must cross out item (2) of the
Certification box on the Substitute Form W-9. If the Depositary is not provided
with the correct taxpayer identification number, the stockholder may be subject
to a $50 penalty imposed by the Internal Revenue Service. In addition, payments
that are made to such stockholder with respect to Shares purchased pursuant to
the Offer may be subject to backup withholding.
Certain stockholders (including, among others, all corporations and certain
foreign individuals) are not subject to these backup withholding and reporting
requirements. In order for a foreign individual to qualify as an exempt
recipient, that stockholder must submit a statement, signed under penalties of
perjury, attesting to that individual's exempt status. Such statements can be
obtained from the Depositary. Exempt stockholders, other than foreign
individuals, should furnish their TIN, write "Exempt" on the face of the
Substitute Form W-9 below, and sign, date and return the Substitute Form W-9 to
the Depositary. See the enclosed Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9 for additional instructions.
If backup withholding applies, the Depositary is required to withhold 31% of
any payments made to the stockholder. Backup withholding is not an additional
tax. Rather, the tax liability of persons subject to backup withholding will be
reduced by the amount of tax withheld. If withholding results in an overpayment
of taxes, a refund may be obtained from the Internal Revenue Service.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on payments that are made to a stockholder
with respect to Shares purchased pursuant to the Offer, the stockholder is
required to notify the Depositary of such stockholder's correct taxpayer
identification number by completing the form contained herein certifying that
the taxpayer identification number provided on Substitute Form W-9 is correct
(or that such stockholder is awaiting a taxpayer identification number).
WHAT NUMBER TO GIVE THE DEPOSITARY
The stockholder is required to give the Depositary the social security
number or employer identification number of the record owner of the Shares. If
the Shares are in more than one name or are not in the name of the actual owner,
consult the enclosed Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9 for additional guidance on which number to report.
If the tendering stockholder has not been issued a TIN and has applied for a
number or intends to apply for a number in the near future, such stockholder
should write "Applied For" in the space provided for in the TIN in Part 1, and
sign and date the Substitute Form W-9. If "Applied For" is written in Part I and
the Depositary is not provided with a TIN within 60 days, the Depositary will
withhold 31% on all payments of the purchase price until a TIN is provided to
the Depositary.
11
<PAGE>
<TABLE>
<S> <C> <C>
PAYER'S NAME: THE BANK OF NEW YORK
SUBSTITUTE PART 1--PLEASE PROVIDE YOUR TIN IN THE
FORM W-9 BOX AT RIGHT AND CERTIFY BY SIGNING
DEPARTMENT OF THE AND DATING BELOW
TREASURY Social Security Number
INTERNAL REVENUE SERVICE (If awaiting TIN write
PAYER'S REQUEST FOR "Applied For")
TAXPAYER IDENTIFICATION OR
NUMBER ("TIN")
Employer Identification Number
(If awaiting TIN write
"Applied For")
PART 2--CERTIFICATE--Under penalties of perjury, I certify that:
(1) The number shown on this form is my correct Taxpayer Identification
Number (or I am waiting for a number to be issued for me), and
(2) I am not subject to backup withholding because: (a) I am exempt from
backup withholding, or (b) I have not been notified by the Internal
Revenue Service (the "IRS") that I am subject to backup withholding
as a result of a failure to report all interest or dividends, or (c)
the IRS has notified me that I am no longer subject to backup
withholding.
CERTIFICATION INSTRUCTIONS--You must cross out item (2) above if you have
been notified by the IRS that you are currently subject to backup
withholding because of under-reporting interest or dividends on your tax
returns. However, if after being notified by the IRS that you are subject
to backup withholding, you receive another notification from the IRS that
you are no longer subject to backup withholding, do not cross out such
item (2). (Also see instructions in the enclosed GUIDELINES).
SIGNATURE DATE , 1999
PART 3--Awaiting TIN / /
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31% OF ANY CASH PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE
REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN PART
3 OF THE SUBSTITUTE FORM W-9.
12
<PAGE>
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a Taxpayer Identification Number
has not been issued to me, and either (1) I have mailed or delivered an
application to receive a Taxpayer Identification Number to the appropriate
Internal Revenue Service Center or Social Security Administration Office
or (2) I intend to mail or deliver an application in the near future. I
understand that if I do not provide a Taxpayer Identification Number to
the Depositary by the time of payment, 31% of all reportable cash payments
made to me thereafter will be withheld, but that such amounts may be
refunded to me if I then provide a Taxpayer Identification Number to the
Depositary within 60 days.
Signature
- --------------------------------------------------- Date
- -----------------, 1999
13
<PAGE>
Questions and requests for assistance or additional copies of the Offer to
Purchase, this Letter of Transmittal and other tender offer materials may be
directed to the Information Agent or the Dealer Manager at their respective
addresses and telephone numbers set forth below:
THE INFORMATION AGENT FOR THE OFFER IS:
[LOGO]
156 Fifth Avenue
New York, New York 10010
(212) 929-5500 (call collect)
or
Call Toll Free: (800) 322-2885
THE DEALER MANAGER FOR THE OFFER IS:
MERRILL LYNCH & CO.
World Financial Center
South Tower, 6(th) Floor
New York, New York 10080
(212) 236-3790 (call collect)
14
<PAGE>
NOTICE OF GUARANTEED DELIVERY
FOR
TENDER OF SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED PREFERRED SHARE PURCHASE RIGHTS)
OF
NIELSEN MEDIA RESEARCH, INC.
TO
NINER ACQUISITION, INC.
AN INDIRECT WHOLLY OWNED SUBSIDIARY OF
VNU N.V.
(NOT TO BE USED FOR SIGNATURE GUARANTEES)
This Notice of Guaranteed Delivery, or a form substantially equivalent
hereto, must be used to accept the Offer (as defined below) if certificates
representing shares of Common Stock, par value $0.01 per share (the "Common
Stock"), including the associated preferred share purchase rights (the "Rights"
and, together with the Common Stock, the "Shares"), of Nielsen Media Research,
Inc., a Delaware corporation, are not immediately available, if the procedure
for book-entry transfer cannot be completed prior to the Expiration Date (as
defined in Section 1 of the Offer to Purchase), or if time will not permit all
required documents to reach the Depositary prior to the Expiration Date. Such
form may be delivered by hand, transmitted by facsimile transmission or mailed
to the Depositary. See Section 3 of the Offer to Purchase.
<TABLE>
<S> <C> <C>
THE DEPOSITARY FOR THE OFFER IS:
THE BANK OF NEW YORK
BY MAIL: BY FACSIMILE TRANSMISSION: BY HAND OR OVERNIGHT COURIER:
Tender & Exchange Department (212) 815-6213 Tender & Exchange Department
P.O. Box 11248 (For Eligible Institutions 101 Barclay Street
Church Street Station Only) Receive and Deliver Window
New York, New York 10286-1248 FOR CONFIRMATION TELEPHONE: New York, New York 10286
(800) 507-9357
</TABLE>
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE NUMBER OTHER THAN
AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
THIS FORM IS NOT TO BE USED TO GUARANTEE SIGNATURES. IF A SIGNATURE ON A
LETTER OF TRANSMITTAL IS REQUIRED TO BE GUARANTEED BY AN "ELIGIBLE INSTITUTION"
UNDER THE INSTRUCTIONS THERETO, SUCH SIGNATURE GUARANTEE MUST APPEAR IN THE
APPLICABLE SPACE PROVIDED IN THE SIGNATURE BOX ON THE LETTER OF TRANSMITTAL.
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to Niner Acquisition, Inc., a Delaware
corporation and indirect wholly owned subsidiary of VNU N.V., a company
organized under the laws of the Netherlands, upon the terms and subject to the
conditions set forth in the Offer to Purchase dated August 20, 1999 and the
related Letter of Transmittal (which, together with any amendments or
supplements thereto, constitute the "Offer"), receipt of which is hereby
acknowledged, the number of shares set forth below of common stock, par value
$0.01 per share (the "Common Stock"), including the associated preferred share
purchase rights (the "Rights" and, together with the Common Stock, the
"Shares"), of Nielsen Media Research, Inc., a Delaware corporation, pursuant to
the guaranteed delivery procedures set forth in Section 3 of the Offer to
Purchase.
<TABLE>
<S> <C>
Number of Shares: Name(s) of Record Holder(s):
Certificate Nos. (if available): PLEASE PRINT
Check box if Shares will be tendered by book- Address(es):
entry transfer: / / ZIP CODE
Account Number:, 1999 Area Code and Tel. No.:
Dated:, 1999 Signature(s):
</TABLE>
2
<PAGE>
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEES)
The undersigned, a participant in the Security Transfer Agents Medallion
Program, the New York Stock Exchange Medallion Signature Guarantee Program or
the Stock Exchange Medallion Program, guarantees to deliver to the Depositary
either certificates representing the Shares tendered hereby, in proper form
for transfer, or confirmation of book-entry transfer of such Shares into the
Depositary's accounts at The Depository Trust Company, in each case with
delivery of a properly completed and duly executed Letter of Transmittal (or
facsimile thereof), with any required signature guarantees, or an Agent's
Message, and any other documents required by the Letter of Transmittal, within
three New York Stock Exchange trading days (as defined in the Offer to
Purchase) after the date hereof.
The Eligible Institution that completes this form must communicate the
guarantee to the Depositary and must deliver the Letter of Transmittal and
certificates for Shares to the Depositary within the time period shown herein.
Failure to do so could result in a financial loss to such Eligible
Institution.
<TABLE>
<S> <C>
Name of Firm:
AUTHORIZED SIGNATURE
Address: Name:
PLEASE PRINT
Title:
ZIP CODE
Area Code and Tel. No.: Dated:, 1999
</TABLE>
NOTE: DO NOT SEND CERTIFICATES FOR SHARES WITH THIS NOTICE. CERTIFICATES
SHOULD BE SENT ONLY WITH YOUR LETTER OF TRANSMITTAL.
3
<PAGE>
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED PREFERRED SHARE PURCHASE RIGHTS)
OF
NIELSEN MEDIA RESEARCH, INC.
AT
$37.75 NET PER SHARE
BY
NINER ACQUISITION, INC.
AN INDIRECT WHOLLY OWNED SUBSIDIARY OF
VNU N.V.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON FRIDAY, SEPTEMBER 17, 1999, UNLESS THE OFFER IS EXTENDED.
August 20, 1999
To Brokers, Dealers, Commercial Banks,
Trust Companies And Other Nominees:
We have been appointed by Niner Acquisition, Inc., a Delaware corporation
("Purchaser") and indirect wholly owned subsidiary of VNU N.V., a company
organized under the laws of the Netherlands ("VNU"), to act as Dealer Manager in
connection with Purchaser's offer to purchase all outstanding shares of common
stock, par value $0.01 per share (the "Common Stock"), including the associated
preferred share purchase rights (the "Rights" and, together with the Common
Stock, the "Shares"), of Nielsen Media Research, Inc., a Delaware corporation
(the "Company"), at $37.75 per Share, net to the seller in cash, upon the terms
and subject to the conditions set forth in the Offer to Purchase dated August
20, 1999 (the "Offer to Purchase") and in the related Letter of Transmittal
(which, together with any amendments or supplements thereto, constitute the
"Offer") enclosed herewith. Please furnish copies of the enclosed materials to
those of your clients for whose accounts you hold Shares registered in your name
or in the name of your nominee.
The Offer is conditioned upon, among other things, there being validly
tendered and not withdrawn prior to the Expiration Date (as defined in the Offer
to Purchase) that number of Shares which represents at least a majority of the
Shares outstanding (on a fully diluted basis) on the date Shares are accepted
for payment. The Offer is also subject to other conditions set forth in the
Offer to Purchase.
For your information and for forwarding to your clients for whom you hold
Shares registered in your name or in the name of your nominee, we are enclosing
the following documents:
1. Offer to Purchase dated August 20, 1999;
2. Letter of Transmittal for your use in accepting the Offer and
tendering Shares and for the information of your clients;
3. Notice of Guaranteed Delivery to be used to accept the Offer if
certificates for Shares and all other required documents cannot be delivered
to the Depositary, or if the procedures for book-entry transfer cannot be
completed, by the Expiration Date (as defined in the Offer to Purchase);
<PAGE>
4. A letter which may be sent to your clients for whose accounts you
hold Shares registered in your name or in the name of your nominee, with
space provided for obtaining such clients' instructions with regard to the
Offer;
5. A letter to stockholders of the Company from John A. Dimling,
President and Chief Executive Officer of the Company, together with a
Solicitation/Recommendation Statement on Schedule 14D-9 dated August 20,
1999, which has been filed by the Company with the Securities and Exchange
Commission;
6. Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9; and
7. A return envelope addressed to The Bank of New York (the
"Depositary").
Upon the terms and subject to the conditions of the Offer (including, if the
Offer is extended or amended, the terms and conditions of any such extension or
amendment), Purchaser will accept for payment and pay for Shares which are
validly tendered prior to the Expiration Date and not theretofore properly
withdrawn when, as and if Purchaser gives oral or written notice to the
Depositary of Purchaser's acceptance of such Shares for payment pursuant to the
Offer. Payment for Shares purchased pursuant to the Offer will in all cases be
made only after timely receipt by the Depositary of (i) certificates for such
Shares, or timely confirmation of a book-entry transfer of such Shares into the
Depositary's account at The Depository Trust Company, pursuant to the procedures
described in Section 3 of the Offer to Purchase, (ii) a properly completed and
duly executed Letter of Transmittal (or a properly completed and manually signed
facsimile thereof) or an Agent's Message (as defined in the Offer to Purchase)
in connection with a book-entry transfer and (iii) all other documents required
by the Letter of Transmittal.
Purchaser will not pay any fees or commissions to any broker or dealer or
other person (other than the Dealer Manager, the Information Agent and the
Depositary as described in the Offer to Purchase) for soliciting tenders of
Shares pursuant to the Offer. Purchaser will, however, upon request, reimburse
brokers, dealers, commercial banks and trust companies for customary mailing and
handling costs incurred by them in forwarding the enclosed materials to their
customers.
Purchaser will pay or cause to be paid all stock transfer taxes applicable
to its purchase of Shares pursuant to the Offer, subject to Instruction 6 of the
Letter of Transmittal.
WE URGE YOU TO CONTACT YOUR CLIENTS AS PROMPTLY AS POSSIBLE. PLEASE NOTE
THAT THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON FRIDAY, SEPTEMBER 17, 1999, UNLESS THE OFFER IS EXTENDED.
In order to take advantage of the Offer, a duly executed and properly
completed Letter of Transmittal (or facsimile thereof), with any required
signature guarantees, or an Agent's Message in connection with a book-entry
transfer of Shares, and any other required documents, should be sent to the
Depositary, and certificates representing the tendered Shares should be
delivered or such Shares should be tendered by book-entry transfer, all in
accordance with the Instructions set forth in the Letter of Transmittal and in
the Offer to Purchase.
If holders of Shares wish to tender, but it is impracticable for them to
forward their certificates or other required documents or to complete the
procedures for delivery by book-entry transfer prior to the expiration of the
Offer, a tender may be effected by following the guaranteed delivery procedures
specified in Section 3 of the Offer to Purchase.
2
<PAGE>
Any inquiries you may have with respect to the Offer should be addressed to,
and additional copies of the enclosed materials may be obtained from, the
Information Agent at its address and telephone number set forth on the back
cover of the Offer to Purchase.
Very truly yours,
MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU
THE AGENT OF PARENT, PURCHASER, THE COMPANY, THE DEALER MANAGER, THE INFORMATION
AGENT, THE DEPOSITARY OR ANY AFFILIATE OF ANY OF THE FOREGOING, OR AUTHORIZE YOU
OR ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENT ON BEHALF OF ANY
OF THEM IN CONNECTION WITH THE OFFER OTHER THAN THE DOCUMENTS ENCLOSED HEREWITH
AND THE STATEMENTS CONTAINED THEREIN.
3
<PAGE>
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED PREFERRED SHARE PURCHASE RIGHTS)
OF
NIELSEN MEDIA RESEARCH, INC.
AT
$37.75 NET PER SHARE
BY
NINER ACQUISITION, INC.
AN INDIRECT WHOLLY OWNED SUBSIDIARY OF
VNU N.V.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON FRIDAY, SEPTEMBER 17, 1999, UNLESS THE OFFER IS EXTENDED.
August 20, 1999
To Our Clients:
Enclosed for your consideration are the Offer to Purchase dated August 20,
1999 and the related Letter of Transmittal (which, together with any amendments
or supplements thereto, collectively constitute the "Offer") in connection with
the offer by Niner Acquisition, Inc., a Delaware corporation ("Purchaser") and
indirect wholly owned subsidiary of VNU N.V., a company organized under the laws
of the Netherlands ("VNU"), to purchase for cash all outstanding shares of
common stock, par value $0.01 per share (the "Common Stock"), including the
associated preferred share purchase rights (the "Rights" and, together with the
Common Stock, the "Shares"), of Nielsen Media Research, Inc., a Delaware
corporation (the "Company"). We are the holder of record of Shares held for your
account. A tender of such Shares can be made only by us as the holder of record
and pursuant to your instructions. The enclosed Letter of Transmittal is
furnished to you for your information only and cannot be used by you to tender
Shares held by us for your account.
We request instructions as to whether you wish us to tender any or all of
the Shares held by us for your account, upon the terms and subject to the
conditions set forth in the Offer.
Your attention is invited to the following:
1. The offer price is $37.75 per Share, net to you in cash without
interest.
2. The Offer is being made for all outstanding Shares.
3. The Board of Directors of the Company has unanimously approved the
Merger Agreement (as defined in the Offer to Purchase) and the transactions
contemplated thereby, including the Offer and the Merger (each as defined in
the Offer to Purchase), has unanimously determined that the Offer and the
Merger are fair to and in the best interests of the Company's stockholders
and unanimously recommends that stockholders accept the Offer and tender
their Shares pursuant to the Offer.
4. The Offer and withdrawal rights will expire at 12:00 Midnight, New
York City time, on Friday, September 17, 1999, unless the Offer is extended.
<PAGE>
5. The Offer is conditioned upon, among other things, there being
validly tendered and not withdrawn prior to the Expiration Date (as defined
in the Offer to Purchase) that number of Shares which represents a majority
of the Shares outstanding (on a fully diluted basis) on the date Shares are
accepted for payment. The Offer is also subject to other conditions set
forth in the Offer to Purchase. See Section 14 of the Offer to Purchase.
6. Any stock transfer taxes applicable to the sale of Shares to
Purchaser pursuant to the Offer will be paid by Purchaser, except as
otherwise provided in Instruction 6 of the Letter of Transmittal.
Except as disclosed in the Offer to Purchase, Purchaser is not aware of any
state in which the making of the Offer is prohibited by administrative or
judicial action pursuant to any valid state statute. In any jurisdiction in
which the securities, blue sky or other laws require the Offer to be made by a
licensed broker or dealer, the Offer will be deemed to be made on behalf of
Purchaser by Merrill Lynch, Pierce, Fenner & Smith Incorporated or one or more
registered brokers or dealers licensed under the laws of such jurisdiction.
If you wish to have us tender any or all of your Shares, please so instruct
us by completing, executing and returning to us the instruction form set forth
on the reverse side of this letter. An envelope to return your instructions to
us is enclosed. If you authorize the tender of your Shares, all such Shares will
be tendered unless otherwise specified on the reverse side of this letter. Your
instructions should be forwarded to us in sufficient time to permit us to submit
a tender on your behalf prior to the expiration of the Offer.
2
<PAGE>
INSTRUCTIONS WITH RESPECT TO THE
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
NIELSEN MEDIA RESEARCH, INC.
The undersigned acknowledge(s) receipt of your letter and the enclosed Offer
to Purchase dated August 20, 1999 and the related Letter of Transmittal in
connection with the Offer by Niner Acquisition, Inc., a Delaware corporation and
indirect wholly owned subsidiary of VNU N.V., a company organized under the laws
of the Netherlands, to purchase all outstanding shares of common stock, par
value $0.01 per share (the "Common Stock"), including the associated preferred
share purchase rights (the "Rights" and together with the Common Stock, the
"Shares"), of Nielsen Media Research, Inc., a Delaware corporation.
This will instruct you to tender the number of Shares indicated below (or if
no number is indicated below, all Shares) held by you for the account of the
undersigned, upon the terms and subject to the conditions set forth in the
Offer.
<TABLE>
<S> <C>
NUMBER OF SHARES TO BE TENDERED:*
- ---------------------------------
Shares
Dated: , 1999
Signature(s)
Print Name(s)
Address(s)
Area Code and Telephone Number
Tax ID or Social Security Number
</TABLE>
- ------------------------
* Unless otherwise indicated, it will be assumed that all Shares held by us for
your account are to be tendered.
3
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE
FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE PAYER.
Social Security numbers have nine digits separated by two hyphens: i.e.,
000-00-0000. Employer identification numbers have nine digits separated by only
one hyphen, i.e., 00-0000000. The table below will help determine the number to
give the payer.
<TABLE>
<CAPTION>
- -------------------------------------------------------
GIVE THE
SOCIAL SECURITY
FOR THIS TYPE OF ACCOUNT NUMBER OF--
- -------------------------------------------------------
<S> <C> <C>
1. An individual's The individual
account
2. Two or more The actual owner of
individuals (joint the account or, if
account) combined funds, the
first individual on
the account(1)
3. Husband and wife The actual owner of
(joint account) the account or, if
joint funds, either
person(1)
4. Custodian account of The minor(2)
a minor (Uniform Gift
to Minors Act)
5. Adult and minor The adult or, if the
(joint account) minor is the only
contributor, the
minor(3)
6. Account in the name The ward, minor, or
of guardian or incompetent person(4)
committee for a
designated ward,
minor, or incompetent
person
7. a. The usual The
revocable savings grantor-trustee(3)
trust account
(grantor is also
trustee)
b. So-called trust The actual owner(3)
account that is not
a legal or valid
trust under State
law
8. Sole proprietorship The owner(5)
account
- -------------------------------------------------------
<CAPTION>
GIVE THE
EMPLOYER
IDENTIFICATION
FOR THIS TYPE OF ACCOUNT NUMBER OF--
<S> <C> <C>
- -------------------------------------------------------
9. A valid trust, The legal entity (do
estate, or pension not furnish the
trust identifying number of
the personal
representative or
trustee unless the
legal entity itself
is not designated in
the account
title.)(3)
10. Corporate account The corporation
11. Religious, The organization
charitable, or
educational
organization account
12. Partnership account The partnership
held in the name of
the partnership
13. Association, club, or The organization
other tax-exempt
organization
14. A broker or The broker or nominee
registered nominee
15. Account with the The public entity
Department of
Agriculture in the
name of a public
entity (such as a
State or local
government, school
district, or prison)
that receives
agricultural program
payments
</TABLE>
- -------------------------------------------
- -------------------------------------------
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security number.
(3) List first and circle the name of the legal trust, estate, or pension trust.
(4) Circle the ward's, minor's or incompetent person's name and furnish such
person's social security number.
(5) Show the name of the Owner.
NOTE: If no name is circled when there is more than one name, the number will
be considered to be that of the first name listed.
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER
ON SUBSTITUTE FORM W-9
PAGE 2
OBTAINING A NUMBER:
If you do not have a taxpayer identification number or you don't know your
number, obtain Form SS-5, Application for a Social Security Number Card, or Form
SS-4, Application for Employer Identification Number (for businesses and all
other entites), at the local office of the Social Security Administration or the
Internal Revenue Service (the "IRS") and apply for a number.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
Payees specifically exempted from backup withholding on AI.I, payments
include the following:
- A corporation.
- A financial institution
- An organization exempt from tax under section 501(a) of the Internal
Revenue Code of 1986, as amended (the "Code"), or an individual retirement
plan.
- The United States or any agency or instrumentalities.
- A State, the District of Columbia, a possession of the United States, or
any subdivision or instrumentality.
- A foreign government, a political subdivision of a foreign government, or
any agency or instrumentality thereof.
- An international organization or any agency or instrumentality thereof.
- A registered dealer in securities or commodities registered in the U.S. or
a possession of the U.S.
- A real estate investment trust.
- A common trust fund operated by a bank under section 584(a) of the Code.
- An exempt charitable remainder trust, or non-exempt trust described in
section 4947(a)(1) of the Code.
- An entity registered at all times under the Investment Company Act of
1940.
- A foreign central bank of issue.
Payments of dividends and patronage dividends not generally subject to
backup withholding include the following:
- Payments to nonresident aliens subject to withholding under section 1441
of the Code.
- Payments to partnerships not engaged in a trade or business in the U.S.
and which have at least one nonresident partner.
- Payments of patronage dividends where the amount received is not paid in
money.
- Payments made by certain foreign organizations.
- Payments made to a nominee.
Payments of interest not generally subject to backup withholding include the
following:
- Payments of interest on obligations issued by individuals. Note: You may
be subject to backup withholding if this interest is $600 or more and is
paid in the course of the payer's trade or business and you have not
provided your correct taxpayer identification number to the payer.
- Payments of tax-exempt interest (including exempt-interest dividends under
section 852 of the Code).
- Payments described in section 6049(b)(5) of the Code to nonresident
aliens.
- Payments on tax-free covenant bonds under section 1451 of the Code.
- Payments made by certain foreign organizations.
- Payments made to a nominee.
Exempt payees described above should file a Form W-9 to avoid possible
erroneous backup withholding. FILE THIS FORM WITH THE PAYER, FURNISH YOUR
TAXPAYER IDENTIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE OF THE FORM, SIGN AND
DATE THE FORM AND RETURN IT TO THE PAYER. IF YOU ARE A NONRESIDENT ALIEN OR A
FOREIGN ENTITY NOT SUBJECT TO BACKUP WITHHOLDING, FILE WITH PAYER A COMPLETED
INTERNAL REVENUE FORM W-8 (CERTIFICATE OF FOREIGN STATUS).
Certain payments other than interest, dividends, and patronage dividends,
that are not subject to information reporting are also not subject to backup
withholding. For details, see the sections 6041, 6041A, 6041A(a), 6045, 6050A
and 6050N of the Code and the regulations promulgated therein.
PRIVACY ACT NOTICE. Section 6109 requires most recipients of dividend,
interest, or other payments to give taxpayer identification numbers to payers
who must report the payments to the IRS. The IRS uses the numbers for
identification purposes. Payers must be given the numbers whether or not
recipients are required to file tax returns. Payers must generally withhold 31%
of taxable interest, diviends and certain other payments to a payee who does not
furnish a taxpayer identification number to a payer. Certain penalties may also
apply.
PENALTIES:
(1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER--If you fail
to furnish your taxpayer identification number to a payer, you are subject to a
penalty of $50 for each such failure unless your failure is due to reasonable
cause and not to willful neglect.
(2) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING-- If you
make a false statement with no reasonable basis that results in no imposition of
backup withholding, you are subject to a penalty of $500.
(3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION-- Willfully falsifying
certifications or affirmations may subject you to criminal penalties including
fines and/or imprisonment.
FOR ADDITIONAL INFORMATION, CONTACT YOUR TAX CONSULTANT OR THE INTERNAL
REVENUE SERVICE.
<PAGE>
Exhibit 99(a)(7)
- --------------------------------------------------------------------------------
This announcement is neither an offer to purchase nor a solicitation of an offer
to sell Shares (as defined below). The Offer (as defined below) is made solely
by the Offer to Purchase dated August 20, 1999 and the related Letter of
Transmittal and is being made to all holders of Shares. Purchaser (as
defined below) is not aware of any state where the making of the
Offer is prohibited by any applicable law. If Purchaser
becomes aware of any jurisdiction where the making of
the Offer or the acceptance of Shares is not in
compliance with applicable law, Purchaser will
make a good faith effort to comply with such law.
If, after such good faith effort, Purchaser cannot
comply with such law, the Offer will not be made to
(nor will tenders be accepted from or on behalf of)
the holders of Shares in such jurisdiction. In any
jurisdiction where the securities, blue sky or
other laws require the Offer to be made by a
licensed broker or dealer, the Offer shall
be deemed to be made on behalf of Purchaser
by Merrill Lynch, Pierce, Fenner & Smith
Incorporated or one or more registered
brokers or dealers licensed under the
laws of such jurisdiction.
NOTICE OF OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED PREFERRED SHARE PURCHASE RIGHTS)
OF
NIELSEN MEDIA RESEARCH, INC.
AT
$37.75 NET PER SHARE
BY
NINER ACQUISITION, INC.
AN INDIRECT WHOLLY OWNED SUBSIDIARY OF
VNU N.V.
Niner Acquisition, Inc., a Delaware corporation (the "Purchaser") and indirect
wholly owned subsidiary of VNU N.V., a company organized under the laws of the
Netherlands ("VNU"), is offering to purchase all the outstanding shares of
common stock, $0.01 par value per share (the "Common Stock"), of Nielsen Media
Research, Inc., a Delaware corporation (the "Company"), together with the
associated preferred share purchase rights (the "Rights" and, together with the
Common Stock, the "Shares") issued pursuant to the Rights Agreement, dated as of
October 15, 1996 (the "Rights Agreement"), between the Company and First Chicago
Trust Company of New York, as Rights Agent, at a price of $37.75 per Share, net
to the seller in cash, without interest thereon, upon the terms and subject to
the conditions set forth in the Offer to Purchase dated August 20,1999 (the
"Offer to Purchase") and in the related Letter of Transmittal (which, together
with any amendments or supplements thereto, collectively constitute the
"Offer").
- --------------------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON FRIDAY, SEPTEMBER 17, 1999, UNLESS THE OFFER IS EXTENDED.
- --------------------------------------------------------------------------------
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY TENDERED
AND NOT WITHDRAWN PRIOR TO THE EXPIRATION DATE (AS DEFINED BELOW) THAT NUMBER OF
SHARES WHICH CONSTITUTES AT LEAST A MAJORITY OF THE SHARES OUTSTANDING ON A
FULLY DILUTED BASIS. THE OFFER IS ALSO SUBJECT TO OTHER TERMS AND CONDITIONS.
SEE SECTION 14 OF THE OFFER TO PURCHASE.
The Offer is being made pursuant to an Agreement and Plan of Merger, dated as of
August 15, 1999 (the "Merger Agreement"), by and among Purchaser, VNU USA, Inc.
("Parent") and the Company. The Merger Agreement provides that as soon as
practicable after the completion of the Offer and the satisfaction or waiver, if
permissible, of all conditions contained in the Merger Agreement, and in
accordance with the General Corporation Law of the State of Delaware (the
"DGCL"), Purchaser will be merged with and into the Company (the "Merger").
Following consummation of the Merger, the Company will continue as the surviving
corporation and will be a wholly owned subsidiary of Parent. At the effective
time of the Merger (the "Effective Time"), each Share issued and outstanding
immediately prior to the Effective Time (other than Shares held by any
subsidiary of the Company or in the treasury of the Company, or by Parent,
Purchaser or any other subsidiary of Parent, which Shares will be cancelled, and
other than Shares, if any, held by stockholders who perfect their appraisal
rights pursuant to Section 262 of the DGCL) will be converted into the right to
receive $37.75 in cash, without interest.
The Board of Directors of the Company (i) has unanimously determined that the
Offer and the Merger are fair to and in the best interests of the Company's
stockholders and declared that the Offer and the Merger are advisable, (ii) has
unanimously approved the Merger Agreement and the transactions contemplated
thereby, including the Offer and the Merger, and (iii) unanimously recommends
that stockholders accept the Offer and tender their Shares pursuant to the
exOffer.
The term "Expiration Date" shall mean 12:00 Midnight, New York City time, on
Friday, September 17, 1999, unless and until Purchaser (in accordance with the
terms of the Merger Agreement) shall have extended the period of time during
which the Offer is open, in which event the term "Expiration Date" shall mean
the latest time and date at which the Offer, as so extended by Purchaser, shall
expire. Subject to the applicable rules and regulations of the Securities and
Exchange Commission and to applicable law, Purchaser expressly reserves the
right, in its sole discretion (subject to the terms and conditions of the Merger
Agreement), at any time and from time to time, to extend for any reason the
period of time during which the Offer is open, including the occurrence of any
of the events specified in Section 14 of the Offer to Purchase, by giving oral
or written notice of such extension to the Depositary; provided, however, that
Purchaser may not extend the Offer beyond December 22, 1999 without the prior
written consent of the Company. Any such extension will be followed by a public
announcement thereof by no later than 9:00 a.m., New York City time, on the next
business day after the previously scheduled Expiration Date. During any such
extension, all Shares previously tendered and not withdrawn will remain subject
to the Offer, subject to the right of a tendering stockholder to withdraw such
stockholder's Shares. Without limiting the manner in which Purchaser may choose
to make any public announcement, Purchaser will have no obligation to publish,
advertise or otherwise communicate any such announcement other than by issuing a
press release to the Dow Jones News Service or otherwise as may be required by
applicable law.
Tendering stockholders of record who tender Shares directly will not be
obligated to pay brokerage fees or commissions or, except as set forth in
Instruction 6 of the Letter of Transmittal, stock transfer taxes on the purchase
of Shares by Purchaser pursuant to the Offer. Stockholders who hold their shares
through a bank or broker should check with such institution as to whether they
charge any service fees. Purchaser will pay the fees and expenses of The Bank of
New York, which is acting as depositary (in such capacity, the "Depositary"),
and MacKenzie Partners, Inc., which is acting as the Information Agent (in such
capacity, the "Information Agent"), in connection with the Offer. For purposes
of the Offer, Purchaser will be deemed to have accepted for payment, and thereby
purchased, Shares properly tendered to Purchaser and not withdrawn as, if and
when Purchaser gives oral or written notice to the Depositary of its acceptance
for payment of such Shares pursuant to the Offer. Upon the terms and subject to
the conditions of the Offer, payment for Shares accepted for payment pursuant to
the Offer will be made by deposit of the purchase price therefor with the
Depositary, which will act as agent for tendering stockholders for the purpose
of receiving payments from Purchaser and transmitting payments to tendering
stockholders.
In all cases, payment for Shares accepted for payment pursuant to the Offer will
be made only after timely receipt by the Depositary of (i) certificates for such
Shares (or a confirmation of a book-entry transfer of such Shares into the
Depositary's account at the Book-Entry Transfer Facility (as defined in the
Offer to Purchase)), (ii) a Letter of Transmittal (or facsimile thereof),
properly completed and duly executed, with any required signature guarantees,
or, in the case of a book-entry transfer, an Agent's Message (as defined in the
Offer to Purchase), and (iii) any other documents required by the Letter of
Transmittal. The per Share consideration paid to any stockholder pursuant to the
Offer will be the highest per Share consideration paid to any other stockholder
pursuant to the Offer. Under no circumstances will interest be paid on the
purchase price to be paid by Purchaser for Shares, regardless of any extension
of the Offer or any delay in making such payment.
Except as otherwise provided below, tenders of Shares made pursuant to the Offer
are irrevocable. Shares tendered pursuant to the Offer may be withdrawn at any
time prior to the Expiration Date and, unless theretofore accepted for payment
pursuant to the Offer, may also be withdrawn at any time after October 15, 1999,
or such later time as may apply if the Offer is extended. For a withdrawal to be
effective, a written, telegraphic or facsimile transmission notice of withdrawal
must be timely received by the Depositary at one of its addresses set forth in
the Offer to Purchase and must specify the name of the person having tendered
the Shares to be withdrawn, the number of Shares to be withdrawn and the name of
the registered holder of the Shares to be withdrawn, if different from the name
of the person who tendered the Shares. If certificates evidencing Shares to be
withdrawn have been delivered or otherwise identified to the Depositary, then,
prior to the physical release of such certificates, the serial numbers shown on
such certificates must be submitted to the Depositary and, unless such Shares
have been tendered for the account of an Eligible Institution (as defined in the
Offer to Purchase), the signatures on the notice of withdrawal must be
guaranteed by an Eligible Institution. If Shares have been delivered pursuant to
the procedures for book-entry transfer set forth in Section 3 of the Offer to
Purchase, any notice of withdrawal must also specify the name and number of the
account at the Book-Entry Transfer Facility to be credited with the withdrawn
Shares and otherwise comply with the Book-Entry Transfer Facility's procedures.
Withdrawals of tenders of Shares may not be rescinded, and any Shares properly
withdrawn will thereafter be deemed not validly tendered for purposes of the
Offer. However, withdrawn Shares may be retendered by again following one of the
procedures described in Section 3 of the Offer to Purchase at any time prior to
the Expiration Date. All questions as to the form and validity (including time
of receipt) of notices of withdrawal will be determined by Purchaser, in its
sole discretion, which determination will be final and binding.
The information required to be disclosed by paragraph (e)(1)(vii) of Rule 14d-6
of the General Rules and Regulations under the Securities Exchange Act of 1934,
as amended, is contained in the Offer to Purchase and is incorporated herein by
reference.
The Company has provided Purchaser with the Company's stockholder lists and
security position listings for the purpose of disseminating the Offer to holders
of Shares. The Offer to Purchase, the related Letter of Transmittal and other
relevant documents will be mailed to record holders of Shares, and will be
furnished by Purchaser to brokers, dealers, banks, trust companies and similar
persons whose names, or the names of whose nominees, appear on the Company's
stockholder lists, or, if applicable, who are listed as participants in a
clearing agency's security position listing, for subsequent transmittal to
beneficial owners of Shares.
THE OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN IMPORTANT
INFORMATION AND SHOULD BE READ CAREFULLY BEFORE ANY DECISION IS MADE WITH
RESPECT TO THE OFFER.
Questions and requests for assistance or additional copies of the Offer to
Purchase, Letter of Transmittal and other tender offer documents may be directed
to the Information Agent or the Dealer Manager at their respective addresses and
telephone numbers set forth below, and copies will be furnished promptly at
Purchaser's expense. Neither Parent nor Purchaser will pay any fees or
commissions to any broker or dealer or other person (other than the Dealer
Manager, the Information Agent and the Depositary) for soliciting tenders of
Shares pursuant to the Offer.
The Information Agent for the Offer is:
[MACKENZIE PARTNERS LOGO]
156 Fifth Avenue
New York, New York 10010
(212) 929-5500 (call collect)
or
Call Toll-Free (800) 322-2885
The Dealer Manager for the Offer is:
Merrill Lynch & Co.
World Financial Center
North Tower
New York, New York 10281-1305
(212) 236-3790 (Call Collect)
August 20, 1999
- --------------------------------------------------------------------------------
<PAGE>
Exhibit 99.(b)
CONFORMED COPY
US$ 3,000,000,000
REVOLVING CREDIT FACILITY AGREEMENT
between
VNU IRELAND and VNU N.V.
as Original Borrowers
VNU N.V.
as Guarantor
ABN AMRO BANK N.V.
and
MERRILL LYNCH INTERNATIONAL
as Arrangers
ABN AMRO BANK N.V.
as Agent
and
THE BANKS
Clifford Chance
Amsterdam
<PAGE>
CONTENTS
CLAUSE PAGE NO.
PART 1
DEFINITIONS AND INTERPRETATION
1. Definitions and Interpretation....................................... 1
PART 2
THE FACILITY
2. The Facility......................................................... 16
3. Additional Borrowers................................................. 16
4. Utilisation of the Facility.......................................... 17
PART 3
INTEREST
5. Payment and Calculation of Interest.................................. 20
6. Market Disruption and Alternative Interest Rates..................... 20
PART 4
REPAYMENT AND CANCELLATION
7. Repayment............................................................ 22
8. Cancellation......................................................... 22
PART 5
RISK ALLOCATION
9. Taxes................................................................ 25
10. Tax Receipts......................................................... 26
11. Changes in Circumstances............................................. 26
PART 6
REPRESENTATIONS, COVENANTS AND EVENTS OF DEFAULT
12. Representations...................................................... 29
13. Financial Information................................................ 35
14. Financial Condition.................................................. 36
15. Covenants............................................................ 36
16. Events of Default.................................................... 43
<PAGE>
PART 7
GUARANTEE
17. Guarantee and Indemnity.............................................. 48
PART 8
DEFAULT INTEREST AND INDEMNITY
18. Default Interest and Indemnity....................................... 51
PART 9
PAYMENTS
19. Currency of Account and Payment...................................... 53
20. Payments............................................................. 54
21. Set-Off.............................................................. 55
22. Sharing.............................................................. 55
PART 10
FEES, COSTS AND EXPENSES
23. Fees................................................................. 57
24. Costs and Expenses................................................... 57
PART 11
AGENCY PROVISIONS
25. The Agent, the Arranger and the Banks................................ 59
PART 12
ASSIGNMENTS AND TRANSFERS
26. Assignments and Transfers............................................ 63
PART 13
MISCELLANEOUS
27. Calculations and Evidence of Debt.................................... 67
28. Remedies and Waivers, Partial Invalidity............................. 68
29. Notices.............................................................. 68
30. Amendments........................................................... 69
PART 14
LAW AND JURISDICTION
31. Law and Jurisdiction................................................. 71
<PAGE>
THE SCHEDULES
The First Schedule : The Banks
The Second Schedule : Part A : Form of Bank Transfer Certificate
Part B : Form of Borrower Transfer Certificate
The Third Schedule : Condition Precedent Documents
The Fourth Schedule : Notice of Drawdown
The Fifth Schedule : Form of Accession Agreement
The Sixth Schedule : Opinion of the Guarantor's Counsel
The Seventh Schedule : Opinion of the Banks' Netherlands and Irish Counsel
The Eighth Schedule : Opinion of the Banks' English Counsel
The Ninth Schedule : Form of Disposals Certificate
<PAGE>
THIS AGREEMENT is made on the 15th day of August, 1999
BETWEEN
(1) VNU IRELAND and VNU N.V. as original borrowers, (the "ORIGINAL
BORROWERS");
(2) VNU N.V. (the "GUARANTOR");
(3) ABN AMRO BANK N.V. and MERRILL LYNCH INTERNATIONAL (each an
"ARRANGER" and together the "ARRANGERS");
(4) ABN AMRO BANK N.V. (the "AGENT"); and
(5) THE BANKS as defined below.
NOW IT IS HEREBY AGREED as follows:
PART 1
DEFINITIONS AND INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS In this Agreement the following terms have the meanings given to
them in this Clause 1.1.
"ACCESSION AGREEMENT" means an agreement substantially in the form set out in
the Fifth Schedule (FORM OF ACCESSION AGREEMENT) between the Guarantor on behalf
of the Borrowers, the Additional Borrower specified therein and the Agent.
"ACQUISITION" means (a) the tender offer by the Purchaser to purchase all of the
issued and outstanding Shares pursuant to the Merger Document, (b) the purchase
of such Shares by the Purchaser and (c) the Merger.
"ACQUISITION DATE" means the date upon which the Purchaser shall have accepted
for payment pursuant to the Tender Offer, that number of Tendered Shares which
satisfies the Minimum Condition.
"ACQUISITION PROPOSAL" has the meaning given to it in the Merger Document.
"ADDITIONAL BORROWER" means any subsidiary of the Guarantor which becomes a
party to this Agreement pursuant to and in accordance with Clause 3 (ADDITIONAL
BORROWERS).
"ADVANCE" means, save as otherwise provided herein, an advance made or to be
made by the Banks hereunder or, as the case may be, the outstanding amount
thereof from time to time.
"APPLICABLE MARGIN" means:
(a) at any time up to and including 30 December 1999, 0.35 per cent. per annum;
and
<PAGE>
(b) at any time thereafter, 0.60 per cent. per annum.
"AVAILABLE COMMITMENT" means, in relation to a Bank at any time and save as
otherwise provided herein, its Commitment at such time LESS the aggregate of its
portions of the Dollar Amounts of the Advances which are then outstanding
Provided that such amount shall not be less than zero.
"AVAILABLE FACILITY" means, at any time, the aggregate amount of the Available
Commitments at such time.
"BANK" means any financial institution:
(a) named in the First Schedule (THE BANKS); or
(b) which has become a party hereto in accordance with the
provisions of Clause 26.4 (ASSIGNMENTS BY BANKS) or Clause
26.5 (TRANSFERS BY BANKS)
and which has not ceased to be a party hereto in accordance with the terms
hereof.
"BANK TRANSFER CERTIFICATE" means a certificate substantially in the form set
out in Part A of the Second Schedule (FORM OF BANK TRANSFER CERTIFICATE) signed
by a Bank and a Transferee Bank whereby:
(a) such Bank seeks to procure the transfer to such Transferee
Bank of all or a part of such Bank's rights, benefits and
obligations hereunder as contemplated in and subject to Clause
26.3 (ASSIGNMENTS AND TRANSFERS BY BANKS); and
(b) such Transferee Bank undertakes to perform the obligations it
will assume as a result of delivery of such certificate to the
Agent as is contemplated in and subject to Clause 26.5
(TRANSFERS BY BANKS).
"BANK TRANSFER DATE" means, in relation to any Bank Transfer Certificate, the
date for the making of the transfer as specified in the schedule to such Bank
Transfer Certificate.
"BASLE PAPER" means the paper entitled "International Convergence of Capital
Measurement and Capital Standards" dated July 1988 and prepared by the Basle
Committee on Banking Regulations and Supervision, as amended in November 1991.
"BORROWERS" means the Original Borrowers and each Additional Borrower and
"BORROWER" means any of them.
"BORROWER TRANSFER CERTIFICATE" means a certificate substantially in the form
set out in Part B of the Second Schedule (FORM OF BORROWER TRANSFER CERTIFICATE)
signed by a Borrower and a Transferee Borrower whereby:
(a) such Borrower seeks to procure the transfer to such Transferee
Borrower of all or a part of such Borrower's rights, benefits
and obligations in respect of an Advance made to it hereunder
as contemplated in and subject to Clause 26.11 (TRANSFERS OF
ADVANCES BY BORROWERS); and
(b) such Transferee Borrower undertakes to perform the obligations
it will assume as a
<PAGE>
result of delivery of such certificate to the Agent as is
contemplated in and subject to Clause 26.11 (TRANSFERS OF
ADVANCES BY BORROWERS).
"CAPITAL ADEQUACY REQUIREMENT" means a request or requirement of any central
bank or other fiscal, monetary or other authority relating to the maintenance of
capital, including one which makes any change to, or is based on any alteration
in, the official application of the Basle Paper or which increases the amounts
of capital required thereunder, other than a request or requirement made by way
of implementation of the Basle Paper in the manner in which it is being
implemented at the date hereof.
"CLEAN-UP PERIOD" means the period commencing on the date of this Agreement and
ending on the date which is 60 days after the Acquisition Date.
"CODE" means the United States Internal Revenue Code of 1986, as amended.
"COMMITMENT" means, in relation to a Bank at any time and save as otherwise
provided herein, the amount set opposite its name in the First Schedule (THE
BANKS).
"COMPUTER SYSTEM" means any computer hardware or software.
"CONDITIONS TO THE OFFER" means the Conditions to the Offer as set out in
Exhibit A of the Merger Document (in its executed form dated 15 August, 1999).
"CONFIDENTIALITY AGREEMENT" means the confidentiality agreement entered into by
the Guarantor and Target dated 28 July 1999.
"DISCLOSURE LETTER" means the letter dated on or before the date hereof from the
Guarantor to the Arrangers in relation to certain circumstances under certain
bilateral credit and other facilities as more particularly described therein.
"DOLLAR AMOUNT" means:
(a) in relation to any Advance, its Original Dollar Amount as reduced by
the proportion (if any) of such Advance which has been repaid; and
(b) in relation to the Loan, the aggregate of the Dollar Amounts of the
outstanding Advances.
"EFFECTIVE BORROWER TRANSFER DATE" means, in relation to any Borrower Transfer
Certificate, the date for the making of the transfer as specified in the
schedule to such Borrower Transfer Certificate.
"EMPLOYEE PLAN" shall mean an "employee pension benefit plan" as defined in
Section 3(2) of ERISA, other than a Multiemployer Plan, which is maintained for,
or under which contributions are made on behalf of, employees of any US
Subsidiary or any ERISA Affiliate;
"EMU" means Economic and Monetary Union as contemplated in the Treaty on
European Union.
"EMU LEGISLATION" means legislative measures of the European Union for the
introduction of, changeover to or operation of the euro in one or more member
states, being in part legislative measures to implement the third stage of EMU.
"ENVIRONMENT" means:
(a) land including any natural or man-made structures;
<PAGE>
(b) water including ground waters and waters in drains and sewers;
(c) air including air within buildings and other natural or man-made
structures above or below ground.
"ENVIRONMENTAL CLAIM" means any claim, proceedings or investigation by any
person pursuant to any Environmental Laws.
"ENVIRONMENTAL LAWS" means all and any applicable laws, including common law,
statute and subordinate legislation, European Community Regulations and
Directives and judgments and decisions, laws and regulations including those of
the United States of America and any state or locality therein, including
notices, orders and circulars, of any court or authority competent to make such
judgment or decision, compliance with which is mandatory for any member of the
VNU Group in any jurisdiction with regard to:
(a) the pollution or protection of the Environment:
(b) harm to the health of humans, animals or plants including laws relating
to public and workers' health and safety;
(c) emissions, discharges or releases into the Environment of chemicals or
any other pollutants or contaminants or industrial, radioactive,
dangerous, toxic or hazardous substances or wastes (whether in solid,
semi-solid, liquid or gaseous form and including noise and
genetically-modified organisms; or
(d) the manufacture, processing, use, treatment, storage, distribution,
disposal, transport or handling of the substances or wastes described
in (c) above.
"ENVIRONMENTAL PERMITS" means all and any permits, licences, consents,
approvals, certificates, qualifications, specifications, registrations and other
authorisations including any conditions which attach to any of the foregoing and
the filing of all notifications, reports and assessments required under
Environmental Laws for the operation of any business or for the sale, use,
ownership, leasing, or operation of any real property.
"ERISA" means the United States Employee Retirement Income Security Act of 1974,
as amended, and the rules and regulations thereunder.
"ERISA AFFILIATE" shall mean any person that for the purposes of Title I and
Title IV of ERISA and Section 412 of the Code is a member of any member of any
US Subsidiary's controlled group, or under common control with any US
Subsidiary, within the meaning of Section 414 (b) and (c) of the Code and the
regulations promulgated and rulings issued thereunder.
"ERISA EVENT" shall mean (i) (A) any reportable event, as defined in Section
4043(c) of ERISA with respect to an Employee Plan, as to which PBGC has not by
regulation waived the requirement of Section 4043(a) of ERISA that it be
notified within thirty days of the occurrence of such event (provided that a
failure to meet the minimum funding standard of Section 412 of the Code or
Section 302 of ERISA shall be a reportable event for the purposes of this
sub-paragraph (i) regardless of the issuance of any waivers in accordance with
Section 412(d) of the Code); or (B) the requirements of subsection (1) of
Section 4043(b) of ERISA (without regard to subsection (2) of such Section) are
met with respect to a contributing sponsor, as defined in Section 4001(a)(13) of
ERISA, of an Employee Plan and an event described in paragraph (9), (10), (11),
(12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur with
respect to such Employee Plan within the following 30 days; (ii) the filing
under Section 4041(c) of ERISA of a notice of intent to terminate any Employee
Plan or the termination of any Employee Plan under Section 4042 of ERISA; (iii)
the failure to make
<PAGE>
a required contribution to any Employee Plan that would result in the imposition
of a lien under Section 412(n) of the Code or Section 302 (f) of ERISA; and (iv)
an engagement in a non-exempt prohibited transaction within the meaning of
Section 4975 of the Code or Section 406 of ERISA.
"ESCROW ACCOUNTS" means the accounts to be opened by the Agent in the name of
the Guarantor and/or VNU Ireland with the Agent from which amounts may be drawn
only for the purposes referred to in Clause 8.5 (MANDATORY PREPAYMENT FROM
DISPOSALS) bearing interest at the rate from time to time offered by the Agent
to prime customers on deposit accounts for deposits of a similar size.
"ESCROW ACCOUNT AGREEMENT" means the agreement entered or to be entered into by
the Original Obligors in relation to the Escrow Account and payments to be made
therefrom.
"EURIBOR" means, in relation to any amount to be advanced to, or owing by, an
Obligor hereunder in euro on which interest for a given period is to accrue:
(a) the percentage rate per annum equal to the offered quotation which
appears on the page of the Telerate Screen which displays an average
rate of the Banking Federation of the European Union for the euro
(being currently page 248) for such period at or about 11.00 a.m.
(Brussels time) on the Quotation Date for such period, or if such page
or such service is not or shall cease to be available or relevant, such
other page or such other service for the purpose of displaying an
average rate of the Banking Federation of the European Union as the
Agent, after consultation with the Banks and the Guarantor, shall
select; or
(b) if no such quotation for the euro for the relevant period is displayed
and the Agent has not selected an alternative service on which a
quotation is displayed, the arithmetic mean (rounded upwards to four
decimal places) of the rates (as notified to the Agent) at which each
of the Reference Banks was offering to prime banks in the European
interbank market deposits in the euro of an equivalent amount or euros
for such amount and for such period at or about 11.00 a.m. (Brussels
time) on the Quotation Date for such period.
"EVENT OF DEFAULT" means any circumstances described as such in Clause 16
(EVENTS OF DEFAULT).
"FACILITY" means the revolving credit facility granted to the Borrowers in this
Agreement.
"FACILITY OFFICE" means:
(a) in relation to the Agent, the office identified with its signature
below or such other office as it may from time to time select; and
(b) in relation to any Bank, the office identified with its signature below
(or, in the case of a Transferee, at the end of the Bank Transfer
Certificate to which it is a party as Transferee).
"FINAL MATURITY DATE" means the day which is 364 days after the date hereof.
"HSR ACT" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976.
"INDEBTEDNESS" means any obligation (whether incurred as principal or as surety)
for the payment or repayment of money, whether present or future, actual or
contingent;
"INITIAL PERIOD" means the period commencing on the date hereof and ending on
the date upon which the Guarantor has issued share capital (other than under any
supervisory or executive directors' or employees' share incentive scheme of the
VNU Group) in an amount agreed in writing with the Arrangers and the proceeds of
such share issuance have been applied in payment to the Escrow Accounts in the
manner contemplated in Clause 8.6 or in prepayment of the Loan pursuant to
Clause
<PAGE>
8.6 (MANDATORY PREPAYMENT FROM PROCEEDS OF SHARES ISSUES).
"INSTRUCTING GROUP" means:
(a) whilst no Advances are outstanding hereunder, a Bank or group of Banks
whose Commitments amount (or, if each Bank's Commitment has been
reduced to zero, did immediately before such reduction to zero, amount)
in aggregate to more than 66 2/3 per cent. of the Total Commitments;
and
(b) whilst at least one Advance is outstanding hereunder, a Bank or group
of Banks to whom in aggregate more than 66 2/3 per cent. of the Dollar
Amount of the Loan is owed.
"IRI ACTION" means the filing on 29 July 1996 by Information Resources, Inc. of
a complaint in the United States District Court for the Southern District of New
York, naming as defendants The Dun & Bradstreet Corporation, AC Nielsen Company
and a predecessor of IMS Health Incorporated.
"IRS" means the United States Internal Revenue Service.
"LETTER OF TRANSMITTAL" means the form of letter of transmittal filed as an
exhibit to the Schedule 14D-1 to be filed by the Guarantor and the Purchaser
with the SEC pursuant to Section 14(d)(1) of the Exchange Act with respect to
the Tender Offer.
"LIBOR" means, in relation to any amount owed by an Obligor hereunder in dollars
on which interest for a given period is to accrue:
(a) the rate per annum determined by the Agent to be equal to the
arithmetic mean (rounded upwards, if not already such a multiple, to
the nearest whole multiple of one thousandth of one per cent.) of the
offered quotations which appear on page 3740 or if applicable 3750 of
the Telerate Service designated for the display of London Interbank
Offered Rates for dollars (or, if such page or such service shall cease
to be available, such other page or such other service, as the case may
be, for the purpose of displaying London Interbank Offered Rates for
dollars as the Agent, in consultation with the Banks and the Borrowers,
shall select) for such period at or about 11.00 a.m. (London time) on
the Quotation Date for such period; or
(b) if less than two offered quotations for dollars and the relevant period
are displayed on the relevant page of the Telerate Service and the
Agent has not selected in consultation with the Borrowers an
alternative service on which two or more such quotations are displayed,
the rate per annum determined by the Agent to be the arithmetic mean
(rounded upwards, if not already such a multiple, to the nearest whole
multiple of one thousandth of one per cent.) of the rates (as notified
to the Agent (who shall notify the same to the Guarantor)) at which
each of the Reference Banks was offering to prime banks in the London
Interbank Market deposits in dollars of such amount and for such period
at or about 11.00 a.m. (London time) on the Quotation Date for such
period.
"LOAN" means the aggregate principal amount for the time being outstanding
hereunder.
"MARGIN STOCK" has the meaning assigned that term in Regulation U of the Board
of Governors of the Federal Reserve System of the United States (or any
successor) as in effect from time to time.
"MERGER" means the merger to take place between Purchaser and Target after the
date hereof as contemplated by and pursuant to the terms of the Merger Document.
"MERGER DOCUMENT" means the agreement and plan of merger dated 15 August, 1999
and entered into between the Purchaser, Parent and Target.
<PAGE>
"MERGER DOCUMENT GUARANTEE" means the guarantee entered or to be entered into by
VNU N.V. in respect, INTER ALIA, of the obligations of the Parent and the
Purchaser under the Merger Document.
"MINIMUM CONDITION" has the meaning given to it in Exhibit A to the Merger
Document.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" (as such term is defined in
Section 4001(a)(3) of ERISA).
"NET DISPOSAL PROCEEDS" means the cash proceeds (including any amount received
in repayment of intercompany debt) of any disposal of any asset or revenue of
any member of the VNU Group after deducting:
(a) reasonable out of pocket expenses incurred by any member of
the VNU Group due to such disposal;
(b) VAT paid or payable by the seller due to such disposal;
(c) any tax incurred and required to be paid by the seller in
connection with such disposal (as reasonably determined by the
seller, acting in good faith, on the basis of existing rates
and taking account of any available credit, deduction or
allowance).
"NEWSPAPER GROUP" means VNU Dagbladengroep B.V. and its subsidiaries.
"NOTICE OF DRAWDOWN" means a notice substantially in the form set out in the
Fourth Schedule (NOTICE OF DRAWDOWN).
"OBLIGORS" means each of the Borrowers and the Guarantor and "OBLIGOR" means any
of them.
"OFFER TO PURCHASE" means the Offer to Purchase for Cash to be filed as an
exhibit to the Schedule 14D-1 by the Guarantor and the Purchaser with the SEC in
connection with the Tender Offer.
"ORIGINAL FINANCIAL STATEMENTS" means in relation to the Guarantor, its audited
consolidated financial statements for its financial year ended 31 December,
1998.
"ORIGINAL DOLLAR AMOUNT" means, in relation to an Advance, the amount thereof
requested in the Notice of Drawdown relating thereto (as the same may be reduced
pursuant to Clause 4.5 (REDUCTION OF AVAILABLE COMMITMENT) or, if such Advance
is not denominated in dollars, the equivalent of such amount (as the same may be
so reduced) in euros, calculated as at the date of such Notice of Drawdown.
"ORIGINAL OBLIGORS" means the Original Borrowers and the Guarantor.
"PARENT" means VNU USA, Inc.
"PBGC" means the United States Pension Benefit Guaranty Corporation or any
successor thereto under ERISA.
"PERMITTED ACQUISITION" has the meaning given to it in Clause 15.17 (MERGERS AND
ACQUISITIONS).
"PERMITTED ENCUMBRANCE" means:
(a) a lien arising by operation of law in the ordinary course of business
and securing amounts which are not more than 90 days overdue; or
<PAGE>
(b) an encumbrance in existence on the date of the signing of this
Agreement, or thereafter arising under the General Terms and Conditions
("ALGEMENE BANKVOORWAARDEN") or the equivalent in any jurisdiction of
banking or financial institutions (other than under any provision which
allows for such banking or financial institutions to call for security
to be provided in terms set out in or substantially equivalent to those
set out in Article 20 of the General Terms and Conditions applicable to
Dutch banks) or arising out of interest set-off agreements (so called
"RENTECOMPENSATIE-OVEREENKOMSTEN") or agreements having substantially
the same effect; or
(c) an encumbrance on any asset securing Specified Indebtedness incurred
for the purpose of financing the acquisition of such asset (provided
the amount secured thereby is not subsequently increased); or
(d) an encumbrance existing on any asset prior to the acquisition of such
asset (through shares or through assets) and not created in
contemplation of such event (provided the amount secured thereby is not
subsequently increased); or
(e) an encumbrance arising out of the refinancing or extension of the
maturity of Specified Indebtedness (in an amount no greater than the
amount of such Specified Indebtedness prior to the relevant refinancing
or extension) where the relevant encumbrance is of the same type and
secures the same (and no other) asset as that secured by another
encumbrance permitted by the above; or
(f) an encumbrance not otherwise permitted by the above securing Specified
Indebtedness in an aggregate amount not exceeding NLG 225,000,000
(provided, however, that the limit of NLG 225,000,000 shall be
increased by NLG 25,000,000 for each and every NLG 500,000,000 by which
the annual consolidated net revenues of the VNU Group for its financial
year ended 31 December, 1999 exceed NLG 4,500,000,000, as evidenced by
the Guarantor's annual audited consolidated financial statements for
its financial year ended 31 December, 1999).
"POTENTIAL EVENT OF DEFAULT" means any event which could reasonably be expected
to become (with the passage of time or the giving of notice or upon any of the
Obligors becoming aware of the same or any combination thereof) an Event of
Default.
"PROPORTION" means, in relation to a Bank:
(a) whilst no Advances are outstanding hereunder, the proportion borne by
its Commitment to the Total Commitments (or, if the Total Commitments
are then zero, by its Commitment to the Total Commitments immediately
prior to their reduction to zero); or
(b) whilst at least one Advance is outstanding hereunder, the proportion
borne by its share of the Dollar Amount of the Loan to the Dollar
Amount of the Loan.
"PURCHASER" means the party expresed to be party to the Merger Document as
"Purchaser".
"QUOTATION DATE" means, in relation to any period for which an interest rate is
to be determined hereunder, the day on which quotations would ordinarily be
given by prime banks in:
(a) the London Interbank Market (in the case of any interest rate to be
determined by reference to LIBOR); or
(b) the European Interbank Market (in the case of any interest rate to be
determined by reference to EURIBOR)
<PAGE>
for deposits in the currency in relation to which such rate is to be determined
for delivery on the first day of that period Provided that, if, for any such
period, quotations would ordinarily be given on more than one date, the
Quotation Date for that period shall be the last of those dates.
"REFERENCE BANKS" means, for the purposes of determining any interest rate
pursuant to the definition of LIBOR, the principal London offices of ABN AMRO
Bank N.V., Citibank, N.A. and Deutsche Bank AG or, for the purposes of
determining any interest rate pursuant to the definition of EURIBOR, the
principal Brussels offices of ABN AMRO Bank N.V., Citibank, N.A. and Deutsche
Bank AG or, in either case, such other banks as may be appointed as such by the
Agent in consultation with the Guarantor.
"REGULATIONS" mean any regulations of the Board of Governors of the Federal
Reserve System of the United States from time to time in force.
"REPAYMENT DATE" means, in relation to any Advance, the last day of the Term
thereof.
"RESTRICTED INDEBTEDNESS" means:
(a) any Indebtedness for borrowed monies owing to a bank or other financial
institution or any subsidiary of a bank or other financial institution
and any Indebtedness for borrowed monies represented by any bonds,
notes, debentures or other securities;
(b) any amount raised by acceptance under any acceptance credit facility or
any amount raised pursuant to any issue of shares which are expressed
to be redeemable prior to the Final Maturity Date;
(c) the amount of any receivables sold or discounted (other than on a
non-recourse basis);
(d) Indebtedness under any agreement or option to re-acquire an asset
previously owned by a member of the VNU Group if the primary reason for
entering into such agreement or option is to raise finance and which
involves the payment of monies to or for the benefit of any member of
the VNU Group;
(e) any amount raised under any other transaction (including any forward
sale or purchase agreement but excluding any Indebtedness of the type
referred to in paragraph (g) of "SPECIFIED INDEBTEDNESS") having the
commercial effect of a borrowing and which involves the payment of
monies to or for the benefit of any member of the VNU Group
other than any Indebtedness falling within any of paragraphs (a) to (e) above:
(i) owed by one member of the VNU Group to another member of the VNU Group
in which the Guarantor has, directly or indirectly, an equity share at
least equal to the equity share which it holds, directly or indirectly,
in such first-mentioned member of the VNU Group; or
(ii) which is promptly applied in the refinancing of any Indebtedness
falling within (a) to (e) above which is outstanding on the date hereof
or which arises after the date hereof as a result of the utilisation of
any agreement or arrangement in place on the date hereof and which is
repayable not earlier than the Final Maturity Date or which, prior to
the Final Maturity Date, would amortise no quicker than the
Indebtedness which is being refinanced thereby provided that, if the
Indebtedness to be refinanced is owed by an Obligor, the Indebtedness
permitted to be incurred under this paragraph (ii) may be incurred only
by such Obligor.
"ROLLOVER ADVANCE" means an Advance which is used to refinance a maturing
Advance or Advances
<PAGE>
and which is in the same amount and the same currency as such maturing Advance
or Advances and is to be drawn on the day such maturing Advance or Advances is
(or are) to be repaid.
"SEC" means the United States Securities and Exchange Commission.
"SHARES" has the meaning given to it in the Merger Document.
"SPECIFIED INDEBTEDNESS" means:
(a) any Indebtedness for borrowed monies owing to a bank or other financial
institution or any subsidiary of a bank or other financial institution
and any Indebtedness for borrowed monies represented by any bonds,
notes, debentures or other securities;
(b) any amount raised by acceptance under any acceptance credit facility or
any amount raised pursuant to any issue of shares which are expressed
to be redeemable prior to the Final Maturity Date;
(c) the amount of any liability in respect of any lease or hire purchase
contract which would, in accordance with generally accepted accounting
principles in the relevant jurisdiction, be treated as a finance or
capital lease;
(d) the amount of any liability in respect of any advance or deferred
purchase agreement if the primary reason for entering into such
agreement is to raise finance;
(e) the amount of any receivables sold or discounted (other than on a
non-recourse basis);
(f) Indebtedness under any agreement or option to re-acquire an asset
previously owned by a member of the VNU Group if the primary reason for
entering into such agreement or option is to raise finance;
(g) for the purpose of Clause 12.1 (n), Clause 12.1(o), Clause 15.6 and
Clause 16.5, Indebtedness under any interest rate or currency swap,
forward foreign exchange transaction, cap, floor, collar or option
transaction or similar derivative or treasury transaction (and for this
purpose the amount of the "SPECIFIED INDEBTEDNESS" in relation thereto
shall be calculated by reference to the mark-to-market valuation of the
relevant transaction at the relevant time);
(h) any amount raised under any other transaction (including any forward
sale or purchase agreement) having the commercial effect of a
borrowing; and
(i) the amount of any liability in respect of any guarantee or indemnity
for any of the items referred to in paragraphs (a) to (h) above
other than any Indebtedness falling within any of paragraphs (a) to (i) above
owed by one member of the VNU Group to another member of the VNU Group in which
the Guarantor has, directly or indirectly, an equity share at least equal to the
equity share which it holds, directly or indirectly, in such first-mentioned
member of the VNU Group.
"SYNDICATION DATE" means the day notified by the Arrangers to the Guarantor as
the day on which primary syndication of the Facility is completed which shall in
any event be no later than 90 days after the date of announcement of the Tender
Offer.
"TARGET" means Nielsen Media Research, Inc., a corporation organised and
existing under the laws of the State of Delaware.
<PAGE>
"TARGET GROUP" means Target and its subsidiaries for the time being.
"TENDER OFFER" means the tender offer made or to be made by the Purchaser for
the shares of Target pursuant to the terms of the Merger Document.
"TENDER OFFER DOCUMENTS" means the Tender Offer Statement and the Offer to
Purchase (the "SCHEDULE 14D-1") to be filed by the Parent and the Purchaser
together with all amendments, supplements and exhibits thereto, including the
form of Merger Document, the Offer to Purchase and the form of Letter of
Transmittal set forth in the Exhibits thereto.
"TENDERED SHARES" means the Shares which are tendered pursuant to the Tender
Offer and not withdrawn.
"TERM" means, save as otherwise provided herein, in relation to any Advance, the
period for which such Advance is borrowed as specified in the Notice of Drawdown
relating thereto.
"TOTAL COMMITMENTS" means the aggregate for the time being of the Banks'
Commitments.
"TRANSACTION DOCUMENTS" means the Merger Document, the certificate of merger
contemplated by the Merger Document, the Merger Document Guarantee, the Tender
Offer Documents in each case as amended, novated, supplemented or modified from
time to time.
"TRANSACTIONS" shall mean the execution, delivery and performance by each
Obligor, the Parent and the Purchaser of each of this Agreement and the
Transaction Documents to which it is a party, the borrowings hereunder, the
satisfaction of the conditions to such borrowings, the completion of the Tender
Offer and the purchase of the Tendered Shares pursuant thereto, and the Merger,
and the other transactions contemplated by any thereof.
"TRANSFEREE BANK " means a bank or other financial institution to which a Bank
seeks to transfer all or part of such Bank's rights, benefits and obligations
hereunder.
"TRANSFEREE BORROWER" means a Borrower to which any other Borrower seeks to
transfer all or part of such Borrower's rights, benefits and obligations in
relation to any Advance made to it hereunder.
"TREATY ON EUROPEAN UNION" means the Treaty of Rome of 25 March 1957, as amended
by the Single European Act 1986 and the Maastricht Treaty (which was signed at
Maastricht of 7 February 1992 and came into force on 1 November 1993).
"UNITED STATES" and "US" means the United States of America (including the
District of Columbia), its territories, possessions and other areas subject to
the jurisdiction of the United States of America.
"US SUBSIDIARY" means (a) the Target and (b) any subsidiary of the Target or the
Guarantor which is incorporated under the laws of the US or any state thereof.
"VNU GROUP" means, at any time, the Guarantor and each of its subsidiaries at
such time which are or would be (if consolidated accounts of the Guarantor were
to be prepared at such time) consolidated with the Guarantor in the consolidated
accounts of the Guarantor in accordance with accounting principles generally
accepted in The Netherlands and including, on and following the date of the
first Advance, the Target Group.
"YEAR 2000 COMPLIANT" means, in relation to any Computer System, that any
reference to or use of a date before, on or after 31 December 1999 in the
operation of that Computer System will not have a material adverse effect on the
use of that Computer System.
<PAGE>
1.2 INTERPRETATION Any reference in this Agreement to:
the "AGENT" or any "BANK" shall be construed so as to include its and any
subsequent successors, Transferees and assigns in accordance with their
respective interests;
"THIS AGREEMENT" and "HEREUNDER" shall, where the context so permits, include a
reference to the Escrow Account Agreement;
"ASSETS" of any person includes a reference to such person's properties and
revenues of whatever nature;
a "BUSINESS DAY" shall be construed as a reference to a day (other than a
Saturday or Sunday) on which (i) banks generally are open for business in London
and Amsterdam and (ii) if such reference relates to:
(a) a date for the payment or purchase of any sum denominated in, rate
fixing in (or any other matter relating to) dollars, banks generally
are open for business in New York; or
(b) a date for the payment or purchase of any sum denominated in, rate
fixing in (or any other matter relating to) euros, a day on which the
Trans-European Automated-Real Time Gross Settlement Express Transfer
System (TARGET) is operating;
a "DISPOSAL" includes any sale, lease, assignment, transfer or other disposal
and "DISPOSE OF" shall be construed accordingly;
an "ENCUMBRANCE" means a mortgage, charge, pledge, lien or other encumbrance
securing any obligation of any person, or any other type of preferential
arrangement (including title transfer and retention arrangements) having a
similar (economic) effect;
the "EQUIVALENT" on any given date in one currency (the "FIRST CURRENCY") of an
amount denominated in another currency (the "SECOND CURRENCY") is a reference to
the amount of the first currency which could be purchased with the amount of the
second currency at the spot rate of exchange quoted by the Agent at or about
11.00 a.m. (Amsterdam time) on such date for the purchase of the first currency
with the second currency;
a "HOLDING COMPANY" of a company or corporation shall be construed as a
reference to any company or corporation of which the first-mentioned company or
corporation is a subsidiary;
a "LAW" shall be construed as any law (including common or customary law),
statute, constitution, decree, judgment, treaty, regulation, directive, bye-law,
order or any other legislative measure of any government, supranational, local
government, statutory or regulatory body or court;
a "MEMBER STATE" shall be construed as a member state of the European Union;
a "MONTH" is a reference to a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next succeeding calendar
month save that, where any such period would otherwise end on a day which is not
a business day, it shall end on the next succeeding business day, unless that
day falls in the calendar month succeeding that in which it would otherwise have
ended, in which case it shall end on the immediately preceding business day
Provided that, if a period starts on the last business day in a calendar month
or if there is no numerically corresponding day in the month in which that
period ends, that period shall end on the last business day in that later month
(and references to "MONTHS" shall be construed accordingly);
a "PERSON" shall be construed as a reference to any person, firm, company,
corporation, government,
<PAGE>
state or agency of a state or any association or partnership (whether or not
having separate legal personality) of two or more of the foregoing;
the "RELEVANT INTERBANK MARKET" is a reference to:
(a) in relation to the euro, the European interbank market; or
(b) in relation to dollars, the London interbank market;
the "RELEVANT INTERBANK RATE" is a reference to:
(a) in relation to the euro, EURIBOR; or
(b) in relation to dollars, LIBOR;
a "SUBSIDIARY" of a company or corporation shall be construed as a reference to
any company or corporation:
(a) which is controlled, directly or indirectly, by the first-mentioned
company or corporation; or
(b) more than half the issued share capital of which is beneficially owned,
directly or indirectly, by the first-mentioned company or corporation;
or
(c) which is a subsidiary of another subsidiary of the first-mentioned
company or corporation
and, for these purposes, a company or corporation shall be treated as being
controlled by another if that other company or corporation is empowered to
independently manage that company's business and to nominate the majority of
that company's board of directors which have ultimate control over the
management of the company (or equivalent body);
"TAX" shall be construed so as to include any tax, levy, impost, duty or other
charge of a similar nature (including any penalty or interest payable in
connection with any failure to pay or any delay in paying any of the same);
"VAT" shall be construed as a reference to value added tax including any similar
tax which may be imposed in place thereof from time to time;
the "WINDING-UP", "DISSOLUTION" or "ADMINISTRATION" of a company or corporation
shall be construed so as to include any equivalent or analogous proceedings
under the law of the jurisdiction in which such company or corporation is
incorporated or any jurisdiction which may from time to time be applicable
including liquidation, winding-up, dissolution, bankruptcy, administration,
scheme of arrangement with creditors and moratorium on payments; and
a time of day is a reference to London time unless otherwise stated.
1.3 CURRENCY SYMBOLS "EUROS" denotes the single currency of the European Union
as constituted by the Treaty on European Union and as referred to in EMU
legislation, "NLG" denotes the national currency unit of the euro as used in The
Netherlands and "$" and "DOLLARS" denotes lawful currency of the United States.
1.4 STATUTES Any reference in this Agreement to a statute shall be construed as
a reference to such statute as the same may have been, or may from time to time
be, amended or re-enacted.
1.5 HEADINGS Clause, Part and Schedule headings are for ease of reference only.
<PAGE>
PART 2
THE FACILITY
2. THE FACILITY
2.1 GRANT OF THE FACILITY The Banks (in accordance with their respective
Commitments) grant to the Borrowers, upon the terms and subject to the
conditions hereof, a revolving credit facility in an aggregate amount of $
3,000,000,000 or its equivalent from time to time in euros.
2.2 PURPOSE AND APPLICATION The Facility is intended to finance the Acquisition,
the payment of all fees and expenses in connection therewith and the refinancing
of certain Indebtedness of the VNU Group and the Target Group. Accordingly, each
of the Borrowers shall apply all amounts raised by it hereunder in satisfaction
of such purposes. None of the Agent, the Arrangers and the Banks shall be
obliged to concern themselves with such application.
2.3 CONDITION PRECEDENT DOCUMENTS Save as the Banks may otherwise agree, no
Borrower may deliver any Notice of Drawdown hereunder unless the Agent has
confirmed to the Borrowers (which it shall do reasonably promptly on receipt)
that it has received all of the documents listed in the Third Schedule
(CONDITION PRECEDENT DOCUMENTS) and that each is, in form and substance,
satisfactory to the Agent (acting reasonably) PROVIDED THAT in the case of the
Tender Offer Documents (other than the Merger Agreement), the Agent shall be
entitled to satisfy itself only in respect of whether or not it substantially
reflects the terms of the Tender Offer and the Merger as set out in the Merger
Document, subject to such amendments and waivers thereto or thereunder as may be
made or granted as permitted hereunder. The Agent shall, when it notifies the
Borrowers in accordance with the preceding sentence, copy such notice to each of
the Banks.
2.4 BANKS' OBLIGATIONS SEVERAL The obligations of each Bank hereunder are
several and the failure by a Bank to perform its obligations hereunder shall not
affect the obligations of any Obligor towards any other party hereto nor shall
any other party be liable for the failure by such Bank to perform its
obligations hereunder. The amounts outstanding at any time hereunder from any
Obligor to any of the parties hereto shall, subject as otherwise provided
herein, be a separate and independent debt and each such party shall, subject to
the terms of this Agreement, be entitled to protect and enforce its individual
rights arising out of this Agreement independently of any other party and it
shall not be necessary for any party hereto to be joined as an additional party
in any proceedings for this purpose.
3. ADDITIONAL BORROWERS
3.1 DELIVERY OF ACCESSION AGREEMENTS The Guarantor may, subject to this Clause
3.1 and provided that no Event of Default or Potential Event of Default has
occurred which is continuing, designate any of its subsidiaries which is
incorporated in an OECD country or any other country approved by all the Banks
to be an Additional Borrower for the purposes of this Agreement by delivering to
the Agent an Accession Agreement duly executed by the Guarantor and such
subsidiary together with each of the condition precedent documents referred to
therein.
3.2 ACCESSION OF ADDITIONAL BORROWERS PARTY TO THIS AGREEMENT Upon receipt by
the Agent of an Accession Agreement in the form specified in Clause 3.1
(DELIVERY OF ACCESSION AGREEMENTS) and subject to the receipt by the Agent of
each of the condition precedent documents referred to therein in form and
substance satisfactory to the Agent (acting reasonably) and the satisfaction of
any other conditions as may be agreed upon in writing between the Agent and the
Guarantor, the Additional Borrower expressed to be a party to such Accession
Agreement shall become a party to this Agreement as an Additional Borrower and
any references herein to an "Additional Borrower", a "Borrower" or an "Obligor"
shall be construed accordingly. The Guarantor may, at any time that no Advances
are outstanding to a particular Borrower and such Borrower owes no other amounts
<PAGE>
hereunder, designate by notice in writing to the Agent that such Borrower shall
cease to be a Borrower hereunder and any references herein to an "Additional
Borrower", a "Borrower" or an "Obligor" shall be construed accordingly.
3.3 AGENT'S AUTHORITY Each of the Arrangers and the Banks irrevocably authorises
the Agent to execute any Accession Agreement on its behalf. The Agent shall
promptly notify each of the Banks of the execution by it of any Accession
Agreement.
3.4 ORIGINAL BORROWER'S AUTHORITY Each of the Obligors (other then the
Guarantor) irrevocably authorises the Guarantor to designate any of its
subsidiaries as an Additional Borrower pursuant to Clause 3.1 (DELIVERY OF
ACCESSION AGREEMENTS) and irrevocably authorises the Guarantor to execute on its
behalf any Accession Agreement in relation thereto.
4. UTILISATION OF THE FACILITY
4.1 DELIVERY OF NOTICE OF DRAWDOWN A Borrower may from time to time request the
making of an Advance under the Facility by the delivery to the Agent, by no
later than 11.00 a.m. (CET time) on the third business day before the proposed
date for the making of such Advance or, in the case of the first Advance
hereunder (but provided that such Advance is denominated in dollars), no later
than 11.00 a.m. (CET time) on the business day before the proposed date for the
making of such Advance, of a duly completed Notice of Drawdown therefor.
4.2 DRAWDOWN DETAILS Each Notice of Drawdown delivered to the Agent pursuant to
Clause 4.1 (DELIVERY OF NOTICE OF DRAWDOWN) shall be irrevocable and shall
specify:
(a) the proposed date for the making of the Advance requested,
which shall be a business day falling one business day or more
before the Final Maturity Date and which shall be at least one
business day after the date upon which the previous Advance
(if any) was made hereunder Provided that more than one
Advance may be made on the same business day if each such
Advance is to be denominated in a different currency;
(b) the currency of denomination of the Advance requested, which
shall be dollars or euros;
(c) the amount of the Advance requested, which shall be a minimum
amount of $10,000,000 and an integral multiple of $10,000,000
(or, if the Advance is to be denominated in an euros, euros
10,000,000) and the Original Dollar Amount of which shall not
exceed the Available Facility adjusted to take account of:
(i) any reduction, if any, requested by a Borrower
pursuant to Clause 8.1 or 8.4 or otherwise in
accordance with Clause, 8.5, 8.6, 11.3 or 16.19 in
the Commitment of a Bank scheduled to be made prior
to the proposed date for the making of the proposed
Advance; and
(ii) the Dollar Amounts of any Advances which are
scheduled to be made or repaid on or before the date
of drawdown of the proposed Advance;
(d) the proposed Term of the Advance requested, which shall be a
period of one, two, three or six months ending on or before
the Final Maturity Date or, prior to the Syndication Date, a
period of 7, 14 or 21 days or 1 month (or such longer period
as the Agent may permit) PROVIDED THAT if the Syndication Date
has been notified by the Arrangers to the Guarantor the Term
of any Advance which would otherwise end in the 7 days
preceding or would otherwise extend beyond the Syndication
Date, shall be of such duration that it shall end on the
Syndication Date; and
<PAGE>
(e) the account to which the proceeds of the proposed drawdown are
to be paid.
4.3 DRAWDOWN CONDITIONS If a Borrower requests an Advance in accordance with the
preceding provisions of this Clause 4 and, on the proposed date for the making
of such Advance:
(a) neither of the events mentioned in paragraphs (a) and (b) of
Clause 6.1 (MARKET DISRUPTION) shall have occurred (unless the
circumstances which gave rise to such event or events are no
longer continuing);
(b) the Original Dollar Amount of such Advance does not exceed the
Available Facility;
(c) there would not, immediately after the making of such Advance,
be more than ten Advances outstanding;
(d) (save in the case of a Rollover Advance) no Event of Default
or Potential Event of Default has occurred which has not been
remedied and the representations repeated pursuant to Clause
12.2 are true on and as of the proposed date for the making of
such Advance; and
(e) (in the case of any Advance to be drawn down on or before the
date on which the Tendered Shares satisfying the Minimum
Condition are paid for) the board of directors of the Target
shall not have withdrawn its approval or recommendation of the
Tender Offer, the Merger Document or the Merger or shall have
recommended or approved an alternative Acquisition Proposal
made by a person other than the Parent or another member of
the VNU Group
then, save as otherwise provided herein, such Advance will be made in accordance
with the provisions hereof PROVIDED THAT no Advance shall be made hereunder for
the purpose of refinancing any Indebtedness of any member of the VNU Group or
the Target Group until the Purchaser shall have accepted for payment, paid for
and acquired Tendered Shares satisfying the Minimum Condition.
4.4 EACH BANK'S PARTICIPATION Each Bank will participate through its Facility
Office in each Advance made pursuant to this Clause 4 in the proportion borne by
its Available Commitment to the Available Facility immediately prior to the
making of that Advance.
4.5 REDUCTION OF AVAILABLE COMMITMENT If a Bank's Commitment is reduced in
accordance with Clause 8.1 or 8.4 or otherwise in accordance with Clause 11.3 or
16.18 after the Agent has received the Notice of Drawdown for an Advance and
such reduction was not taken into account pursuant to paragraph (c)(i) of Clause
4.2 (DRAWDOWN DETAILS), then both the Original Dollar Amount and the amount of
that Advance shall be reduced accordingly.
<PAGE>
PART 3
INTEREST
5. PAYMENT AND CALCULATION OF INTEREST
5.1 PAYMENT OF INTEREST On the Repayment Date relating to each Advance the
relevant Borrower shall pay accrued interest on that Advance.
5.2 INTEREST ON ADVANCES The rate of interest applicable to an Advance from time
to time during its Term shall be the rate per annum which is the sum of the
Applicable Margin and LIBOR or (in the case of an Advance denominated in euros)
EURIBOR on the Quotation Date therefor PROVIDED THAT, if the Notice of Drawdown
for any Advance is received after 11.00 a.m. (CET time) on the third business
day prior to the proposed date of such Advance, the rate of interest applicable
to each Bank's portion of such an Advance from time to time during its Term
shall be the rate per annum which is the sum of the Applicable Margin at such
time and the rate per annum notified to the Agent by such Bank before the last
day of such Term to be that which expresses as a percentage rate per annum the
cost to such Bank of funding from whatever sources it may reasonably select
(with a view to minimising such cost so far as is reasonably practicable in the
circumstances) its portion of such Advance during such Term.
6. MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES
6.1 MARKET DISRUPTION If, in relation to any Advance:
(a) the relevant interbank rate is to be calculated in accordance
with paragraph (b) of the definition thereof in Clause 1.1
(DEFINITIONS) or the interest rate applicable to an Advance
during the Term relating thereto falls to be determined in
accordance with Clause 6.2 (INABILITY TO FUND) and the Agent
determines that at or about the relevant time specified in
paragraph (b) of the definition of LIBOR or EURIBOR (as the
case may be) or Clause 6.2 (INABILITY TO FUND), as the case
may be, on the Quotation Date for such Term no more than one
of the relevant Reference Banks was offering to prime banks in
the relevant Interbank Market deposits for the proposed
duration of such Term in the currency in which such Advance is
to be denominated; or
(b) before the close of business in London (or, in the case of an
Advance requested to be denominated in euros, Brussels) on the
Quotation Date for such Advance, the Agent has been notified
by a Bank or each of a group of Banks to whom in aggregate
more than fifty per cent. of the aggregate amount of such
Advance is (or, in the case of an undrawn Advance, if such
Advance were then made, would be) owed that the rate at which
such deposits were being so offered does not accurately
reflect the cost to it of obtaining such deposits,
then, notwithstanding the provisions of Clause 5 (PAYMENT AND CALCULATION OF
INTEREST):
(i) if paragraph (a) above applies, the duration of that Term
shall be one month or, if less, such that it shall end on the
Final Maturity Date; and
(ii) if either paragraph (a) or (b) above applies, the rate of
interest applicable to each Bank's portion of such Advance
from time to time during such Term shall be the rate per annum
which is the sum of the Applicable Margin at such time and the
rate per annum notified to the Agent by such Bank before the
last day of such Term to be that which expresses as a
percentage rate per annum the cost to such Bank of funding
from whatever sources it may reasonably select (with a view to
minimising such cost
<PAGE>
so far as is reasonably practicable in the circumstances) its
portion of such Advance during such Term.
6.2 INABILITY TO FUND If, as a result of any event or circumstance giving rise
to an event referred to in Clause 6.1 (a) or (b) (MARKET DISRUPTION), any Bank
is unable to fund its portion of an Advance during the Term relating thereto in
the currency of such Advance, such Bank shall notify the Agent by no later than
11.30 a.m. (London time) on the Quotation Date for such Advance, the Agent shall
promptly notify the relevant Borrower and the Guarantor and the Guarantor may,
by no later than 1.00 p.m. (London time) on the Quotation Date for the relevant
Term, select that such Advance be denominated in another currency (being either
dollars or euros which in either case is freely available for the funding of
such Advance during such Term) during such Term. The rate of interest applicable
to such Advance during such Term shall be the sum of the Applicable Margin at
such time and the rate per annum determined by the Agent to be the arithmetic
mean (rounded upwards, if not already such a multiple, to the nearest whole
multiple of one thousandth of one per cent.) of the rates (as notified to the
Agent (who shall notify the same to the Guarantor)) at which each of the
relevant Reference Banks was offering to prime banks in the relevant Interbank
Market deposits in the currency of such Advance and for such Term at or about
2.00 p.m. (Amsterdam time) on the Quotation Date for such period and the
provisions of Clause 18.5(c) (BORROWER'S INDEMNITY) shall apply. Otherwise, such
Advance shall be made or shall continue to remain outstanding in the currency
determined in accordance with Clause 4 (UTILISATION OF THE FACILITY) and Clause
18.5(d) (BORROWER'S INDEMNITY) shall apply.
6.3 SUBSTITUTE BASIS If (i) either of those events mentioned at paragraphs (a)
and (b) in Clause 6.1 (MARKET DISRUPTION) occurs in relation to an Advance and
the Term relating thereto or (ii) by reason of circumstances affecting the
London Interbank Market during any period of three consecutive business days
none of the relevant Reference Banks offers deposits in dollars to prime banks
in the London Interbank Market, then:
(a) the Agent shall notify the relevant Borrower, the Guarantor
and the Banks of such event;
(b) within five days of such notification the Agent and the
Guarantor shall enter into negotiations with a view to
agreeing a substitute basis (1) for determining the rates of
interest from time to time applicable to the Advances and/or
(2) upon which the Advances may be maintained (whether in
dollars or some other currency) thereafter and any such
substitute basis that is agreed shall take effect in
accordance with its terms and be binding on each party hereto
Provided that the Agent may not agree any such substitute
basis without the prior consent of each Bank.
<PAGE>
PART 4
REPAYMENT AND CANCELLATION
7. REPAYMENT
7.1 REPAYMENT Each Borrower shall repay each Advance made to it in full on the
Repayment Date relating thereto.
7.2 NO OTHER REPAYMENTS No Borrower shall repay all or any part of any Advance
outstanding hereunder except at the times and in the manner expressly provided
herein.
8. CANCELLATION AND PREPAYMENT
8.1 CANCELLATION The Guarantor may, by giving to the Agent not less than ten
business days' prior notice to that effect, cancel the whole or any part (but if
in part in a minimum amount of $50,000,000 and an integral multiple of
$10,000,000) of the Total Commitments. Any such cancellation shall reduce the
Commitment of each Bank rateably.
8.2 VOLUNTARY PREPAYMENT A Borrower may, subject to Clause 18.4 (BROKEN
PERIODS), by giving to the Agent not less than ten business days' prior notice
to that effect, prepay the whole or any part (but if in part in an amount such
that the Dollar Amount of such Advance is reduced by a minimum amount of
$100,000,000 and an integral multiple of $10,000,000) of any Advance together
with interest accrued thereon Provided that no Borrower may reborrow any amount
repaid under this Clause 8.2 and an amount of the Total Commitments equal to any
amount so prepaid shall, upon such prepayment, be cancelled.
8.3 NOTICE OF CANCELLATION AND PREPAYMENT Any notice of cancellation or
prepayment given by a Borrower pursuant to Clause 8.1 (CANCELLATION) or Clause
8.2 (VOLUNTARY PREPAYMENT) shall be irrevocable and shall specify the date upon
which such cancellation or prepayment is to be made and the amount of such
cancellation or prepayment.
8.4 REPAYMENT OF A BANK'S SHARE OF THE LOAN If any Bank claims indemnification
from an Obligor under Clause 9.2 (TAX INDEMNITY) or Clause 11.1 (INCREASED
COSTS) or an Obligor is required to make a payment to a Bank under Clause 9.1
(TAX GROSS-UP) or Clause 11.3 (ILLEGALITY), the Guarantor may within thirty days
thereafter and by not less than ten business days' prior notice to the Agent
(which notice shall be irrevocable), cancel such Bank's Commitment whereupon
such Bank shall cease to be obliged to participate in further Advances and its
Commitment shall be reduced to zero.
8.5 MANDATORY PREPAYMENT FROM DISPOSALS Notwithstanding the provisions of Clause
15.7 (DISPOSALS), the Guarantor shall procure that within 5 business days of
receipt (or, if 31 December 1999 falls prior to the end of such 5 business day
period, on 31 December 1999) by any member of the VNU Group of any Net Disposal
Proceeds as a result of:
(a) the disposal, if any, of the Newspaper Group or of any of the assets or
revenues of the Newspaper Group; or
(b) any other asset (other than (x) any disposal permitted by paragraphs
(a) - (e) of Clause 15.7 and (y) any disposal (if any) of the Newspaper
Group or any of the assets or revenues of the Newspaper Group) to the
extent that the Net Disposal Proceeds, when aggregated with the Net
Disposal Proceeds of all other disposals made after the date hereof,
exceed NLG 500,000,000 (a "DISPOSALS PROCEEDS EXCESS")
<PAGE>
(other than amounts which the recipient of the disposal proceeds is not lawfully
able to pay to the relevant Borrower or the Guarantor for the purposes of this
Clause 8.5 (having made all reasonable efforts to overcome such unlawfulness and
to make such payment) and in respect of which the Guarantor has delivered to the
Agent a copy of written advice to the Guarantor from reputable legal counsel
confirming that such payment to the relevant Borrower or the Guarantor would not
be lawful in any material respect, such copy to be certified as a true copy and
warranted, so far as the Guarantor is aware, as not omitting any other advice
received by any member of the Group as to such lawfulness which would render
such first-mentioned advice untrue or misleading in any material respect) an
amount equal to such Disposals Proceeds Excess (or, if not denominated in
dollars or euros, its equivalent in dollars or euros) is either:
(i) (if no Event of Default or Potential Event of Default (which,
in the case of a Potential Event of Default, has been advised
by the Agent as a Potential Event of Default) has occurred
which is continuing) paid into one of the Escrow Accounts
(such that the amount thereafter standing to the credit of
such Escrow Account is matched so far as possible by an
Advance or Advances made in the currency of such Escrow
Account and to the Obligor in whose name such Escrow Account
shall have been opened) for application by the Agent in
repayment of Advances on the last day of their respective
Terms, or on such earlier date as the relevant Advance becomes
payable under Clause 16.18 or (unless the date of receipt of
such Disposals Proceeds Excess falls after 31 December 1999)
on 31 December 1999, whichever occurs first; or
(ii) applied in immediate prepayment of Advances
provided that upon such receipt an amount of the Total Commitments equal to the
amount of such Disposals Proceeds Excess (or its equivalent in dollars) shall be
immediately cancelled (which cancellation will not, for the avoidance of doubt,
in itself cause an immediate prepayment of the Loan).
8.6 MANDATORY PREPAYMENT FROM PROCEEDS OF SHARE ISSUES The Guarantor shall
procure that the proceeds (after deducting fees and expenses) of the issue after
the date of this Agreement of any share capital of the Guarantor (other than
under supervisory or executive directors' or employees' share incentive schemes
of the VNU Group) are applied forthwith in accordance with Clause 8.5 (i) or
(ii) as if such proceeds were a Disposal Proceeds Excess and an amount of the
Total Commitments equal to such proceeds (or its equivalent in dollars) are
immediately cancelled (which cancellation will not, for the avoidance of doubt,
in itself cause an immediate prepayment of the Loan).
8.7 MANDATORY PREPAYMENT FROM ISSUE OF DEBT The Guarantor shall procure that if
any member of the VNU Group incurs any Restricted Indebtedness other than:
(a) any Restricted Indebtedness permitted to be incurred under, and which
is applied in accordance with, Clause 15.17(a) (RESTRICTED
INDEBTEDNESS); and
(b) any Restricted Indebtedness raised under any arrangement or agreement
for the provision of Restricted Indebtedness in effect at the date
hereof (and, for the avoidance of doubt, the utilisation of an existing
facility shall not be construed as entering into a new agreement or
arrangement)
an amount equal to such Restricted Indebtedness (or its equivalent in dollars or
euros) after deducting any fees and expenses (in the case of any Restricted
Indebtedness represented by any public debt securities) shall be applied in
accordance with Clause 8.5 (i) or (ii) as if such amount were a Disposal
Proceeds Excess and an amount of the Total Commitments equal to such amount (or
its equivalent in dollars) shall be cancelled (which cancellation will not, for
the avoidance of doubt, in itself cause an immediate prepayment of the Loan).
<PAGE>
8.8 TRANSFER OF ADVANCES If:
(i) any Bank claims indemnification from an Obligor under Clause
9.2 (TAX INDEMNITY) or Clause 11.1 (INCREASED COSTS) or an
Obligor is required to make a payment to a Bank under Clause
9.1 (TAX GROSS-UP) and the amount such Obligor would be
required to pay could be avoided or reduced by transferring
the relevant Advance or Advances to another Borrower; or
(ii) Clause 11.3 (ILLEGALITY) applies in relation to a Bank and the
illegality could be avoided by transferring the relevant
Advance or Advances to another Borrower; or
(iii) Clause 16.10 (LOSS OF LEGAL STATUS) applies in relation to a
Borrower; or
(iv) any Borrower (other than the Guarantor) ceases to be a
subsidiary of the Guarantor; or
(v) Clause 16.15 (ILLEGALITY) applies (or would apply with the
passage of time) in relation to a Borrower and the
applicability of such Clause could be avoided by transferring
the relevant Advance or Advances to another Borrower,
then the relevant Borrower may transfer in accordance with Clause 26.11
(TRANSFERS OF ADVANCES BY BORROWERS) all or any Advances drawn by it (or
previously transferred to it in accordance with Clause 26.11 (TRANSFERS OF
ADVANCES BY BORROWERS)) to another Borrower to which none of (i) to (v) above
applies.
<PAGE>
PART 5
RISK ALLOCATION
9. TAXES
9.1 TAX GROSS-UP All payments to be made by any of the Obligors to a Bank or the
Agent hereunder shall be made free and clear of and without deduction for or on
account of tax unless such Obligor is required to make such a payment subject to
the deduction or withholding of tax, in which case the sum payable by such
Obligor in respect of which such deduction or withholding is required to be made
shall be increased to the extent necessary to ensure that, after the making of
the required deduction or withholding, such Bank or the Agent receives and
retains (free from any liability in respect of any such deduction or
withholding) a net sum equal to the sum which it would have received and so
retained had no such deduction or withholding been made or required to be made.
9.2 TAX INDEMNITY Without prejudice to the provisions of Clause 9.1 (TAX
GROSS-UP), if any Bank or the Agent on its behalf is required to make any
payment on account of tax (not being a tax imposed on and calculated by
reference to the net income paid to and received by either of its Facility
Offices by the jurisdiction in which it is incorporated or in which such
Facility Office is located) or otherwise on or in relation to any sum received
or receivable hereunder by such Bank or Agent on its behalf or calculated by
reference to the amount of such Bank's share of the Advances (including any sum
received or receivable under this Clause 9) or any liability in respect of any
such payment is asserted, imposed, levied or assessed against such Bank or Agent
on its behalf, the relevant Obligor shall, upon demand of the Agent, promptly
indemnify such Bank or the Agent against such payment or liability, together
with any interest, penalties, costs and expenses payable or incurred in
connection therewith.
9.3 CLAIMS BY BANKS A Bank intending to make a claim pursuant to Clause 9.2 (TAX
INDEMNITY) shall notify the Agent of the event by reason of which it is entitled
to do so, whereupon the Agent shall notify the Guarantor thereof Provided that
nothing herein shall require such Bank to disclose any confidential information
relating to the organisation of its affairs.
9.4 EXCEPTIONS TO TAX GROSS-UP AND TAX INDEMNITY No additional amounts shall be
payable to a Bank or the Agent under Clauses 9.1 (TAX GROSS-UP) or 9.2 (TAX
INDEMNITY) in respect of any payment from an Obligor if the Bank or Agent to
whom the relevant payment is to be made has failed or is unable to provide
promptly on request information, documents and other evidence concerning its
nationality, residence or identity or to duly make and deliver any form, claim,
declaration or other similar document or satisfy any information, reporting or
other requirement which is required or imposed by a statute, treaty, regulation
or administrative practice of a taxing jurisdiction as a precondition to
exemption from all or part of any taxes unless such failure or inability results
from the failure of the relevant Obligor to comply with its obligations under
the relevant statute, treaty or regulation.
9.5 TAX CREDITS If any Obligor pays any additional amount under Clauses 9.1 (TAX
GROSS-UP) or 9.2 (TAX INDEMNITY) (a "TAX PAYMENT") and any Bank or the Agent
obtains a refund of, reduction of, or remission for tax, or credit against tax
by reason of that Tax Payment (a "TAX CREDIT"), and such Bank or the Agent is
able to identify the Tax Credit as being attributable to the Tax Payment, then
such Bank or the Agent shall promptly after receipt thereof reimburse to the
relevant Obligor such amount as the Bank or the Agent shall reasonably determine
to be the proportion of the Tax Credit as will leave the Bank or the Agent
(after that reimbursement) in no better or worse position than it would have
been if the Tax Payment has not been required. The Bank or the Agent shall have
an absolute discretion as to the extent, order and manner in which it claims any
Tax Credit. None of the Banks and the Agent shall be obliged to disclose any
information regarding its tax affairs or computations to any Obligor and any
certificates by a Bank or the Agent of the amount of any Tax
<PAGE>
Credit obtained by it shall, in the absence of manifest error, be conclusive
evidence of the amount thereof.
10. TAX RECEIPTS
10.1 NOTIFICATION OF REQUIREMENT TO DEDUCT TAX If, at any time, any of the
Obligors is required by law to make any deduction or withholding from any sum
payable by it hereunder (or if thereafter there is any change in the rates at
which or the manner in which such deductions or withholdings are calculated),
such Obligor shall promptly notify the Agent.
10.2 EVIDENCE OF PAYMENT OF TAX If any of the Obligors makes any payment
hereunder in respect of which it is required to make any deduction or
withholding, it shall pay the full amount required to be deducted or withheld to
the relevant taxation or other authority within the time allowed for such
payment under applicable law and shall deliver to the Agent for each Bank,
within thirty days after it has made such payment to the applicable authority,
an original receipt (or a certified copy thereof) issued by such authority
evidencing the payment to such authority of all amounts so required to be
deducted or withheld in respect of that Bank's share of such payment or such
other document evidencing the same as the respective Bank or Agent to whom such
payment is to be made, shall reasonably agree as satisfactory for the purpose of
this Clause 10.2.
10.3 BANKS' REPRESENTATION Each of the Banks hereby represents on the date
hereof (or, if later, the date upon which it becomes a party to this Agreement)
and on each date upon which it changes its Facility Office, that all payments
received or receivable by it hereunder from a Borrower (either directly or via
the Agent) may be made without deduction or withholding on account of tax.
11. CHANGES IN CIRCUMSTANCES
11.1 INCREASED COSTS If, by reason of (i) any change occurring after the date
hereof in law or in its official application and/or (ii) compliance with any
Capital Adequacy Requirement or any other request from or requirement of any
central bank or other fiscal, monetary or other authority which have the
supervision of the relevant banks who must observe or who are accustomed to
observing such requests or requirements and which is made or occurs after the
date hereof:
(a) a Bank or any holding company of such Bank is unable to obtain
the rate of return on its overall capital which it would have
been able to obtain but for such Bank's entering into or
assuming or maintaining a commitment or performing its
obligations (including its obligation to participate in the
making of Advances) under this Agreement;
(b) a Bank or any holding company of such Bank incurs a cost as a
result of such Bank's entering into or maintaining a
commitment or performing its obligations (including its
obligation to participate in the making of Advances) under
this Agreement;
(c) there is any increase in the cost to a Bank or any holding
company of such Bank of funding or maintaining all or any of
the loans comprised in a class of loans specified by the
relevant authority formed by or including such Bank's share of
the Advances; or
(d) a Bank or any holding company of such Bank becomes liable to
make any payment on account of tax or otherwise (not being a
tax imposed on and calculated by reference to the net income
paid to and received by either of such Bank's Facility Offices
by the jurisdiction in which it is incorporated or in which
such Facility Office is located) on or calculated by reference
to the amount of such Bank's share of the
<PAGE>
Advances and/or to any sum received or receivable by it
hereunder;
then each Borrower shall, from time to time within 20 business days of demand of
the Agent, pay to the Agent for the account of that Bank amounts sufficient to
put that Bank or its holding company (as the case may be) in no better or worse
position than before the relevant change, Capital Adequacy Requirement, request
or other requirement resulting in (1) such reduction in the rate of return on
capital, (2) such cost, (3) such increased cost (or such proportion of such
increased cost as is, in the opinion of that Bank, attributable to its
participating in the funding or maintaining of Advances), or (4) such liability
and PROVIDED THAT where such reduction in the rate of return on capital, cost,
increased cost (or proportion thereof) or liability involves the relevant Bank
in making a payment, no Borrower shall be obliged to make any payment in respect
thereof under this Clause 11.1 until the Bank has made the relevant payment.
11.2 INCREASED COSTS CLAIMS A Bank intending to make a claim pursuant to Clause
11.1 (INCREASED COSTS) shall notify the Agent in writing of the event (together
with reasonable details and evidence of the relevant circumstances) by reason of
which it is entitled to do so, whereupon the Agent shall notify each of the
Borrowers in writing thereof Provided that nothing herein shall require such
Bank to disclose any confidential information relating to the organisation of
its affairs. Notwithstanding the provisions of Clause 11.1 (INCREASED COSTS), no
Bank shall be entitled to make any claim under Clause 11.1 (INCREASED COSTS):
(i) in respect of any reduction in such rate of return, cost,
increased cost (or such proportion thereof) or liability as is
referred to in Clause 11.1 to the extent that the same is
compensated for by the operation of Clause 9.2 (TAX
INDEMNITY);
(ii) in respect of any reduction in such rate of return, cost,
increased cost (or such proportion thereof) or liability
resulting from any change in the taxation or rate of taxation
on the overall net income or gross turnover of a Bank imposed
in the jurisdiction in which such Bank's principal office is
for the time being located or on the net income or gross
turnover of a Bank's Facility Office imposed in the
jurisdiction in which that Facility Office is located;
(iii) resulting from a failure by that Bank to comply with any
request from or requirement of any central bank or other
fiscal, monetary or other authority (whether or not having
the force of law); or
(iv) in respect of any reduction in such rate of return, cost,
increased cost (or such proportion thereof) or liability for
which (and to the extent that) that Bank has received
compensation in respect thereof.
11.3 ILLEGALITY If, at any time, it is unlawful for a Bank to make, fund or
allow to remain outstanding all or part of its share of the Advances made or to
be made to any Borrower, then that Bank shall, promptly after becoming aware of
the same, deliver to the Guarantor through the Agent a note to that effect
(together with evidence of the relevant unlawfulness) and (subject to Clause
11.4 (MITIGATION):
(a) such Bank shall not thereafter be obliged to participate in
the making of any Advances to the relevant Borrower or
Borrowers;
(b) if the unlawfulness relates to its Commitment, either such
Borrower or Borrowers shall cease to be a Borrower hereunder
(if there are no Advances owing by such Borrower or Borrowers
and no other amounts owing by such Borrower or Borrowers
hereunder) and, if the relevant Borrower is the Guarantor the
amount of its Commitment shall be immediately reduced to zero;
and
<PAGE>
(c) if the Agent on behalf of such Bank so requires, each
respective Borrower shall on such date as the Agent shall have
specified (being no earlier than the last day of any
applicable grace period which the relevant law permits) repay
such Bank's share of any outstanding Advances made to such
Borrower together with accrued interest thereon and all other
amounts owing to such Bank hereunder, without prejudice to
Clause 8.4 (REPAYMENT OF A BANK'S SHARE OF THE LOAN).
11.4 MITIGATION If circumstances are such that an Obligor is required to make a
payment or a Bank intends to claim indemnification from an Obligor under Clause
9.1 (TAX GROSS-UP), Clause 9.2 (TAX INDEMNITY), Clause 11.1 (INCREASED COSTS) or
Clause 11.3 (ILLEGALITY) applies such Bank shall negotiate in good faith with
the Agent and the Obligors and use all reasonable endeavours to take such steps
as are reasonably open to it to mitigate or remove those circumstances
(including a change in its Facility Office or the transfer of its rights,
benefits and obligations hereunder to another financial institution acceptable
to the Obligors and willing to participate in the Facility) with a view to
mitigating the effect of such circumstances on the Obligors Provided that
nothing in this Clause 11.4 (MITIGATION) shall oblige any Bank to take any steps
which it considers may have an adverse effect on its business, operations or
financial condition nor shall such Bank be required to disclose any information
relating thereto which it considers to be confidential.
<PAGE>
PART 6
REPRESENTATIONS, COVENANTS AND EVENTS OF DEFAULT
12. REPRESENTATIONS
12.1 OBLIGORS' REPRESENTATIONS Each of the Obligors (on the date of this
Agreement) and each Additional Borrower (on the date on which it becomes a party
to this Agreement) respectively makes the representations and warranties set out
below (in relation only to itself, in the case of any Obligor other than VNU
N.V.) and acknowledges that the Agent, the Arrangers and the Banks have entered
into this Agreement in reliance on those representations and warranties.
(A) STATUS AND DUE AUTHORISATION (i) It is a corporation duly organised under
the laws of its jurisdiction of incorporation with power to sue and be sued in
its own name, to carry on the business it carries on from time to time and to
enter into this Agreement and to exercise its rights and perform its obligations
hereunder and (ii) all corporate and other action required to authorise its
execution of this Agreement and its performance of its obligations hereunder has
been duly taken.
(B) CLAIMS PARI PASSU Under the laws of its jurisdiction of incorporation in
force at the date hereof (or, in relation to any Additional Borrower, at the
date on which it becomes a party to this Agreement), the claims of each of the
Agent, the Arrangers and the Banks against it under this Agreement will rank
PARI PASSU with the monetary claims of all its other unsecured and
unsubordinated creditors save those whose claims are preferred solely by any
bankruptcy, insolvency, liquidation or other similar laws of general application
or otherwise by mandatory law.
(C) GOVERNING LAW AND JUDGMENTS In any proceedings taken in its jurisdiction of
incorporation in relation to this Agreement, the choice of English law as the
governing law of this Agreement and any judgment obtained in England will be
recognised and enforced on the basis of and subject to the limitations imposed
by the 1980 Rome Convention on the Law Applicable to Contractual Obligations and
by the Convention on Jurisdiction and the Enforcement of Judgements in Civil and
Commercial matters of 27 September 1968 (as amended) and the rules and
regulations promulgated pursuant thereto.
(D) VALIDITY AND ADMISSIBILITY IN EVIDENCE All acts, conditions and things
required to be done, fulfilled and performed in order (a) to enable it lawfully
to enter into, exercise its rights under and perform and comply with the
obligations expressed to be assumed by it in this Agreement, (b) to ensure that
the obligations expressed to be assumed by it in this Agreement are legal, valid
and binding and (c) to make this Agreement admissible in evidence in its
jurisdiction of incorporation have been done, fulfilled and performed.
(E) NO FILING OR STAMP TAXES Under the laws of its jurisdiction of incorporation
in force at the date hereof (or, in relation to any Additional Borrower, at the
date on which it becomes a party to this Agreement), it is not necessary that
this Agreement be filed, recorded or enrolled with any court or other authority
in such jurisdiction or that any stamp, registration or similar tax be paid on
or in relation to this Agreement.
(F) NO WINDING-UP No Obligor nor any member or members of the VNU Group the
aggregate net revenues of which, consolidated if applicable, represent more than
10% of the consolidated net revenues of the VNU Group has or have taken any
corporate action nor have any other steps been taken or legal proceedings been
started or (to the best of the its knowledge and belief) threatened against such
Obligor or such member or members of the VNU Group for its or their winding-up,
dissolution or administration or for the appointment of a liquidator, receiver,
administrator, administrative receiver or similar officer of it or them or of
any or all of its or their assets or revenues.
(G) NO MATERIAL DEFAULTS To the best of its knowledge and belief, no member of
the VNU Group
<PAGE>
is in breach of or in default under any agreement to which it is a party or
which is binding on it or any of its assets to an extent or in a manner which
could reasonably be expected to have a material adverse effect on the financial
condition of the VNU Group taken as a whole and the ability of VNU N.V. (as
Borrower and/or Guarantor, as appropriate) to perform or comply with its payment
obligations under this Agreement.
(H) BINDING OBLIGATIONS The obligations expressed to be assumed by it in this
Agreement are legal and valid obligations binding on it in accordance with the
terms hereof save as the same may be affected by any bankruptcy, insolvency,
liquidation or other similar laws of general application or laws relating to the
protection of creditors' rights.
(I) NO MATERIAL PROCEEDINGS No litigation, arbitration or proceeding is taking
place, pending, or to its knowledge threatened against any member of the VNU
Group or any of the assets of any member of the VNU Group which could reasonably
be expected to have a material adverse effect on the financial condition of the
VNU Group taken as a whole and the ability of VNU N.V. (as Borrower and/or
Guarantor, as appropriate) to perform its payment obligations under this
Agreement.
(J) ORIGINAL FINANCIAL STATEMENTS In relation to the Guarantor, its Original
Financial Statements were prepared in accordance with accounting principles
generally accepted in The Netherlands and consistently applied and give (in
conjunction with the notes thereto) a true and fair view of its financial
condition or, as the case may be, the financial condition of the VNU Group at
the date as of which they were prepared and its results or, as the case may be,
the results of the VNU Group's operations during the financial year then ended.
(K) NO MATERIAL ADVERSE CHANGE Save as may have been disclosed pursuant to any
public announcement, since publication of the Original Financial Statements,
there has been no material adverse change in the financial condition of the VNU
Group taken as a whole which could reasonably be expected to result in the
consolidated net earnings of the VNU Group being less than zero in respect of
1999.
(L) FULL DISCLOSURE All of the written information supplied by the Guarantor as
at the date of this Agreement to the Agent in connection herewith is true,
complete and accurate in all material respects and as at the date of this
Agreement no material information has not been disclosed, the omission of which
makes any written information provided materially misleading.
(M) NEW INFORMATION All written information from time to time provided to the
Agent or any of the Banks by the Guarantor shall, as at the time it is provided,
be true, complete and accurate in all material respects as at the time it is
provided and, as at the time it is provided, no material information shall not
have been disclosed, the omission of which would make such written information
materially misleading.
(N) ENCUMBRANCES As at the date of this Agreement no encumbrance which would be
prohibited by Clause 15.6 (NEGATIVE PLEDGE) exists over all or any of the
present or future revenues or assets of:
(i) any of the Obligors; or
(ii) any member or members of the VNU Group the aggregate net revenues of
which, consolidated if applicable, when aggregated with the net
revenues, consolidated if applicable, of each other member of the VNU
Group which has created any encumbrance on all or any part of its
respective present or future assets or revenues to secure any Specified
Indebtedness which would be prohibited under Clause 17.6 (NEGATIVE
PLEDGE), represent 10% or more of the consolidated net revenues of the
VNU Group
to secure any Specified Indebtedness.
<PAGE>
(O) NO OBLIGATION TO CREATE SECURITY Its execution of this Agreement and the
Transaction Documents and its exercise of its rights and performance of its
obligations hereunder or thereunder will not (save as required hereunder) result
in the existence of nor oblige:
(i) any of the Obligors; or
(ii) any member or members of the VNU Group the aggregate net revenues of
which, consolidated if applicable, when aggregated with the net
revenues, consolidated if applicable, of each other member of the VNU
Group which has created any encumbrance on all or any part of its
respective present or future assets or revenues to secure any Specified
Indebtedness which would be prohibited under Clause 15.6 (NEGATIVE
PLEDGE) represent 10% or more of the consolidated net revenues of the
VNU Group
to create any encumbrance over all or any of its or their present or future
revenues or assets to secure any Specified Indebtedness which would be
prohibited under Clause 15.6 (NEGATIVE PLEDGE).
(P) EXECUTION OF THIS AGREEMENT Its execution of this Agreement and the
Transaction Documents and its exercise of its rights and performance of its
obligations hereunder do not and will not (save as specified in the Disclosure
Letter and, prior to the date of delivery of the first notice of Drawdown
hereunder, subject to the provisions of the WET OP DE ONDERNEMINGSRADEN
regarding the Facility and the issue by VNU N.V. of the guarantee pursuant to
Clause 17 (GUARANTEE AND INDEMNITY) of this Agreement):
(i) conflict with any agreement, mortgage, bond or other instrument or
treaty to which it is a party or which is binding upon it or any of its
assets in such a manner which might give rise to a claim against the
Arrangers, the Agent, the Banks or any of them;
(ii) conflict with its constitutive documents and rules and regulations
implemented in its jurisdiction of incorporation; or
(iii) conflict with any applicable law, regulation or official or judicial
order of its jurisdiction of incorporation.
(Q) PRIVATE AND COMMERCIAL ACTS Its execution of this Agreement constitutes, and
its exercise of its rights and performance of its obligations hereunder will
constitute, private and commercial acts done and performed for private and
commercial purposes.
(R) OWNERSHIP OF THE BORROWERS Each Borrower (other than the Guarantor) is a
subsidiary, directly or indirectly, of the Guarantor.
(S) EVENTS OF DEFAULT No Event of Default has, to the best of its knowledge and
belief, occurred which has not been remedied or waived.
(T) INFORMATION REGARDING TARGET AND DUE DILIGENCE The Parent has carried out
all due diligence which in the Guarantor's opinion is appropriate in connection
with the Acquisition and, so far as the Guarantor is aware, such due diligence
has not disclosed any material facts which have not been disclosed to the Banks
which could reasonably be expected to adversely affect a Bank's decision to
provide the financing contemplated by this Agreement. Furthermore, the Guarantor
is not on the date hereof aware of any material facts not disclosed which would
make such information misleading in any material respect.
(U) ENVIRONMENTAL CLAIMS As at the date on which this representation and
warranty is made or repeated, no Environmental Claim has been commenced against
any member of the VNU Group and
<PAGE>
so far as the Guarantor is aware no member of the VNU Group has done or omitted
to do anything which is reasonably likely to lead to an Environmental Claim
where, in the case of any of the foregoing, such claim could be reasonably
likely to have a material adverse effect on the financial condition of the VNU
Group taken as a whole and the ability of VNU N.V. (as Borrower and/or
Guarantor, as appropriate) to perform its payment obligations under this
Agreement.
(V) TENDERED SHARES POST-ACQUISITION Upon satisfaction of each of the Conditions
to the Offer (as amended or waived in accordance with Clause 15.12 and 15.13(d))
and at the time of first utilisation of the Facility and the application of the
proceeds of that utilisation, the Purchaser shall (or shall simultaneously with
first utilisation of the Facility and the application of the proceeds of that
utilisation):
(i) have acquired (under the terms and conditions of the Tender Offer
Documents) and beneficially own Tendered Shares satisfying the Minimum
Condition and such Tendered Shares shall at such time be free and clear
of all encumbrances and options and restrictions to purchase imposed by
applicable law or otherwise, shall be available for purchase in
accordance with the terms set forth in the Tender Offer Documents and
the Purchaser shall be obliged to pay the purchase price for such
Tendered Shares;
(ii) have accepted for payment (or shall accept for payment simultaneously
with utilisation of the Facility) the Tendered Shares satisfying the
Minimum Condition; and
(iii) be entitled to vote the Tendered Shares acquired on first utilisation
of the Facility in favour of the Merger, the provisions of Section 203
of the Delaware General Corporation Law ("DGCL") shall not prevent the
immediate consummation of the Merger and in the event that Section 253
of the DGCL is inapplicable and unavailable to effectuate the Merger,
the affirmative vote of the holders of a majority of the outstanding
Shares entitled to vote at the Stockholders Meeting (as defined in
Section 6.1(a) of the Merger Document) with respect to the adoption of
the Merger Document is the only vote of the holders of any class or
series of Target's capital stock or other securities required in
connection with the consummation by Target of the Merger and the other
transactions contemplated by the Merger Document to be consummated by
Target.
(W) TENDER OFFER PERMITS The Transactions and the Transaction Documents comply,
and the purchase of the Tendered Shares pursuant to the Tender Offer will comply
in all material respects, with all provisions of all applicable laws and
regulations of the U.S. and each State thereof (except state laws regulating
corporate takeovers to the extent that such state laws have been judicially
determined to be inapplicable to the Tender Offer or invalid). Each material
permit, license, approval and consent required in relation to the Transaction
Documents has been given or obtained and is in full force and effect, and no
event has occurred which permits (or with the passage of time would permit) the
revocation or termination of any such permit, license, approval or consent or
the imposition of any restriction thereon.
(X) TENDER OFFER CONDITIONS There has been no amendment, waiver, variation or
revision of:
(a) the Conditions to the Offer or the terms of the Merger Document which
would cause a breach of Clause 15.12 (TENDER OFFER RESTRICTIONS);
(b) the terms of the Tender Offer as set out in the Transaction Documents
relating to the price offered per Share above that which may from time
to time be agreed between the Guarantor and the Arrangers, which would
alter the terms of the Offer such that it would apply to shares or
securities other than the Shares (as defined in the Merger Document in
its executed form dated 15 August, 1999) or would not be a cash offer
for all such Shares or which requires the Target to cancel, terminate
or delete any stock options or stock option plans or other plans
<PAGE>
providing for the issuance, transfer or grant of any capital stock of
the Target or which requires the Target to ensure that any holder of a
stock option or a participant in a Stock Option Plan shall have no
right to acquire any capital stock of the Target, the Parent or the
surviving corporation following the Merger (all as contemplated in
Section 3.2 of the Merger Document in its executed form date 15 August,
1999).
(Y) NO VIOLATION OF THE REGULATIONS The borrowings made hereunder will not
violate, or give rise to a violation of, any of the Regulations. No member of
the VNU Group or any agent acting in their behalf has taken or will take any
action which would cause this Agreement or any of the documents or instruments
delivered pursuant hereto, any borrowing hereunder or use of proceeds thereof to
violate any Regulation or to violate the Exchange Act or any applicable US
federal or state securities laws.
(Z) NOT SUBJECT TO REGULATION It is not subject to regulation under the United
States Public Utility Holding Company Act of 1935, the United States Federal
Power Act or the United States Investment Company Act of 1940 or to any United
States federal or state statute or regulation limiting its ability to incur
indebtedness; none of the Obligors, the Parent and the Purchaser is an
"investment company," or an "affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company," as such terms are defined in the U.S.
Investment Company Act of 1940 (15 U.S.C. ss.ss. 80a-1. et seq.); and none of
the transactions contemplated by this Agreement or the Transaction Documents
will violate such Act.
(AA) US SUBSIDIARIES
(a) The aggregate liabilities of each US Subsidiary and the ERISA
Affiliates to all Multiemployer Plans in the event of a complete
withdrawal therefrom, as of the close of the most recent fiscal year of
each such Multiemployer Plan ended prior to the date hereof, are not of
a level which would have a material adverse effect upon the financial
condition of the VNU Group taken as a whole;
(b) there are no Employee Plans which are not in compliance in all material
respects in form and operation with ERISA and the Code;
(c) there is no Employee Plan which is intended to be qualified under
Section 401(a) of the Code which has not received from the IRS a
favourable determination letter that is to be so qualified as to form,
and, to the knowledge of the Guarantor, nothing has occurred since the
date of such determination that would adversely affect such
determination;
(d) the fair market value of the assets of each Employee Plan subject to
Title IV of ERISA is not less than the present value of the "benefit
liabilities" (within the meaning of Section 4001(a)(16) of ERISA) under
such Employee Plan as of the date of the most recent actuarial
valuation of such plan determined using the actuarial assumptions and
method used by the actuary to such Employee Plan in its most recent
valuation of such Employee Plan;
(e) there are no actions, suits, or claims pending against or with respect
to any Employee Plan (other than routine claims for benefits) which
would cause any US Subsidiary to incur a material liability or to the
knowledge of such US Subsidiary, which could reasonably be expected to
be asserted against or with respect to any Employee Plan which would
cause such US Subsidiary to incur a material liability;
(f) no US Subsidiary has failed to make all material contributions to or
under each such Employee Plan, or any contract or agreement requiring
contribution to an Employee Plan;
<PAGE>
(g) none of any US Subsidiary or any ERISA Affiliate has ceased operations
at a facility so as to become subject to the provisions of Section
4062(e) of ERISA, withdrawn as a substantial employer so as to become
subject to the provisions of Section 4063 of ERISA or ceased making
contributions to any Plan subject to Section 4064(a) of ERISA to which
it made contributions each in a manner which would cause such US
Subsidiary to incur a material liability; and
(h) none of such US Subsidiary nor any of the ERISA Affiliates has incurred
or reasonably expects to incur any material liability to PBGC other
than for premiums under Section 4007 of ERISA
to an extent which, in any case, could reasonably be expected to have a material
adverse effect on the financial condition of the VNU Group taken as a whole and
the ability of VNU N.V. (as Borrower and/or Guarantor, as appropriate) to
perform or comply with its payment obligations under this Agreement.
(BB) YEAR 2000 The Guarantor believes (having made due enquiry) that the Year
2000 problem (that is, the risk that any Computer System used by any member of
the VNU Group may be unable to recognise and perform properly date-sensitive
functions involving a date before, on or after 31 December 1999) is not
reasonably likely to have a material adverse effect on the financial condition
of the VNU Group taken as a whole and the ability of VNU N.V. (as Borrower
and/or Guarantor, as appropriate) to perform its payment obligations under this
Agreement.
(AC) APPROVALS The Guarantor, the Parent and the Purchaser is, in relation to
the Tender Offer, in compliance in all material respects with all requirements
of the Regulations and applicable US federal and state securities laws except
where failure to comply could not reasonably be expected to lead to a
misrepresentation under Clause 12.1(v) or to lead to a material adverse effect
on the business or financial condition of the VNU Group taken as a whole and on
the ability of VNU N.V. to perform its payment obligations hereunder (either as
Borrower or Guarantor) in a timely manner (but without prejudice to Clause 15.12
(b)).
(AD) NO HOSTILE OFFER The Board of Directors of Target has not withdrawn its
approval or recommendation of the Tender Offer, the Merger Document or the
Merger and has not recommended an alternative Acquisition Proposal made by a
person other than the Parent or another member of the VNU Group.
12.2 REPETITION On the date of each Notice of Drawdown and on the date of the
making of each Advance, each of the representations and warranties contained in
Clause 12.1 (OBLIGOR'S REPRESENTATIONS) (save for the representations and
warranties contained in Clause 12.1 (a)(ii), (b), (e), (f), (g), (h), (k), (l),
(p), (q), (t) and, following the date upon which the Purchaser pays for the
Tendered Shares satisfying the Minimum Condition, (v), (x) and (ad)) shall be
repeated by each Obligor by reference to the facts and circumstances then
subsisting provided that any reference to "Original Financial Statements" shall
be deemed to be a reference to the most recent set of annual audited
consolidated financial statements most recently delivered to the Agent pursuant
to Clause 13.1 (ANNUAL STATEMENTS) Provided further that no representations of a
Borrower shall be repeated unless there are any Advances or any other sums owing
by such Borrower hereunder or that Additional Borrower has delivered the
relevant Notice of Drawdown and/or is to be the Borrower of the relevant Advance
mentioned in this Clause 12.2.
13. FINANCIAL INFORMATION
13.1 ANNUAL STATEMENTS Each Original Borrower shall as soon as the same become
available, but in any event within 120 days after the end of each of its
financial years, deliver to the Agent in
<PAGE>
sufficient copies for the Banks, its financial statements (consolidated in the
case of VNU N.V.) for such financial year.
13.2 SEMI-ANNUAL STATEMENTS The Guarantor shall as soon as the same become
available, but in any event within 90 days after the end of the first half of
each of its financial years, deliver to the Agent in sufficient copies for the
Banks, the consolidated financial statements of the VNU Group for such period.
13.3 OTHER FINANCIAL INFORMATION The Guarantor shall from time to time on the
request of the Agent, furnish the Agent with such information about the business
and financial condition of the VNU Group as the Agent may reasonably require,
provided that such disclosure does not conflict with the requirements of the
Amsterdam Stock Exchange and shall provide the Agent in sufficient copies for
the Banks, with a copy of the Tender Offer Document as soon as the same is filed
with the SEC.
13.4 REQUIREMENTS AS TO FINANCIAL STATEMENTS The Guarantor shall ensure that
each set of financial statements delivered by it pursuant to Clause 13.1 (ANNUAL
STATEMENTS) has been audited by an internationally recognised firm of
independent auditors licensed to practise in The Netherlands and that such
financial statements are accompanied by a statement from such auditors that the
financial statements give a true and fair view of the financial position of the
VNU Group as at the end of the period to which such financial statements relate
and of the relevant results of its operations during such period.
14. FINANCIAL CONDITION
14.1 INTEREST COVER The Guarantor shall ensure that for each financial year of
the Guarantor the ratio of Adjusted EBITDA to Net Interest Expense (as evidenced
by the Guarantor's most recent audited annual consolidated statements from time
to time) is equal to or greater than 3:1.
14.2 DEFINITIONS OF FINANCIAL TERMS In this Agreement:
"EBITDA" means, in respect of any financial year, the VNU Group's operating
income for that financial year PLUS depreciation and amortisation charged to the
consolidated profit and loss account of the VNU Group during that financial
year.
"ADJUSTED EBITDA" means, in respect of any financial year, EBITDA for such
financial year PLUS equity in operating income of non-consolidated subsidiaries
for such financial year (but only to the extent such equity does not exceed 10%
of EBITDA).
"NET INTEREST EXPENSE" means, in respect of any financial year, interest expense
less interest income of the VNU Group for that financial year (in which is
included the PRO RATA share of Interest Expenses MINUS Interest Income of
non-consolidated subsidiaries for which equity accounting is applied).
14.3 ACCOUNTING TERMS All accounting expressions which are not otherwise defined
herein shall be construed in accordance with generally accepted accounting
principles in The Netherlands. References in this Clause 14 to capitalised and
other accounting terms which are not defined herein shall be construed in
accordance with corresponding terms used in, and applying the same accounting
policies applied in compiling the annual audited consolidated financial
statements of the Guarantor for its financial year ended 31 December 1998.
15. COVENANTS
<PAGE>
15.1 MAINTENANCE OF LEGAL VALIDITY Each of the Obligors shall obtain, comply
with the terms of and do all that is necessary to maintain in full force and
effect all authorisations, approvals, licences and consents and do all other
things required in or by the laws and regulations of its jurisdiction of
incorporation to enable it lawfully to enter into and perform its obligations
under this Agreement and the Transaction Documents to ensure the legality,
validity, enforceability or admissibility in evidence in its jurisdiction of
incorporation of this Agreement and the Transaction Documents.
15.2 INSURANCE The Guarantor shall procure that each member of the VNU Group
maintains insurances on and in relation to its business and assets with
reputable underwriters or insurance companies against such risks and to such
extent as is usual for companies carrying on a business such as that carried on
by such member of the VNU Group.
15.3 UNTRUE REPRESENTATIONS After the delivery of any Notice of Drawdown and
before the making of the Advance requested therein, the Guarantor shall notify
the Agent of the occurrence of any event which results in or may reasonably be
expected to result in any of the representations which are to be repeated
pursuant to Clause 12.2 (REPETITION) being untrue at or before the time of the
making of such Advance.
15.4 NOTIFICATION OF EVENTS OF DEFAULT The Guarantor shall promptly inform the
Agent of the occurrence of any Event of Default of which any Obligor is aware
and which is continuing or Potential Event of Default of which any Obligor is
aware and which is continuing and, upon receipt of a written request to that
effect from the Agent, confirm to the Agent that, save as previously notified to
the Agent or as notified in such confirmation, no Event of Default or Potential
Event of Default has to the best of the knowledge and belief of any Obligor
occurred.
15.5 CLAIMS PARI PASSU Each of the Obligors shall ensure that at all times the
claims of the Agent, the Arranger and the Banks under this Agreement rank PARI
PASSU with the monetary claims of all its other unsecured and unsubordinated
creditors save those whose claims are preferred solely by any bankruptcy,
insolvency, liquidation or other similar laws of general application or other
mandatory law applicable to enforcement of creditors' rights.
15.6 NEGATIVE PLEDGE Each Obligor shall ensure that it will not, and the
Guarantor will procure that no member or members of the VNU Group will, create,
assume or permit to subsist any encumbrance on all or any part of its respective
present or future assets or revenues to secure any Specified Indebtedness
without at the same time or prior thereto securing all amounts which are then
due under this Agreement equally and rateably therewith unless such encumbrance
is either:
(a) a Permitted Encumbrance; or
(b) created by any member of the VNU Group the aggregate net revenues of
which, consolidated if applicable, when aggregated with the net
revenues, consolidated if applicable, of each other member of the VNU
Group which has created any encumbrance on all or any part of its
respective present or future assets or revenues to secure any Specified
Indebtedness which is not otherwise permitted under this Clause 15.6
(NEGATIVE PLEDGE), represent not more than 10% of the consolidated net
revenues of the VNU Group,
PROVIDED THAT the foregoing shall not prohibit any encumbrances upon any
Margin Stock.
15.7 DISPOSALS Each Obligor shall ensure that it will not, and the Guarantor
will procure that no other member or members of the VNU Group will, dispose of,
by one or more transactions or series of transactions (whether related or not),
the whole or any part of its respective consolidated undertaking or consolidated
assets Provided that this Clause 15.7 (DISPOSALS) shall not apply to:
(a) any disposal made with the prior written consent of an Instructing
Group; and/or
<PAGE>
(b) any disposal by a member of the VNU Group in the ordinary course of its
day to day trading and any disposal of Margin Stock; and/or
(c) the payment of lawful dividends; and/or
(d) any transfer or merger contemplated by Clause 16.11 which is permitted
by Clause 16.11; and/or
(e) any transfer or disposal by one member of the VNU Group to the
Guarantor or to another member of the VNU Group in which the Guarantor
has, directly or indirectly, an equity share at least equal to the
equity share which it holds, directly or indirectly, in such
first-mentioned member of the VNU Group; and/or
(f) any disposal of an undertaking or asset not otherwise permitted under
paragraphs (a) - (e) above if such disposal is made on arm's length
terms and for fair market value provided that any Disposal Proceeds
Excess relating thereto is applied in accordance with and to the extent
required by Clause 8.5 (MANDATORY PREPAYMENT FROM DISPOSALS).
15.8 NOTIFICATION OF DISPOSALS The Guarantor shall:
(a) at the same time as it delivers to the Agent its audited annual
financial statements pursuant to Clause 13.1 (FINANCIAL INFORMATION),
deliver to the Agent a certificate (in substantially the form of the
Tenth Schedule (FORM OF DISPOSALS CERTIFICATE)) providing a
specification of any undertaking or asset disposed of by any member of
the VNU Group during the financial year to which those financial
statements relate (otherwise than by way of a disposal permitted under
paragraphs (a) to (e) of Clause 15.7 (DISPOSALS)), the net revenues
derived therefrom, if any, and the Net Disposal Proceeds received for
such disposal; and
(b) at any time when an undertaking or asset is disposed of by any member
of the VNU Group (otherwise than by way of a disposal permitted under
paragraphs (a) to (e) of Clause 15.7 (DISPOSALS) deliver to the Agent a
certificate (in substantially the form of the Tenth Schedule (FORM OF
DISPOSALS CERTIFICATE)) providing a specification of such undertaking
or asset, the net revenues derived therefrom, if any, and the Net
Disposal Proceeds received for such disposal.
15.9 ENVIRONMENTAL COMPLIANCE The Guarantor shall ensure that each member of the
VNU Group shall comply in all material respects with all Environmental Laws and
obtain and maintain any Environmental Permits and take all reasonable steps in
anticipation of known or expected future changes to or obligations under the
same, breach of which (or failure to obtain, maintain or take which) could be
reasonably likely to have a material adverse effect on the financial condition
of the VNU Group taken as a whole and the ability of VNU N.V. (as Borrower
and/or Guarantor, as appropriate) to perform its payment obligations under this
Agreement.
15.10 ENVIRONMENTAL CLAIMS The Guarantor shall inform the Agent in writing as
soon as reasonably practicable upon becoming aware of the same if any
Environmental Claim has been commenced or (to the best of the Guarantor's
knowledge and belief) is threatened against any member of the VNU Group in any
case where such claim could be reasonably likely to have a material adverse
effect on the financial condition of the VNU Group taken as a whole and the
ability of VNU N.V. (as Borrower and/or Guarantor, as appropriate) to perform
its payment obligations under this Agreement.
15.11 MAINTAINING APPROVAL Without prejudice to Clause 15.1 (MAINTENANCE OF
LEGAL VALIDITY), the Guarantor will use its reasonable endeavours to obtain and
maintain and cause Parent and Purchaser
<PAGE>
to obtain and maintain all material authorisations, approvals, consents,
licenses and exemptions and it will make all necessary filings and registrations
as may be required under any applicable law or regulation (which expression
shall include, without limitation, the Regulations and applicable federal and
state securities laws) to enable it to perform its obligations under this
Agreement and to enable it, Parent and Purchaser to perform their respective
obligations under each of the Transaction Documents, or required for the
validity or enforceability of this Agreement or any of the Transaction Documents
and will comply with the terms of the same.
15.12 TENDER OFFER RESTRICTIONS The Guarantor shall ensure that, and shall
procure that the Parent and the Purchaser shall ensure that:
(a) none of the conditions to the Tender Offer as set out in
Section 8.1 (a) or (b) of the Merger Document (in its executed
form dated 15 August, 1999) which allows the Parent or the
Purchaser to terminate the Merger Document shall be amended or
waived; and
(b) none of the Conditions to the Offer set out in the following
paragraphs of Exhibit A of the Merger Document (in its
executed form dated 15 August, 1999) ("EXHIBIT A") shall be
amended or waived:
(i) (i), (ii), (iii) (subject to the proviso below), (v)
and (vi)(b) (to the extent, in the case of (vi)(b),
that it relates to any of the representations set out
in Section 4.1(d), (s) or (t) of the Merger Document
PROVIDED THAT for this purpose the figure of
"150,000" in Section 4.1(d) shall be demed to be
"1,000,000");
(ii) (subject to paragraph (2) below): (vi)(a)(ii);
(iii) (subject to paragraphs (1) and (2) below):
(vi)(a)(i), (vi)(a)(iii), (vi)(a)(iv) or (vi)(e)
(including, for the avoidance of doubt but without
limitation, any waiver or amendment of the Condition
to the Offer set out in paragraph (vi)(e) to the
extent that it relates to the occurrence of any
event, change, occurrence or development of a state
of circumstances or facts relating to the IRI Action
but subject, in the case of the IRI Action and any
other matter or circumstance covered by condition
(vi)(e), to paragraphs (1) and (2) below)
unless, in relation to any provision of:
(1) the Conditions to the Offer set out in
paragraphs (vi)(a)(i), (vi)(a)(iii),
(vi)(a)(iv) or (vi)(e) of Exhibit A, the
Guarantor shall, prior to such amendment or
waiver, have complied with its obligations
under Clause 15.13(d) and such amendment or
waiver could not reasonably be expected to
have or lead to a material adverse effect on
the business or financial condition of the
VNU Group taken as a whole or on the ability
of VNU N.V. to perform its payment
obligations hereunder (either as Borrower or
as Guarantor) in a timely manner; and
(2) the Conditions to the Offer set out in
paragraphs (vi)(a)(i), (vi)(a)(ii),
(vi)(a)(iii), (vi)(a)(iv), or (vi)(e) of
Exhibit A, such amendment or waiver could
not reasonably be expected to lead to a
misrepresentation under Clause 12.1 (v)
<PAGE>
PROVIDED THAT if (in the case of the Condition to the Offer
set out in paragraph (iii) of Exhibit A) there shall have been
delivered to the Target and IMS Health Incorporated an opinion
to the effect that the transactions contemplated by the Merger
Document (in such form) will not have the results set out in
sub-paragraph (A) or (B) of such paragraph (iii) and such
opinion is subject to any assumptions, reservations or
qualifications then the Purchaser shall not, if it accepts for
payment or pays for any Tendered Shares, be treated for the
purposes of this Clause 15.12 as having waived or amended the
Condition to the Offer set out in paragraph (iii) of Exhibit A
and shall not be prevented from accepting for payment or
paying for any Tendered Share by reason only of the fact that
such opinion contains any such qualification, reservation or
assumption PROVIDED THAT the Guarantor shall have complied
with its obligations in relation to such opinion set out in
paragraph (h) of Clause 15.13 (TENDER OFFER REQUIREMENTS);
(c) there shall be no amendment, variation or revision of the
terms of the Tender Offer as set out in the Transaction
Documents (i) relating to the price offered per Share to a
level above that which may from time to time be agreed with
the Arrangers, (ii) which would alter the terms of the Tender
Offer such that it would apply to shares or securities other
than the Shares (as defined in the Merger Document in its
executed form dated 15 August, 1999) or would not be a cash
offer for all such Shares or (iii) which requires the Target
to cancel, terminate or delete any stock options or stock
option plans or other plans providing for the issuance,
transfer or grant of any capital stock of the Target or which
requires the Target to ensure that any holder of a stock
option or a participant in a Stock Option Plan shall have no
right to acquire any capital stock of the Target, the Parent
or the surviving corporation following the Merger (all as
contemplated in Section 3.2 of the Merger Document in its
executed form dated 15 August, 1999); and
(d) neither the Purchaser nor the Parent shall breach any of their
obligations under the Merger Document if to do so would have
the result that any of the circumstances referred to in the
Conditions to the Offer set out in paragraph (vi)(a) of
Exhibit A would occur.
15.13 TENDER OFFER REQUIREMENTS The Guarantor shall and it shall procure that
the Parent and the Purchaser shall:
(a) (without prejudice to Clause 15.1 (MAINTENANCE OF LEGAL VALIDITY) and
Clause 15.11 (MAINTAINING APPROVAL)) in relation to the Tender Offer,
comply in all material respects with the Regulations and applicable US
federal and state securities laws and all other material laws and
regulations except where failure to do so could not reasonably be
expected to have a material adverse effect on the financial condition
of the VNU Group taken as a whole and the ability of VNU N.V. (as
Borrower and/or Guarantor, as appropriate) to perform its payment
obligations under this Agreement in a timely manner;
(b) make available to the Agent as soon as practicable all of the Tender
Offer Documents and all publicity material, press releases and other
documents submitted or filed with the SEC by or on behalf of Purchaser
and, at the request of the Agent, provide the Agent with any material
information in the possession of Purchaser relating to the Tender Offer
as the Agent may reasonably request;
(c) use reasonable endeavours to ensure that no publicity material, press
releases or other documents in relation to the Tender Offer are
published or released by it or on behalf of Purchaser or its or their
advisers which refer to any of the Agent, the Arrangers or the Banks,
this Agreement or the Facility unless such reference and the context in
which it appears have
<PAGE>
previously been approved by the Agent and the Banks (such approval not
to be unreasonably withheld or delayed) and the Agent and the Banks
shall not withhold such approval if such publication or release is
required by law;
(d) promptly consult with the Agent before taking any action to waive or
amend any provision of the Tender Offer Documents referred to in Clause
15.12 (TENDER OFFER RESTRICTIONS), discuss with the Agent, and provide
reasonable information supporting, the Guarantor's reasons for wishing
to give or make the relevant waiver or amendment (which information
shall include reasonable evidence that the relevant amendment or waiver
could not reasonably be expected to lead to a breach of Clause 12.1 (v)
or a material adverse effect as referred to in Clause 15.12 (1)), allow
the Agent a reasonable period of time in the relevant circumstances to
discuss such information with, and make representations in relation
thereto to, the Guarantor and as far as possible, promptly consult with
the Agent before taking any action to waive or amend any other material
provision in any of the Tender Offer Documents;
(e) after the Tender Offer is consummated, use all reasonable endeavours to
acquire all of the Shares as soon as reasonably practicable in
accordance with the terms of the Tender Offer, and applicable laws and
regulations (including, without limitation, the Regulations and
applicable federal and state securities laws);
(f) as soon as reasonably practicable after purchase by the Purchaser of
Tendered Shares satisfying the Minimum Condition, consummate the Merger
and file the certificate of merger (as contemplated in the Merger
Document) upon such consummation;
(g) notify the Agent of the number of shares tendered in connection with
the Tender Offer and notify the Agent (if requested by the Agent) of
the status of any application to the Antitrust Division of the
Department of Justice of the United States of America (the "ANTITRUST
DIVISION") and/or the Federal Trade Commission and/or the applicable
State Attorneys General in connection with the Transaction until such
time as the Tender Offer either is withdrawn, lapses or is consummated;
and
(h) in relation to any opinion delivered for the purposes of any Condition
to the Offer set out in paragraph (iv) or (v) of Exhibit A of the
Merger Document (in its executed form dated 15 August, 1999), promptly
deliver a copy of such opinion to the Agent and, if any such opinion
contains any assumptions, reservations or qualifications, the Guarantor
shall, before the Purchaser accepts for payment or pays for any
Tendered Share and if requested by the Agent, promptly consult with the
Agent in relation to such opinion, discuss such opinion with the Agent,
provide reasonable information supporting the Guarantor's view that
such opinion satisfies the relevant Condition to the Offer set out in
such paragraph (iv) or (v) of such Exhibit A (but only to the extent
that any such information is available to the Guarantor) and allow the
Agent a reasonable period of time in the relevant circumstances to
discuss such opinion with, and make representations in relation to such
opinion to, the Guarantor.
15.14 YEAR 2000 COMPLIANCE The Guarantor shall endeavour in accordance with
prudent industry practice to procure that all Computer Systems material to the
operations of the VNU Group and which are used by any member of the VNU Group
are at all relevant times Year 2000 Compliant.
15.15 NO BREACH OF MARGIN REGULATIONS Nothing contained in this Agreement shall
restrict the ability of the Guarantor or any of its subsidiaries from selling,
pledging or otherwise disposing of any assets which, at the time in question,
constitute Margin Stock, or cause or enable any one or more Banks to cause any
or all of the Advances or other payment obligations owed by the Guarantor
hereunder to become due and payable or enable any one or more of the Banks to
take any of the actions specified in Clause 16.20 (ACCELERATION AND
CANCELLATION) solely as a result of any such sale, pledge or disposition or
otherwise impose restrictions which violate Regulations T, U or X of the
<PAGE>
Board of Governors of the Federal Reserve System as in effect from time to time.
15.16 MERGERS AND ACQUISITIONS The Guarantor shall ensure that no member of the
VNU Group shall after the date of this Agreement merge or consolidate with any
other person or acquire any business or undertaking or part of a business or
undertaking (which in the case of a part of a business or undertaking shall mean
a part of a business which in itself constitutes a separate business or
undertaking) from, or any shares or other equity interest in, any other person
(a "RESTRICTED TRANSACTION") except for:
(a) the Acquisition; and
(b) and any other restricted transaction if the value of the aggregate
consideration payable or transferable to any person (other than another
member of the VNU Group) in respect of such restricted transaction,
when aggregated with the value of the aggregate consideration payable
or transferable by any member of the VNU Group to any person (other
than another member of the VNU Group) in respect of each other
restricted transaction entered into by any member of the VNU Group
after the date hereof, does not exceed:
(i) at any time prior to the expiry of the Initial Period, NLG
500,000,000 (or its equivalent in other currencies); or
(ii) at any time thereafter, NLG 1,000,000,000 (or its equivalent
in other currencies)
(any such restricted transaction referred to in and permitted by this
paragraph (b) being referred to herein as a "PERMITTED ACQUISITION").
15.17 RESTRICTED INDEBTEDNESS Save as contemplated pursuant to the terms of this
Agreement, the Guarantor shall not, and shall procure that no member of the VNU
Group shall, without the prior written consent of an Instructing Group, incur or
permit to subsist any Restricted Indebtedness under any agreement or arrangement
entered into by such member of the VNU Group after the date hereof (and, for the
avoidance of doubt, the utilisation of any facility existing at the date hereof
shall not be construed as entering into another agreement or arrangement after
the date hereof) unless:
(a) such Restricted Indebtedness is applied in the payment or refinancing
of the consideration payable or transferable by any member of the VNU
Group to any person (other than another member of the VNU Group) in
respect of any Permitted Acquisition and the principal amount thereof,
when aggregated with:
(i) the principal amount of any other Restricted Indebtedness
incurred by any member of the VNU Group (whether under any
agreement or arrangement entered into by any member of the VNU
Group either before or after the date hereof) which is applied
in payment or refinancing of the consideration payable or
transferable by any member of the VNU Group to any person
(other than another member of the VNU Group) in respect of a
Permitted Acquisition; and
(ii) the Net Disposal Proceeds of any disposal made after the date
hereof (other than any disposal permitted by paragraphs (a) -
(e) of Clause 15.7 and any disposal, if any, of the Newspaper
Group or any assets or revenues of the Newspaper Group) which
are not required to be paid into the Escrow Account or in
prepayment of Advances in accordance with Clause 8.5
(MANDATORY PREPAYMENT FROM DISPOSALS)
does not exceed:
(1) at any time prior to the expiry of the Initial
Period, NLG 500,000,000 (or its
<PAGE>
equivalent in other currencies); or
(2) at any time thereafter, NLG 1,000,000,000 (or its
equivalent in other currencies); or
(b) such Restricted Indebtedness is not applied in accordance with
paragraph (a) above but is applied in accordance with Clause 8.7
(MANDATORY PREPAYMENT FROM ISSUE OF DEBT).
15.18 PREPAYMENT OF TARGET DEBT The Guarantor will ensure that if after the
Acquisition Date and before the end of the Clean-up Period any Specified
Indebtedness of any member of the Target Group exceeding, when aggregated with
all other Specified Indebtedness to which Clause 16.5 would (but for the
thresholds therein) apply, the relevant thresholds in Clause 16.5, becomes due
and payable prior to its specified maturity it shall as soon as practicable
either draw on existing facilities or enter into other arrangements and draw
thereon in order to refinance such Specified Indebtedness.
15.19 COMPLIANCE WITH WORKS' COUNCIL CONDITIONS The Guarantor shall ensure that
each member of the Group shall use its best efforts to comply with the terms of
any conditions attached to any positive advice referred to in the Conditions to
the Offer set out in paragraph (iv)(B) of Exhibit A which in its opinion would
not result in any material detriment or restriction referred to in such
paragraph.
16. EVENTS OF DEFAULT
Each of Clause 16.1 to Clause 16.16 describes circumstances which constitute an
Event of Default for the purposes of this Agreement. Clause 16.18 and Clause
16.19 deal with the rights of the Agent and the Banks after the occurrence of an
Event of Default.
16.1 FAILURE TO PAY PRINCIPAL Any of the Obligors fails to pay the principal
amount of any Advance due from it hereunder in the currency and in the manner
specified herein on its due date or, if such failure to pay is caused solely as
a result of administrative or technical reasons, within three business days of
such due date.
16.2 FAILURE TO PAY INTEREST AND OTHER AMOUNTS Any of the Obligors fails to pay
interest on any Advance or any other sum due from it hereunder in the currency
and in the manner specified herein within five business days of the due date
therefor.
16.3 MISREPRESENTATION Any representation or warranty made pursuant to Clause 12
(REPRESENTATIONS) is or proves to have been untrue or misleading in any material
respect when made or deemed to be repeated or any other statement made by any of
the Obligors in this Agreement or in any written notice or other document,
certificate or statement delivered by it pursuant hereto or in connection
herewith is or proves to have been untrue or misleading in any material respect
when made or deemed to be repeated.
16.4 OTHER OBLIGATIONS Any of the Obligors fails duly to perform or comply with
any obligation expressed to be assumed by it in this Agreement (other than a
payment obligation referred to in Clause 16.1 (FAILURE TO PAY PRINCIPAL) or
Clause 16.2 (FAILURE TO PAY INTEREST AND OTHER AMOUNTS)) and such failure, if
capable of remedy, is not remedied within thirty days of receipt by the
Guarantor of notice from the Agent of such failure.
16.5 CROSS DEFAULT AND RESCHEDULING Save as disclosed in the Disclosure Letter
and excluding any Specified Indebtedness of the Target Group during the Clean-up
Period which any member of the VNU Group is able to refinance by making use of
the Facility or any other facility for the provision of Specified Indebtedness
in existence as at the date hereof (whether or not such member of the VNU
<PAGE>
Group does actually apply such Specified Indebtedness for the purpose of such
refinancing), if:
(a) any Obligor or any member or members of the VNU Group the aggregate net
revenues of which, consolidated if applicable, represent 10% or more of
the consolidated net revenues of the VNU Group fails or fail to pay at
the due time (subject to any originally applicable contractual grace
period or, where there is no such grace period and if no legal or
formal action is being taken by the relevant creditor or creditors in
relation to such Specified Indebtedness as a result of such failure,
within three business days of such due time) an amount relating to any
Specified Indebtedness having a principal (or notional principal)
amount in excess of NLG 25,000,000 (or its equivalent in other
currencies) or, when aggregated with the principal (or notional
principal) amount of any other Specified Indebtedness to which this
Clause 16.5 applies, NLG 50,000,000 (or its equivalent in other
currencies); or
(b) any Specified Indebtedness of any Obligor or any member or members of
the VNU Group the aggregate net revenues of which, consolidated if
applicable, represent 10% or more of the consolidated net revenues of
the VNU Group having a principal (or notional principal) amount in
excess of NLG 25,000,000 (or its equivalent in other currencies) or,
when aggregated with the principal (or notional principal) amount of
any other Specified Indebtedness to which this Clause 16.5 applies, NLG
50,000,000 (or its equivalent in other currencies) is declared to be or
otherwise becomes due and payable prior to its specified maturity with
the exception of any such declaration which is being diligently
contested in good faith by such Obligor or such member or members of
the VNU Group on the basis of independent legal advice and in respect
of which the relevant creditor (or creditors) have not obtained a
judgement in respect of such declaration which has not been stayed and
which is enforceable notwithstanding any further appeal; or
(c) any Obligor or any member or members of the VNU Group the aggregate net
revenues of which, consolidated if applicable, represent 10% or more of
the consolidated net revenues of the VNU Group commences or commence
negotiations with any creditor or creditors (with the exception of any
negotiations commenced in the absence of default or potential default)
in relation to any Specified Indebtedness having a principal (or
notional principal) amount in excess of NLG 25,000,000 (or its
equivalent in other currencies) or, when aggregated with the principal
(or notional principal) amount of any other Specified Indebtedness to
which this Clause 16.5 applies, NLG 50,000,000 (or its equivalent in
other currencies).
16.6 BANKRUPTCY AND INSOLVENCY Any of the Obligors and/or any member or members
of the VNU Group the aggregate net revenues of which, consolidated if
applicable, represent 10% or more of the consolidated net revenues of the VNU
Group (a) becomes or become bankrupt or insolvent, submits or submit a request
to declare itself or themselves bankrupt or insolvent or to enter into a
voluntary arrangement with its or their creditors or to suspend its or their
payments or applies or apply for a moratorium of payment (other than for the
purposes of a solvent reorganisation on terms approved by an Instructing Group,
such consent not to be unreasonably withheld) or (b) enters or enter into a
composition, scheme of arrangement, compromise or other similar arrangement with
its or their creditors, files or file a petition for a suspension of payments,
admits or admit in writing that it or they cannot pay its or their debts
generally as they become due or initiates or initiate a procedure to become, or
becomes or become, subject to liquidation or administration under any
legislation which may from time to time be applicable to it or them without the
prior written approval of an Instructing Group except there shall be no Event of
Default:
(a) where the Guarantor and/or such member or members of the VNU
Group has become subject to liquidation or administration
proceedings which are frivolous or vexatious provided such
proceedings are struck out within 30 days of their
commencement; or
<PAGE>
(b) as a result of the consummation of the Merger in accordance
with the Merger Document.
16.7 ATTACHMENTS 5% of the consolidated Total assets of the VNU Group
(determined by reference to accounting standards applied in the Original
Financial Statements or (after publication of the Guarantor's annual audited
consolidated financial statements for its financial year ended 31 December 1998
or any of its subsequent financial years, the Guarantor's annual audited
consolidated financial statements for its financial year ended 31 December, 1998
or such subsequent year respectively) becomes attached by way of executory
attachment (so called "EXECUTORIAAL BESLAG") or an interlocutory attachment (so
called "CONSERVATOIR BESLAG") or becomes subject to any similar proceeding in
any other jurisdiction and in the case of an interlocutory attachment, such
attachment is not released within 30 business days from the date of the court
ordering such attachment pending resolution of the relevant dispute.
16.8 GOVERNMENTAL INTERVENTION By or under the authority of any government, (a)
the management of any Obligor or any member or members of the VNU Group the
aggregate net revenues of which, consolidated if applicable, represent 10% or
more of the consolidated net revenues of the VNU Group is wholly or partially
displaced or the authority of any Obligor or such member or members of the VNU
Group in the conduct of its or their business is wholly or partially curtailed
or (b) all or majority of the issued share capital of any Obligor or any member
or members of the VNU Group the aggregate net revenues of which, consolidated if
applicable, represent 10% or more of the consolidated net revenues of the VNU
Group, or any assets of the VNU Group the aggregate net revenues, consolidated
if applicable, derived from which represent 10% or more of the consolidated net
revenues of the VNU Group, are seized, nationalised, expropriated or
compulsorily acquired.
16.9 MATERIAL ADVERSE CHANGE There has, in the reasonable opinion of an
Instructing Group, been a material adverse change (other than any such change
disclosed in the Disclosure Letter), in the financial condition of the VNU Group
(taken as a whole) since the date hereof which affects the Guarantor's ability
to perform its payment obligations under this Agreement.
16.10 LOSS OF LEGAL STATUS Any Obligor ceases to be a corporation duly organised
under the laws of its jurisdiction of incorporation Provided that this shall not
be an Event of Default if, within 60 days of any Borrower ceasing to be such a
duly organised corporation, the Advance or Advances owed by such Borrower are
repaid or refinanced by another Borrower in accordance with Clause 8.8 (TRANSFER
OF ADVANCES).
16.11 TRANSFERS AND MERGERS The Guarantor, without prior written approval of the
Banks, transfers all or a substantial part of its business into another business
or merges with another business or transfers all or a substantial part of its
business in any other way, unless the new surviving entity as a result of such
transfer or merger explicitly and unconditionally assumes all obligations of the
Guarantor under the Facility and will be of the same creditworthiness as the
Guarantor Provided that any such transfer or merger which is permitted pursuant
to this Clause 16.11 (TRANSFERS AND MERGERS) shall not constitute a breach of
Clause 15.7 (DISPOSALS).
16.12 CHANGE OF BUSINESS The Guarantor ceases, or announces publicly its
decision to cease, to carry on all of the business it carries on at the date
hereof or enters into any new or unrelated business which is substantial in the
context of the VNU Group and which does not relate to the media, communication
or information industry. For the purposes of this Clause 16.12 a new or
unrelated business shall be deemed to be "substantial" if the assets or revenues
of such business at the time such business is entered into, when aggregated with
the assets or revenues of each other business of the VNU Group or any part
thereof at such time which does not relate to the media, communication or
information industry, constitute at least 10% of the assets or revenues of the
VNU Group at such time.
16.13 CHANGE OF CONTROL The Guarantor becomes aware that control of the
Guarantor has changed
<PAGE>
such that the Guarantor has become controlled by a person (other than "Stichting
VNU") not controlling it at the date hereof and after a period of 2 months is
still controlled by that person. For the purpose of this clause "control" means
(whether directly or indirectly), the ownership of more than 50% of share
capital having voting rights.
16.14 REPUDIATION Any of the Obligors repudiates this Agreement or does or
causes to be done any act or thing evidencing an intention to repudiate this
Agreement.
16.15 ILLEGALITY At any time it is or becomes (and does not cease within thirty
days to be) unlawful for any of the Obligors to perform or comply with any or
all of its obligations hereunder or any of the obligations of any of the
Obligors hereunder are not or cease to be legal, valid and binding save as the
same may be affected by any bankruptcy, insolvency, liquidation or other similar
laws of general application or laws relating to the protection of creditors'
rights Provided that, for the avoidance of doubt, it shall not be an Event of
Default under this Clause 16.15 if the relevant Obligor is a Borrower (other
than the Guarantor) and, within thirty days of the obligations of such Borrower
becoming unlawful or ceasing to be legal, valid and binding, the Advances made
to such Borrower have been repaid or transferred to another Borrower in
accordance with Clause 8.8 (TRANSFER OF ADVANCES).
16.16 VALIDITY AND ENFORCEABILITY Any act, condition or thing required to be
done, fulfilled or performed in order:
(a) to ensure that the obligations expressed to be assumed by each
of the Obligors in this Agreement are legal, valid and binding
with respect to the respective Obligors; or
(b) to make this Agreement admissible in evidence in England and
Wales and the Netherlands
is not done, fulfilled or performed and such failure is not remedied within 30
days of the date on which any of the Obligors becomes (or ought reasonably to
become) aware of the same.
16.17 ERISA EVENT With respect to any US Subsidiary or any ERISA Affiliate
thereof, an ERISA Event shall occur with respect to an Employee Plan and there
shall result from such ERISA Event a liability which could reasonably be
expected to have a material adverse effect on the financial condition of the VNU
Group taken as a whole and the ability of VNU (as Borrower and/or Guarantor, as
appropriate) to perform its payment obligations under this Agreement.
16.18 ACCELERATION AND CANCELLATION If an Event of Default occurs and is
continuing then, at any time thereafter, the Agent may (and, if so instructed by
an Instructing Group, shall) by written notice to each of the Obligors:
(a) declare the Advances to be immediately due and payable (whereupon the
same shall become so payable together with accrued interest thereon and
any other sums then owed by the Borrowers hereunder) or declare the
Advances to be due and payable on demand of the Agent; and/or
(b) declare that the Facility shall be cancelled, whereupon the same shall
be cancelled and the Commitment of each Bank shall be reduced to zero.
16.19 ADVANCES DUE ON DEMAND If, pursuant and subject to Clause 16.18
(ACCELERATION AND CANCELLATION), the Agent declares the Advances to be due and
payable on demand of the Agent, then, and at any time thereafter, the Agent may
(and, if so instructed by an Instructing Group, shall) by written notice to the
Borrowers require repayment of the Advances on such date as it may specify in
such notice (whereupon the same shall become due and payable on such date
together with accrued interest thereon and any other sums then owed by each of
the Borrowers hereunder) or withdraw its
<PAGE>
declaration with effect from such date as it may specify in such notice.
<PAGE>
PART 7
GUARANTEE
17. GUARANTEE AND INDEMNITY
17.1 GUARANTEE The Guarantor irrevocably and unconditionally guarantees to the
Agent, the Arrangers and the Banks the due and punctual payment of all sums from
time to time payable by each of the Borrowers contained in this Agreement and
agrees to pay to the Agent from time to time on demand any and every sum or sums
of money which any of the Borrowers is at any time liable to pay to the Agent,
the Arrangers and the Banks or any of them under or pursuant to this Agreement
and which has become due and payable but has not been paid at the time such
demand is made.
17.2 INDEMNITY The Guarantor irrevocably and unconditionally agrees as a primary
obligation to indemnify the Agent, the Arrangers and the Banks from time to time
on demand by the relevant Agent from and against any cost, claim, loss, expense
(including reasonable legal fees) or liability together with any VAT thereon
sustained or incurred by the Agent, the Arrangers and the Banks or any of them
as a result of any of the obligations of any of the Borrowers under or pursuant
to this Agreement being or becoming void, voidable, unenforceable or ineffective
as against such Borrower for any reason whatsoever, whether or not known to the
Agent, the Arrangers and the Banks or any of them or any other person, the
amount of such loss being the amount which the person or persons suffering it
would otherwise have been entitled to recover from such Borrower.
17.3 ADDITIONAL SECURITY The obligations of the Guarantor herein contained shall
be in addition to and independent of every other security which the Agent, the
Arrangers and the Banks or any of them may at any time hold in respect of any of
the Borrowers' obligations hereunder.
17.4 CONTINUING OBLIGATIONS Subject to Clause 17.10 (RELEASE), the obligations
of the Guarantor herein contained shall constitute and be continuing obligations
notwithstanding any settlement of account or other matter or thing whatsoever
and shall not be considered satisfied by any intermediate payment or
satisfaction of all or any of the obligations of any of the Borrowers under this
Agreement and shall continue in full force and effect until final payment in
full of all amounts owing by each of the Borrowers hereunder and total
satisfaction of each of the Borrowers' actual and contingent payment obligations
hereunder.
17.5 OBLIGATIONS NOT DISCHARGED Neither the obligations of the Guarantor herein
contained nor the rights, powers and remedies conferred in respect of the
Guarantor upon the Agent, the Arrangers and the Banks or any of them by this
Agreement or by law shall be discharged, impaired or otherwise affected by:
(a) the winding-up, dissolution, administration or re-organisation
of any of the Borrowers (other than the Guarantor) or any
other person providing any security or guarantee in connection
with any obligations assumed hereunder or any change in its
status, function, control or ownership;
(b) any of the obligations of any of the Borrowers (other than the
Guarantor) or any other person providing any security or
guarantee in connection with any obligations assumed hereunder
or under any other security taken in respect of any of the
Borrowers' obligations hereunder being or becoming illegal,
invalid, unenforceable or ineffective in any respect;
(c) time or other indulgence being granted or agreed to be granted
to any of the Borrowers in respect of its obligations
hereunder or under any such other security;
(d) any amendment to, or any variation, waiver or release of, any
obligation of any of the
<PAGE>
Borrowers hereunder or under any such other security;
(e) any failure to take, or fully to take, any security
contemplated hereby or otherwise agreed to be taken in respect
of any of the Borrowers' obligations hereunder;
(f) any failure to realise or fully to realise the value of, or
any release, discharge, exchange or substitution of, any
security taken in respect of any of the Borrowers' obligations
hereunder; or
(g) any other act, event or omission which, but for this Clause
17.5, might operate to discharge, impair or otherwise affect
any of the obligations of the Guarantor herein contained or
any of the rights, powers or remedies conferred upon the
Agent, the Arrangers and the Banks or any of them by this
Agreement or by law.
17.6 SETTLEMENT CONDITIONAL Any settlement or discharge between the Guarantor
and the Agent, the Arrangers and the Banks or any of them shall be conditional
upon no security or payment to the Agent, the Arrangers and the Banks or any of
them by any of the Borrowers or the Guarantor or any other person on behalf of
any of the Borrowers or, as the case may be, the Guarantor being avoided or
reduced by virtue of any provisions or enactments relating to bankruptcy,
insolvency, liquidation or similar laws of general application for the time
being in force and, if any such security or payment is so avoided or reduced,
the Agent, the Arrangers and the Banks shall each be entitled to recover the
value or amount of such security or payment from the Guarantor subsequently as
if such settlement or discharge had not occurred.
17.7 EXERCISE OF RIGHTS Neither the Agent, the Arrangers and the Banks nor any
of them shall be obliged before exercising any of the rights, powers or remedies
conferred upon them in respect of the Guarantor by this Agreement or by law:
(a) to make any demand of any of the Borrowers;
(b) to take any action or obtain judgment in any court against any
of the Borrowers;
(c) to make or file any claim or proof in a winding-up or
dissolution of any of the Borrowers; or
(d) to enforce or seek to enforce any other security taken in
respect of any of the obligations of any of the Borrowers
hereunder.
17.8 DEFERRAL OF GUARANTOR'S RIGHTS The Guarantor agrees that, so long as any
amounts are or may be owed by any of the Borrowers hereunder or any of the
Borrowers is under any actual or contingent obligations hereunder, the Guarantor
shall not exercise any rights which the Guarantor may at any time have by reason
of performance by it of its obligations hereunder:
(a) to be indemnified by any of the Borrowers; and/or
(b) to claim any contribution from any other guarantor of any of
the Borrowers' obligations hereunder; and/or
(c) to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Agent, the
Arrangers and the Banks hereunder or of any other security
taken pursuant to, or in connection with, this Agreement by
all or any of the Agent, the Arrangers and the Banks.
17.9 SUSPENSE ACCOUNTS All moneys received, recovered or realised by a Bank by
virtue of
<PAGE>
Clause 17.1 (GUARANTEE) or Clause 17.2 (INDEMNITY) may, in that Bank's
discretion, be credited to a suspense or impersonal account (bearing interest at
a competitive commercial rate) and may be held in such account for so long as
such Bank thinks fit pending the application from time to time (as such Bank may
think fit) of such moneys in or towards the payment and discharge of any amounts
owing by any of the Obligors to such Bank hereunder, provided that such Bank
will apply such moneys in payment and discharge of amounts owing by the Obligors
to such Bank forthwith in the event that such moneys are of an amount equal to
or greater than all the amounts owing by the Obligors hereunder and upon full
and final payment of all amounts hereunder this Clause 17.9 shall have no
further effect.
17.10 RELEASE Not later than two years after all obligations of the Borrowers
and the Guarantor hereunder have been fully and finally satisfied the Guarantor
shall be released from its obligations under this Clause 17 unless the Agent or
any Bank has notified the Guarantor in writing prior to expiry of such two year
period that it is of the reasonable opinion that a claim may be required to be
made against the Guarantor hereunder following expiry of such two year period or
that the Agent or any Bank is aware of any matter or thing which might
reasonably give rise to such a claim.
<PAGE>
PART 8
DEFAULT INTEREST AND INDEMNITY
18. DEFAULT INTEREST AND INDEMNITY
18.1 DEFAULT INTEREST PERIODS If any sum due and payable by any of the Obligors
hereunder is not paid on the due date therefor in accordance with the provisions
of Clause 20 (PAYMENTS) or if any such sum due and payable by any of the
Obligors under any judgment of any court in connection herewith is not paid on
the date of such judgment, the period beginning on such due date or, as the case
may be, the date of such judgment and ending on the date upon which the
obligation of such Obligor to pay such sum (the balance thereof for the time
being unpaid being herein referred to as an "UNPAID SUM") is discharged shall be
divided into successive periods, each of which (other than the first) shall
start on the last day of the preceding such period and the duration of each of
which shall (except as otherwise provided in this Clause 18) be selected by the
Agent (acting reasonably).
18.2 DEFAULT INTEREST During each such period relating thereto as is mentioned
in Clause 18.1 (DEFAULT INTEREST PERIODS) an unpaid sum shall bear interest at
the rate per annum which is the sum from time to time of one per cent., the
Applicable Margin and LIBOR (or, in the case of euros, EURIBOR) on the Quotation
Date therefor Provided that:
(a) if, for any such period, LIBOR (or, in the case of euros,
EURIBOR) cannot be determined, the rate of interest applicable
to such unpaid sum shall be the rate per annum which is the
sum of one per cent., the Applicable Margin and the rate per
annum determined by the Agent to be equal to the arithmetic
mean (rounded upwards, if not already such a multiple, to the
nearest whole multiple of one thousandth of one per cent.) of
the rates notified by each of the Banks to the Agent before
the last day of such period to be those which express as a
percentage rate per annum the cost to it of funding from
whatever sources it may select its portion of such unpaid sum
for such period during such period; and
(b) if such unpaid sum is all or part of a Advance which became
due and payable on a day other than the last day of its Term
relating thereto the first such period applicable thereto
shall be of a duration equal to the unexpired Term and the
rate of interest applicable thereto from time to time during
such period shall be that which exceeds by one per cent. the
rate which would have been applicable to it had it not so
fallen due.
18.3 PAYMENT OF DEFAULT INTEREST Any interest which shall have accrued under
Clause 18.2 (DEFAULT INTEREST) in respect of any sum shall be due and payable
and shall be paid by the Obligor owing such sum at the end of the period by
reference to which it is calculated or on such other dates thereafter as the
Agent may reasonably specify by written notice to such Obligor.
18.4 BROKEN PERIODS If any Bank or the Agent on its behalf receives or recovers
all or any part of such Bank's share of an Advance otherwise than on the last
day of the Term relating to that Advance, the relevant Borrower shall pay to the
Agent on demand for account of such Bank an amount equal to the amount (if any)
by which (a) the additional interest which would have been payable on the amount
so received or recovered had it been received or recovered on the last day of
the relevant Term exceeds (b) the amount of interest which in the opinion of the
Agent would have been payable to it on the last day of the relevant Term in
respect of a deposit in the currency of the amount so received or recovered
equal to the amount so received or recovered placed by it with a prime bank in
London for a period starting on the third business day following the date of
such receipt or recovery and ending on the last day of the relevant Term.
18.5 BORROWERS' INDEMNITY Each of the Borrowers respectively undertakes to
indemnify:
<PAGE>
(a) the Agent, the Arrangers and the Banks against any cost,
claim, loss, expense (including legal fees) or liability
together with any VAT thereon, which any of them may sustain
or incur as a consequence of the occurrence of any Event of
Default or any default by it in the performance of any of the
obligations expressed to be assumed by it in this Agreement;
(b) the Agent against any cost or loss it may suffer or incur as a
result of (i) its entering into, or performing, any foreign
exchange contract for the purposes of Clause 20 (PAYMENTS);
(c) each Bank against any loss it may suffer or incur as a result
of its funding or making arrangements to fund its portion of
an Advance requested by a Borrower hereunder but not made by
reason of the operation of any one or more of the provisions
hereof; and
(d) each Bank which has notified the Agent in accordance with
Clause 6.2 (INABILITY TO FUND) that it is unable to fund an
Advance during the Term relating thereto in the currency in
which such Advance is denominated against any direct cost,
claim, loss, expense (including legal fees) or liability
together with any VAT thereon which such Bank incurs (having
regard, to the extent within the power of such Bank and so far
as it is reasonably able to do so, to minimising such cost,
claim, loss, expense or liability) as a result of such Bank
being unable to so fund its portion of such Advance.
18.6 UNPAID SUMS AS ADVANCES Any unpaid sum and any sum referred to in Clause
18.2 (DEFAULT INTEREST) shall (for the purposes of this Clause 18 and Clause
11.1 (INCREASED COSTS)) be treated as an advance and accordingly in this Clause
18 and Clause 11.1 (INCREASED COSTS) the term "Advance" includes any unpaid sum
and the term "INTEREST PERIOD" in relation to an unpaid sum or any such sum,
includes each such period relating thereto as is mentioned in Clause 18.1
(DEFAULT INTEREST PERIODS) or, as the case may be, each period by reference to
which interest is calculated under Clause 18.2 (DEFAULT INTEREST).
<PAGE>
PART 9
PAYMENTS
19. CURRENCY OF ACCOUNT AND PAYMENT
19.1 CURRENCY OF ACCOUNT The dollar is the currency of account and payment for
each and every sum at any time due from any of the Obligors hereunder Provided
that:
(a) each repayment of an Advance or a part thereof shall be made
in the currency in which such Advance is denominated at the
time of that repayment;
(b) each payment of interest shall be made in the currency in
which the sum in respect of which such interest is payable is
denominated;
(c) each payment in respect of costs and expenses shall be made in
the currency in which the same were incurred;
(d) each payment pursuant to Clause 9.2 (TAX INDEMNITY) or Clause
11.1 (INCREASED COSTS) shall be made in the currency in which
such cost is incurred as specified by the party claiming
thereunder; and
(e) any amount expressed to be payable in a currency other than
dollars shall be paid in that other currency.
19.2 CURRENCY INDEMNITY If any sum due from any of the Obligors under this
Agreement or any order or judgment given or made in relation hereto has to be
converted from the currency (the "FIRST CURRENCY") in which the same is payable
hereunder or under such order or judgment into another currency (the "SECOND
CURRENCY") for the purpose of (a) making or filing a claim or proof against such
Obligor, (b) obtaining an order or judgment in any court or other tribunal or
(c) enforcing any order or judgment given or made in relation hereto, such
Obligor shall indemnify and hold harmless each of the Banks and the Agent to
whom such sum is due from and against any loss suffered or incurred as a result
of any discrepancy between (i) the rate of exchange used for such purpose to
convert the sum in question from the first currency into the second currency and
(ii) the rate or rates of exchange at which such Bank or the Agent (as the case
may be) may in the ordinary course of business (and acting reasonably) purchase
the first currency with the second currency upon receipt of a sum paid to it in
satisfaction, in whole or in part, of any such order, judgment, claim or proof
Provided that, where any such discrepancy results in any of the Banks and the
Agent receiving an amount greater than the sum converted for the purposes
referred to in this Clause, the Banks and the Agent shall at the cost and
expense of the Guarantor pay an amount equal to such excess to the relevant
Obligor provided further that the amount to be paid by the relevant Bank or
Agent shall not exceed an amount which would leave such Bank or Agent in no
worse position than if such conversion had not been made.
20. PAYMENTS
20.1 PAYMENTS TO THE AGENT On each date on which this Agreement requires an
amount to be paid by any of the Obligors or any of the Banks hereunder, such
Obligor or, as the case may be, such Bank shall make the same available to the
Agent:
(a) where such amount is denominated in dollars by payment in
dollars and in same day funds (or in such other funds as may
for the time being be customary in New York for the settlement
in New York of international banking transactions in dollars)
to the Agent's account number 574-07000-2941 with ABN AMRO
Bank N.V., New York (or such other account or bank as the
Agent may have specified for this purpose); or
<PAGE>
(b) where such amount is denominated in euros, by payment in euros
and in immediately available, freely transferable, cleared
funds to such account with such bank in such financial centre
as the Agent shall have specified for this purpose.
20.2 ALTERNATIVE PAYMENT ARRANGEMENTS If, at any time, it shall become
impracticable (by reason of any action of any governmental authority or any
change in law, exchange control regulations or any similar event) for any of the
Obligors to make any payments hereunder in the manner specified in Clause 20.1
(PAYMENTS TO THE AGENT), then such Obligor may use alternative arrangements for
the payment direct to such Bank of amounts due to such Bank hereunder, provided
that upon implementation of such alternative arrangements the relevant Bank
shall receive the relevant payment in freely transferable and convertible funds
and provided further that the relevant Obligor shall be liable for all costs,
losses, delays and expenses together with any VAT thereon resulting from using
such alternative arrangements and shall indemnify and hold harmless each of the
Banks against any costs or expenses incurred by the Banks as a result of using
such alternative arrangements. Each Bank making a claim against the Obligors
under this Clause 20.2 shall provide the Obligors, through the Agent, with a
reasonably detailed explanation as to any such cost or expense incurred by it
Provided that nothing contained in this Clause 20.2 shall require any Bank to
disclose any confidential information relating to the organisation of its
affairs. Any Obligor employing any alternative payment arrangements pursuant to
this Clause 20.2 shall immediately notify the Agent thereof and shall thereafter
promptly notify such Agent of all payments made direct to the relevant Bank.
20.3 PAYMENTS BY THE AGENT Save as otherwise provided herein, each payment
received by the Agent for the account of another person pursuant to Clause 20.1
(PAYMENTS TO THE AGENT) shall:
(a) in the case of a payment received for the account of a
Borrower, be made available by the Agent to such Borrower by
application:
(i) first, in or towards payment (on the date, and in the
currency and funds, of receipt) of any amount then
due from such Borrower hereunder to the Bank from
whom the amount was so received or in or towards the
purchase of any amount of any currency to be so
applied; and
(ii) secondly, in or towards payment (on the date, and in
the currency and funds, of receipt) to such account
with such bank in the principal financial centre of
the country of the currency of such payment as such
Borrower shall have previously notified to the Agent
for the purpose; and
(b) in the case of any other payment, be made available by the
Agent to the person for whose account such payment was
received (in the case of a Bank, for the account of its
relevant Facility Office) for value the same day by transfer
to such account of such person with such bank in the principal
financial centre of the country of the currency of such
payment as such person shall have previously notified to the
Agent.
20.4 NO SET-OFF All payments required to be made by any of the Obligors
hereunder shall be calculated without reference to any set-off or counterclaim
and shall be made free and clear of and without any deduction for or on account
of any set-off or counterclaim.
20.5 CLAWBACK Where a sum is to be paid hereunder to the Agent for account of
another person, the Agent shall not be obliged to make the same available to
that other person or to enter into or perform any exchange contract in
connection therewith until it has been able to establish to its satisfaction
that it has actually received such sum, but if it does so and it proves to be
the case that it had not actually received such sum, then the person (the
"RELEVANT PERSON") to whom such sum or the proceeds of such exchange contract
was so made available shall on request repay the same to the
<PAGE>
Agent together with an amount sufficient to put the Agent in no better or worse
position than that in which it would have been had it not paid out such sum or
the proceeds of such exchange contract prior to its having received such sum
Provided that, if the relevant person is a Borrower, the Agent will request
repayment of the relevant sum or proceeds from such Borrower only if the Agent
believes that the person from whom such sum or proceeds are to be received will
not within a reasonable period of time pay such sum or proceeds to the Agent.
20.6 NON-PAYMENT BY BANKS Where the Agent reasonably believes that a Bank will
not make any Advance or pay any sum it is required to make or pay in accordance
with this Agreement then the Agent shall promptly inform the Guarantor of this
belief Provided that it is not reasonable for the Agent to form this belief
solely on the grounds that payment from a Bank has not been received at the time
it is due.
21. SET-OFF
21.1 CONTRACTUAL SET-OFF Each of the Obligors authorises each Bank to apply any
credit balance to which such Obligor is entitled on any account of such Obligor
with that Bank in satisfaction of any sum due and payable from such Obligor to
such Bank hereunder but unpaid; for this purpose, each Bank is authorised to
purchase with the moneys standing to the credit of any such account such other
currencies as may be necessary to effect such application.
21.2 SET-OFF NOT MANDATORY No Bank shall be obliged to exercise any right given
to it by Clause 21.1 (CONTRACTUAL SET-OFF).
22. SHARING
22.1 REDISTRIBUTION OF PAYMENTS Subject to Clause 22.3 (RECOVERIES THROUGH LEGAL
PROCEEDINGS), if at any time, the proportion which any Bank (a "RECOVERING
BANK") has received or recovered (whether by payment, the exercise of a right of
set-off or combination of accounts or otherwise) in respect of its portion of
any payment (a "RELEVANT PAYMENT") to be made under this Agreement by any of the
Obligors for account of such Recovering Bank and one or more other Banks is
greater (the portion of such receipt or recovery giving rise to such excess
proportion being herein called an "EXCESS AMOUNT") than the proportion thereof
so received or recovered by the Bank or Banks so receiving or recovering the
smallest proportion thereof, then:
(a) such Recovering Bank shall inform the Agent of such receipt or
recovery and pay to the Agent an amount equal to such excess
amount;
(b) there shall thereupon fall due from such Obligor to such
Recovering Bank an amount equal to the amount paid out by such
Recovering Bank pursuant to paragraph (a) above, the amount so
due being, for the purposes hereof, treated as if it were an
unpaid part of such Recovering Bank's portion of such relevant
payment; and
(c) the Agent shall treat the amount received by it from such
Recovering Bank pursuant to paragraph (a) above as if such
amount had been received by it from such Obligor in respect of
such relevant payment and shall pay the same to the persons
entitled thereto (including such Recovering Bank) PRO RATA to
their respective entitlements thereto,
Provided that to the extent that any excess amount is attributable to a payment
to a Bank pursuant to paragraph (a)(i) of Clause 20.3 (PAYMENTS BY THE AGENT)
such portion of such excess amount as is so attributable shall not be required
to be shared pursuant hereto.
22.2 REPAYABLE RECOVERIES If any sum (a "RELEVANT SUM") received or recovered by
a Recovering
<PAGE>
Bank in respect of any amount owing to it by any of the Obligors becomes
repayable and is repaid by such Recovering Bank, then:
(i) each Bank which has received a share of such relevant sum by
reason of the implementation of Clause 22.1 (REDISTRIBUTION OF
PAYMENTS) shall, upon request of the Agent, pay to the Agent
for account of such Recovering Bank an amount equal to its
share of such relevant sum; and
(ii) there shall thereupon fall due from such Obligor to each such
Bank an amount equal to the amount paid out by it pursuant to
paragraph (a) above, the amount so due being, for the purposes
hereof, treated as if it were the sum payable to such Bank
against which such Bank's share of such relevant sum was
applied.
22.3 RECOVERIES THROUGH LEGAL PROCEEDINGS If any Bank shall commence any action
or proceeding in any court to enforce its rights hereunder after consultation
with the other Banks and with the consent of an Instructing Group (such consent
not to be unreasonably withheld) and, as a result thereof or in connection
therewith, shall receive any excess amount (as defined in Clause 22.1
(REDISTRIBUTION OF PAYMENTS)), then such Bank shall not be required to share any
portion of such excess amount with any Bank which has the legal right to, but
does not, join in such action or proceeding or commence and diligently prosecute
a separate action or proceeding to enforce its rights in another court.
PART 10
FEES, COSTS AND EXPENSES
23. FEES
23.1 ARRANGEMENT FEE VNU N.V. and VNU Ireland shall pay to the Arrangers the
arrangement fee specified in the letter of even date herewith from the Arrangers
to the Guarantor and VNU Ireland at the time, and in the amount, specified in
such letter.
23.2 AGENCY FEE VNU N.V. and VNU Ireland shall pay to the Agent for its own
account the agency fees specified in the letter of even date herewith from the
Agent to the Guarantor at the times, and in the amounts, specified in such
letter.
23.3 COMMITMENT COMMISSION VNU Ireland and VNU shall pay to the Agent for
account of each Bank a commitment commission on the amount of such Bank's
Available Commitment from time to time during the period beginning on the date
hereof and ending on the Final Maturity Date, such commitment commission to be
calculated at a rate per annum equal to 50% of the Applicable Margin at such
time and payable in arrear on the last day of each successive period of three
months which ends during such period and on the Final Maturity Date.
23.3 SPLIT OF FEES The fees referred to in this Clause 23.1 shall be apportioned
between, and shall be payable by, VNU N.V. and VNU Ireland in the percentages
from time to time agreed between the Arrangers, VNU N.V. and VNU Ireland (but
without prejudice the guarantee given by VNU N.V.
under the Clause 17 (GUARANTEE AND INDEMNITY)).
24. COSTS AND EXPENSES
24.1 TRANSACTION EXPENSES The Borrowers shall, on demand of the Agent, reimburse
the Agent and each of the Arrangers for all costs and expenses (including
reasonable legal fees) together with any VAT thereon incurred by it in
connection with the negotiation, preparation and execution of this Agreement and
the completion of the transactions herein contemplated, subject to any
limitations thereon separately agreed between the Borrowers and the Agent.
24.2 PRESERVATION AND ENFORCEMENT OF RIGHTS Each of the Borrowers shall, from
time to time on
<PAGE>
demand of the Agent, reimburse the Agent, the Arrangers and the Banks for all
costs and expenses (including legal fees) together with any VAT thereon incurred
in or in connection with the preservation and/or enforcement of any of the
rights of the Agent, the Arrangers and the Banks under this Agreement.
24.3 STAMP TAXES Each of the Borrowers shall pay all stamp, registration and
other taxes to which this Agreement or any judgment given in connection herewith
is or at any time may be subject and shall, from time to time on demand of the
Agent, indemnify the Agent, the Arrangers and the Banks against any liabilities,
costs, claims and expenses resulting from any failure to pay or any delay in
paying any such tax.
24.4 AGENTS' COSTS In case of any amendment or proposed amendment hereto
requested by the Guarantor, the Borrowers shall discuss with the Agent the costs
involved and upon agreement in respect thereof shall compensate the Agent in
respect thereof.
24.5 BANKS' LIABILITIES FOR COSTS If any Borrower fails to perform any of its
obligations under this Clause 24, each Bank shall, in its Proportion, indemnify
the Agent and the Arrangers against any loss incurred by it as a result of such
failure and such Borrower shall forthwith reimburse each Bank for any payment
made by it pursuant to this Clause 24.5.
<PAGE>
PART 11
AGENCY PROVISIONS
25. THE AGENT, THE ARRANGER AND THE BANKS
25.1 APPOINTMENT OF THE AGENT Each of the Arrangers and each Bank hereby
appoints the Agent to act as its agent in connection herewith and authorises the
Agent to exercise such rights, powers, authorities and discretions as are
specifically delegated to it by the terms hereof together with all such rights,
powers, authorities and discretions as are reasonably incidental thereto,
provided that the Agent shall not start any legal proceedings on behalf or in
the name of any Bank without that Bank's prior written consent.
25.2 AGENT'S DISCRETIONS The Agent may:
(a) assume that (i) any representation made by any of the Obligors
in connection herewith is true, (ii) no Event of Default or
Potential Event of Default has occurred, (iii) none of the
Obligors is in breach of or default under its obligations
hereunder and (iv) any right, power, authority or discretion
vested herein upon an Instructing Group, the Banks or any
other person or group of persons has not been exercised unless
in any such case its agency department has, in its capacity as
agent for the Banks actual knowledge of or received actual
notice to the contrary from any other party hereto;
(b) assume that the Facility Office of each Bank is that
identified with its signature below (or, in the case of a
Transferee, at the end of the Bank Transfer Certificate to
which it is a party as Transferee) until it has received from
such Bank a notice designating some other office of such Bank
to replace any such Facility Office and act upon any such
notice until the same is superseded by a further such notice;
(c) engage and pay for the advice or services of any lawyers,
accountants, surveyors or other experts whose advice or
services may to it seem necessary, expedient or desirable and
rely upon any advice so obtained;
(d) rely as to any matters of fact which might reasonably be
expected to be within the knowledge of any of the Obligors
upon a certificate signed by or on behalf of such Obligor;
(e) rely upon any communication or document believed by it to be
genuine;
(f) refrain from exercising any right, power or discretion vested
in it as agent hereunder unless and until instructed by an
Instructing Group as to whether or not such right, power or
discretion is to be exercised and, if it is to be exercised,
as to the manner in which it should be exercised; and
(g) refrain from acting in accordance with any instructions of an
Instructing Group to begin any legal action or proceeding
arising out of or in connection with this Agreement until it
shall have received such security as it may require (whether
by way of payment in advance or otherwise) for all costs,
claims, losses, expenses (including legal fees) and
liabilities together with any VAT thereon which it will or may
expend or incur in complying with such instructions.
25.3 AGENT'S OBLIGATIONS The Agent shall:
(a) promptly inform each Bank of the contents of any notice or
document received by it
<PAGE>
in its capacity as Agent from any of the Obligors hereunder;
(b) promptly notify each Bank of the occurrence of any Event of
Default or any default by any of the Obligors in the due
performance of or compliance with its obligations under this
Agreement of which the Agent has actual knowledge or received
actual notice from any other party hereto;
(c) save as otherwise provided herein, act as agent hereunder in
accordance with any instructions given to it by an Instructing
Group, which instructions shall be binding on the Arrangers
and the Banks; and
(d) if so instructed by an Instructing Group, refrain from
exercising any right, power or discretion vested in it as
agent hereunder.
25.4 EXCLUDED OBLIGATIONS Notwithstanding anything to the contrary expressed or
implied herein, neither the Agent nor the Arrangers shall:
(a) be bound to enquire as to (i) whether or not any
representation made by any of the Obligors in connection
herewith is true, (ii) the occurrence or otherwise of any
Event of Default or Potential Event of Default, (iii) the
performance by any of the Obligors of its obligations
hereunder or (iv) any breach of or default by any of the
Obligors of or under its obligations hereunder;
(b) be bound to account to any Bank for any sum or the profit
element of any sum received by it for its own account;
(c) be bound to disclose to any other person any information
relating to any member of the VNU Group if such disclosure
would or might in its opinion constitute a breach of any law
or regulation or be otherwise actionable at the suit of any
person; or
(d) be under any obligations or fiduciary duties other than those
for which express provision is made herein.
25.5 INDEMNIFICATION Each Bank shall, in its Proportion, from time to time on
demand by the Agent, indemnify the Agent against any and all costs, claims,
losses, expenses (including legal fees) and liabilities together with any VAT
thereon which the Agent may incur, otherwise than by reason of its own gross
negligence or wilful misconduct, in acting in its capacity as agent hereunder.
25.6 EXCLUSION OF LIABILITIES Neither the Agent nor the Arrangers accept any
responsibility for the accuracy and/or completeness of any information supplied
by any of the Obligors in connection herewith or for the legality, validity,
effectiveness, adequacy or enforceability of this Agreement and neither the
Agent nor the Arrangers shall be under any liability as a result of taking or
omitting to take any action in relation to this Agreement, save in the case of
gross negligence or wilful misconduct.
25.7 NO ACTIONS Each of the Banks agrees that it will not assert or seek to
assert against any director, officer or employee of either the Agent or the
Arranger any claim it might have against any of them in respect of the matters
referred to in Clause 25.6 (EXCLUSION OF LIABILITIES).
25.8 BUSINESS WITH THE VNU GROUP The Agent and the Arrangers may accept deposits
from, lend money to and generally engage in any kind of banking or other
business with any member of the VNU Group.
25.9 RESIGNATION AND REMOVAL The Agent may resign, and an Instructing Group may
remove the Agent from, its appointment hereunder at any time without assigning
any reason therefor by giving
<PAGE>
not less than thirty days' prior written notice to that effect to each of the
other parties hereto Provided that no such resignation or removal shall be
effective until a successor for such Agent is appointed in accordance with the
succeeding provisions of this Clause 25.
25.10 SUCCESSOR AGENT If an Agent gives notice of its resignation or (as the
case may be) an Instructing Group gives notice of the removal of the Agent
pursuant to Clause 25.9 (RESIGNATION AND REMOVAL), then any reputable and
experienced bank or other financial institution may be appointed as a successor
to the Agent by an Instructing Group (subject to the prior written consent of
the Guarantor, not to be unreasonably withheld) during the period of such notice
but, if no such successor is so appointed, the Agent may appoint such a
successor itself (subject to the prior written consent of the Guarantor, not to
be unreasonably withheld).
25.11 RIGHTS AND OBLIGATIONS If a successor to the Agent is appointed under the
provisions of Clause 25.10 (SUCCESSOR AGENT), then (a) the retiring Agent shall
be discharged from any further obligation hereunder but shall remain entitled to
the benefit of the provisions of this Clause 25 and (b) its successor and each
of the other parties hereto shall have the same rights and obligations amongst
themselves as they would have had if such successor had been a party hereto.
25.12 OWN RESPONSIBILITY It is understood and agreed by each Bank that it has
itself been, and will continue to be, solely responsible for making its own
independent appraisal of and investigations into the financial condition,
creditworthiness, condition, affairs, status and nature of each member of the
VNU Group and, accordingly, each Bank warrants to the Agent and the Arrangers
that it has not relied on and will not hereafter rely on the Agent or the
Arrangers:
(a) to check or enquire on its behalf into the adequacy, accuracy
or completeness of any information provided by any of the
Obligors in connection with this Agreement or the transactions
herein contemplated (whether or not such information has been
or is hereafter circulated to such Bank by the Agent or the
Arrangers); or
(b) to assess or keep under review on its behalf the financial
condition, creditworthiness, condition, affairs, status or
nature of any member of the VNU Group.
25.13 AGENCY DIVISIONS SEPARATE In acting as Agent and/or Arranger hereunder for
the Banks the Agent and each of the Arrangers shall be regarded as acting
through its agency division which shall be treated as a separate entity from any
other of its divisions or departments and, notwithstanding the foregoing
provisions of this Clause 25, any information received by some other division or
department of the Agent or, as the case may be, the relevant Arranger may be
treated as confidential and shall not be regarded as having been given to the
Agent's or, as the case may be, the relevant Arranger's agency division.
25.14 CONFIDENTIAL INFORMATION Notwithstanding anything to the contrary
expressed or implied herein and without prejudice to the provisions of Clause
25.13 (AGENCY DIVISIONS SEPARATE), the Agent shall not as between itself and the
Banks be bound to disclose to any Bank or other person any information which is
supplied by any member of the VNU Group to the Agent in its capacity as agent
hereunder for the Banks and which is identified by such member of the VNU Group
at the time it is so supplied as being confidential information Provided that
the Agent may disclose to the Banks any information which in the opinion of the
Agent relates to an Event of Default or Potential Event of Default or in respect
of which the Banks have given a confidentiality undertaking in a form
satisfactory to the Agent and the Guarantor.
25.15 PAYMENTS BY THE AGENT In relation to the payment of any amount denominated
in the euro, the Agent shall not be liable to the Borrowers or any of the Banks
in any way whatsoever for any delay, or the consequences of any delay, in the
crediting to any account of any amount required by this Agreement to be paid by
the Agent if the Agent shall have taken all relevant steps to achieve, on
<PAGE>
the date required by this Agreement, the payment of such amount in immediately
available, freely transferable, cleared funds (in the euro unit) to the account
with the bank in the principal financial centre in the participating member
state which the Borrowers or, as the case may be, any Bank shall have specified
for such purpose. In this Clause 25.15, "all relevant steps" means all such
steps as may be prescribed from time to time by the regulations or operating
procedures of the Trans-European Automated Real-Time Gross Settlement Transfer
System (TARGET) or any system which replaces TARGET for the purposes of clearing
or settling payments of the euro.
<PAGE>
PART 12
ASSIGNMENTS AND TRANSFERS
26. ASSIGNMENTS AND TRANSFERS
26.1 BINDING AGREEMENT This Agreement shall be binding upon and enure to the
benefit of each party hereto and its or any subsequent successors, transferees
and assigns.
26.2 NO ASSIGNMENTS AND TRANSFERS BY THE OBLIGORS None of the Obligors shall be
entitled to assign or transfer all or any of its rights, benefits and
obligations hereunder other than in accordance with Clause 26.11.
26.3 ASSIGNMENTS AND TRANSFERS BY BANKS Any Bank may, at any time subject to at
least ten business days' prior written notice to the Guarantor (during which
time, if it is after the Syndication Date, such Bank shall consult the Guarantor
in respect of the relevant assignment or transfer) assign all or any of its
rights and benefits hereunder or transfer in accordance with Clause 26.5
(TRANSFERS BY BANKS) all or any of its rights, benefits and obligations
hereunder to any other bank or financial institution (in relation to which the
representation contained in Clause 10.3 (BANK'S REPRESENTATION) is true on the
date on which such assignment or transfer takes effect) Provided that (unless
the relevant assignment or transfer is of all of a Bank's rights and benefits or
all of its rights, benefits and obligations (as the case may be)) following such
assignment or transfer:
(a) each Bank shall retain a portion of its share of the Advances
having a Dollar Amount of not less than US$15,000,000; and
(b) the relevant assignee's or Transferee Bank's share of the
Dollar Amounts of Advances is at least equal to US$15,000,000.
26.4 ASSIGNMENTS BY BANKS If any Bank assigns all or any of its rights and
benefits hereunder in accordance with Clause 26.3 (ASSIGNMENTS AND TRANSFERS BY
BANKS), then, unless and until the assignee has agreed with the Agent, the
Arrangers and the other Banks that it shall be under the same obligations
towards each of them as it would have been under if it had been an original
party hereto as a Bank (whereupon such assignee shall become a party hereto as a
"Bank"), the Agent, the Arrangers and the other Banks shall not be obliged to
recognise such assignee as having the rights against each of them which it would
have had if it had been such a party hereto.
26.5 TRANSFERS BY BANKS If any Bank wishes to transfer all or any of its rights,
benefits and/or obligations hereunder as contemplated in (and only in accordance
with) Clause 26.3 (ASSIGNMENTS AND TRANSFERS BY BANKS) then such transfer may be
effected by the delivery to the Agent of a duly completed and duly executed Bank
Transfer Certificate (or other document having substantially the same effect) in
which event, on the later of the Bank Transfer Date specified in such Bank
Transfer Certificate or other document and the fifth business day after (or such
earlier business day endorsed by the Agent on such Bank Transfer Certificate or
other document falling on or after) the date of delivery of such Bank Transfer
Certificate or other document to the Agent:
(a) to the extent that in such Transfer Certificate or other
document the Bank party thereto seeks to transfer its rights,
benefits and obligations hereunder, each of the Obligors and
such Bank shall be released from further obligations towards
one another hereunder and their respective rights against one
another shall be cancelled (such rights and obligations being
referred to in this Clause 26.5 as "DISCHARGED RIGHTS AND
OBLIGATIONS");
(b) each of the Obligors and the Transferee Bank party thereto or
to such other document
<PAGE>
shall assume obligations towards one another and/or acquire
rights against one another which differ from such discharged
rights and obligations only insofar as such Obligor and such
Transferee Bank have assumed and/or acquired the same in place
of such Obligor and such Bank;
(c) the Agent, the Arrangers, such Transferee Bank and the other
Banks shall acquire the same rights and benefits and assume
the same obligations between themselves as they would have
acquired and assumed had such Transferee Bank been an original
party hereto as a Bank with the rights, benefits and/or
obligations acquired or assumed by it as a result of such
transfer; and
(d) such Transferee Bank shall become a party hereto as a "Bank".
26.6 TRANSFER FEES On the date upon which a transfer takes effect pursuant to
Clause 26.5 (TRANSFERS BY BANKS) (save for a transfer by a Bank of all of its
rights, benefits and/or obligations hereunder to a subsidiary, holding company
or subsidiary of a holding company of such Bank) the Transferee Bank in respect
of such transfer shall pay to the Agent for its own account a transfer fee of $
1,000.
26.7 DISCLOSURE OF INFORMATION Any Bank may disclose to any actual or potential
assignee or Transferee Bank or to any person who may otherwise enter into
contractual relations with such Bank in relation to this Agreement (each a
"RELEVANT PERSON"), provided that any such relevant person has entered into a
confidentiality agreement in a form agreed between the Guarantor and such Bank
(but subject to Clause 26.8 (EXCEPTIONS)), such information about the Obligors
and the VNU Group as such Bank shall consider appropriate.
26.8 EXCEPTIONS Any Bank may, notwithstanding Clause 26.7 (DISCLOSURE OF
INFORMATION) disclose at any time any information:
(a) which at the relevant time is in the public domain;
(b) which was lawfully in its possession or its advisers prior to
such disclosure without being subject to a confidentiality
undertaking;
(c) the disclosure of which is required by law or court order or
any competent regulatory body or which is necessitated by any
legal proceedings or audit requirement upon prior notice to
the Guarantor;
(d) the disclosure of which is made to an affiliate of such Bank
(where "AFFILIATE" for this purpose means a subsidiary or
holding company, or a subsidiary of a holding company, of such
Bank) in circumstances where it is such Bank's usual practice
to make such disclosure or where such disclosure is required
as part of such Bank's management or reporting policies upon
prior notice to the Guarantor and subject to such affiliate
entering into a confidentiality undertaking in respect thereof
with the Guarantor;
(e) where such disclosure is made to the Agent, the Arrangers or
any other Bank; or
(f) where such disclosure is made to its auditors or legal or
other professional advisers.
26.9 LIMITATION ON GROSS-UPS AND INDEMNITIES If any Bank assigns or transfers
(in accordance with Clause 26.3 (ASSIGNMENTS AND TRANSFERS BY BANKS)) any of its
rights, benefits and obligations hereunder or changes its Facility Office and,
at the time of such assignment, transfer or change, there arises, or it is
reasonably foreseeable at the time of such assignment, transfer or change that
as a result
<PAGE>
of such assignment, transfer or change there would arise, an obligation on the
part of a Borrower to such Bank or its assignee or transferee or any other
person to pay or indemnify any amount in excess of the amount it would have been
obliged to pay had such assignment, transfer or change not occurred, then such
Borrower shall not be obliged to pay the amount of such excess Provided that
this Clause 26.9 (LIMITATION ON GROSS-UPS AND INDEMNITIES) shall not apply in
relation to any assignment, transfer or change made at the request of an
Obligor.
26.10 ASSIGNMENTS AND TRANSFERS BY THE OBLIGORS No Obligor shall be entitled to
transfer all or any of its rights, benefits and obligations hereunder.
26.11 TRANSFERS OF ADVANCES BY BORROWERS If any Borrower wishes to transfer all
of its rights, benefits and/or obligations in respect of any Advance made
available to it hereunder then such transfer may be effected by the giving of no
less than ten business days notice to the Agent and delivery to the Agent of a
duly completed and duly executed Borrower Transfer Certificate in the form set
out in Part B of the Second Schedule (together with, if the party to which such
Borrower wishes to make such transfer is an Additional Borrower, a duly
completed and duly executed Accession Agreement in the form set out in the Fifth
Schedule and each of the condition precedent documents referred to therein, in
form and substance satisfactory to the Agent, acting reasonably, such that such
Additional Borrower shall become a Borrower hereunder on the Effective Borrower
Transfer Date specified in such Borrower Transfer Certificate), in which event
on the Effective Borrower Transfer Date:
(a) to the extent that in such Borrower Transfer Certificate the
Borrower party thereto seeks to transfer its rights, benefits
and obligations in and to such Advance, such Borrower shall be
released from further obligations owed to the other parties
hereto in respect of such Advance and the rights of the other
parties hereto against such Borrower in respect of such
Advance shall be cancelled (such rights and obligations being
referred to in this Clause 28.11 as "DISCHARGED RIGHTS AND
OBLIGATIONS") ;
(b) each of the Agent, the Arrangers, the Banks and the Transferee
Borrower party thereto shall assume obligations towards one
another and/or acquire rights against one another which differ
from such discharged rights and obligations only insofar as
the Agent, the Arrangers, the Banks and such Transferee
Borrower have assumed and/or acquired the same in place of
such Borrower, the Agent, the Arrangers and the Banks;
(c) the Obligors and the Transferee Borrower shall acquire the
same rights and benefits and assume the same obligations
towards one another as they would have acquired and assumed
had such Transferee Borrower been an original party hereto as
a Borrower with the rights, benefits and/or obligations
acquired or assumed by it as a result of such transfer; and
(d) such Transferee Borrower shall become a party hereto as a
"Borrower".
26.12 PAYMENT OF INTEREST ON TRANSFERRED ADVANCES If any Borrower transfers all
or part of its rights, benefits and/or obligations in respect of any Advance
pursuant to Clause 26.11 (TRANSFERS OF ADVANCES BY BORROWERS) other than on the
last day of the Term relating thereto, then save as agreed between the relevant
Borrowers and the Agent:
(i) the Borrower to which such rights, benefits and/or obligations
are transferred shall pay accrued interest on such Advance, on
the last day of such Term, for the period from the date on
which such Advance was transferred to it until the last day of
such Term; and
<PAGE>
(ii) the Borrower making such transfer shall pay accrued interest
on such Advance on the last day of such Term for the period
from the first day of such Term until the date of such
transfer .
<PAGE>
PART 13
MISCELLANEOUS
27. CALCULATIONS AND EVIDENCE OF DEBT
27.1 BASIS OF ACCRUAL Interest shall accrue from day to day and shall be
calculated on the basis of a year of 360 days (or, in any case where market
practice differs, in accordance with market practice) and the actual number of
days elapsed.
27.2 PROPORTIONATE REDUCTIONS Any repayment of an Advance denominated in euros
shall reduce the amount of such Advance by the amount of such euros repaid and
shall reduce the Dollar Amount of such Advance proportionately.
27.3 QUOTATIONS If on any occasion a Reference Bank or Bank fails to supply the
Agent with a quotation required of it under the foregoing provisions of this
Agreement, the rate for which such quotation was required shall be determined
from those quotations which are supplied to the Agent.
27.4 EVIDENCE OF DEBT Each Bank shall maintain in accordance with its usual
practice accounts evidencing the amounts from time to time lent by and owing to
it hereunder.
27.5 CONTROL ACCOUNTS The Agent shall maintain on its books a control account or
accounts in which shall be recorded (a) the amount of any Advance made or
arising hereunder and each Bank's share therein, (b) the amount of all
principal, interest and other sums due or to become due from any of the Obligors
to any of the Banks hereunder and each Bank's share therein and (c) the amount
of any sum received or recovered by the Agent hereunder and each Bank's share
therein.
27.6 PRIMA FACIE EVIDENCE In any legal action or proceeding arising out of or in
connection with this Agreement, the entries made in the accounts maintained
pursuant to Clause 27.4 (EVIDENCE OF DEBT) and Clause 27.5 (CONTROL ACCOUNTS)
shall be PRIMA FACIE evidence of the existence and amounts of the specified
obligations of the Obligors in the absence of manifest error.
27.7 CERTIFICATES OF BANKS A certificate of a Bank as to (a) the amount by which
a sum payable to it hereunder is to be increased under Clause 9.1 (TAX GROSS-UP)
or (b) the amount for the time being required to indemnify it against any such
cost, payment or liability as is mentioned in Clause 9.2 (TAX INDEMNITY) or
Clause 11.1 (INCREASED COSTS) shall, in the absence of manifest error, be PRIMA
FACIE evidence of the existence and amounts of the specified obligations of the
Obligors.
27.8 AGENT'S CERTIFICATE A certificate of the Agent as to the amount at any time
due from any of the Borrowers hereunder or the amount which, but for any of the
obligations of such Borrower hereunder being or becoming void, voidable,
unenforceable or ineffective, at any time would have been due from such Borrower
hereunder shall, in the absence of manifest error, be conclusive for the
purposes of Part 7 (GUARANTEE).
27.9 POWERS OF ATTORNEY If any party hereto is represented by an attorney or
attorneys in connection with the signing and/or executing and/or delivery of
this Agreement or any agreement or document referred to herein or made pursuant
hereto and the relevant power or powers of attorney is or are expressed to be
governed by the laws of a particular jurisdiction, it is hereby expressly
acknowledged and accepted by the other parties hereto that such laws shall
govern the existence and extent of such attorney's or attorneys' authority and
the effects of the exercise thereof.
28. REMEDIES AND WAIVERS, PARTIAL INVALIDITY
28.1 REMEDIES AND WAIVERS No failure to exercise, nor any delay in exercising,
on the part of the Agent, the Arranger and the Banks or any of them, any right
or remedy hereunder shall operate as a
<PAGE>
waiver thereof, nor shall any single or partial exercise of any right or remedy
prevent any further or other exercise thereof or the exercise of any other right
or remedy. The rights and remedies herein provided are cumulative and not
exclusive of any rights or remedies provided by law.
28.2 PARTIAL INVALIDITY If, at any time, any provision hereof is or becomes
illegal, invalid or unenforceable in any respect under the law of any
jurisdiction, neither the legality, validity or enforceability of the remaining
provisions hereof nor the legality, validity or enforceability of such provision
under the law of any other jurisdiction shall in any way be affected or impaired
thereby.
29. NOTICES
29.1 COMMUNICATIONS IN WRITING Each communication to be made hereunder shall,
unless otherwise stated, be made in writing and by fax, telex or letter.
29.2 DELIVERY Any communication or document to be made or delivered by one
person to another pursuant to this Agreement shall (unless that other person has
by fifteen days' written notice to the Agent specified another address) be made
or delivered to that other person at the address identified with its signature
below (or, in the case of a Transferee, at the end of the Bank Transfer
Certificate to which it is a party as Transferee) and shall be deemed to have
been made or delivered when despatched (in the case of any communication made by
fax or telex) or (in the case of any communication made by letter) when left at
that address or (as the case may be) ten days after being deposited in the post
postage prepaid in an envelope addressed to it at that address Provided that:
(a) any such communication or document to be made or delivered to
the Agent shall be effective only when received by the Agent
and then only if the same is expressly marked for the
attention of the department or officer identified with the
Agent's signature below (or such other department or officer
as the Agent shall from time to time specify for this
purpose);
(b) any communication or document to be made or delivered to any
Bank having more than one Facility Office shall (unless such
Bank has by fifteen days' written notice to the Agent
specified another address) be made or delivered to such Bank
at the address identified with its signature below (or, in the
case of a Transferee, at the end of the Bank Transfer
Certificate to which it is a party as Transferee) as its main
Facility Office;
(c) any communication or document sent to any Borrower other than
the Guarantor shall be copied to the Guarantor; and
(d) any communication or document sent to any Obligor or Obligors
by fax shall be confirmed by dispatch of the relevant
communication or document to the relevant Obligor or Obligors
by courier, registered mail or telex at the option of the
party making such communication.
29.3 ENGLISH LANGUAGE Each communication and document made or delivered by one
party to another pursuant to this Agreement shall be in the English language or
accompanied by an accurate translation thereof into English.
30. AMENDMENTS
30.1 AMENDMENT PROCEDURES The Agent, if it has the prior written consent of an
Instructing Group, and the Obligors may from time to time agree in writing to
amend this Agreement or to waive, prospectively or retrospectively, any of the
requirements of this Agreement and any amendments or
<PAGE>
waivers so agreed shall be binding on all the Banks, the Arrangers and the
Obligors Provided that:
(a) no such waiver or amendment shall subject any party hereto to
any new or additional obligations without the consent of such
party;
(b) without the prior written consent of all the Banks, no such
amendment or waiver shall:
(i) amend or waive any provision of Clause 22 (SHARING),
Clause 17 (GUARANTEE AND INDEMNITY) or this Clause
30;
(ii) reduce the proportion of any amount received or
recovered (whether by way of set-off, combination of
accounts or otherwise) in respect of any amount due
from any of the Borrowers hereunder to which any Bank
is entitled;
(iii) change the principal amount of or currency of any
Advance, or defer any Repayment Date or the Final
Maturity Date;
(iv) reduce the Applicable Margin, reduce the amount or
change the currency or defer the date for any payment
of interest, fees or any other amount payable
hereunder to all or any of the Agent, the Arrangers
and the Banks;
(v) amend the definition of Instructing Group; or
(vi) amend any provision which contemplates the need for
the consent or approval of all the Banks; and
(c) notwithstanding any other provisions hereof, the Agent shall
not be obliged to agree to any such amendment or waiver if the
same would:
(i) (unless the Agent has received the prior consent of
all the Banks) amend or waive any provision of this
Clause 30, Clause 24 (COSTS AND EXPENSES) or Part 11
(AGENCY PROVISIONS); or
(ii) otherwise amend or waive the Agent's rights hereunder
or subject either the Agent or the Arrangers to any
additional obligations hereunder.
30.2 AMENDMENT COSTS If the Borrowers request any amendment or waiver in
accordance with Clause 30.1 (AMENDMENT PROCEDURES) then the Borrowers shall, on
demand of the Agent, reimburse the Agent, the Arrangers and the Banks for all
reasonable costs and expenses (including reasonable legal fees) together with
any VAT thereon incurred by the Agent, the Arrangers and the Banks in responding
to or complying with such request.
<PAGE>
PART 14
LAW AND JURISDICTION
31. LAW AND JURISDICTION
31.1 ENGLISH LAW This Agreement shall be governed by, and shall be construed in
accordance with, English law.
31.2 ENGLISH COURTS Each of the parties hereto irrevocably agrees for the
benefit of each of the Agent, the Arrangers and the Banks that the courts of
England shall have jurisdiction to hear and determine any suit, action or
proceedings, and to settle any disputes, which may arise out of or in connection
with this Agreement (respectively "PROCEEDINGS" and "DISPUTES") and, for such
purposes, irrevocably submits to the jurisdiction of such courts.
31.3 APPROPRIATE FORUM Each of the Obligors irrevocably waives any objection
which it might now or hereafter have to the courts referred to in Clause 31.2
(ENGLISH COURTS) being nominated as the forum to hear and determine any
Proceedings and to settle any Disputes and agrees not to claim that any such
court is not a convenient or appropriate forum.
31.4 SERVICE OF PROCESS Each of the Obligors agrees that the process by which
any Proceedings are begun may be served on it by being delivered in connection
with any Proceedings in England, to Law Debenture Corporate Services Limited,
Princes House, 95 Gresham Street, London EC2V 7LC, or other its registered
office for the time being. If the appointment of the person mentioned in this
Clause 31.4 ceases to be effective in respect of any of the Obligors, such
Obligor shall immediately appoint a further person in England to accept service
of process on its behalf in England and, failing such appointment within 15
days, the Agent shall be entitled to appoint such a person by notice to such
Obligor. Nothing contained herein shall affect the right to serve process in any
other manner permitted by law.
31.5 NON-EXCLUSIVE SUBMISSIONS The submission to the jurisdiction of the courts
referred to in Clause 31.2 (ENGLISH COURTS) shall not (and shall not be
construed so as to) limit the right of the Agent, the Arranger and the Banks or
any of them to take Proceedings against any of the Obligors in any other court
of competent jurisdiction nor shall the taking of Proceedings in any one or more
jurisdictions preclude the taking of Proceedings in any other jurisdiction
(whether concurrently or not) if and to the extent permitted by applicable law.
31.6 CONSENT TO ENFORCEMENT Each of the Obligors hereby consents generally in
respect of any Proceedings to the issue of any process in connection with such
Proceedings including the making, enforcement or execution against any property
whatsoever (irrespective of its use or intended use) of any order or judgment
which may be made or given in such Proceedings.
31.7 WAIVER OF IMMUNITY To the extent that any of the Obligors may in any
jurisdiction claim for itself or its assets immunity from suit, execution,
attachment (whether in aid of execution, before judgment or otherwise) or other
legal process and to the extent that in any such jurisdiction there may be
attributed to itself or its assets such immunity (whether or not claimed), such
Obligor hereby irrevocably agrees not to claim and hereby irrevocably waives
such immunity to the full extent permitted by the laws of such jurisdiction.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
<PAGE>
THE FIRST SCHEDULE
THE BANKS
BANK COMMITMENT ($)
ABN AMRO BANK N.V. 1,500,000,000
MERRILL LYNCH CAPITAL CORPORATION 1,500,000,000
<PAGE>
THE SECOND SCHEDULE
PART A
FORM OF BANK TRANSFER CERTIFICATE
To: [Agent]
BANK TRANSFER CERTIFICATE
relating to the agreement (as from time to time amended, varied, novated or
supplemented, the "FACILITY AGREEMENT") dated 15 August 1999 whereby a $
3,000,000,000 revolving credit facility was made available to VNU N.V. and VNU
Ireland as original borrowers by a group of banks on whose behalf ABN AMRO Bank
N.V. acted as agent in connection therewith.
1. Terms defined in the Facility Agreement shall, subject to any contrary
indication, have the same meanings herein. The terms Bank, Transferee Bank's
Participation and Amount Transferred are defined in the schedule hereto.
2. The Bank (i) confirms that the Bank's Participation accurately summarises its
participation in the Facility Agreement and (ii) requests the Transferee Bank to
accept and procure the transfer to the Transferee Bank of a percentage of the
Bank's Participation by counter-signing and delivering this Bank Transfer
Certificate to the Agent at its address for the service of notices specified in
the Facility Agreement.
3. The Transferee hereby requests the Agent to accept this Bank Transfer
Certificate as being delivered to the Agent pursuant to and for the purposes of
Clause 26.5 (TRANSFERS BY BANKS) of the Facility Agreement so as to take effect
in accordance with the terms thereof on the Bank Transfer Date or on such later
date as may be determined in accordance with the terms thereof.
4. The Transferee Bank hereby represents that it is a qualifying lender such
that all payments received or receivable by it under the Facility Agreement may
be made free and clear without deduction or withholding on account of tax.
5. The Transferee Bank confirms that it has received a copy of the Facility
Agreement together with such other information as it has required in connection
with this transaction and that it has not relied and will not hereafter rely on
the Bank to check or enquire on its behalf into the legality, validity,
effectiveness, adequacy, accuracy or completeness of any such information and
further agrees that it has not relied and will not rely on the Bank to assess or
keep under review on its behalf the financial condition, creditworthiness,
condition, affairs, status or nature of any of the Obligors.
6. The Transferee Bank hereby undertakes with the Bank and each of the other
parties to the Facility Agreement that it will perform in accordance with their
terms all those obligations which by the terms of the Facility Agreement will be
assumed by it after delivery of this Bank Transfer Certificate to the Agent and
satisfaction of the conditions (if any) subject to which this Bank Transfer
Certificate is expressed to take effect.
7. The Bank makes no representation or warranty and assumes no responsibility
with respect to the legality, validity, effectiveness, adequacy or
enforceability of the Facility Agreement or any document relating thereto and
assumes no responsibility for the financial condition of any of the Obligors or
for the performance and observance by any of the Obligors of any of its
obligations under the Facility Agreement or any document relating thereto and
any and all such conditions and warranties, whether express or implied by law or
otherwise, are hereby excluded.
<PAGE>
8. The Bank hereby gives notice that nothing herein or in the Facility Agreement
(or any document relating thereto) shall oblige the Bank to (a) accept a
re-transfer from the Transferee Bank of the whole or any part of its rights,
benefits and/or obligations under the Facility Agreement transferred pursuant
hereto or (b) support any losses directly or indirectly sustained or incurred by
the Transferee Bank for any reason whatsoever including the non-performance by
any of the Obligors or any other party to the Facility Agreement (or any
document relating thereto) of its obligations under any such document. The
Transferee Bank hereby acknowledges the absence of any such obligation as is
referred to in (a) or (b) above.
9. This Bank Transfer Certificate and the rights, benefits and obligations of
the parties hereunder shall be governed by and construed in accordance with
English law.
THE SCHEDULE
1. Bank:
2. Transferee:
3. Bank Transfer Date:
4. Bank's Participation:
Bank's Commitment Bank's Portion of the Loan
5. Amount Transferred Advances and Currencies
[Transferor Bank] [Transferee Bank]
By: By:
Date: Date:
<PAGE>
ADMINISTRATIVE DETAILS OF TRANSFEREE BANK
Facility Office:
Contact Name:
Account for payments in dollars:
Telex: [ ]
[Fax: [ ]]
Telephone: [ ]
<PAGE>
PART B
FORM OF BORROWER TRANSFER CERTIFICATE
To: [Agent]
BORROWER TRANSFER CERTIFICATE
relating to the agreement (as from time to time amended, varied, novated or
supplemented, the "FACILITY AGREEMENT") dated 15 August 1999 whereby a
$3,000,000,000 revolving credit facility was made available to VNU N.V. and VNU
Ireland as original borrowers by a group of banks on whose behalf ABN AMRO Bank
N.V. acted as agent in connection therewith.
1. Terms defined in the Facility Agreement shall, subject to any contrary
indication, have the same meanings herein. The terms Transferor Borrower,
Advance, Effective Borrower Transfer Date and Transferee Borrower are defined in
the schedule hereto.
2. The Transferor Borrower (i) confirms that the Advance was made available to
it by the Banks and (ii) requests the Transferee Borrower to accept and procure
the transfer to the Transferee Borrower of the whole of the Advance by
counter-signing and delivering this Borrower Transfer Certificate to the Agent
at its address for the service of notices specified in the Facility Agreement.
3. The Transferee Borrower hereby requests the Agent to accept this Borrower
Transfer Certificate as being delivered to the Agent pursuant to and for the
purposes of Clause 26.11 (TRANSFERS OF ADVANCES BY BORROWERS) of the Facility
Agreement so as to take effect in accordance with the terms thereof on the
Effective Borrower Transfer Date.
4. The Transferee Borrower hereby undertakes with each of the other parties to
the Facility Agreement that it will perform in accordance with their terms all
those obligations which by the terms of the Facility Agreement will be assumed
by it after delivery of this Borrower Transfer Certificate to the Agent and
satisfaction of the conditions (if any) subject to which this Borrower Transfer
Certificate is expressed to take effect.
5. This Borrower Transfer Certificate and the rights, benefits and obligations
of the parties hereunder shall be governed by and construed in accordance with
English law.
<PAGE>
THE SCHEDULE
1. Transferor Borrower:
2. Transferee Borrower:
3. Effective Borrower Transfer Date:
4. Advance and Currency:
[Transferor Borrower] [Transferee Borrower]
By: By:
Date: Date:
<PAGE>
[DETAILS OF TRANSFEREE BORROWER
Address:
Contact Name:
Telex: [ ]
Fax: [ ]
Telephone: [ ] ]*
*Only required if Transferee Borrower is an Additional Borrower
<PAGE>
THE THIRD SCHEDULE
CONDITION PRECEDENT DOCUMENTS
1. In relation to each of the Obligors:
(a) a copy, certified a true copy by a duly authorised officer of
such Obligor, of the constitutive documents of such Obligor;
(b) a certificate of a duly authorised managing director of the
Guarantor stating that the execution by it of this Agreement
and the performance by it of its obligations hereunder are
within its corporate powers, have been duly approved by all
necessary corporate action, are in its best corporate
interests and will not cause any limit or restriction on any
of its powers (whether imposed by law, decree, rule,
regulation, its constitutive documents, agreement or
otherwise), or on the rights or ability of its directors to
exercise such powers, to be exceeded or breached all subject
to the provisions of the WET OP DE ONDERNEMINGSRADEN regarding
the Facility and the issue by VNU N.V. of the guarantee
granted by it pursuant to this Agreement;
(c) either:
(i) a copy, certified a true copy, by a duly authorised
managing director of the Guarantor, of an
unconditional positive advice from the authorised
Works' Council (ONDERNEMINGSRAAD, "OR") with regard
to the contracting (AANTREKKEN) of a substantial loan
on behalf of the Guarantor pursuant to this Agreement
and the granting of a guarantee for the obligations
of each Obligor; or
(ii) if no such unconditional positive advice is obtained
either:
(1) a certificate of a duly authorised managing
director of the Guarantor, stating that the
one month period mentioned in article 26
para. 2 of the Works' Council Act (WET OP DE
ONDERNEMINGSRADEN, "WOR") has lapsed without
the commencement by the OR of legal
proceedings in accordance with article 26 of
the WOR or any other legal proceedings
(whether by summary proceedings or
otherwise) against the Guarantor in
connection with the transactions
contemplated by this Agreement; or
(2) a copy, certified a true copy by a duly
authorised managing director of the
Guarantor, of a decision of the OR to
abstain from appeal or to refrain from
objecting against the decision of the
Guarantor with regard to the transactions
contemplated by this Agreement; or
(3) the Condition to the Offer set out in
paragraph (iv)(B) of Exhibit A shall have
been met on the basis that in the
Guarantor's opinion the conditions specified
in the conditional positive advice referred
to therein would not result in the material
detriment or restrictions referred to
therein, the Guarantor shall have notified
the Agent of such conditions, shall have
consulted with the Agent in respect thereof,
provided the Agent with reasonable
information (if available) supporting the
Guarantor's opinion mentioned herein and
allowed the Agent a reasonable period of
time in the relevant circumstances to
discuss such opinion with, and make
<PAGE>
representations in respect thereof to, the
Guarantor; or
(4) if legal proceedings referred to in
paragraph (1) have been commenced by the OR,
either:
(a) a decision by the competent court
(not subject to appeal) has been
given in respect of such
proceedings which has the effect
that the Guarantor is entitled to
contract (ANTREKKEN) for a
substantial loan pursuant to this
Agreement and to grant a guarantee
for the obligatios of each Obligor
notwithstanding any legal
proceedings which either have or
may be brought by the OR; or
(b) all claims of the OR pursuant to
such proceedings have been
dismissed and no further appeal may
be commenced by the OR; or
(c) all such proceedings referred to in
paragraph (1) above which may have
been commenced by the OR have been
terminated or withdrawn by the OR;
(d) in relation to VNU Ireland, a copy, certified as true by a
duly authorised officer of VNU Ireland, of a board resolution
of VNU Ireland approving the execution of this Agreement and
the exercise of its rights and performance of its obligations
hereunder; and
(e) a certificate of a duly authorised officer of such Obligor
setting out the names and signatures of the persons authorised
to sign, on behalf of such Obligor this Agreement and any
documents to be delivered by such Obligor pursuant hereto.
2. An opinion of the Guarantor's Counsel in substantially the form set out in
the Sixth Schedule (OPINION OF THE GUARANTOR'S COUNSEL).
3. An opinion of the Banks' Netherlands and Irish Counsel in substantially the
forms set out in the Seventh Schedule (OPINION OF THE BANKS' NETHERLANDS AND
IRISH COUNSEL).
4. An opinion of the Banks' English Counsel in substantially the form set out in
the Eighth Schedule (OPINION OF THE BANKS' ENGLISH COUNSEL).
5. A copy, certified a true copy by a duly authorised officer of the Guarantor,
of the Original Financial Statements of the Guarantor and of the most recent
accounts of VNU Ireland (audited, if available).
6. Evidence that Law Debenture Corporate Services Limited has agreed to act as
the agent of the Obligors for the service of process in England.
7. Executed copies, certified by an authorised signatory of the Guarantor as
true, complete and up-to-date, of the Tender Offer Documents, the Merger
Document, the Confidentiality Agreement and the Escrow Account Agreement.
8. Evidence that the up-front fees required to be paid by the Guarantor prior to
first drawdown pursuant to the arrangement fee letter referred to herein have
been (or are to be) paid in accordance therewith.
<PAGE>
9. Certificate of Incorporation, certified by the secretary of State of Delaware
and by-laws of Purchaser and Target, certified by the secretary of such
corporations.
10. Evidence of the existence and good standing of Purchaser and Target from the
State of Delaware.
11. A certificate, signed by an authorised signatory of the Guarantor,
confirming that Shares satisfying the Minimum Condition have been tendered in
accordance with the Offer.
<PAGE>
THE FOURTH SCHEDULE
NOTICE OF DRAWDOWN
From: [Borrower]
To: [Agent]
Dated:
Dear Sirs,
1. We refer to the agreement (as from time to time amended, varied, novated or
supplemented, the "FACILITY ") dated 15 August 1999 and made between VNU Ireland
and VNU N.V. as borrowers, VNU N.V. as guarantor, ABN AMRO Bank N.V. and Merrill
Lynch International as arrangers, ABN AMRO Bank N.V. as agent and the financial
institutions named therein as banks. Terms defined in the Facility Agreement
shall have the same meaning in this notice.
2. We hereby give you notice that, pursuant to the Facility Agreement and on
(date of proposed Advance], we wish to borrow an Advance having an Original
Dollar Amount of $[ ] upon the terms and subject to the conditions contained
therein. .
3. [We would like this Advance to be denominated in [currency] [and to have a
Term of [ ] months' duration].
4. We confirm that , at the date hereof, the representations set out in Clause
12 (REPRESENTATIONS) of the Facility Agreement to be repeated in accordance with
Clause 12.2 (REPETITION) of the Facility Agreement are true and no Event of
Default or Potential Event of Default has occurred and is continuing.
5. The Proceeds of this drawdown should be credited to [insert account details].
Yours faithfully
------------------------------
for and on behalf of
[Name of Borrower]
<PAGE>
THE FIFTH SCHEDULE
FORM OF ACCESSION AGREEMENT
THIS ACCESSION AGREEMENT is made on the [ ] day of [ ] 199[ ]
BETWEEN:
(1) VNU N.V. on behalf of itself and each of the other Obligors (the
"GUARANTOR")
(2) [Additional Borrower] (the "ADDITIONAL BORROWER"); and
(3) ABN AMRO BANK N.V. as agent on behalf of itself and each of the
Arranger and the Banks (the "AGENT").
WHEREAS:
(A) The Original Borrower, the Guarantor, ABN AMRO Bank N.V. and Merrill
Lynch International as Arrangers, ABN AMRO Bank N.V. as Agent and the
Banks referred to therein entered into a $ 3,000,000,000 Revolving
Credit Facility Agreement dated 15 August 1999 pursuant to which a
revolving credit facility was made available to the Borrowers referred
to therein (the "FACILITY AGREEMENT").
[(B)] [Specify any other Additional Borrower[s]] [has] [have] become [a
party] [parties] to the Facility Agreement as [a] Borrower[s] on
[specify date[s] of the relevant Accession Agreement[s]] pursuant to
Clause 3 of the Facility Agreement.]
[(B)/(C)] The Guarantor wishes to designate the Additional Borrower as an
Additional Borrower for the purposes of the Facility Agreement.
NOW IT IS HEREBY AGREED as follows:
1. Terms defined in the Facility Agreement shall, unless the context
otherwise requires, have the same meanings when used in this Agreement.
2. ADDITIONAL BORROWER
The Guarantor hereby designates the Additional Borrower as an
Additional Borrower for the purposes of the Facility Agreement and each
of the parties to this Agreement agrees that upon the satisfaction of
the conditions referred to in Clause 3.2 (ACCESSION OF ADDITIONAL
BORROWERS) of the Facility Agreement the Additional Borrower shall
become an Additional Borrower for the purposes of the Facility
Agreement and any reference to an "ADDITIONAL BORROWER", a "BORROWER"
or an "OBLIGOR" in the Facility Agreement shall thereupon be construed
accordingly.
3. CONDITIONS PRECEDENT
The condition precedent documents referred to in Clause 3.2 (ACCESSION
OF ADDITIONAL BORROWERS) of the Facility Agreement in relation to the
Additional Borrower are as follows:
(a) a copy, certified a true copy by a duly authorised officer of
the Additional Borrower, of its constitutive documents;
<PAGE>
(b) a copy, certified a true copy by a duly authorised officer of
the Additional Borrower, of a board resolution or equivalent
authorisation of the Additional Borrower approving the
execution, delivery and performance of this Agreement and the
terms and conditions hereof, the exercise of its rights and the
performance of its obligations under the Facility Agreement and
authorising a named person or persons to sign this Agreement
and any documents to be delivered by it pursuant hereto or
pursuant to the Facility Agreement;
(c) a certificate of a duly authorised officer of the Additional
Borrower setting out the name and signature of the person or of
each of the persons referred to in (b) above;
(d) a copy, certified a true copy by a duly authorised officer of
the Additional Borrower, of each such law, decree, consent,
licence, approval, registration or declaration as is, in the
opinion of counsel to the Banks, necessary to render this
Agreement and the Additional Borrower's obligations under the
Facility Agreement legal, valid, binding and enforceable, to
make this Agreement and the Facility Agreement admissible in
evidence in the Additional Borrower's jurisdiction of
incorporation and to enable the Additional Borrower to perform
its obligations under the Facility Agreement; and
(e) an opinion of external counsel in the jurisdiction of
incorporation of the Additional Borrower and England.
4. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which when so executed being an original and all such counterparts
together constituting but one and the same instrument.
5. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
English law.
6. MISCELLANEOUS
The provisions of Clause 28 (REMEDIES AND WAIVERS, PARTIAL INVALIDITY)
and Clause 31.2 (ENGLISH COURTS) to 31.7 (WAIVER OF IMMUNITY) of the
Facility Agreement shall be deemed to be incorporated in this Agreement
MUTATIS MUTANDIS and as if references therein to an "OBLIGOR" were
references to the Additional Borrower.
IN WITNESS WHEREOF the hands of the duly authorised representatives of the
parties hereto the day and year first before written.
- ------------------------------------
VNU N.V.
<PAGE>
- --------------------------------------
[ADDITIONAL BORROWER]
- ---------------------------------------
ABN AMRO BANK N.V.
<PAGE>
THE SIXTH SCHEDULE
OPINION OF THE GUARANTOR'S COUNSEL
<PAGE>
THE SEVENTH SCHEDULE
OPINION OF THE BANKS' NETHERLANDS AND IRISH COUNSEL
<PAGE>
THE EIGHTH SCHEDULE
OPINION OF THE BANKS' ENGLISH COUNSEL
<PAGE>
THE NINTH SCHEDULE
FORM OF DISPOSALS CERTIFICATE
To : [Agent]
From : VNU N.V.
Dated : [ ]
Dear Sirs,
$3,000,000,000 REVOLVING CREDIT AGREEMENT DATED 15 AUGUST 1999 BETWEEN OURSELVES
AS GUARANTOR, THE BORROWERS REFERRED TO THEREIN, ABN AMRO BANK N.V. AND MERRILL
LYNCH INTERNATIONAL AS ARRANGERS, YOURSELVES AS AGENT AND CERTAIN FINANCIAL
INSTITUTIONS SPECIFIED THEREIN AS BANKS (THE "FACILITY AGREEMENT")
[This certificate is delivered to you pursuant to Clause 15.8 (a) of the
Facility Agreement together with our audited annual financial statements for our
financial year ended [ ]. During such financial year disposals (of the type
referred to in Clause 15.8 (a) of the Facility Agreement) have been made by the
VNU Group, details of which are set out below:
RELEVANT VNU UNDERTAKING/ DATE OF NET REVENUES CASH
GROUP MEMBER ASSET DISPOSAL PROCEEDS
]*
[This certificate is delivered to you pursuant to Clause 15.8 (b) of the
Facility Agreement. A disposal of the type referred to in Clause 15.8 (b) of the
Facility Agreement) has been made by [specify relevant VNU Group member],
details of which are as follows:
RELEVANT VNU UNDERTAKING/ DATE OF NET REVENUES CASH
GROUP MEMBER ASSET DISPOSAL PROCEEDS
]*
Words and expressions defined in this certificate have the meanings given to
them in the Facility Agreement.
[ ]
for and on behalf of
VNU N.V.
* Delete as appropriate
<PAGE>
VNU IRELAND
(as Borrower)
By: J.L. Power
Address: West Block
IFFC
Dublin 1
Ireland
Tel: + 353 1 670 1842
Fax: + 353 1 829 0297
Att: Chief Financial Officer/Treasurer
VNU N.V.
(as Borrower and Guarantor)
By: P. van Driessen W. van Neutegem
Address: Ceylonpoort 5-25
2037 AA Haarlem
The Netherlands
Telephone: 31 23 546 3238
Facsimile: 31 23 546 3911
Attention: Chief Financial Officer/Treasurer
<PAGE>
THE ARRANGERS
ABN AMRO BANK N.V.
By: A. H. den Held B. Flotman-van Zeventer
Address: Foppingadreef 20-22
1102 BS Amsterdam Zuidoost
The Netherlands
Telephone: 31 20 628 4164/3729
Facsimile: 31 20 628 7968
Attention: Ronald de Leeuw/Rob Marres
MERRILL LYNCH INTERNATIONAL
By: M. Powell
Address: Ropemaker Place
25 Ropemaker Street
London EC2Y 9LY
Telephone: +44 171 867 4548
Fax: +44 171 892 8601
Attention: Martyn Powell/Charles Wickham
THE AGENT
ABN AMRO BANK N.V.
By: A. H. den Held B. Flotman-van Zeventer
Address: Gustav Mahlerlaan 10
1082 PP Amsterdam
The Netherlands
Telephone: 31 20 628 7460
Facsimile: 31 20 628 7716
Attention: Rob Slabbers PAC HQ 4131
<PAGE>
THE BANKS
ABN AMRO BANK N.V.
By: A. H. den Held B. Flotman-van Zeventer
CREDIT MATTERS:
Address: Global & Institutional Clients
P.O. Box 90
1000 AB Amsterdam
The Netherlands
Telephone: 31 20 628 4816
Facsimile: 31 20 628 7755
Attention: Anton H. den Held
OPERATIONAL MATTERS:
Address: FCS Account Management
P.O. Box 283
1000 EA Amsterdam
The Netherlands
Telephone: 31 20 628 7392
Facsimile: 31 20 628 1286
Attention: R. Farenhorst
MERRILL LYNCH CAPITAL CORPORATION
By: Stephen B. Paras
Address: World Financial Center
North Tower
250 Vesey Street
New York , New York
10281-1307
Telephone: +1 212 449 8414
Fax: +1 212 738 1649
Attention: Carol Feeley
<PAGE>
Exhibit 99 (c)(1)
---------------------------------------------------------
AGREEMENT AND PLAN OF MERGER
among
VNU USA, INC.
NINER ACQUISITION, INC.
and
NIELSEN MEDIA RESEARCH, INC.
Dated as of August 15, 1999
---------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE I THE OFFER............................................................................2
Section 1.1 THE OFFER..............................................................2
Section 1.2 OFFER DOCUMENTS........................................................4
Section 1.3 COMPANY ACTIONS........................................................5
Section 1.4 DIRECTORS..............................................................7
ARTICLE II THE MERGER...........................................................................8
Section 2.1 THE MERGER.............................................................8
Section 2.2 CLOSING................................................................9
Section 2.3 EFFECTIVE TIME.........................................................9
Section 2.4 EFFECTS OF THE MERGER..................................................9
Section 2.5 CERTIFICATE OF INCORPORATION; BY-LAWS..................................9
Section 2.6 DIRECTORS; OFFICERS....................................................9
ARTICLE III EFFECT OF THE MERGER ON THE CAPITAL STOCK
OF THE CONSTITUENT CORPORATIONS; EX
CHANGE OF CERTIFICATES..............................................................10
Section 3.1 EFFECT ON CAPITAL STOCK...............................................10
Section 3.2 OPTIONS; STOCK PLANS..................................................11
Section 3.3 PAYMENT FOR SHARES....................................................15
ARTICLE IV REPRESENTATIONS AND WARRANTIES......................................................17
Section 4.1 REPRESENTATIONS AND WARRANTIES OF THE COMPANY...........................17
Section 4.2 REPRESENTATIONS AND WARRANTIES OF PARENT AND
PURCHASER...............................................................36
ARTICLE V CONDUCT OF BUSINESS OF THE COMPANY..................................................39
Section 5.1 CONDUCT OF BUSINESS OF THE COMPANY....................................39
ARTICLE VI ADDITIONAL COVENANTS................................................................42
Section 6.1 THE COMPANY STOCKHOLDERS MEETING; PREPA
RATION OF THE PROXY STATEMENT; SHORT-FORM
MERGER................................................................42
i
<PAGE>
<S> <C>
Section 6.2 ACCESS TO INFORMATION; NOTIFICATION OF CERTAIN MATTERS................43
Section 6.3 REASONABLE BEST EFFORTS...............................................44
Section 6.4 PUBLIC ANNOUNCEMENTS..................................................44
Section 6.5 NO SOLICITATION.......................................................45
Section 6.6 CONSENTS, APPROVALS AND FILINGS.......................................46
Section 6.7 EMPLOYEE BENEFIT PLANS................................................47
Section 6.8 INDEMNIFICATION; DIRECTORS' AND OFFICERS' INSURANCE...................48
Section 6.9 AGREEMENTS WITH NETRATINGS, INC.......................................51
Section 6.10 CERTAIN TAX MATTERS...................................................51
ARTICLE VII CONDITIONS PRECEDENT................................................................51
Section 7.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER............51
ARTICLE VIII TERMINATION.........................................................................52
Section 8.1 TERMINATION...........................................................52
Section 8.2 EFFECT OF TERMINATION.................................................55
ARTICLE IX GENERAL PROVISIONS..................................................................57
Section 9.1 FEES AND EXPENSES.....................................................57
Section 9.2 CERTAIN DEFINITIONS...................................................58
Section 9.3 AMENDMENT AND MODIFICATION............................................59
Section 9.4 EXTENSION; WAIVER.....................................................59
Section 9.5 NOTICES...............................................................59
Section 9.6 INTERPRETATION........................................................61
Section 9.7 ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES........................61
Section 9.8 GOVERNING LAW.........................................................62
Section 9.9 ASSIGNMENT............................................................62
Section 9.10 ENFORCEMENT...........................................................62
Section 9.11 SEVERABILITY..........................................................63
Section 9.12 COUNTERPARTS..........................................................63
</TABLE>
ii
<PAGE>
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of August 15, 1999, by and among
VNU USA, INC., a New York corporation ("Parent"), NINER ACQUISITION, INC., a
Delaware corporation and wholly owned subsidiary of Parent ("Purchaser"), and
NIELSEN MEDIA RESEARCH, INC., a Delaware corporation (the "Company").
WHEREAS, the respective Boards of Directors of Parent, Purchaser and
the Company have determined that it would be advisable and in the best interests
of their respective stockholders for Parent to acquire the Company upon the
terms and subject to the conditions set forth in this Agreement;
WHEREAS, to effectuate the acquisition, it is proposed that Purchaser
commence a cash tender offer to purchase all of the issued and outstanding
shares of common stock, par value $.01 per share (the "Common Stock"), of the
Company, including the associated Preferred Stock Purchase Rights (the "Rights"
and, together with the Common Stock, the "Shares") issued pursuant to a Rights
Agreement, dated as of October 15, 1996, between the Company and First Chicago
Trust Company of New York (the "Rights Agreement"), on the terms and subject to
the conditions set forth in this Agreement and the Offer Documents (as defined
in Section 1.2 hereof);
WHEREAS, to effectuate the acquisition, it is further proposed that
following consummation of the Offer (as defined in Section 1.1 hereof),
Purchaser will be merged with and into the Company, with the Company continuing
as the surviving corporation in such merger (the "Merger");
WHEREAS, the Board of Directors of the Company has, by the unanimous
vote of all directors present (i) determined that the Offer and the Merger are
fair to and in the best interests of the Company and its stockholders; (ii)
approved this Agreement and the transactions contemplated hereby, including the
Offer and the Merger, in accordance with the General Corporation Law of the
State of Delaware (the "DGCL"), and (iii) declared the advisability of this
Agreement and resolved to recommend that the holders of the Shares accept the
Offer and adopt this Agreement; and
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and other terms contained in this
Agreement, the parties hereto, intending to be legally bound hereby, agree as
follows:
<PAGE>
ARTICLE I
THE OFFER
Section 1.1 THE OFFER. (a) Provided that none of the events set forth
in Exhibit A hereto shall have occurred and be continuing, on the fifth business
day after the public announcement by Parent and the Company of the execution and
delivery of this Agreement (counting the business day on which such announcement
is made), Purchaser shall commence (within the meaning of Rule 14d-2 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")), an offer to
purchase any and all outstanding Shares, including the associated Rights, at a
price of $37.75 per share, net to the seller in cash (as paid pursuant to the
Offer, the "Offer Consideration"). The obligation of Parent and Purchaser to
commence the Offer, to consummate the Offer and to accept for payment and pay
for Shares validly tendered in the Offer and not withdrawn shall be subject to
the conditions set forth in Exhibit A hereto.
(b) On the terms and subject to the prior satisfaction or
waiver of the conditions of the Offer, Parent shall provide funds to Purchaser
and Purchaser shall accept for payment and pay for any and all Shares validly
tendered and not withdrawn pursuant to the Offer as soon as practicable after
the expiration date thereof.
(c) Without the prior written consent of the Company,
Purchaser shall not (i) change the form of consideration paid, decrease the
Offer Consideration or decrease the number of Shares sought pursuant to the
Offer, (ii) extend the expiration date of the Offer beyond the initial
expiration date of the Offer (which shall be the 20th business day after
commencement of the Offer), except (A) as required by applicable law, (B) that
if, immediately prior to the expiration date of the Offer (as it may be
extended), the Shares tendered and not withdrawn pursuant to the Offer
constitute at least 80% but less than 90% of the outstanding Shares, Purchaser
may, in its sole discretion, extend the Offer for one or more periods not to
exceed an aggregate of five business days, notwithstanding that all conditions
to the Offer are satisfied as of such expiration date of the Offer, (C) that if
any condition to the Offer has not been satisfied or waived, Purchaser may, in
its sole discretion, extend the expiration date of the Offer for one or more
periods (not in excess of 10 business days each) but in no event later than
December 22, 1999, (D) that if Parent reason ably and in good faith believes,
based on the written advice of counsel to Parent, that legislation, Treasury
regulations or any other authoritative pronouncement (in proposed
2
<PAGE>
form or otherwise) is about to be issued or enacted with a retroactive effective
date, and such legislation, regulations or pronouncement would have a Material
Adverse Effect on the Company as a result of the transactions contemplated by
this Agreement, Purchaser may, in its sole discretion, pending the issuance of
such legislation, regulations or pronouncement, extend the expiration date of
the Offer for one or more periods (not in excess of 10 business days each) until
the earlier of (x) the date Parent notifies the Company of its intent to proceed
with the Offer notwithstanding that such regulations or pronouncement have not
been issued, (y) five business days after the issuance of such regulations or
pronouncement, or (z) December 15, 1999, or (E) as provided in the following
sentences of this Section 1.1(c), (iii) waive the condition (the "Minimum
Condition") that there shall be validly tendered and not withdrawn prior to the
time the Offer expires a number of Shares which, together with the Shares then
owned by Parent, constitutes at least a majority of the Shares outstanding on a
fully-diluted basis on the date of purchase ("on a fully-diluted basis" meaning
the number of Shares outstanding, together with the Shares which the Company may
be required to issue pursuant to warrants, options or obligations outstanding at
that date under employee stock or similar benefit plans or otherwise whether or
not vested or then exercisable), (iv) waive the condition relating to the
expiration of the waiting period under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976 (the "HSR Act"), the condition relating to the opinion
of counsel to be delivered to the Company and IMS Health Incorporated or the
condition relating to the non-termination of this Agreement, (v) amend any term
or other condition of the Offer in any manner adverse to holders of Shares or
(vi) impose any additional condition to the Offer; provided, however, that,
except as set forth above and subject to applicable legal requirements,
Purchaser may waive any condition to the Offer in its sole discretion; and
provided, further, that the Offer may be extended in connection with an increase
in the consideration to be paid pursuant to the Offer so as to comply with
applicable rules and regulations of the United States Securities and Exchange
Commission (the "SEC"). If the Offer shall not have been consummated at the
scheduled expiration thereof due to the failure to satisfy (i) any of the
conditions to the Offer set forth in clause (vi)(a) or (vi)(d) of Exhibit A, or
(ii) the condition to the Offer relating to the expiration of the waiting period
under the HSR Act, Parent will, at the request of the Company, cause Purchaser
to extend the expiration date of the Offer for one or more periods (not in
excess of 10 business days each) but in no event later than December 22, 1999.
If the Offer shall not have been consummated at the scheduled expiration thereof
due to the failure to satisfy the condition relating to the Works' Council,
Parent will, at the request of the Company, cause Purchaser to extend the
expiration date of the Offer for one or more periods (not in excess of 10
business days each) but in no event later than April 7, 2000. If the Company
reasonably and in good faith believes,
3
<PAGE>
based on the written advice of counsel to the Company, that legislation,
Treasury regulations or any other authoritative pronouncement (in proposed form
or otherwise) is about to be issued or enacted with a retroactive effective
date, and such regulations or pronouncement would have a Material Adverse Effect
on the Company as a result of the transactions contemplated by this Agreement,
Parent will, at the request of the Company, cause Purchaser to extend the
expiration date of the Offer for one or more periods until the earlier of (i)
the date the Company notifies the Parent of the Company's intent to proceed with
the Offer notwithstanding that such regulations or pronouncement has not been
issued, or (ii) five business days after the issuance of such regulations or
pronouncement, but in no event shall the Company be entitled, pending the
issuance of such legislation, regulations or pronouncement, to request that
Parent cause Purchaser to extend the expiration date of the Offer beyond
December 15, 1999.
Section 1.2 OFFER DOCUMENTS. (a) As soon as practicable on the date of
commencement of the Offer, Parent and Purchaser shall file or cause to be filed
with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1")
with respect to the Offer which shall contain the offer to purchase and related
letter of transmittal and other ancillary documents and instruments pursuant to
which the Offer will be made (collectively, and with any supplements or
amendments thereto, the "Offer Documents"). The Company will promptly supply to
Parent and Purchaser in writing, for inclusion in the Offer Documents, all
information concerning the Company required under the Exchange Act and the rules
and regulations thereunder to be included in the Offer Documents.
(b) The Offer Documents will comply in all material respects
with the provisions of applicable federal securities laws and, on the date filed
with the SEC and on the date first published, sent or given to the Company's
stockholders, shall not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading, except that no representation is made by Parent or
Purchaser with respect to information supplied by the Company in writing for
inclusion in the Offer Documents. Each of Parent and Purchaser further agrees to
take all steps necessary to cause the Offer Documents to be filed with the SEC
and to be disseminated to holders of Shares, in each case as and to the extent
required by applicable federal securities laws. Each of Parent, Purchaser and
the Company shall promptly correct any information provided by them for use in
the Offer Documents if and to the extent that such information shall be or have
become false or misleading in any material respect, and Parent and Purchaser
shall take all lawful action necessary to cause the Offer Documents as so
4
<PAGE>
corrected to be filed promptly with the SEC and to be disseminated to holders of
Shares as and to the extent required by applicable law. The Company and its
counsel shall be given a reasonable opportunity to review and comment on the
Offer Documents and any amendments thereto prior to the filing thereof with the
SEC. Parent and Purchaser agree to provide the Company and its counsel any
comments Parent, Purchaser or their counsel may receive from the SEC or its
staff with respect to the Offer Documents promptly after the receipt of such
comments.
Section 1.3 COMPANY ACTIONS. (a) The Company hereby approves of and
consents to the Offer and represents and warrants that (i) its Board of
Directors (at a meeting duly called and held) has by the unanimous vote of all
directors present (A) determined that each of this Agreement, the Offer and the
Merger are fair to and in the best interests of the Company's stockholders, (B)
approved this Agreement and the transactions contemplated hereby, including the
Offer and the Merger, and such approval is sufficient to render the restrictions
on "business combinations" (as defined in Section 203 of the DGCL) set forth in
Section 203 of the DGCL inapplicable to this Agreement and the transactions
contemplated hereby, including the Offer and the Merger, and (C) declared the
advisability of this Agreement and resolved to recommend acceptance of the Offer
and adoption of this Agreement by the holders of Shares; provided, however, that
prior to the consummation of the Offer, the Board of Directors of the Company
may modify, withdraw or change such recommendation to the extent that the Board
of Directors concludes in good faith, based on the advice of outside counsel,
that such action is reasonably necessary in order for the Board of Directors to
act in a manner consistent with the Board's fiduciary duties under applicable
law, and (ii) Morgan Stanley & Co., Incorporated has delivered to the Board of
Directors of the Company its opinion that the Offer Consideration to be received
by the holders of Shares in the Offer is fair, from a financial point of view,
to such holders.
(b) The Company shall file with the SEC, as soon as
practicable on the date of commencement of the Offer, a
Solicitation/Recommendation Statement on Schedule 14D-9 (together with any
supplements or amendments thereto, the "Schedule 14D-9") containing the
recommendations of the Board of Directors of the Company in favor of the Offer
and the adoption of this Agreement and the transactions contemplated hereby,
including the Merger; provided, however, that prior to the consummation of the
Offer, the Board of Directors of the Company may modify, withdraw or change such
recommendation to the extent that the Board of Directors concludes in good
faith, based on the advice of outside counsel, that such action is reasonably
necessary in order for the
5
<PAGE>
Board of Directors to act in a manner consistent with the Board's fiduciary
duties under applicable law. Each of Parent and Purchaser will promptly supply
to the Company in writing, for inclusion in the Schedule 14D- 9, all information
concerning the Parent Designees (as defined in Section 1.4 hereof), as required
by Section 14(f) of the Exchange Act and Rule 14f-1 thereunder, and the Company
shall include such information in the Schedule 14D-9. Parent will promptly
supply to the Company in writing, for inclusion in the Schedule 14D-9, any
information concerning Parent or Purchaser required under the Exchange Act and
the rules and regulations thereunder to be included in the Schedule 14D-9. The
Schedule 14D-9 will comply in all material respects with the provisions of
applicable federal securities laws and, on the date filed with the SEC and on
the date first published, sent or given to the Company's stockholders, shall not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, except that no representation is made by the Company with respect to
information supplied by Parent or Purchaser in writing for inclusion in the
Schedule 14D-9. The Company further agrees to take all steps necessary to cause
the Schedule 14D-9 to be filed with the SEC and to be disseminated to holders
of Shares, in each case as and to the extent required by applicable federal
securities laws. Each of the Company, Parent and Purchaser shall promptly
correct any information provided by them for use in the Schedule 14D-9 if and to
the extent that such information shall be or have become false or misleading in
any material respect and the Company shall take all lawful action necessary to
cause the Schedule 14D-9 as so corrected to be filed promptly with the SEC and
disseminated to the holders of Shares as and to the extent required by
applicable law. Parent, Purchaser and their counsel shall be given a reasonable
opportunity to review and comment on the Schedule 14D-9 and any amendments
thereto prior to the filing thereof with the SEC. The Company agrees to provide
Parent and its counsel any comments the Company or its counsel receive from the
SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of
such comments.
(c) In connection with the Offer, the Company shall promptly
furnish Parent and Purchaser with mailing labels, security position listings and
all available listings or computer files containing the names and addresses of
the record holders of Shares as of the latest practicable date and shall furnish
Parent and Purchaser with such information and assistance (including updated
lists of stockholders, mailing labels and lists of security positions) as
Parent and Purchaser or their agents may reasonably request in communicating the
Offer to the record and beneficial holders of Shares.
6
<PAGE>
Section 1.4 DIRECTORS. (a) Promptly after the purchase of and payment
for the Shares by Purchaser pursuant to the Offer, Parent shall be entitled to
designate such number of directors (the "Parent Designees"), rounded up to the
next whole number, on the Company's Board of Directors as is equal to the
product of the total number of directors on such Board (after giving effect to
any increase in the size of such Board pursuant to this Section 1.4) multiplied
by the percentage that the number of Shares beneficially owned by Purchaser at
such time (including Shares so accepted for payment) bears to the total number
of Shares then outstanding; provided that in no event shall the Parent Designees
constitute less than a majority of the entire Board of Directors. In furtherance
thereof, the Company shall, upon the request of Parent, use its reasonable best
efforts promptly either to increase the size of its Board of Directors or to
secure the resignations of such number of its incumbent directors, or both, as
is necessary to enable the Parent Designees to be so elected or appointed to the
Company's Board of Directors, and the Company shall take all actions available
to the Company to cause the Parent Designees to be so elected or appointed. At
such time, the Company shall, if requested by Parent, also take all action
necessary to cause persons designated by Parent to constitute at least the same
percentage (rounded up to the next whole number) as is on the Company's Board of
Directors of (i) each committee of the Company's Board of Directors, (ii) each
board of directors (or similar body) of each Subsidiary (as defined in Section
9.3 hereof) of the Company and (iii) each committee (or similar body) of each
such board.
(b) The Company's obligation to appoint Parent Designees to
the Company's Board of Directors shall be subject to Section 14(f) of the
Exchange Act and Rule 14f-1 promulgated thereunder. The Company shall promptly
take all actions required pursuant to Section 14(f) of the Exchange Act and Rule
14f-1 promulgated thereunder in order to fulfill its obligations under Section
1.4(a), including mailing to stockholders the information required by such
Section 14(f) and Rule 14f-1 (or including such information in the Schedule
14D-9 initially filed with the SEC and distributed to the stockholders of the
Company) as is necessary to enable Parent Designees to be elected to the
Company's Board of Directors. Parent or Purchaser will supply to the Company in
writing and be solely responsible for any information with respect to Parent and
Purchaser and their nominees, officers, directors and affiliates to the extent
required by such Section 14(f) and Rule 14f-1. The provisions of this Section
1.4 are in addition to and shall not limit any rights which Purchaser, Parent or
any of their affiliates may have as a holder or beneficial owner of Shares as a
matter of applicable law with respect to the election of directors or
7
<PAGE>
otherwise.
(c) Notwithstanding the provisions of this Section 1.4, the
parties hereto shall use their respective best efforts to ensure that at least
two of the members of the Board shall, at all times prior to the Effective Time
(as defined in Section 2.3 hereof), be directors of the Company who were
directors of the Company on the date hereof (the "Continuing Directors"),
provided that, if there shall be in office less than two Continuing Directors
for any reason, the Board of Directors shall cause the person designated by the
remaining Continuing Director to fill such vacancy who shall be deemed to be a
Continuing Director for all purposes of this Agreement, or if no Continuing
Directors then remain, the other directors of the Company then in office shall
designate two persons to fill such vacancies who will not be officers or
employees or affiliates of the Company, Parent or VNU N.V. ("VNU" or the
"Guarantor") or any of their respective subsidiaries and such persons shall be
deemed to be Continuing Directors for all purposes of this Agreement. From and
after the time, if any, that the Parent Designees constitute a majority of the
Company's Board of Directors and prior to the Effective Time, subject to the
terms hereof, any amendment or modification of this Agreement, any amendment to
the Company's Certificate of Incorporation or By-Laws, any termination of this
Agreement by the Company, any extension of time for performance of any of the
obligations of Parent or Purchaser hereunder, any waiver of any condition to
the Company's obligations hereunder or any of the Company's rights hereunder or
other action by the Company hereunder which adversely affects the holders of
Shares other than Parent or Purchaser may be effected only if there are in
office one or more Continuing Directors and such action is approved by the
action of unanimous vote of the entire Board of Directors of the Company.
ARTICLE II
THE MERGER
Section 2.1 THE MERGER. On the terms and subject to the conditions set
forth in this Agreement, and in accordance with the DGCL, the Merger shall be
effected and Purchaser shall be merged with and into the Company at the
Effective Time. At the Effective Time, the separate existence of Purchaser shall
cease and the Company shall continue as the surviving corporation (as such, the
"Surviving Corporation") and shall continue to be governed by the laws of the
State of Delaware.
8
<PAGE>
Section 2.2 CLOSING. Unless this Agreement shall have been terminated
and the transactions contemplated hereby shall have been abandoned pursuant to
Article VIII, and subject to the satisfaction or waiver of all of the conditions
set forth in Article VII, the closing of the Merger (the "Closing") will take
place as soon as practicable, but in no event later than 10:00 a.m. on the
second business day (the "Closing Date") following satisfaction or waiver of all
of the conditions set forth in Article VII, other than those conditions that by
their nature are to be satisfied at the Closing, but subject to the fulfillment
or waiver of those conditions, at the offices of Skadden, Arps, Slate, Meagher &
Flom LLP, 919 Third Avenue, New York, New York, 10022, unless another date, time
or place is agreed to in writing by the parties hereto.
Section 2.3 EFFECTIVE TIME. On the Closing Date (or on such other date
as Parent and the Company may agree), the parties hereto shall file with the
Secretary of State of Delaware a certificate of merger or, if applicable, a
certificate of owner ship and merger and any other appropriate documents,
executed in accordance with the relevant provisions of the DGCL, and shall make
all other filings or recordings required under the DGCL and other applicable law
in connection with the Merger. The Merger shall become effective upon the filing
of the certificate of merger or, if applicable, the certificate of ownership and
merger, with the Delaware Secretary of State, or at such later time as is
mutually agreed by the parties and set forth therein (the "Effective Time").
Section 2.4 EFFECTS OF THE MERGER. The Merger shall have the effects
set forth in the applicable provisions of the DGCL. Without limiting the
generality of the foregoing, and subject thereto, at the Effective Time, all
property of the Company and Purchaser shall vest in the Surviving Corporation,
and all liabilities and obligations of the Company and Purchaser shall become
liabilities and obligations of the Surviving Corporation.
Section 2.5 CERTIFICATE OF INCORPORATION; BY-LAWS. (a) The certificate
of incorporation of the Company shall be the certificate of incorporation of the
Surviving Corporation until thereafter changed or amended in accordance with
the provisions thereof and applicable law and (b) the by-laws of the Company
shall be the by-laws of the Surviving Corporation until thereafter changed or
amended in accordance with the provisions thereof and applicable law.
Section 2.6 DIRECTORS; OFFICERS. From and after the Effective Time, (a)
the directors of Purchaser shall be the directors of the Surviving Corporation,
until the earlier of their resignation or removal or until their respective
successors are duly elected and
9
<PAGE>
qualified, as the case may be, and (b) the officers of the Company shall be the
officers of the Surviving Corporation, until the earlier of their resignation or
removal or until their respective successors are duly elected and qualified, as
the case may be.
ARTICLE III
EFFECT OF THE MERGER ON THE CAPITAL STOCK
OF THE CONSTITUENT CORPORATIONS; EXCHANGE OF CERTIFICATES
Section 3.1 EFFECT ON CAPITAL STOCK. At the Effective Time, by virtue
of the Merger and without any action on the part of any holder of Shares or any
other shares of capital stock of the Company or Purchaser:
(a) COMMON STOCK OF PURCHASER. Each share of common stock, par
value $0.01 per share, of Purchaser issued and outstanding immediately prior to
the Effective Time shall be converted into and become one validly issued, fully
paid and nonassessable share of common stock, par value $0.01 per share, of the
Surviving Corporation.
(b) CANCELLATION OF TREASURY SHARES AND PARENT-OWNED SHARES.
Each Share issued and outstanding immediately prior to the Effective Time that
is owned by the Company or any Subsidiary of the Company or by Parent, Purchaser
or any other Subsidiary of Parent (other than shares in trust accounts, managed
accounts, custodial accounts and the like that are beneficially owned by third
parties) shall automatically be canceled and shall cease to exist, and no cash
or other consideration shall be delivered or deliverable in exchange therefor.
(c) CONVERSION OF SHARES. At the Effective Time, each Share
issued and outstanding immediately prior to the Effective Time (other than
Shares to be canceled in accordance with Section 3.1(b) and any Dissenting
Shares (as defined in Section 3.1(d)) shall be converted into the right to
receive the Offer Consideration, payable to the holder thereof, without any
interest thereon (the "Merger Consideration"), less any required withholding
taxes, upon surrender and exchange of a Certificate (as defined in Section 3.3).
(d) DISSENTING SHARES. Notwithstanding anything in this
Agreement to
10
<PAGE>
the contrary, Shares issued and outstanding immediately prior to the Effective
Time held by any person who has not voted such Shares in favor of the Merger and
who has the right to demand, and who properly demands, an appraisal of such
Shares ("Dissenting Shares") in accordance with Section 262 of the DGCL (or any
successor provision) shall not be converted into a right to receive the Merger
Consideration unless such holder fails to perfect or otherwise loses such
holder's right to such appraisal, if any. If, after the Effective Time, such
holder fails to perfect or loses any such right to appraisal, each such Share of
such holder shall be treated as a Share that had been converted as of the
Effective Time into the right to receive the Merger Consideration in accordance
with Section 3.1(c). At the Effective Time, any holder of Dissenting Shares
shall cease to have any rights with respect thereto, except the rights provided
in Section 262 of the DGCL (or any successor provision) and as provided in the
immediately preceding sentence. The Company shall give prompt notice to Parent
of any demands received by the Company for appraisal of Shares, and Parent shall
have the right to participate in and direct all negotiations and proceedings
with respect to such demands. The Company shall not, except with the prior
written consent of Parent, make any payment with respect to, or offer to settle,
any such demands.
Section 3.2 OPTIONS; STOCK PLANS.
(a) Immediately prior to the Effective Time, each then
outstanding option to purchase Shares which is vested and exercisable (in each
case, a "Vested Stock Option") shall be cancelled by the Company and in
consideration of such cancellation and except to the extent that Parent and the
holder of any such Vested Stock Option otherwise agree, the Company shall pay to
such holders of Vested Stock Options an amount in respect thereof equal to the
product of (A) the excess, if any, of (i) the Merger Consideration over (ii) the
exercise price per Share subject to such Vested Stock Option less any
consideration previously paid for such Vested Stock Option and (B) the number of
Shares subject to such Vested Stock Option immediately prior to its
cancellation. Such payment shall be less any required withholding taxes and
without interest.
(b) Each outstanding option to acquire Shares which,
immediately prior to the Effective Time, is not vested and exercisable (in each
case, an "Unvested Stock Option" and, together with the Vested Stock Options,
the "Stock Options") shall, immediately prior to the Effective Time but subject
to the Company's obtaining any necessary waivers, as to which it shall use its
reasonable best efforts, be cancel led by the Company, and in consideration of
such cancellation, holders of such Unvested Stock
11
<PAGE>
Options shall have the right to receive, subject to the provisions of this
Section 3.2 and to the provisions of Section 3.2 of the Disclosure Letter (as
defined below), an amount of cash equal to the product of (A) the excess, if
any, of (i) the Merger Consideration, over (ii) the exercise price per Share
subject to such Unvested Stock Option (less any consideration previously paid by
such holder for such Unvested Stock Option (the "Pre-Paid Amount")) and (B) the
number of Shares subject to such Unvested Stock Option immediately prior to its
cancellation, such payment to be made, less any withholding taxes, on the
following date or dates, subject, however, to the provisions of paragraph (e) or
(f), as applicable:
(i) with respect to the Unvested Stock Options that
were granted under the Replacement Plan or under the Directors' Plan (as each
such term is defined in Section 4.1(d)), such payment to be made on the date and
in the manner set forth in Section 3.2(a) above;
(ii) with respect to the Unvested Stock Options that
relate to an option granted in November 1996 and that would otherwise have
become vested and exercisable in November 1999, such payment to be made in
November 1999 on the date that such portion of the Unvested Stock Options would
otherwise have become vested and exercisable;
(iii) with respect to the remaining Unvested Stock
Options (i.e., the Unvested Stock Options other than the Unvested Stock Options
described in clauses (i) and (ii) above), such payment to be made in four equal
installments on the date that is six months, 12 months, 18 months and 24 months,
respectively, following the Effective Time; and
(iv) with respect to all of the payments to be made
pursuant to clause (iii) above to those individuals listed in Section 3.2(b)(iv)
of the Disclosure Letter (each, an "Executive"), (A) immediately prior to the
Effective Time, the payments shall be placed in an escrow account which shall
provide for an institutional escrow agent and the terms of which shall be
designed to ensure that the assets thereof shall not be subject to the claims of
creditors of the Company and (B) the payments, when made, shall include interest
accumulated by reason of the investment and reinvestment of such payments in
6-month Treasury Bills.
(c) Immediately prior to the Effective Time, (i) each then
outstanding
12
<PAGE>
Deferred Share Unit issued under the Directors' Deferred Compensation Plan (as
defined in Section 4.1(d)) shall be cancelled and in consideration of such
cancellation, the holder of such Deferred Share Unit shall receive a cash
payment equal to the number of Deferred Share Units then held by such holder,
multiplied by the Merger Consideration, (ii) each Deferred Cash account
established under the Directors' Deferred Compensation Plan shall be cancelled
and in consideration of such cancellation, the participant in whose name the
Deferred Cash account is established shall receive a cash payment equal to the
balance in such Deferred Cash account and (iii) each then outstanding share of
restricted stock issued under the Directors' Plan shall be cancelled and in
consideration of such cancellation, the holder of such shares of restricted
stock shall receive a cash payment equal to the number of shares of restricted
stock then held by such holder, multiplied by the Merger Consideration.
(d) Immediately prior to the Effective Time, each outstanding
share of restricted stock granted under the Key Employees' Stock Incentive Plan
(as defined in Section 4.1(d)) shall be cancelled and in consideration of such
cancellation, the holder of such shares of restricted stock shall receive a
cash payment equal to the number of shares of restricted stock then held by such
holder, multiplied by the Merger Consideration. Such payment shall be made on
the date or dates on which such shares of restricted stock would otherwise have
become vested.
(e) In the event that, prior to the date on which a payment to
an Executive pursuant to Section 3.2(b)(iii) or Section 3.2(d) hereof becomes
due and payable, the Executive's employment shall have been terminated (A) by
the Company, the Parent or the Surviving Corporation without Cause (as defined
in the Change in Control Agreement entered into between the Executive and the
Company (the "Change in Control Agreement")), (B) by the Executive for Good
Reason (as defined in the Change in Control Agreement) or (C) by reason of the
Executive's death or Disability (as defined in the Change in Control Agreement),
the Executive shall receive all of the remaining payments otherwise due and
payable pursuant to Section 3.2(b)(iii) or 3.2(d) as soon as practicable (but in
no event later than five business days) following such termination of
employment. In the event that, prior to the date on which a payment to an
Executive pursuant to Section 3.2(b)(iii) or 3.2(d) hereof becomes due and
payable, the Executive's employment shall have been terminated (A) by the
Company, the Parent or the Surviving Corporation for Cause or (B) by the
Executive without Good Reason, the Executive shall forfeit and shall no longer
be entitled to the remaining payments otherwise due and payable pursuant to
Section 3.2(b)(iii) or 3.2(d).
13
<PAGE>
(f) In the event that, prior to the date on which a payment to
an individual other than an Executive (each such individual, a "Non-Executive
Employee") pursuant to Section 3.2(b)(iii) or 3.2(d) hereof becomes due and
payable, such Non-Executive Employee's employment shall have been terminated (i)
by the Company without Cause (as defined in the Nielsen Media Research, Inc.,
Career Transition Plan (the "Transition Plan")), (ii) by any voluntary
termination that would constitute an Eligible Termination (as defined in the
Transition Plan) or (iii) by reason of death or Disability (as defined in the
Key Employees' Stock Incentive Plan), the Non-Executive Employee (or his or her
heirs or assigns) shall receive all of the remaining payments otherwise due and
payable pursuant to Section 3.2(b)(iii) or 3.2(d) as soon as practicable (but in
no event later than five days) following such termination of employment. In the
event that, prior to the date on which a payment to a Non-Executive Employee
pursuant to Section 3.2(b)(iii) or 3.2(d) hereof becomes due and payable, the
Non-Executive Employee's employment shall have been terminated for any reason
other as described in clauses (i), (ii) or (iii) above, the Non-Executive
Employee shall forfeit and shall no longer be entitled to the remaining
payments otherwise due and payable pursuant to Section 3.2(b)(iii) or 3.2(d).
(g) Notwithstanding the provisions of Section 3.2(e) and (f)
hereof, in the event an Executive's or a Non-Executive Employee's employment
shall terminate for any reason other than for Cause (as defined in the Key
Employees' Stock Incentive Plan), such Executive or Non-Executive Employee shall
receive, as soon as practicable (but in no event later than five business days)
following such termination of employment, any Pre-Paid Amount with respect to
any payments forfeited pursuant to Section 3.2(e) and (f).
(h) The Company shall ensure that following the Effective Time
no holder of a Stock Option or any participant in any employee incentive or
benefit plans or programs or arrangements or non-employee director plans
maintained by the Company shall have any right thereunder to acquire any capital
stock of the Company, Parent or the Surviving Corporation.
(i) Prior to the Effective Time, the Company shall, if
necessary, amend the terms of the applicable Company Stock Option Plans (as
defined in Section 4.1(d)) and the Directors' Deferred Compensation Plan to give
effect to the provisions of this Section 3.2.
14
<PAGE>
Section 3.3 PAYMENT FOR SHARES.
(a) PAYMENT FUND. Concurrently with the Effective Time, Parent
shall deposit, or shall cause to be deposited, with or for the account of a bank
or trust company designated by Parent, which shall be reasonably satisfactory to
the Company (the "Paying Agent"), for the benefit of the holders of Shares,
cash in an amount sufficient to pay the aggregate Merger Consideration payable
upon the conversion of Shares pursuant to Section 3.1(c) (the "Payment Fund").
(b) LETTERS OF TRANSMITTAL; SURRENDER OF CERTIFICATES. As soon
as reasonably practicable after the Effective Time, Parent shall instruct the
Paying Agent to mail to each holder of record (other than the Company or any of
its Subsidiaries or Parent, Purchaser or any other Subsidiary of Parent) of a
certificate or certificates that, immediately prior to the Effective Time,
evidenced outstanding Shares (the "Certificates"), (i) a form of letter of
transmittal (which shall specify that delivery shall be effected, and risk of
loss and title to the Certificates shall pass, only upon proper delivery of the
Certificates to the Exchange Agent, and shall be in such form and have such
other provisions as Parent may reasonably specify) and (ii) instructions for use
in effecting the surrender of the Certificates in exchange for the Merger
Consideration. Upon surrender of a Certificate for cancellation to the Paying
Agent together with such letter of transmittal, duly executed, and such other
customary documents as may be required pursuant to such instructions, the
holder of such Certificate shall be entitled to receive in exchange therefor
cash in an amount equal to the product of (i) the number of Shares formerly
represented by such Certificate and (ii) the Merger Consideration, and the
Certificate so surrendered shall forthwith be canceled. No interest shall be
paid or accrued on any cash payable upon the surrender of any Certificate. If
payment is to be made to a person other than the person in whose name the
surrendered Certificate is registered, it shall be a condition of payment that
the Certificate so surrendered shall be properly endorsed or other wise in
proper form for transfer and that the person requesting such payment shall pay
any transfer or other taxes required by reason of the payment to a person other
than the registered holder of the surrendered Certificate or established to the
satisfaction of Parent and the Surviving Corporation that such taxes have been
paid or are not applicable.
(c) CANCELLATION OF SHARES; NO FURTHER RIGHTS. As of the
Effective Time, all Shares (other than Shares to be canceled in accordance with
Section 3.1(b)) issued and outstanding immediately prior to the Effective Time
shall cease to be outstanding and shall automatically be canceled and shall
cease to exist, and each holder of any such Shares
15
<PAGE>
shall cease to have any rights with respect thereto or arising therefrom
(including without limitation the right to vote), except the right to receive
the Merger Consideration, without interest, upon surrender of such Certificate
in accordance with Section 3.3(b), and until so surrendered, each such
Certificate shall represent for all purposes only the right to receive the
Merger Consideration (without interest), other than in the case of Dissenting
Shares. The Merger Consideration paid upon the surrender for exchange of
Certificates in accordance with the terms of this Section 3.3 shall be deemed to
have been paid in full satisfaction of all rights pertaining to the Shares
formerly represented by such Certificates.
(d) INVESTMENT OF PAYMENT FUND. The Paying Agent shall invest
the Payment Fund, as directed by Parent, in (i) direct obligations of the United
States of America, (ii) obligations for which the full faith and credit of the
United States of America is pledged to provide for the payment of principal and
interest, (iii) commercial paper rated the highest quality by either Moody's
Investors Services, Inc. or Standard & Poor's Corporation, or (iv) certificates
of deposit, bank repurchase agreements or bankers' acceptances of commercial
banks with capital exceeding $500 million. Any net earnings with respect to the
Payment Fund shall be the property of and paid over to Parent as and when
requested by Parent.
(e) TERMINATION OF PAYMENT FUND. Any portion of the Payment
Fund which remains undistributed to the holders of Certificates for 180 days
after the Effective Time shall be delivered to Parent, upon demand, and any
holders of Certificates that have not theretofore complied with this Section 3.3
shall thereafter look only to Parent, and only as general creditors thereof, for
payment of their claim for any Merger Consideration.
(f) NO LIABILITY. None of Parent, Purchaser, the Surviving
Corporation or the Paying Agent shall be liable to any person in respect of any
payments or distributions payable from the Payment Fund delivered to a public
official pursuant to any applicable abandoned property, escheat or similar law.
Subject to applicable law and public policy, if any Certificates shall not have
been surrendered prior to three years after the Effective Time (or immediately
prior to such earlier date on which any Merger Consideration in respect of such
Certificate would otherwise escheat to or become the property of any
Governmental Entity (as defined in Section 4.1(c)), any amounts payable in
respect of such Certificate shall, to the extent permitted by applicable law and
public policy, become the property of the Surviving Corporation, free and clear
of all claims or interest of any person previously entitled thereto.
16
<PAGE>
(g) WITHHOLDING RIGHTS. Parent and Purchaser shall be entitled
to deduct and withhold, or cause to be deducted or withheld, from the
consideration otherwise payable pursuant to this Agreement to any holder of
Shares, Stock Options or Certificates such amounts as are required to be
deducted and withheld with respect to the making of such payment under the
Internal Revenue Code of 1986, as amended (the "Code"), or any provision of
applicable state, local or foreign tax law. To the extent that amounts are so
deducted and withheld, such deducted and withheld amounts shall be treated for
all purposes of this Agreement as having been paid to such holders in respect of
which such deduction and withholding was made.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. Except as
set forth in the corresponding sections or subsections of the disclosure letter
delivered by the Company to Parent and Purchaser upon or prior to entering into
this Agreement (the "Disclosure Letter"), the Company represents and warrants to
Parent and Purchaser as follows:
(a) ORGANIZATION, STANDING AND CORPORATE POWER. Each of the
Company and its Subsidiaries is duly incorporated (or if not a corporation, duly
organized), validly existing and in good standing under the laws of the
jurisdiction in which it is incorporated and has the requisite corporate or
other power and authority to carry on its business as now being conducted. Each
of the Company and its Subsidiaries 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, have a Material Adverse Effect on the Company.
For purposes of this Agreement, a "Material Adverse Effect" with respect to any
person means a material adverse effect on (i) the ability of such person to
perform its obligations under this Agreement or to consummate the transactions
contemplated hereby or (ii) the financial condition, business or results of
operations of such person and its Subsidiaries taken as a whole, other than any
change, circumstance or effect relating to (i) the economy or securities markets
in general, (ii) the industries in which such person operates and not
specifically relating to such person, (iii) the performance of this Agreement or
the
17
<PAGE>
transactions contemplated hereby in accordance with the terms of this Agreement
or (iv) the failure of any stockholder of NetRatings, Inc. ("NetRatings") to
execute Addendum No. 1 to the Restated Stockholders Agreement or Addendum No. 1
to the Restated Rights Agreement to the extent the rights of the Company or
NetRatings are dependent on such stockholder executing such agreements. The
Company has delivered or made available to Parent true, complete and correct
copies of the certificate of incorporation and by-laws or comparable governing
documents of the Company and each Subsidiary of the Company, in each case as
amended to the date of this Agreement. Exhibit 21 to the Company's Annual
Report on Form 10-K for the year ended December 31, 1998 sets forth a true,
correct and complete list of all Subsidiaries of the Company required to be so
reported. Except as set forth in such Exhibit 21, all Subsidiaries of the
Company are wholly owned directly or indirectly by the Company. Except as set
forth in Section 4.1(a) of the Disclosure Letter, the Company does not own,
directly or indirectly, any capital stock or other equity interest in any person
other than the Subsidiaries other than such capital stock and other equity
interests with a carrying value, in the aggregate, not in excess of $1,000,000.
(b) CORPORATE AUTHORIZATION. The Company has the requisite
corporate power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by the Company and the consummation by the Company of the transactions
contemplated hereby have been duly authorized, and this Agreement has been
approved, by the Board of Directors of the Company, and no other corporate
proceeding, other than the approval of the Company's stockholders, is necessary
to authorize the execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby. This Agreement has been duly executed
and delivered by the Company and, assuming that this Agreement constitutes a
valid and binding obligation of Parent and Purchaser, constitutes a valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms. Subject to the applicability of Section 253 of the DGCL, the
affirmative vote of the holders of a majority of the outstanding Shares is the
only vote required to approve the Merger and adopt this Agreement.
(c) CONSENTS AND APPROVALS; NO VIOLATIONS. (i) Except as set
forth in Section 4.1(c) of the Disclosure Letter, the execution and delivery by
the Company of this Agreement do not, and the consummation by the Company of
the transactions contemplated hereby and compliance by the Company with the
provisions hereof will not, (x) violate any of the provisions of the
certificate of incorporation or by-laws of the
18
<PAGE>
Company or the comparable governing documents of any Subsidiary of the Company,
in each case as amended to the date of this Agreement, (y) subject to the
governmental filings and other matters referred to in Section 4.1(c)(ii),
violate or 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, 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 the Company or any of its Subsidiaries is a
party or by which the Company or any of its Subsidiaries or any of their
respective assets is bound or affected (other than the Credit Agreements (as
defined in Section 4.1(d)) or (z) subject to the governmental filings and other
matters referred to in Section 4.1(c)(ii), violate any domestic or foreign law,
rule or regulation applicable to the Company or any order, writ, judgment,
injunction, decree, determination or award applicable to the Company 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
the Company.
(ii) No consent, approval, order or authorization of, or
declaration, registration or filing with, or notice to, any domestic or foreign
court, arbitral tribunal, administrative agency or commission or other
governmental agency or regulatory authority (a "Governmental Entity"), which has
not been received or made is required by or with respect to the Company or any
of its Subsidiaries in connection with the execution and delivery of this
Agreement by the Company or the consummation by the Company of the transactions
contemplated hereby, except for (i) the filing of premerger notification and
report forms under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended (the "HSR Act"), (ii) the filing with the SEC of (A) the Schedule 14D-9
and, if required by applicable law, the Proxy Statement (as defined in Section
6.1(b)), (B) such reports under the Exchange Act as may be required in
connection with this Agreement and the transactions contemplated hereby, (iii)
the filing of the certificate of merger or the certificate of ownership and
merger, as the case may be, with the Delaware Secretary of State and appropriate
documents with the relevant authorities of other states in which the Company is
qualified to do business, (iv) those filings required under the Investment
Canada Act, (v) as required under the rules and regulations of the New York
Stock Exchange and (vi) any other consents, approvals, authorizations, filings
or notices the failure to make or obtain which would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect on the
Company.
(d) CAPITAL STRUCTURE. As of the date of this Agreement, the
authorized
19
<PAGE>
capital stock of the Company consists solely of (A) 400,000,000 shares of Common
Stock, (B) 10,000,000 shares of series common stock, par value $0.01 per share
(the "Series Common Stock"), of which no shares were outstanding, and (C)
10,000,000 shares of preferred stock, par value $0.01 per share ("Preferred
Stock"), of which no shares were outstanding but of which 400,000 shares have
been designated as Series A Junior Participating Preferred Stock and reserved
for issuance upon exercise of the Rights distributed to the holders of Common
Stock pursuant to the Rights Agreement. At the close of business on June 30,
1999, 57,577,469 shares of Common Stock were outstanding, and no shares of
capital stock of the Company were held in the treasury of the Company. There
were outstanding as of June 30, 1999 no options, warrants or other rights to
acquire capital stock from the Company other than (w) the Rights, (x) options
representing in the aggregate the right to purchase up to 12,713,797 shares of
Common Stock (collectively, the "Company Stock Options") under the 1996 Nielsen
Media Research, Inc. Key Employees' Stock Incentive Plan (the "Key Employees'
Stock Incentive Plan"), the 1996 Nielsen Media Research, Inc. Replacement Plan
for Certain Employees Holding The Dun & Bradstreet Corporation Equity Based
Awards (the "Replacement Plan") and the 1996 Nielsen Media Research, Inc.
Non-Employee Directors' Stock Incentive Plan (the "Directors' Plan")
(collectively, the "Company Stock Option Plans"), (y) stock units representing
in the aggregate the right to receive no more than 10,000 shares of Common Stock
under the 1996 Nielsen Media Research, Inc. Non-Employee Directors' Deferred
Compensation Plan (the "Directors' Deferred Compensation Plan") and (z) rights
to purchase shares of Common Stock under the 1997 Nielsen Media Research, Inc.
Employee Stock Purchase Plan (the "Employee Stock Purchase Plan"). Other than
(i) the shares of Common Stock (including restricted stock), Rights, options,
stock units and other rights described above, (ii) options, stock units or other
rights to acquire no more than 50,000 shares of Common Stock (and accompanying
Rights) in the aggregate pursuant to the Company Stock Option Plans, the
Directors' Deferred Compensation Plan and the Employee Stock Purchase Plan and
(iii) shares of Common Stock (and associated Rights) issued since June 30, 1999
upon the exercise of the options referred to in clauses (i) or (ii), no shares,
options or warrants or other rights to acquire capital stock from the Company
remain outstanding as of the date of this Agreement. All outstanding shares of
capital stock of the Company and its Subsidiaries are duly authorized, validly
issued, fully paid and nonassessable and not subject to preemptive or similar
rights, and, in the case of the Subsidiaries, are owned by the Company, by one
or more Subsidiaries of the Company or by the Company and one or more such
Subsidiaries (except as disclosed in Section 4.1(a)), free and clear of all
pledges, claims, liens, charges, mortgages, conditional sale or title retention
agreements,
20
<PAGE>
hypothecations, collateral assignments, security interests, easements and other
encumbrances of any kind or nature whatsoever (collectively, "Liens"), except
for Liens under (A) the Three-Year Credit Agreement, dated as of June 15, 1998,
among the Company, The Chase Manhattan Bank and the lenders named therein and
(B) the Amended and Restated 200-Day Credit Agreement, dated as of June 14,
1999, among the Company, The Chase Manhattan Bank and the lenders named therein
(the "Credit Agreements") and except for Liens under the partnership agreement
relating to NMR Licensing Associates, L.P., dated as of July 7, 1999 (the
"Licensing Partnership Agreement"). Except as described above, neither the
Company nor any Subsidiary of the Company has or is subject to or bound by or,
at or after the Effective Time will have or be subject to or bound by, any
outstanding option, warrant, call, subscription or other right (including any
preemptive or similar right), agreement or commitment which (i) obligates the
Company or any Subsidiary of the Company to issue, sell or transfer, or
repurchase, redeem or otherwise acquire, any shares of the capital stock of the
Company or any Subsidiary of the Company, (ii) restricts the transfer of any
shares of capital stock of the Company or any of its Subsidiaries, or (iii)
relates to the holding, voting or disposition of any shares of capital stock of
the Company or any of its Subsidiaries except, in the case of clause (ii) or
(iii), as provided in the Credit Agreements and the Licensing Partnership
Agreement. No bonds, debentures, notes or other indebtedness of the Company or
any Subsidiary of the Company having the right to vote (or convertible into, or
exchangeable for, securities having the right to vote) on any matters on which
the stockholders of the Company or any Subsidiary of the Company may vote are
issued or outstanding. Section 4.1(d) of the Disclosure Letter accurately sets
forth information as of July 31, 1999 regarding the exercise price, date of
grant and number of granted Stock Options for each holder of Stock Options
pursuant to any stock option plan. Except as described above, there are no other
stock appreciation, phantom stock or other equity-based awards outstanding under
any employee incentive or benefit plan or program or arrangement or non-employee
director plan maintained by the Company.
(e) SEC DOCUMENTS. The Company has filed all required reports,
schedules, forms, statements and other documents with the SEC relating to
periods commencing on or after June 30, 1998 (such reports, schedules, forms,
statements and other documents being hereinafter referred to as the "SEC
Documents"). As of their respective dates, the SEC Documents complied in all
material respects with the requirements of the Securities Act of 1933, as
amended (the "Securities Act"), or the Exchange Act, as the case may be, and the
rules and regulations of the SEC promulgated thereunder applicable to such SEC
Documents, and none of the SEC Documents as of
21
<PAGE>
such dates contained any untrue statements of a material fact or omitted
to state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading. The consolidated financial statements of the Company
included in the SEC Documents comply as to form in all material respects with
applicable accounting requirements and the published rules and regulations of
the SEC with respect thereto, have been prepared in accordance with U.S.
generally accepted accounting principles ("GAAP") (except, in the case of
unaudited consolidated quarterly statements, as permitted by Form 10-Q of the
SEC) applied on a consistent basis during the periods involved (except as may
otherwise be indicated in the notes thereto) and fairly present the consolidated
financial position of the Company and its consolidated Subsidiaries as of the
dates thereof and the consolidated results of their operations and cash flows
for the periods then ended (subject, in the case of unaudited quarterly
statements, to normal year-end audit adjustments).
(f) ABSENCE OF CERTAIN CHANGES OR EVENTS.
(i) Except as set forth in Section 4.1(f) of the
Disclosure Letter, since June 30, 1999, the Company and its Subsidiaries have
conducted their businesses only in the ordinary course consistent with past
practice, and there has not been: (A) any event, change, occurrence, or
development of a state of facts or circumstances having, or which would
reasonably be expected to have, a Material Adverse Effect on the Company; (B)
any declaration, setting aside or payment of any dividend or other distribution
in respect of shares of the Company's capital stock, or any redemption or other
acquisition by the Company of any shares of its capital stock; (C) any (i) grant
of any severance or termination pay to (or amendment to any such existing
arrangement with) any director, officer or employee of the Company or any of its
Subsidiaries (other than any such officer or employee who receives less than
$200,000 in total annual cash compensation from the Company or any of its
Subsidiaries), (ii) entering into of any employment, deferred compensation or
other similar arrangement (or any amendment to any such existing agreement) with
any director, officer or employee of the Company or any of its Subsidiaries
(other than any such officer or employee who receives less than $200,000 in
total annual cash compensation from the Company or any of its Subsidiaries),
(iii) any increase in benefits payable under any existing severance or
termination pay policies or employment agreements with respect to any director,
officer or employee of the Company or any of its Subsidiaries (other than any
such officer or employee who receives less than $200,000 in total annual cash
compensation from the Company or any of its Subsidiaries), (iv) increase in (or
amendments to the terms of) compensation, bonus or other benefits
22
<PAGE>
payable to directors, officers or employees of the Company or any of its
Subsidiaries (other than any such officer or employee who receives less than
$200,000 in total annual cash compensation from the Company or any of its
Subsidiaries), other than in the ordinary course of business consistent with
past practice, or (v) any adoption or agreement to adopt any collective
bargaining agreement or any Company Plan; (D) any change by the Company or any
of its Subsidiaries in accounting methods, principles or practices, except as
required by generally accepted accounting principles; or (E) any agreement or
commitment by the Company or any of its Subsidiaries to do any of the things
described in the preceding clauses (A) through (D) otherwise than as expressly
provided for herein.
(g) NO UNDISCLOSED LIABILITIES. Except to the extent accrued
or reserved in the Company's financial statements (including the notes thereto)
included in the SEC Documents filed and publicly available prior to the date of
this Agreement (the "Filed SEC Documents"), and unless incurred in the ordinary
course of business since the date of the most recent financial statements
included in the Filed SEC Documents, neither the Company nor any of its
Subsidiaries has any liabilities or obligations of any nature, whether accrued,
contingent, absolute or otherwise, except for those that would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect on
the Company.
(h) CERTAIN INFORMATION. The Schedule 14D-9 and the Proxy
Statement will contain all information which is required to be included therein
in accordance with the Exchange Act and the rules and regulations thereunder and
any other applicable law and will conform in all material respects with the
requirements of the Exchange Act and any other applicable law, and neither the
Schedule 14D-9 nor the Proxy Statement will, at the respective times they are
filed with the SEC or published, sent or given to the Company's stockholders,
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading; provided, however, that no representation or warranty is hereby made
by the Company with respect to any information supplied by Parent or Purchaser
in writing for inclusion in, or with respect to Parent or Purchaser information
derived from Parent's public SEC filings which is included or incorporated by
reference in, the Schedule 14D-9 or the Proxy Statement. None of the information
supplied or to be supplied by the Company in writing for inclusion or
incorporation by reference in, or which may be deemed to be incorporated by
reference in, any of the Offer Documents will, at the respective times the Offer
Documents are filed with the SEC or published, sent or given to the Company's
stockholders, contain any
23
<PAGE>
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, in light of
the circumstances under which they are made, not misleading. If at any time
prior to the Effective Time any event with respect to the Company, or with
respect to any information supplied by the Company in writing for inclusion in
any of the Offer Documents, shall occur which is required to be described in an
amendment of, or a supplement to, any of the Offer Documents, the Company shall
so describe the event to Parent.
(i) REAL PROPERTY. (i) Section 4.1(i) of the Disclosure Letter
sets forth all of the real property owned by the Company and its Subsidiaries
and all property leased by the Company and its Subsidiaries in the State of New
Jersey (the "Real Property").
(ii) The Company or one of its Subsidiaries has good
and marketable title to each parcel of Real Property owned by the Company or its
Subsidiaries and a valid leasehold interest in all Real Property leased by the
Company and its Subsidiaries free and clear of all Liens except (A) those
reflected or reserved against in the latest balance sheet of the Company
included in the Filed SEC Documents, (B) taxes and general and special
assessments not in default and payable without penalty and interest, and (C)
other Liens that individually or in the aggregate would not reasonably be
expected to have a Material Adverse Effect on the Company.
(iii)The Company has heretofore made available to
Parent true, correct and complete copies of all leases, subleases and other
agreements requiring annual payments of $1,000,000 or more (the "Real Property
Leases"), under which the Company or any of its Subsidiaries uses or occupies or
has the right to use or occupy, now or in the future, any real property or
facility (the "Leased Real Property"), including all modifications, amendments
and supplements thereto. Except in each case where the failure would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect on the Company: (A) all rent and other sums and charges payable
by the Company or its Subsidiaries as tenants under the Real Property Leases are
current in all material respects, and (B) no termination event or condition or
uncured default of a material nature on the part of the Company or any such
Subsidiary or, to the Company's knowledge, the landlord, exists under any Real
Property Lease.
(j) INTELLECTUAL PROPERTY.
(i) The status of the Company's rights in and to the NIELSEN
name is
24
<PAGE>
set forth in the TAM Master Agreement between the Company and ACNielsen
Corporation ("ACN"), the CZT/ACN Trademarks, L.L.C. Limited Liability Company
Agreement between the Company and ACN, and the Intellectual Property Agreement
among The Dun & Bradstreet Corporation, the Company and ACN, all dated as of
October 28, 1996, and those certain Contribution Agreements, dated as of April
29, 1998 and July 7, 1999, and the Second Lease Agreement, the Third Amended and
Restated Lease Agreement, and the Fourth Amended and Restated Agreement of
Limited Partnership, all dated as of July 7, 1999, between the Company and NMR
Licensing Associates, L.P., (and also with NMR Investing I, Inc. and RBNMR, Inc.
in the case of the Fourth Amended and Restated Agreement), set forth the status
of the Company's rights in and to the Software and Software Assets (as defined
therein)(collectively, the "IP Contracts") and copies of the IP Contracts have
been provided or made available to Parent.
(ii) Except in each case where the failure would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect on the Company, (A) the Company owns or has rights to use and,
except for Intellectual Property licensed to the Company to the extent the terms
of the applicable licenses restrict transfer, transfer all Intellectual Property
that is reasonably necessary to conduct the Company's business as it is
conducted on the date hereof, in each case free and clear of all Liens, and (B)
to the best of the Company's knowledge, the conduct of the Company's and its
Subsidiaries' business does not (x) infringe on any patent, trademark, copyright
or other intellectual property right of any other person, or (y) constitute a
misuse or misappropriation of any trade secret, know-how, process, proprietary
information or other similar right of any other person. For purposes of this
Agreement, "Intellectual Property" shall mean all intellectual property material
to the operation or the conduct of business of the Company or its Subsidiaries,
including copyrights, trademarks, trade names, service marks, domain names,
trade dress, letters patent (including registrations or applications for
registration in any jurisdiction, and any renewals or extensions thereof), the
goodwill associated with the foregoing; confidential or proprietary technical
and business information, know-how and trade secrets, in any jurisdiction, and
any claims or causes of action arising out of or relating to any infringement or
misappropriation of any of the foregoing.
(k) CERTAIN CONTRACTS AND ARRANGEMENTS. Except as disclosed in
Section 4.1(k) of the Disclosure Letter or in the Filed SEC Documents, neither
the Company nor any of its Subsidiaries is a party to or bound by any contracts,
agreements,
25
<PAGE>
instruments or understandings ("contracts") of the following nature
(collectively, the "Material Contracts"): (i) contracts with any current or
former officer or director of the Company (other than any such officer who
receives or received (during his or her last year of employment with the Company
or any of its Subsidiaries) less than $200,000 in total annual cash compensation
from the Company or any of its Subsidiaries); (ii) contracts pursuant to which
the Company or any of its Subsidiaries licenses other persons to use any
material Intellectual Property (other than contracts entered into for the
licensing of data or software in the ordinary course of business); (iii)
contracts other than contracts entered into in the ordinary course of business
(A) for the sale of any material amount of the assets of the Company or any of
its Subsidiaries, or (B) for the grant to any person of any preferential rights
to purchase any material amount of its assets; (iv) contracts which materially
restrict the Company or any of its affiliates from competing in any material
line of business or with any person in any geographical area or which materially
restrict any other person from competing with the Company or any of its
affiliates in any material line of business or in any geographical area; (v)
contracts which are material to the Company and which restrict the Company or
any of its Subsidiaries from disclosing any information concerning or obtained
from any other person or which restrict any other person from disclosing any
information concerning or obtained from the Company or any of its Subsidiaries
(other than contracts entered into in the ordinary course of business consistent
with past practice); (vi) any confidentiality, nondisclosure or similar contract
which contains any "standstill" provisions or similar restrictions on
Acquisition Proposals (as defined in Section 6.5) by any third party (other than
Parent or its affiliates); (vii) contracts involving (A) the acquisition, merger
or purchase of all or substantially all of the assets or business of a third
party involving aggregate consideration of $500,000 or more or (B) the purchase
or sale of assets, or a series of purchases and sales of assets, involving
aggregate consideration of $2,000,000 or more; (viii) contracts with any
affiliate that would be required to be disclosed under Item 404 of Regulation
S-K under the Securities Act; (ix) contracts which are material to the Company
and contain a "change in control" or similar provision; (x) contracts, including
mortgages or other grants of security interests, guarantees and notes, relating
to the borrowing of money in an aggregate amount in excess of $1,000,000 in the
aggregate; (xi) contracts relating to any material joint venture, partnership,
strategic alliance or similar arrangement; and (xii) contracts existing on the
date hereof involving revenues in excess of $1,000,000 per year. Except as set
forth in Section 4.1(k) of the Disclosure Letter and except as would not
reasonably be expected to have a Material Adverse Effect on the Company, neither
the Company nor any of its Subsidiaries is in breach or default under any
Material Contract nor, to the knowledge of the Company, is any other party to
any Material Contract in breach or default thereunder.
26
<PAGE>
(l) LITIGATION; COMPLIANCE WITH LAWS. (i) Except as set forth
in Section 4.1(l) of the Disclosure Letter or in the Filed SEC Documents, (A)
there is no suit, claim, action, proceeding (at law or in equity) or
investigation pending or, to the knowledge of the Company, threatened against or
affecting the Company or any of its Subsidiaries or any of their respective
properties before any arbitrator, court or other Governmental Entity, and (ii)
neither the Company nor any of its Subsidiaries is subject to any outstanding
order, writ, judgment, injunction, decree or arbitration order or award that, in
any such case described in clauses (i) and (ii), has had or would reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect on
the Company. As of the date hereof, there are no suits, claims, actions,
proceedings or investigations pending or, to the knowledge of the Company,
threatened, seeking to prevent, hinder, modify or challenge the transactions
contemplated by this Agreement.
(ii) Except as would not reasonably be expected to have a
Material Adverse Effect on the Company, the Company and its Subsidiaries are in
compliance with all applicable statutes, laws, ordinances, rules, orders and
regulations of any Governmental Entity and have not received notification of any
asserted present or past failure to so comply. All federal, state, local and
foreign governmental approvals, authorizations, certificates, filings,
franchises, licenses, notices, permits and rights ("Permits") necessary for each
of the Company and its Subsidiaries to own, lease or operate its properties and
assets and to carry on its business as now conducted have been obtained or
made, and there has occurred no default under any such Permit, except for the
lack of Permits and for defaults under Permits which lack or default would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect on the Company.
(m) ENVIRONMENTAL LAWS. (i) Except as set forth in Section
4.1(m) of the Disclosure Letter:
(A) The Company and each of its Subsidiaries is in
compliance with all applicable Environmental Laws (which compliance includes,
but is not limited to, the possession by the Company and each of its
Subsidiaries of all permits and other governmental authorizations required under
applicable Environmental Laws, and compliance with the terms and conditions
thereof), except where failure to be in compliance would not reasonably be
expected to have a Material Adverse Effect on the Company. Neither the Company
nor any of its Subsidiaries has received any written communication from a
Governmental Entity alleging that the Company or any of its Subsidiaries is not
in such
27
<PAGE>
compliance, other than such events of non-compliance as would not reasonably be
expected to have a Material Adverse Effect.
(B) There is no Environmental Claim pending or, to
the knowledge of the Company, threatened against the Company or any of its
Subsidiaries or, to the knowledge of the Company, against any person or entity
whose liability for any Environmental Claim the Company or any of its
Subsidiaries has or may have retained or assumed either contractually or by
operation of law which would reasonably be expected to have a Material Adverse
Effect on the Company.
(C) There are no past or present actions, activities,
circumstances, conditions, events or incidents, including, without limitation,
the Release or presence of any Hazardous Materials, which would reasonably be
expected to form the basis of any Environmental Claim against the Company or any
of its Subsidiaries or, to the knowledge of the Company, against any person or
entity whose liability for any Environmental Claim the Company or any of its
Subsidiaries has or would reasonably be expected to have retained or assumed
either contractually or by operation of law which, in any case, would reasonably
be expected to have a Material Adverse Effect on the Company.
(D) The Company and each of its Subsidiaries has
delivered or otherwise made available for inspection to the Parent true,
complete and correct copies and results of any material reports, studies,
analyses, tests or monitoring prepared since June 30, 1998 possessed or
controlled by the Company and each of its Subsidiaries pertaining to Hazardous
Materials in, on, beneath or adjacent to any property currently or formerly
owned, operated or leased by the Company or any of its Subsidiaries, or
regarding the Company's and each of its Subsidiaries' compliance with applicable
Environmental Laws.
(ii) Definitions.
(A) "Environmental Claim" means any claim, action,
cause of action, investigation or written notice by any person or entity
alleging potential liability (including, without limitation, potential liability
for investigatory costs, Cleanup costs, governmental response costs, natural
resources damages, property damages, personal injuries, or penalties) arising
out of, based on or resulting from (I) the presence, or Release of any Hazardous
Materials at any location, whether or not owned or operated by the Company and
each of its Subsidiaries, or (II) circumstances forming the basis of any
violation, or
28
<PAGE>
alleged violation, of any Environmental Law.
(B) "Environmental Laws" means all federal, state,
local and foreign laws and regulations relating to pollution or protection of
the environment or human health as affected by the environment including without
limitation, laws relating to Releases or threatened Releases of Hazardous
Materials or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, Release, disposal, transport or handling of Hazardous
Materials and all laws and regulations with regard to record keeping,
notification, disclosure and reporting requirements respecting Hazardous
Materials.
(C) "Hazardous Materials" means all substances
defined as Hazardous Substances, Oils, Pollutants or Contaminants in the
National Oil and Hazardous Substances Pollution Contingency Plan, 40 C.F.R.
Section 300.5, or defined as such by, or regulated as such under, any
Environmental Law.
(D) "Release" means any release, spill, emission,
discharge, leaking, pumping, injection, deposit, disposal, dispersal, leaching
or migration of Hazardous Materials into the indoor or outdoor environment
(including, without limitation, ambient air, surface water, groundwater and
surface or subsurface strata) or into or out of any property, including the
movement of Hazardous Materials through or in the air, soil, surface water,
groundwater or property.
(n) TAXES.
(i) Except as disclosed in the Filed SEC Reports and
except as set forth in Section 4.1(n) of the Disclosure Letter, as of the date
hereof and as of the Effective Time:
29
<PAGE>
(ii) Except for Returns (I) for Taxes (a) for which IMS
Health Incorporated has preparation and filing responsibility under the Tax
Allocation Agreement, dated as of June 30, 1998, between the Company and IMS
Health Incorporated (the "1998 Tax Allocation Agreement"), (b) to the extent
items on such Returns are covered by an indemnification obligation of IMS Health
Incorporated pursuant to the 1998 Tax Allocation Agreement or (c) to the extent
items on such Return are covered by an indemnification obligation of The Dun &
Bradstreet Corporation under the Tax Allocation Agreement dated as of October
29, 1996 among The Dun & Bradstreet Corporation, the Company and AC Nielsen
Corporation (the "1996 Tax Allocation Agreement") or (II) where the failure to
do so would not, individually or in the aggregate, have a Material Adverse
Effect on the Company, each of the Company and each Subsidiary of the Company
(and any affiliated or unitary group of which any such person was a member) has
(A) timely filed all federal, state, local and foreign returns, declarations,
reports, estimates, information returns and statements, including combined
unitary or consolidated returns for any group of entities (the "Returns")
required to be filed by or for it in respect of any Taxes (as hereinafter
defined) and has caused such Returns as so filed to be true, correct and
complete, (B) established reserves that are reflected in the Company's most
recent financial statements included in the Filed SEC Documents and that as so
reflected are adequate for the payment of all Taxes not yet due and payable with
respect to the results of operations of the Company and its Subsidiaries through
the date hereof and (C) timely withheld and paid over to the proper taxing
authorities all Taxes and other amounts required to be so withheld and paid
over. Each of the Company and each Subsidiary of the Company (and any affiliated
or unitary group of which any such person was a member) has timely paid all
Taxes currently due and payable with respect to taxable periods or portions
thereof beginning after June 30, 1998, except for those contested in good faith
and for which adequate reserves have been provided for in the Company's
financial statements.
(iii) Neither the Company nor any of its Subsidiaries
has made an election under Section 341(f) of the Code or agreed to have Section
341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as
such term is defined in Section 341(f)(4) of the Code) owned by the Company or
any of its Subsidiaries.
(iv) Except for the 1996 Tax Allocation Agreement and
the 1998 Tax Allocation Agreement, neither the Company nor any of its
Subsidiaries is a party to, is bound by or has any obligation under any tax
sharing agreement or similar agreement or arrangement.
30
<PAGE>
(v) Since July 1, 1998, neither the Company nor any
of its Subsidiaries has agreed to make, nor is required to make, any material
adjustment under Section 481(a) of the Code by reason of a change in accounting
method or otherwise and, to the knowledge of the Company, the IRS has not
proposed any adjustment or change in an accounting method of the Company or any
of its Subsidiaries.
(vi) Neither the Company nor any of its Subsidiaries
is, or has been, a United States Real Property Holding Corporation within the
meaning of Section 897(c)(2) of the Code during the applicable period set forth
in Section 897(c)(1)(A)(ii) of the Code.
(vii) Except as would not have a Material Adverse
Effect, there are no Tax liens upon any asset of the Company or any of its
Subsidiaries except liens for Taxes not yet due.
(viii) Since July 1, 1998, neither the Company nor
any of its Subsidiaries has made a disclosure on a Return pursuant to Section
6662 of the Code.
For purposes of this Agreement, "Taxes" shall mean all
federal, state, local and foreign income, property, sales, excise, employment,
payroll, franchise, withholding and other taxes, tariffs, charges, fees, levies,
imposts, duties, licenses or other assessments of every kind and description,
together with any interest and any penalties, additions to tax or additional
amounts imposed by any taxing authority.
(o) BENEFIT PLANS. Section 4.1(o) of the Disclosure Letter
sets forth a true, correct and complete list of all the material "employee
benefit plans" (as that phrase is defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")) in each case, that
is sponsored, maintained or contributed to or required to be contributed to by
the Company or by any trade or business, whether or not incorporated (an "ERISA
Affiliate"), that together with the Company would be deemed a "single employer"
within the meaning of Section 4001(b) of ERISA, or to which the Company or an
ERISA Affiliate is party, whether written or oral, for the benefit of any
current or former employee, officer or director of the Company or any of its
Subsidiaries (the "Company ERISA Plans") and any other material benefit or
compensation plan, program or arrangement, in each case, that is sponsored,
maintained or contributed to or required to be contributed to by the Company or
an ERISA Affiliate, whether written or
31
<PAGE>
oral, for the benefit of any current or former employee, officer or director of
the Company or any of its Subsidiaries in the United States (the Company ERISA
Plans and such other plans being referred to as the "Company Plans"). The
Company has furnished or made available to Parent and its representatives a
true, correct and complete copy of every document pursuant to which each Company
Plan is established or operated (including any summary plan descriptions), a
written description of any Company Plan for which there is no written document,
and the most recent annual reports, financial statements and actuarial
valuations with respect to each Company Plan. Except as set forth in Section
4.1(o) of the Disclosure Letter and except where the failure to comply would not
reasonably be expected to have a Material Adverse Effect:
(i) none of the Company ERISA Plans is a
"multiemployer plan" within the meaning of ERISA;
(ii) none of the Company Plans promises or provides
retiree health benefits or retiree life insurance benefits to any person;
(iii) none of the Company Plans provides for payment
of a benefit, the increase of a benefit amount, the payment of a contingent
benefit or the acceleration of the payment or vesting of a benefit determined or
occasioned, in whole or in part, by reason of the execution of this Agreement or
the consummation of the transactions contemplated by this Agreement;
(iv) neither the Company nor any of its Subsidiaries
has an obligation to adopt, or is considering the adoption of, any new benefit
or compensation plan, program or arrangement or, except as required by law, the
amendment of an existing Company Plan;
(v) each Company ERISA Plan intended to be qualified
under Section 401(a) of the Code has received a favorable determination
notification, advisory and/or opinion letter, as applicable, from the Internal
Revenue Service that it is so qualified or still has remaining a period of time
under applicable Treasury Regulations or Internal Revenue Service pronouncements
in which to apply for such a letter and to make any amendments necessary to
obtain a favorable determination and nothing has occurred since the date of such
letter that would reasonably be expected to affect the qualified status of such
Company ERISA Plan;
32
<PAGE>
(vi) each Company Plan has been operated in
accordance with its terms and the requirements of all applicable law, and no
prohibited transaction described in Section 406 of ERISA or Section 4975 of the
Code has occurred with respect to any the Company ERISA Plan;
(vii) neither the Company nor any of its Subsidiaries
or members of their "controlled group" has incurred any direct or indirect
liability under ERISA or the Code in connection with the termination of,
withdrawal from or failure to fund, any Company ERISA Plan or other retirement
plan or arrangement, and no fact or event exists that would reasonably be
expected to give rise to any such liability;
(viii) the aggregate accumulated benefit obligations
of each Company ERISA Plan subject to Title IV of ERISA (as of the date of the
most recent actuarial valuation prepared for such Company ERISA Plan and based
on the discount rate and other actuarial assumptions used in such valuation) do
not exceed the fair market value of the assets of such Company ERISA Plan (as of
the date of such valuation);
(ix) the Company is not aware of any claims relating
to the Company Plans, other than routine claims for benefits;
(x) none of the Company Plans provides for benefits
or other participation therein, and the Company has received no claims or
demands for participation in or benefits under any Company Plan, by any
individual classified or treated by the Company as an independent contractor;
and
(xi) neither the Company nor any Subsidiary is a
party to any agreement, contract, arrangement or plan that has resulted, or
would result, separately or in the aggregate, in the payment of any "excess
parachute payments" within the meaning of Section 280G of the Code as a result
of any transaction or event contemplated by this Agreement.
(p) LABOR MATTERS. Neither the Company nor any of its
Subsidiaries is a party to any labor or collective bargaining agreement which
pertain to employees of the Company or any of its Subsidiaries. Except as set
forth in Section 4.1(p) of the Disclosure Letter and except as would not
reasonably be expected to have a Material Adverse Effect on the Company, (i) no
employees of the Company or any of its Subsidiaries are represented by any labor
organization and, to the knowledge of the Company, no labor
33
<PAGE>
organization or group of employees of the Company or any of its Subsidiaries
has made a pending demand for recognition or certification, (ii) there are no
representation or certification proceedings or petitions seeking a
representation proceeding presently pending or, to the knowledge of the
Company, threatened in writing to be brought or filed with the National Labor
Relations Board or any other labor relations tribunal or authority, (iii) to
the knowledge of the Company, there are no organizing activities involving
the Company or any of its Subsidiaries pending with any labor organization or
group of employees of the Company or any of its Subsidiaries, and (iv) there
are no (A) unfair labor practice charges, grievances or complaints pending
or, to the knowledge of the Company, threatened in writing by or on behalf of
any employee or group of employees of the Company or any of its Subsidiaries,
or (B) complaints, charges or claims against the Company or any of its
Subsidiaries pending, or, to the knowledge of the Company, threatened in
writing to be brought or filed, with any Governmental Entity or arbitrator
based on, arising out of, in connection with, or otherwise relating to the
employment or termination of employment of any individual by the Company or
any of its Subsidiaries.
(q) YEAR 2000 COMPLIANCE. The Company has taken reasonable
actions to ensure that all material software and hardware systems, including but
not limited to embedded systems ("Computer Systems"), currently utilized by the
Company and its Subsidiaries in the conduct of their respective businesses and
in the operation of their respective facilities will, or are being adapted or
replaced to, on or before December 31, 1999, accurately recognize, sort,
compare, sequence, calculate, store and retrieve, distinguish between, process
and correctly display data from, into and between the twentieth and twenty-first
centuries, and the years 1999 and 2000 and related leap years in a format that
allows entry or processing of a four-digit year date in which the first two
digits designate the century and are contiguous with the second two digits which
designate the year within the century (I.E., 1999, 2000, etc.) and accurately
display such data in standard date and time formats. The Company reasonably
expects that the cost of the remediation, adaption or replacement of all such
Computer Systems, whether or not material, will not exceed the amount set forth
in the Filed SEC Documents.
(r) OPINION OF FINANCIAL ADVISOR. The Company has received the
written opinion of Morgan Stanley & Co., Incorporated, dated August 15, 1999 (a
true, correct and complete copy of which will be promptly delivered to Parent by
the Company), to the effect that, based upon and subject to the matters set
forth therein and as of the date thereof, the Offer Consideration and the Merger
Consideration to be received by the holders of Shares (other than Parent and
Purchaser) in the Offer and the
34
<PAGE>
Merger, respectively, is fair, from a financial point of view, to such holders,
and such opinion has not been withdrawn or modified.
(s) VOTING REQUIREMENTS. In the event that Section 253 of the
DGCL is inapplicable and unavailable to effectuate the Merger, the affirmative
vote of the holders of a majority of the outstanding Shares entitled to vote at
the Stock holders Meeting (as defined in Section 6.1(a)) with respect to the
adoption of this Agreement is the only vote of the holders of any class or
series of the Company's capital stock or other securities required in connection
with the consummation by the Company of the Merger and the other transactions
contemplated hereby to be consummated by the Company. The Board of Directors has
taken all necessary actions so that the restrictions on "business combinations"
(as defined in Section 203 of the DGCL) set forth in Section 203 of the DGCL are
not applicable to this Agreement and the transactions contemplated hereby,
including the Offer and the Merger. No other state takeover statute or similar
statute applies or purports to apply to the Offer, the Merger or the other
transactions contemplated hereby.
(t) RIGHTS AGREEMENT. The Company has amended its Rights
Agreement (the "Rights Amendment") to ensure that (a) neither a "Distribution
Date" nor a "Stock Acquisition Date" (in each case as defined in the Rights
Agreement) will occur, and none of Parent or Purchaser or any of their
"Affiliates" or "Associates" will be deemed to be an "Acquiring Person" (in
each case as defined in the Rights Agreement), by reason of the execution and
delivery of this Agreement or the consummation of the transactions to be
effected pursuant to this Agreement, and (b) the Rights will expire immediately
prior to the consummation of the Offer. The Rights Amendment is sufficient to
render the Rights inoperative with respect to (i) the acquisition of Shares by
Parent, Purchaser or their affiliates pursuant to this Agreement and the Offer
and (ii) the Merger. A true and correct copy of the Rights Amendment has been
delivered or made available to Parent.
(u) BROKERS. No broker, investment banker, financial advisor
or other person, other than Morgan Stanley & Co., Incorporated, the fees and
expenses of which will be paid by the Company, is entitled to any broker's,
finder's, financial advisor's or other similar fee or commission in connection
with the transactions contemplated hereby based upon arrangements made by or on
behalf of the Company or any of its Subsidiaries. A complete and accurate copy
of Morgan Stanley & Co., Incorporated's engagement letter has been provided or
made available to Parent and will not be amended, without the consent of Parent,
to (i) increase the fees payable thereunder or (ii) extend the period for
35
<PAGE>
which services are to be performed beyond the Effective Time.
(v) DISTRIBUTION AGREEMENT. Notwithstanding anything to the
contrary contained in this Agreement, the Company makes no representation nor
warranty with respect to any matter which is covered by an indemnification
obligation of IMS Health Incorporated pursuant to Section 3.2 of the
Distribution Agreement, dated as of June 30, 1998, between the Company and IMS
Health Incorporated.
Section 4.2 REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER.
Parent and Purchaser represent and warrant to the Company as follows:
(a) ORGANIZATION, STANDING AND CORPORATE POWER. Each of Parent
and Purchaser is a corporation duly incorporated, validly existing and in good
standing under the laws of the jurisdiction in which it is incorporated and has
all requisite 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 on
Parent or Purchaser, taken as a whole. Parent has delivered or made available to
the Company complete and correct copies of the Certificate of Incorporation and
By-laws of Parent and Purchaser, in each case as in effect on the date hereof.
(b) AUTHORIZATION. Each of Parent and Purchaser have the
requisite corporate power and authority to enter into this Agreement. The
execution and delivery of this Agreement by Parent and Purchaser and the
consummation by Parent and Purchaser of the transactions contemplated hereby
have been duly authorized by the sole stockholder of each of Parent and
Purchaser, and no other corporate proceedings on the part of Parent or Purchaser
are necessary to authorize this Agreement, or to consummate the transactions
contemplated hereby. This Agreement has been duly executed and delivered by each
of Parent and Purchaser and, assuming this Agreement constitutes a valid and
binding obligation of the Company, constitutes a valid and binding obligation of
each of Parent and Purchaser, enforceable against each such party in accordance
with its terms.
(c) CONSENTS AND APPROVALS; NO VIOLATIONS. (i) The execution
and delivery of this Agreement by Parent and Purchaser do not, and the
consummation of the transactions contemplated hereby and compliance with the
provisions hereof will not (x)
36
<PAGE>
violate any of the provisions of the certificate of incorporation or by-laws of
Parent, Purchaser or any of their respective Subsidiaries, 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), 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
Parent, Purchaser or any of their respective Subsidiaries is a party or by which
Parent, Purchaser or any of their respective 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 Parent and Purchaser, or any order, writ,
judgment, injunction, decree, determination or award applicable to Parent and
Purchaser currently in effect, which, in the case of clauses (y) and (z) above,
could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect on Parent or Purchaser taken as a whole.
(ii) No consent, approval, order or authorization of, or
declaration, registration or filing with, or notice to, any Governmental Entity
which has not been received or made is required by or with respect to Parent or
Purchaser or any of their respective Subsidiaries in connection with the
execution and delivery of this Agreement by Parent or Purchaser or the
consummation by Parent, Purchaser of any of the transactions contemplated
hereby, except for (i) the filing of premerger notification and report forms
under the HSR Act, (ii) those filings required under the Investment Canada Act,
(iii) the filing with the SEC of (A) the Schedule 14D-1 and (B) such reports
under the Exchange Act as may be required in connection with this Agreement and
the transactions contemplated hereby, (iv) the filing of the certificate of
merger or the certificate of ownership and merger, as the case may be, with the
Secretary of State of the State of Delaware and appropriate documents with the
relevant authorities of other states in which the Company is qualified to do
business, and (v) any other consents, approvals, authorizations, filings or
notices the failure to make or obtain which would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect on Parent or
Purchaser, taken as a whole.
(d) CERTAIN INFORMATION. Subject to the Company's fulfillment
of its obligations hereunder with respect thereto, the Offer Documents will
contain (or will be amended in a timely manner so as to contain) all information
which is required to be
37
<PAGE>
included therein in accordance with the Exchange Act and the rules and
regulations thereunder and any other applicable law and will conform in all
material respects with the requirements of the Exchange Act and any other
applicable law, and the Offer Documents will not, at the respective times they
are filed with the SEC or published, sent or given to the Company's
stockholders, contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they are made,
not misleading; provided, however, that no representation or warranty is hereby
made by Parent or Purchaser with respect to any information supplied by the
Company in writing for inclusion in, or with respect to the Company information
derived from the Company's public SEC filings which is included or incorporated
by reference in the Offer Documents. None of the information supplied or to be
supplied by Parent or Purchaser for inclusion or incorporation by reference in,
or which may be deemed to be incorporated by reference in, the Schedule 14D-9 or
the Proxy Statement will, at the respective times the Schedule 14D-9 and the
Proxy Statement are filed with the SEC or published, sent or given to the
Company's stockholders, contain any 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, in light of the circumstances under which they are made,
not misleading. If at any time prior to the Effective Time any event with
respect to Parent or Purchaser, or with respect to any information supplied by
Parent or Purchaser for inclusion in the Schedule 14D-9 or the Proxy Statement,
shall occur which is required to be described in an amendment of, or a
supplement to, such document, Parent or Purchaser shall so describe the event to
the Company.
(e) VOTE REQUIRED. No vote of the holders of any class or
series of capital stock of Parent is necessary to approve this Agreement, the
Merger, the Offer or the other transactions contemplated hereby.
(f) NO BUSINESS ACTIVITIES. Purchaser has not conducted any
activities other than in connection with its organization, the negotiation and
execution of this Agreement and the consummation of the transactions
contemplated hereby.
(g) NO COMPANY CAPITAL STOCK. Neither the Guarantor nor any of
its Subsidiaries owns or holds, directly or indirectly, any Shares or any other
capital stock of the Company, or any options, warrants or other rights to
acquire any Shares or any other capital stock of the Company, or in each case,
any interests therein.
38
<PAGE>
(h) SUFFICIENT FUNDS. At the Closing, Purchaser will have
sufficient funds to enable Purchaser to pay in full (i) the Offer
Consideration, (ii) the Merger Consideration, (iii) any existing indebtedness
that is required to be repaid as a result of the transactions contemplated
hereby, including the financing thereof, and (iv) all fees and expenses payable
by Parent and Purchaser in connection with this Agreement and the transactions
contemplated hereby. Guarantor has entered into a binding revolving credit
facility agreement under which such funds will be available at the Closing.
ARTICLE V
CONDUCT OF BUSINESS OF THE COMPANY
Section 5.1 CONDUCT OF BUSINESS OF THE COMPANY. Except as expressly
provided for herein, during the period from the date of this Agreement to the
Effective Time, the Company shall, and shall cause each of its Subsidiaries to,
act and carry on its business in the ordinary course of business consistent with
past practice and, to the extent consistent therewith, use its reasonable best
efforts to preserve intact its current business organizations, keep available
the services of its current key officers and employees and preserve the goodwill
of those engaged in material business relationships with the Company. Without
limiting the generality of the foregoing, except as expressly provided herein,
the Company shall not, and shall not permit any of its Subsidiaries to, without
the prior consent of Parent:
(i) (A) declare, set aside or pay any dividends on,
or make any other distributions (whether in cash, securities or other property)
in respect of, any of its outstanding capital stock (other than, with respect to
a Subsidiary of the Company, to its corporate parent), (B) split, combine or
reclassify any of its out standing capital stock or issue or authorize the
issuance of any other securities in respect of, in lieu of or in substitution
for shares of its outstanding capital stock, or (C) purchase, redeem or
otherwise acquire any shares of outstanding capital stock or any rights,
warrants or options to acquire any such shares, except, in the case of this
clause (C), for the acquisition of Shares from holders of Options in full or
partial payment of the exercise price payable by such holder upon exercise of
Options to the extent required under the terms of such Options as in effect on
the date hereof;
(ii) issue, sell, grant, pledge or otherwise encumber
any shares
39
<PAGE>
of its capital stock, any other voting securities or any securities convertible
into or exchangeable for, or any rights, warrants or options to acquire, any
such shares, voting securities or convertible or exchangeable securities, other
than (A) upon the exercise of vested Options outstanding on the date of this
Agreement and (B) the sale of up to 60,000 shares of Common Stock (and
accompanying Rights) in accordance with the terms of the Employee Stock Purchase
Plan consistent with past practice but only to the extent such shares are sold
pursuant to elections made on or before June 30, 1999;
(iii) amend its certificate of incorporation, by-laws
or other comparable charter or organizational documents;
(iv) except to the extent contemplated by the
agreements referred to in Section 5.1(iv) of the Disclosure Letter, directly or
indirectly acquire, make any investment (other than investments not exceeding
$1,000,000 in the aggregate) in, or make any capital contributions to, any
person (other than a Subsidiary of the Company) other than in the ordinary
course of business;
(v) make any new capital expenditure or expenditures
in excess of $1,000,000 in the aggregate, other than as set forth in the
Company's budget for capital expenditures made available to Parent or the
specific capital expenditures disclosed and set forth on Schedule 5.1 of the
Disclosure Letter;
(vi) enter into, amend or terminate any Material
Contract involving expenses of at least $1,000,000 per year other than in the
ordinary course of business consistent with past practice;
(vii) directly or indirectly sell, pledge or
otherwise dispose of or encumber any of its properties or assets that are
material to its business, except for sales, pledges or other dispositions or
encumbrances in the ordinary course of business consistent with past practice;
(viii) (A) other than in connection with any action
permitted by Section 5.1(iv), incur any indebtedness for borrowed money or
guarantee any such indebtedness of another person, other than indebtedness owing
to or guarantees of indebtedness owing to the Company or any direct or indirect
wholly owned Subsidiary of the Company or (B) make any loans or advances to any
other person, other than to the Company or to any direct or indirect wholly
owned Subsidiary of the Company and other
40
<PAGE>
than routine advances to employees consistent with past practice, except, in the
case of clause (A), for borrowings under the Credit Agreements (without
increases in existing limits) in the ordinary course of business;
(ix) grant or agree to grant to any director, officer
or employee (other than officers and employees who receive less than $200,000 in
total annual cash compensation from the Company or any of its Subsidiaries), any
increase in wages or bonus, severance, profit sharing, retirement, deferred
compensation, insurance or other compensation or benefits to such officers and
employees, or establish any new compensation or benefit plans or arrangements,
or amend or agree to amend any existing Company Plans, except as may be required
under this Agreement, existing agreements or by law;
(x) except as set forth in this Agreement and except
as required under the existing Company Plans, accelerate the payment, right to
payment or vesting of any bonus, severance, profit sharing, retirement, deferred
compensation, stock option, insurance or other compensation or benefits;
(xi) enter into or amend any employment, severance or
similar agreement with any existing officers or employees (other than officers
and employees who receive less than $200,000 in total annual cash compensation
from the Company or any of its Subsidiaries), except for severance agreements
entered into to the extent required pursuant to severance plans existing on the
date hereof;
(xii) make or rescind any tax election or settle or
compromise any income tax liability of the Company or of any of its Subsidiaries
with any Governmental Entity or settle any action, suit, claim, investigation or
proceeding with any Government Entity (legal, administrative or arbitrative) in
an amount in excess of $500,000;
(xiii) pay, discharge or satisfy any claims,
liabilities or obligations, other than the payment, discharge or satisfaction
(x) of any such claims, liabilities or obligations in the ordinary course of
business or (y) of claims, liabilities or obligations reflected or reserved
against in, or contemplated by, the consolidated financial statements (or the
notes thereto) of the Company and its consolidated Subsidiaries or (z) other
than settlements which involve solely the payment of money that would not result
in an uninsured or underinsured payment by or liability of the Company in excess
of $2,000,000 in the aggregate above reserves established therefor on the books
of the
41
<PAGE>
Company;
(xiv) except as disclosed in the Filed SEC Documents
or required by a Governmental Entity, make any change in any method of
accounting or accounting practice or policy, except as required by generally
accepted accounting principles;
(xv) enter into any agreement, understanding or
commitment that materially restrains, limits or impedes the Company's ability to
compete with or conduct any material line of business, including, but not
limited to, geographic limitations on the Company's activities;
(xvi) plan, announce, implement or effect any
reduction in force, lay-off, early retirement program, severance program or
other program or effort concerning the termination of employment of employees of
the Company or its Subsidiaries, provided, however, that routine employee
terminations shall not be considered subject to this clause (xvi);
(xvii) amend or modify in any material respect, waive
any rights under or terminate any agreements existing on the date hereof between
the Company and NetRatings; or
(xviii) authorize any of, or commit or agree to take
any of, the foregoing actions in respect of which it is restricted by the
provisions of this Section 5.1 except to the extent such action is otherwise
expressly contemplated by this Agreement.
ARTICLE VI
ADDITIONAL COVENANTS
Section 6.1 THE COMPANY STOCKHOLDERS MEETING; PREPARATION OF THE PROXY
STATEMENT; SHORT-FORM MERGER.
(a) As soon as practicable following the acceptance for
payment of and payment for Shares by Purchaser in the Offer, if required by law
to consummate the Merger, the Company shall with the cooperation of Parent take
all action necessary, in
42
<PAGE>
accordance with the DGCL, the Exchange Act and other applicable law and its
certificate of incorporation and by-laws to convene and hold a special
meeting of the stockholders of the Company (the "Stockholders Meeting") for
the purpose of considering and voting upon the adoption of this Agreement and
to solicit proxies pursuant to the Proxy Statement in connection therewith.
The Board of Directors of the Company shall recommend that the holders of
Shares vote in favor of the adoption of this Agreement at the Stockholders
Meeting and shall cause such recommendation to be included in the Proxy
Statement. At the Stockholders Meeting, Parent and Purchaser shall cause all
of the Shares owned by them to be voted in favor of the adoption of this
Agreement.
(b) The Company, if requested by Parent, shall promptly
prepare and file with the SEC a proxy statement or information statement
(together with any supplement or amendment thereto, the "Proxy Statement")
relating to the Stockholders Meeting in accordance with the Exchange Act and
the rules and regulations thereunder. Parent, Purchaser and the Company will
cooperate with each other in the preparation of the Proxy Statement. Without
limiting the generality or effect of the foregoing, the Company shall use its
best efforts to respond to all SEC comments with respect to the Proxy Statement
and, subject to compliance with SEC rules and regulations, to cause the Proxy
Statement to be mailed to the Company's stockholders at the earliest
practicable date. Each of Parent and Purchaser shall promptly supply to the
Company in writing, for inclusion in the Proxy Statement, all information
concerning Parent and Purchaser required under the Exchange Act and the rules
and regulations thereunder to be included in the Proxy Statement.
(c) Notwithstanding the foregoing clauses (a) and (b), in the
event that Purchaser shall acquire at least 90% of the outstanding Shares in the
Offer, Purchaser and Parent shall take all necessary actions to cause the Merger
to become effective, as soon as practicable after the expiration of the Offer,
without a meeting of stockholders of the Company, in accordance with Section 253
of the DGCL.
Section 6.2 ACCESS TO INFORMATION; NOTIFICATION OF CERTAIN MATTERS. (a)
Subject to the provisions of any confidentiality agreement by which the Company
is bound (provided that the Company shall advise Parent that information is not
being provided as a result thereof and whether such information, in the good
faith belief of the Company, has had or would reasonably be expected to have a
Material Adverse Effect on the Company), the Company shall, and shall cause each
of its Subsidiaries to, afford to Parent and its officers, employees, counsel,
financial advisors and other representatives prompt, reasonable access during
the period prior to the Effective Time to all of the Company's and its
43
<PAGE>
Subsidiaries' properties, books, contracts, commitments, Returns, personnel and
records and, during such period, the Company shall, and shall cause each of its
Subsidiaries to, furnish as promptly as practicable to Parent such information
concerning the Company's and its Subsidiaries' businesses, properties, financial
condition, operations and personnel as Parent may from time to time reasonably
request. Any such investigation by Parent shall not affect the representations
or warranties of the Company contained in this Agreement. Parent will hold any
information provided under this Section 6.2 that is non-public in confidence to
the extent required by, and in accordance with, the provisions of the letter
dated July 28, 1999 (the "Letter Agreement"), between the Company and Guarantor.
(b) The Company shall give prompt notice to Parent of (i) the
occurrence or non-occurrence of any event which would cause any representation
or warranty contained in this Agreement to be untrue or inaccurate in any
material respect at or prior to the Effective Time and (ii) any material failure
of the Company to comply with or satisfy any covenant, condition or agreement to
be complied with or satisfied by it hereunder, in either case which would
reasonably be expected to cause any of the conditions set forth in clause
(vi)(b), (vi)(c) or (vi)(e) of Exhibit A hereto to fail to be satisfied;
provided, however, that the delivery of any notice pursuant to this Section
6.2(b) shall not limit or otherwise affect the rights or remedies available
hereunder to Parent; provided further that this Section 6.2(b) shall not
constitute a covenant or agreement for the purpose of Section 8.1(e)(v) or
clause (vi)(c) of Exhibit A hereto.
Section 6.3 REASONABLE BEST EFFORTS. On the terms and subject to the
conditions set forth in this Agreement, including, without limitation, Section
6.5 hereof, each of the parties shall use its reasonable best efforts to take,
or cause to be taken, all actions, and do, or cause to be done, and assist and
cooperate with the other parties in doing, all things necessary, proper or
advisable to consummate and make effective, in the most expeditious manner
practicable, the Offer, the Merger and the other transactions contemplated
hereby, including the satisfaction of the respective conditions set forth in
Article VII.
44
<PAGE>
Section 6.4 PUBLIC ANNOUNCEMENTS. Parent and Purchaser, on the one
hand, and the Company, on the other hand, shall attempt in good faith to consult
with each other before issuing, and provide each other the opportunity to review
and comment upon, any press release, SEC filing (including without limitation
the Offer Documents, the Schedule 14D-9 and the Proxy Statement) or other public
statements with respect to the transactions contemplated hereby, including the
Offer and Merger, and shall not issue any such press release or make any such
public statement prior to such consultation, except as may be required by
applicable law, by court process or by obligations pursuant to any listing
agreement with any securities exchange.
Section 6.5 NO SOLICITATION. From the date hereof, the Company shall
not (whether directly or indirectly through advisors, agents or other
intermediaries), and the Company shall use its reasonable best efforts to cause
its respective officers, directors, advisors, representatives and other agents
of the Company not to, directly or indirectly, (a) solicit, initiate or
knowingly encourage any inquiries relating to, or the submission of, any
Acquisition Proposal (as hereinafter defined), (b) participate in any
discussions or negotiations regarding any Acquisition Proposal, or, in
connection with any Acquisition Proposal, furnish to any person any information
or data with respect to or access to the properties of the Company or any of its
Subsidiaries, or take any other action to facilitate the making of any proposal
that constitutes or may reasonably be expected to lead to, any Acquisition
Proposal or (c) enter into any agreement with respect to any Acquisition
Proposal or approve or resolve to approve any Acquisition Proposal; provided
that if the Board of Directors of the Company has concluded in good faith, based
on the advice of outside counsel, that such action is reasonably necessary for
the Board of Directors to act in a manner consistent with its fiduciary duties
under applicable law, then the Company may furnish information with respect to
the Company and its Subsidiaries and participate in discussions or negotiations
regarding such Acquisition Proposal, in which case the Company will not disclose
any information to such person without entering into a confidentiality agreement
substantially identical to the Letter Agreement (it being understood that the
Company may enter into a confidentiality agreement without a standstill or with
a standstill provision less favorable to the Company if it waives or similarly
modifies the standstill provision in the Letter Agreement). The Company shall
promptly (but in no case later than 24 hours after receipt) provide Parent with
a copy of any written Acquisition Proposal received and a written statement with
respect to any non-written Acquisition Proposal received, which statement shall
include the identity of the parties making the Acquisition Proposal and the
material terms thereof. The Company shall keep Parent informed on a current
basis of the status and content of any discussions regarding
45
<PAGE>
any Acquisition Proposal with a third party. For purposes of this Agreement,
"Acquisition Proposal" means any offer or proposal for a merger, consolidation,
share exchange, recapitalization, liquidation or other business combination
involving the Company or any of its Subsidiaries or the acquisition or purchase
of 20% or more of any class of equity securities of the Company or any of its
Subsidiaries, or any tender offer (including self-tenders) or exchange offer
that if consummated would result in any person beneficially owning 20% or more
of any class of equity securities of the Company or any of its Subsidiaries, or
a substantial portion of the assets of, the Company or any of its Subsidiaries,
other than the transactions contemplated by this Agreement. As used herein, a
"Superior Proposal" shall mean an Acquisition Proposal which the Board of
Directors determines, in good faith after consultation with an independent,
nationally recognized investment banking firm, (i) if consummated would result
in a transaction more favorable to the Company's stockholders, from a financial
point of view, than the transactions contemplated by this Agreement and (ii) is
reasonably capable of being financed by the person making such Acquisition
Proposal. Nothing contained in this Section 6.5 shall prohibit the Company or
the Company's Board of Directors from taking and disclosing to the Company's
stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated
under the Exchange Act (or any similar communications in connection with the
making or amendment of a tender offer or exchange offer) or from making any
disclosure required by applicable law or, prior to the consummation of the
Offer, from taking any action contemplated by Section 8.1(d)(i), including
having the Board of Directors take such actions as are necessary to approve or
resolve to approve the intention to enter into an agreement with respect to a
Superior Proposal (or any announcement in connection therewith) or enter into an
agreement with respect to a Superior Proposal concurrently with termination
pursuant to Section 8.1(d)(i).
Section 6.6 CONSENTS, APPROVALS AND FILINGS. (a) Upon the terms and
subject to the conditions hereof, each of the parties hereto shall (i) make
promptly its respective filings, and thereafter make any other required
submissions, under the HSR Act, the Exchange Act and any other relevant statute,
rule or regulation, with respect to the Offer, the Merger and the other
transactions contemplated hereby and (ii) use reasonable best efforts (or, in
connection with obtaining antitrust approval from any Governmental Entity, best
efforts) to take, or cause to be taken, all appropriate action, and to do, or
cause to be done, all things necessary, proper or advisable under applicable
laws and regulations to consummate and make effective the Offer, the Merger and
the other transactions contemplated hereby, including without limitation using
reasonable best efforts (or, in connection with obtaining antitrust approval
from any Governmental Entity, best
46
<PAGE>
efforts) to obtain all licenses, permits, consents, approvals, authorizations,
qualifications and orders of Governmental Entities and cooperate to obtain all
consents, approvals and authorizations (without out-of-pocket expense to the
Company) of parties to contracts with the Company and its Subsidiaries as are
necessary for the consummation of the Offer, the Merger and the other
transactions contemplated hereby and to fulfill the conditions to the Offer and
the Merger. In case at any time after the Effective Time any further action is
necessary or desirable to carry out the purposes of this Agreement, the proper
officers and directors of each party to this Agreement shall use their
reasonable best efforts to take all such action.
(b) Notwithstanding anything to the contrary herein, Parent
agrees to, and to cause its affiliates to, promptly take all steps necessary to
secure government antitrust clearance for the consummation of the transactions
contemplated hereby as soon as practicable but by no later than December 22,
1999. Parent agrees to give the Company reasonable notice of any meetings prior
to the Closing Date with any Governmental Entity regarding the transactions
contemplated hereby and the Company at its option may have representatives at
such meetings.
(c) Notwithstanding anything to the contrary herein, Parent
agrees to use its best efforts to take, or cause to be taken, all necessary
action and to do, or cause to be done, all things necessary to satisfy the
condition to the Offer set forth in clause (iv) of Exhibit A; provided that
nothing in this Agreement shall require Guarantor or any of its Subsidiaries to
take, or cause to be taken, or do or cause to be done, any action which would
result in a material detriment to Guarantor and its Subsidiaries or would result
in a material restriction on the business activities thereof.
(d) Upon receiving written advice from the Works' Council of
VNU that is not Positive Advice or Acceptable Conditional Advice (as such terms
are defined in Exhibit A hereto), Parent shall cause VNU to, as promptly as
practicable and in any event within five days thereof, notify the Works' Council
in writing, as required by the Netherlands Works Council Act, as to its
intention to enter into the Facility (as defined in Exhibit A hereto) and issue
the Facility Guarantee (as defined in Exhibit A hereto).
47
<PAGE>
Section 6.7 EMPLOYEE BENEFIT PLANS.
(a) Parent agrees that those individuals who are employed by
the Company or any of its Subsidiaries immediately prior to the Effective Time
shall continue to be employees of the Surviving Entity as of the Effective Time
(each such employee, "Affected Employee"); PROVIDED, HOWEVER, that this Section
6.7 shall not be construed to limit the ability of the applicable employer to
terminate the employment of any Affected Employee at any time.
(b) For a period of 12 months following the Effective Time,
Parent shall, or shall cause the Surviving Corporation to, provide each Affected
Employee with employee benefits that are no less favorable in the aggregate than
those provided to each such Affected Employee immediately prior to the Effective
Time, provided that Parent shall not be required to provide equity-based
compensation to any Affected Employees. Parent shall, for a period of 12 months
following the Effective Time, maintain (or cause its Subsidiaries to maintain) a
severance pay practice, program or arrangement for the benefit of each Affected
Employee that is no less favorable than such practice, program or arrangement in
effect immediately prior to the Effective Time with respect to such Affected
Employee.
(c) Parent shall, or shall cause the Surviving Entity to, give
Affected Employees full credit for purposes of eligibility, vesting and benefit
accrual (except for benefit accruals under any defined benefit pension plan)
under such employee benefit plans or arrangements maintained by the Parent or
the Surviving Corporation in which such Affected Employees participate for such
Affected Employees' service with the Company or any Subsidiary of the Company to
the same extent recognized by the Company or such Subsidiary immediately prior
to the Effective Time.
(d) Parent shall, or shall cause the Surviving Entity to, (i)
waive all limitations as to preexisting conditions exclusions and waiting
periods with respect to participation and coverage requirements applicable to
the Affected Employees under any welfare benefit plans in which such Affected
Employees may be eligible to participate after the Effective Time, other than
limitations or waiting periods that are already in effect with respect to such
Affected Employees and that have not been satisfied as of the Effective Time
under any welfare plan maintained for the Affected Employees immediately prior
to the Effective Time, and (ii) provide each Affected Employee with credit for
any co-payments and deductibles paid prior to the Effective Time in satisfying
any applicable
48
<PAGE>
deductible or out-of-pocket requirements under any welfare plans that such
Affected Employees are eligible to participate in after the Effective Time.
Section 6.8 INDEMNIFICATION; DIRECTORS' AND OFFICERS' INSURANCE.
(a) For a period of six years after the Effective Time, the
provisions with respect to indemnification, exculpation and advancement of
expenses set forth in the certificate of incorporation and by-laws of the
Company as in effect on the date of this Agreement (true, correct and complete
copies of which have been made available to Parent) shall not be amended,
repealed or otherwise modified in any manner that would adversely affect the
rights thereunder of individuals who at any time prior to the Effective Time
were directors or officers of the Company in respect of actions or omissions
occurring at or prior to the Effective Time (including without limitation the
transactions contemplated by this Agreement), unless such modification is
required by law.
(b) From and after the Effective Time, Parent shall cause the
Surviving Corporation and its successors to, indemnify, defend and hold harmless
each person who is now, or has been at any time prior to the date hereof or who
becomes prior to the Effective Time, an officer or director of the Company (the
"Covered Parties") against all losses, claims, damages, costs, expenses
(including reasonable attorneys' fees and expenses), liabilities or judgments or
amounts that are paid in settlement with the approval of the indemnifying party
(which approval shall not be unreasonably withheld or delayed) incurred in
connection with any threatened or actual action, suit or proceeding based in
whole or in part on or arising in whole or in part out of the fact that such
person is or was a director or officer of the Company ("Indemnified
Liabilities"), including all Indemnified Liabilities based in whole or in part
on, or arising in whole or in part out of, this Agreement or the transactions
contemplated hereby, in each case, to the full extent that a corporation is
permitted under the DGCL to indemnify its own directors or officers, as the case
may be. In the event any such claim, action, suit, proceeding or investigation
is brought against any Covered Party, the indemnifying party shall assume and
direct all aspects of the defense thereof, including settlement, and the Covered
Party shall cooperate in the vigorous defense of any such matter. The Covered
Party shall have a right to participate in (but not control) the defense of any
such matter with its own counsel and at its own expense. Notwithstanding the
right of the indemnifying party to assume and control the defense of such
litigation, claim or proceeding, such Covered Party shall have the right to
employ separate counsel and to participate in the defense of such litigation,
claim or proceeding, and the indemnifying party shall bear the fees, costs and
expenses of such
49
<PAGE>
separate counsel and shall pay such fees, costs and expenses promptly after
receipt of an invoice from such Covered Party if (i) the use of counsel chosen
by the indemnifying party to represent such Covered Party would present such
counsel with a conflict of interest, (ii) the defendants in, or targets of, any
such litigation, claim or proceeding shall have been advised by counsel that
there may be legal defenses available to it or to other Covered Parties which
are different from or in addition to those available to the indemnifying party,
or (iii) the indemnifying party shall not have employed counsel satisfactory to
such Covered Party, in the exercise of the Covered Party's reasonable judgment,
to represent such Covered Party within a reasonable time after notice of the
institution of such litigation, claim or proceeding. The indemnifying party
shall not settle any such matter unless (i) the Covered Party gives prior
written consent, which shall not be unreasonably withheld or delayed, or (ii)
the terms of the settlement provide that the Covered Party shall have no
responsibility for the discharge of any settlement amount and impose no other
obligations or duties on the Covered Party and the settlement discharges all
rights against Covered Party with respect to such matter. In no event shall the
indemnifying party be liable for any settlement effected without its prior
written consent. Any Covered Party wishing to claim indemnification under this
Section 6.8(b), upon learning of any such claim, action, suit, proceeding or
investigation, shall promptly notify Parent and the Surviving Corporation (but
the failure so to notify shall not relieve the indemnifying party from any
liability which it may have under this Section 6.8(b) except to the extent such
failure materially prejudices such indemnifying party), and shall deliver to
Parent and the Surviving Corporation the undertaking contemplated by Section
145(e) of the DGCL. The Covered Parties as a group will be represented by a
single law firm (plus no more than one local counsel in any jurisdiction) with
respect to each such matter unless there is, under applicable standards of
professional conduct, a conflict on any significant issue between the positions
of any two or more Covered Parties. The rights to indemnification under this
Section 6.8(b) shall continue in full force and effect for a period of six years
from the Effective Time; provided, however, that all rights to indemnification
in respect of any Indemnified Liabilities asserted or made within such period
shall continue until the disposition of such Indemnified Liabilities.
(c) For a period of six years after the Effective Time, Parent
shall cause to be maintained in effect policies of directors' and officers'
liability insurance, for the benefit of those persons who are covered by the
Company's directors' and officers' liability insurance policies at the Effective
Time, providing coverage with respect to matters occurring prior to the
Effective Time that is at least equal to the coverage provided under the
Company's current directors' and officers' liability insurance policies, to the
extent that
50
<PAGE>
such liability insurance can be maintained at an annual cost to Parent not
greater than 200 percent of the premium for the current Company directors' and
officers' liability insurance; provided that if such insurance cannot be so
maintained at such cost, Parent shall maintain as much of such insurance as can
be so maintained at a cost equal to 200 percent of the current annual premiums
of the Company for such insurance.
(d) In the event that Parent or the Surviving Corporation or
any of its successors or assigns (i) consolidates with or merges into any other
person and shall not be the continuing or surviving corporation or entity of
such consolidation or merger or (ii) transfers or conveys all or substantially
all of its properties and assets to any person, then, and in each such case,
proper provision shall be made so that the successors or assigns of Parent or
the Surviving Corporation shall succeed to the obligations set forth in Section
6.7 and this Section 6.8.
Section 6.9 AGREEMENTS WITH NETRATINGS, INC.. From and after the date
hereof, the Company shall not, without the prior written consent of Parent,
amend, modify or terminate any of its agreements with NetRatings or enter into
any agreements or arrangements in respect of NetRatings other than agreements
and arrangements in the ordinary course of business which are reasonably
necessary to give effect to the operation of the arrangements with NetRatings on
the date hereof.
Section 6.10 CERTAIN TAX MATTERS. Each of Parent and the Company will
act in good faith and use its reasonable best efforts (i) to obtain the opinion
of counsel to the Company referred to in clause (iii) of Exhibit A, and (ii) to
cause the appropriate officers of VNU and the Company, respectively, to deliver
the representation letters addressed to counsel to Parent and counsel to the
Company in the form agreed upon by Parent and the Company on or prior to the
date hereof in connection with such opinion. The Company will request in good
faith that Robert Weissman deliver the representation letter addressed to
counsel to the Company and counsel to Parent in the form agreed upon by Parent
and the Company on or prior to the date hereof in connection with such opinion.
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER.
The
51
<PAGE>
respective obligation of each party to effect the Merger shall be subject to the
satisfaction or written waiver on or prior to the Closing Date of the following
conditions:
(a) COMPLETION OF THE OFFER. Purchaser shall have accepted for
payment and paid for all Shares validly tendered in the Offer and not withdrawn;
provided, however, that neither Parent nor Purchaser may invoke this condition
if Purchaser shall have failed to purchase Shares so tendered and not withdrawn
in violation of the terms of this Agreement or the Offer.
(b) STOCKHOLDER APPROVAL. This Agreement shall have been
adopted by the affirmative vote of the holders of the requisite number of shares
of capital stock of the Company if such vote is required pursuant to the
Company's certificate of incorporation, the DGCL or other applicable law.
(c) NO INJUNCTIONS OR RESTRAINTS. No temporary restraining
order, preliminary or permanent injunction or other order issued by any court of
competent jurisdiction or other legal restraint or prohibition preventing the
consummation of the Merger shall be in effect; provided, however, that prior to
invoking this condition, the party so invoking this condition shall have
complied with its obligations under Section 6.3 and Section 6.6 and the parties
hereto shall have used their best efforts to lift or remove such order,
injunction, restraint or prohibition.
(d) HSR ACT. All necessary waiting periods under the HSR Act
applicable to the Merger shall have expired or been earlier terminated.
ARTICLE VIII
TERMINATION
Section 8.1 TERMINATION. This Agreement may be terminated and the
Merger contemplated herein may be abandoned at any time prior to the Effective
Time, whether before or after approval of matters presented in connection with
the Merger by the stockholders of Purchaser or, subject to the terms hereof, of
the Company:
(a) By the mutual written consent of Parent and the Company;
PROVIDED, HOWEVER, that if Parent shall have nominated a majority of the
directors pursuant to Section 1.4, such consent of the Company may only be given
if approved by the Board
52
<PAGE>
of Directors of the Company in accordance with Section 1.4(c).
(b) By either of Parent or the Company if (i) a statute, rule
or executive order shall have been enacted, entered or promulgated prohibiting
the transactions contemplated hereby on the terms contemplated by this Agreement
or (ii) any Governmental Entity shall have issued an order, decree or ruling or
taken any other action (which order, decree, ruling or other action the parties
hereto shall use their reasonable best efforts (or, in connection with obtaining
antitrust approval from any Governmental Entity, best efforts) to lift), in each
case permanently restraining, enjoining or otherwise prohibiting the
transactions contemplated hereby and such order, decree, ruling or other action
shall have become final and non-appealable.
(c) By either of Parent or the Company if the consummation of
the Offer shall not have occurred on or before December 22, 1999 (the
"Termination Date"); PROVIDED, HOWEVER, that the party seeking to terminate this
Agreement pursuant to this Section 8.1(c) shall not have breached in any
material respect its obligations under this Agreement; and PROVIDED, FURTHER,
that the Termination Date shall be extended to such later date (but in no event
later than April 7, 2000) as the Offer shall have been extended by Purchaser at
the request of the Company pursuant to the third sentence of Section 1.1(c)
hereof, unless a condition to consummation of the Offer (other than the
condition referred to in clause (iv) of Exhibit A) shall not have been satisfied
and either (x) Parent can reasonably demonstrate that such failure to be
satisfied resulted from a reason other than the failure of the condition set
forth in such clause (iv) to be satisfied or (y) such condition failed to be
satisfied as a result of a material breach by the Company of its obligations
hereunder.
(d) By the Company:
(i) if, prior to the purchase of the Shares pursuant
to the Offer, (A) the Board of Directors of the Company directs the Company to
notify Parent in writing that it intends to enter into an agreement with respect
to a Superior Proposal, attaching the most current version of such agreement (or
a description of all material terms and conditions thereof) to such notice, (B)
Parent does not make, within four business days of receipt of the Company's
written notification of its intention to enter into a binding agreement for a
Superior Proposal, an offer that the Board of Directors of the Company
determines, in good faith after consultation with its financial advisors, is at
least as favorable to the stockholders of the Company as such Superior Proposal,
it being understood that
53
<PAGE>
the Company shall not enter into any such binding agreement during such four-day
period and (C) the Company prior to such termination pursuant to this clause
(d)(i) pays to Parent in immediately available funds the Termination Fee (as
such term is defined in Section 9.1). The Company agrees to notify Parent
promptly if its intention to enter into a written agreement referred to in its
notification shall change at any time after giving effect to such notification;
or
(ii) if Parent or Purchaser shall have terminated the
Offer or the Offer expires without Parent or Purchaser, as the case may be,
purchasing any Shares pursuant thereto; provided that the Company may not
terminate this Agreement pursuant to this Section 8.1(d)(ii) if the Company is
in material breach of this Agreement; or
(iii) prior to the consummation of the Offer, if (i)
there shall be a breach of any representation or warranty of Parent or Purchaser
in this Agreement that is qualified as to Material Adverse Effect, (ii) there
shall be a breach in any material respect of any representation or warranty of
Parent or Purchaser in this Agreement that is not so qualified, other than any
such breaches which, in the aggregate, have not had or would not reasonably be
likely to have a Material Adverse Effect on Parent and Purchaser, taken as a
whole, or (iii) there shall be a material breach by Parent or Purchaser of any
of its covenants or agreements contained in this Agreement, which breach, in the
case of clause (i), (ii) or (iii), either is not reason ably capable of being
cured or, if it is reasonably capable of being cured, has not been cured within
the earlier of (x) 10 days after giving of notice to Parent of such breach and
(y) the expiration of the Offer, provided that the Company may not terminate
this Agreement pursuant to this Section 8.1(d)(iii) if the Company is in
material breach of this Agreement.
(e) By Parent or Purchaser:
(i) if, prior to the purchase of the Shares pursuant
to the Offer, the Board of Directors of the Company shall have withdrawn, or
modified or changed in a manner adverse to Parent or Purchaser, its approval or
recommendation of the Offer, this Agreement or the Merger or shall have
recommended or approved an Acquisition Proposal, it being understood and agreed
that neither the delivery of notice pursuant to Section 8.1(d)(i) and any
subsequent public announcement of such notice nor any communication by the Board
of Directors of the Company to the stockholders of the Company pursuant to Rule
14d-9(e)(3) under the Exchange Act (or any similar communication to the
stockholders of the Company in connection with the making or
54
<PAGE>
amendment of a tender offer or exchange offer) shall entitle Parent to terminate
this Agreement pursuant to this Section 8.1(e)(i), unless the Company enters
into a definitive agreement with respect to an Acquisition Proposal; or
(ii) if there shall have been a material breach by
the Company of any provision of Section 6.5; or
(iii) if the Offer has expired or terminated without
Parent or Purchaser purchasing any Shares thereunder and, pursuant to Exhibit A
and Article I hereof, Purchaser is neither required to accept and pay for the
Shares tendered in the Offer nor extend the expiration date of the Offer,
PROVIDED that Parent or Purchaser may not terminate this Agreement pursuant to
this Section 8.1(e)(iii) if Parent or Purchaser is in material breach of this
Agreement; or
(iv) if the Company shall have (i) exempted for
purposes of Section 203 of the DGCL any acquisition of Shares by any person or
"group" (as defined in Section 13(d)(3) of the Exchange Act), other than Parent,
Purchaser or their affiliates, or (ii) amended (or agreed to amend) its Rights
Agreement or redeemed (or agreed to redeem) its outstanding Rights thereunder
for the purpose of exempting an acquisition of Shares from such Rights Agreement
and Rights; or
(v) prior to the consummation of the Offer if (i)
there shall be a breach of any representation or warranty of the Company in this
Agreement that is qualified as to Material Adverse Effect, (ii) there shall be a
breach in any material respect of any representation or warranty of the Company
in this Agreement that is not so qualified other than any such breaches which,
in the aggregate, have not had or would not reasonably be likely to have a
Material Adverse Effect on the Company, or (iii) there shall be a material
breach by the Company of any of its covenants or agreements contained in this
Agreement, which breach, in the case of clause (i), (ii) or (iii), either is not
reasonably capable of being cured or, if it is reasonably capable of being
cured, has not been cured within the earlier of (x) 10 days after giving of
written notice to the Company of such breach and (y) the expiration of the
Offer; PROVIDED, FURTHER, that Parent or Purchaser may not terminate this
Agreement pursuant to this Section 8.1(e)(v) if Parent or Purchaser is in
material breach of this Agreement.
Section 8.2 EFFECT OF TERMINATION. (a) In the event of termination of
this Agreement by either the Company or Parent or Purchaser as provided in
Section 8.1, this
55
<PAGE>
Agreement shall forthwith become void and have no effect, without any liability
or obligation on the part of Parent, Purchaser or the Company, other than the
provisions of Section 6.2(a), this Section 8.2 and Article IX and except to the
extent that such termination results from the material breach by a party of any
of its representations, warranties, covenants or agreements set forth in this
Agreement.
(b) Notwithstanding the foregoing, if
(i) the only condition(s) to the consummation of the
Offer that were not satisfied prior to the termination of this Agreement were
the condition set forth in clause (iii) of Exhibit A and those conditions that
either (A) the Company can reasonably demonstrate were not satisfied due to the
failure of the condition set forth in such clause (iii) to be satisfied or (B)
were not satisfied as a result of a material breach by Parent or Purchaser of
its obligations hereunder; and
(ii) the condition set forth in clause (iii) of
Exhibit A is not satisfied solely because of the failure of the appropriate
officer of VNU to execute the representation letter of VNU to counsel to the
Company and counsel to Parent in form and substance not materially different
from the form of representation letter agreed upon by Parent and the Company on
or prior to the date of this Agreement,
then the Company shall be entitled to receive from Parent, as liquidated
damages, an amount (not to exceed $10 million) equal to the Company's actual
out-of-pocket expenses incurred by it in connection with the Offer, the Merger,
this Agreement and the consummation of the transactions contemplated hereby.
(c) Notwithstanding the foregoing, if
(i) the only condition(s) to the consummation of the
Offer that were not satisfied prior to the termination of this Agreement were
the condition set forth in clause (iii) of Exhibit A and those conditions that
either (A) Parent can reasonably demonstrate were not satisfied due to the
failure of the condition set forth in such clause (iii) to be satisfied or (B)
were not satisfied as a result of a material breach by the Company of its
obligations hereunder; and
(ii) the condition set forth in clause (iii) of
Exhibit A is not satisfied solely because of the failure of the appropriate
officer of the Company to execute the
56
<PAGE>
representation letter of the Company to counsel to Parent and counsel to the
Company in form and substance not materially different from the form of
representation letter agreed upon by the Company and Parent on or prior to the
date of this Agreement;
then Parent shall be entitled to receive from the Company, as liquidated
damages, an amount (not to exceed $10 million) equal to VNU's, Parent's and
Purchaser's actual out-of-pocket expenses incurred by it in connection with the
Offer, the Merger, this Agreement and the consummation of the transactions
contemplated hereby (including the proposed financing thereof).
(d) The parties agree that there shall be no other remedy
arising out of (i) the failure of appropriate officers of VNU to execute the
representation letter contemplated herein, provided that Parent shall not have
wilfully breached its obligations pursuant to clause (ii) of the first sentence
of Section 6.10, or (ii) the failure of appropriate officers of the Company to
execute the representation letter contemplated herein, provided that the Company
shall not have wilfully breached its obligations pursuant to clause (ii) of the
first sentence, or the second sentence, of Section 6.10.
ARTICLE IX
GENERAL PROVISIONS
Section 9.1 FEES AND EXPENSES. (a) Except as provided in Section 9.1(b)
and Section 9.1(c) below, all fees and expenses incurred in connection with the
Offer, the Merger, this Agreement and the transactions contemplated hereby shall
be paid by the party incurring such fees or expenses, whether or not the Offer
or the Merger is consummated.
(b) If (x) Parent or Purchaser terminates this Agreement
pursuant to Section 8.1(e)(i) or (iv), or (y) the Company terminates this
Agreement pursuant to Section 8.1(d)(i), then in each case, the Company shall
pay, or cause to be paid, to Parent, at or prior to the time of termination in
the case of a termination pursuant to Section 8.1(d)(i) or as promptly as is
reasonably practicable (but in no event later than two business days) in the
case of a termination pursuant to Section 8.1(e)(i) or (iv), an amount (the
"Termination Fee") equal to $70 million less any amount paid by or due from the
Company pursuant to Section 8.2(c). In addition, if:
57
<PAGE>
(i) this Agreement is terminated pursuant to Section
8.1(e)(ii), 8.1(e)(iii) or 8.1(d)(ii) (provided, however, that this clause (i)
shall not be deemed satisfied if (A) the only conditions to the Offer that were
not satisfied were the condition set forth in clause (iii) of Exhibit A and
those conditions that either (x) the Company can reasonably demonstrate were not
satisfied due to the failure of the condition set forth in such clause (iii) to
be satisfied or (y) were not satisfied as a result of a material breach by
Parent or Purchaser of its obligations hereunder and (B) the condition set forth
in clause (iii) of Exhibit A was not satisfied solely because of the occurrence
of an event set forth in clause (x) thereof and/or the failure of Parent to
deliver the representation letter referred to in clause (y) thereof);
(ii) on the date of such termination no condition to
the Offer has failed to be satisfied as a result of a material breach of this
Agreement by Parent or Purchaser and prior thereto there shall have been
publicly announced, and not withdrawn in good faith, an Acquisition Proposal;
and
(iii) within 15 months after such termination, the
Company shall enter into an agreement with respect to any Acquisition Proposal,
then the Company shall pay the Termination Fee concurrently with entering into
any such agreement.
(c) If the condition set forth in clause (iv) of Exhibit A is
not satisfied and this Agreement is terminated pursuant to Section 8.1(c),
unless a condition to consummation of the Offer (other than the condition
referred to clause (iv) of Exhibit A) shall not have been satisfied and either
(x) Parent can reasonably demonstrate that such failure to be satisfied resulted
from a reason other than the failure of the condition set forth in such clause
(iv) to be satisfied or (y) such condition failed to be satisfied as a result of
a material breach by the Company of its obligations hereunder, then Parent shall
pay, or cause to be paid, to the Company an amount equal to $70,000,000 less any
amount paid by or due from Parent pursuant to Section 8.2(b), which shall be
paid (x) at or prior to such termination by Parent and as a condition to such
termination or (y) not later than two business days following such termination
by the Company.
(d) Any payments required to be made pursuant to this Section
9.1 shall be made by wire transfer of same day funds to an account designated by
the recipient.
58
<PAGE>
Section 9.2 CERTAIN DEFINITIONS. For purposes of this Agreement:
(a) an "affiliate" of any person means another person that
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such first person;
(b) "business day" means any day other than Saturday, Sunday
or any other day on which banks in the City of New York are required or
permitted to close;
(c) "counsel to Parent" means Skadden, Arps, Slate, Meagher &
Flom LLP;
(d) "including" means including without limitation;
(e) "knowledge" means the knowledge of any officer of the
Company identified on Section 9.2 of the Disclosure Letter, as the case may be;
(f) a "person" means an individual, corporation, partnership,
joint venture, association, trust, unincorporated organization or other entity;
and
(g) a "Subsidiary" of any person means any other person of
which (i) such person or any Subsidiary thereof is a general partner, (ii) such
person and/or one or more of its Subsidiaries holds voting power to elect a
majority of the board of directors or others performing similar functions, or
(iii) such person, directly or indirectly, owns or controls more than 50% of the
equity interests of such other person; provided that neither CZT/ACN Trademarks,
L.L.C., NetRatings nor any of their Subsidiaries shall be a Subsidiary of the
Company.
Section 9.3 AMENDMENT AND MODIFICATION. This Agreement may be amended,
modified and supplemented in any and all respects, whether before or after any
vote of Purchaser or the stockholders of the Company contemplated hereby, by
written agreement of the parties hereto (which in the case of the Company shall
include approvals as contemplated in Section 1.4(c)), at any time prior to the
Closing Date with respect to any of the terms contained herein; provided,
however, that after any such stockholder approvals shall have been obtained, no
amendment shall be made which, under applicable law, requires the further
approval of such stockholders without such approval.
59
<PAGE>
Section 9.4 EXTENSION; WAIVER. Subject to Section 1.4 hereof, at any
time prior to the Effective Time, the parties may (a) extend the time for the
performance of any of the obligations or other acts of the other parties, (b)
waive any inaccuracies in the representations and warranties of the other
parties contained in this Agreement or in any document delivered pursuant to
this Agreement, or (c) subject to applicable law, waive compliance with any of
the agreements or conditions of the other parties contained in this Agreement.
Any agreement on the part of a party to any such extension or waiver shall be
valid only if set forth in a written instrument executed and delivered by a duly
authorized officer on behalf of such party. The failure of any party to this
Agreement to assert any of its rights under this Agreement or otherwise shall
not constitute a waiver of such rights.
Section 9.5 NOTICES. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be deemed
given if delivered personally or sent by overnight courier (providing proof of
delivery) to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice) on the date of delivery, or if
by facsimile, upon confirmation of receipt:
(i) if to Parent or to Purchaser, to:
VNU NV
Ceylonpoort 5-25, 2037 AA Haarlem
P.O. Box 1, 2000 MA Haarlem
The Netherlands
Attention: Chairman of the Board of
Executive Directors
Telecopy: 011 31 23 5463938
and
VNU USA, Inc.
1515 Broadway
New York, New York 10036
Attention: Gerald Hobbs
Telecopy: (212) 536-5243
60
<PAGE>
with a copy (which shall not constitute
notice) to:
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
Attention: Roger S. Aaron
Stephen F. Arcano
Telecopy: (212) 735-2000
(ii) if to the Company, to:
Nielsen Media Research, Inc.
299 Park Avenue
New York, New York 10171
Attention: Chief Executive Officer
Telecopy: (212) 708-6931
with a copy (which shall not constitute
notice) to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Attention: Joel S. Hoffman
John G. Finley
Telecopy: (212) 455-2502
Section 9.6 INTERPRETATION. When a reference is made in this Agreement
to a Section, such reference shall be to a Section of this Agreement unless
otherwise indicated. The table of contents and headings contained in this
Agreement are for convenience of reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement. Whenever the words
"include", "includes" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation." The inclusion of any
matter in the Company's Disclosure Letter in connection with any
representation, warranty, covenant or agreement that is qualified as to
materiality or "Material Adverse Effect" shall not be an admission by the
Company that such matter is material or would have a Material Adverse Effect.
Matters disclosed in any section of the Company's Disclosure Letter or in any
subsection of Section 4.1 hereof shall be
61
<PAGE>
considered disclosed for all purposes under Section 4.1 to the extent that such
matter on its face would reason ably be expected to be pertinent in light of the
disclosure made.
Section 9.7 ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This
Agreement (together with the Guarantee dated the date hereof and delivered by
Guarantor to the Company and the Letter Agreement, dated the date hereof,
between Guarantor and the Company) constitutes the entire agreement, and
supersedes all prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter of this Agreement (except for the
letter agreement referenced in the last sentence of Section 6.2(a)). Other than
the provisions of Sections 3.2 and 6.8, this Agreement is not intended to confer
upon any person (including, without limitation, any current or former employees
of the Company), other than the parties hereto, any rights or remedies; provided
that, the persons (other than the parties hereto) referred to in the provisions
of Section 3.2 or 6.8 shall be third party beneficiaries of such provisions and,
in addition, the persons (other than the parties hereto) referred to in the
provisions in Section 3.2 or 6.8 shall be entitled to receive from Parent their
reasonable costs and expenses arising out of any breach by Parent or the
Surviving Corporation of such provisions.
Section 9.8 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof.
Section 9.9 ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement may be assigned or delegated, in
whole or in part, by operation of law or otherwise by any of the parties without
the prior written consent of the other parties, and any such assignment without
such prior written consent shall be null and void, except that Parent and/or
Purchaser may assign this Agreement to any direct or indirect wholly owned
Subsidiary of Parent without the prior consent of the Company; provided that
Parent and/or Purchaser, as the case may be, shall remain liable for all of its
obligations under this Agreement. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of, and be enforceable by,
the parties and their respective successors and assigns.
Section 9.10 ENFORCEMENT. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached.
Accordingly, the parties shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement and
62
<PAGE>
to enforce specifically the terms and provisions of this Agreement in 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), this being in addition to any
other remedy to which they are entitled at law or in equity. Each of the parties
hereto (i) shall submit itself to the personal 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) with respect to any dispute that
arises out of this Agreement or any of the transactions contemplated hereby,
(ii) shall not attempt to deny or defeat such personal jurisdiction by motion or
other request for leave from any such court, and (iii) shall not bring any
action relating to this Agreement or any of the transactions contemplated hereby
in any court other than 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). By execution and delivery of this Agreement, Parent appoints The
Corporation Trust Company at 1209 Orange Street, Wilmington, Delaware 19801 as
its agent upon which process may be served in any such legal action or
proceeding.
Section 9.11 SEVERABILITY. Whenever possible, each provision or portion
of any provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision or portion of
any provision of this Agreement is held to be invalid, illegal or unenforceable
in any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
Section 9.12 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same instrument
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other parties.
63
<PAGE>
IN WITNESS WHEREOF, Parent, Purchaser and the Company have caused this
Agreement to be signed by their respective officers thereunto duly authorized,
all as of the date first written above.
VNU USA, INC.
By: /s/ GERALD HOBBS
--------------------------
Name: Gerald Hobbs
Title: President and CEO
NINER ACQUISITION, INC.
By: /s/ THOMAS A. MASTRELLI
--------------------------
Name: Thomas A. Mastrelli
Title: Chief Operating Officer
NIELSEN MEDIA RESEARCH, INC.
By: /s/ JOHN A. DIMLING
--------------------------
Name: John A. Dimling
Title: President and CEO
64
<PAGE>
EXHIBIT A
CONDITIONS TO THE OFFER
Capitalized terms used but not defined herein shall have the meanings
set forth in the Agreement and Plan of Merger (the "Agreement") of which this
Exhibit A is a part. Notwithstanding any other provision of the Offer and
subject to the terms of the Merger Agreement, Purchaser shall not be required to
accept for payment or, subject to any applicable rules and regulations of the
SEC, including Rule 14e-1(c) under the Exchange Act (relating to Purchaser's
obligation to pay for or return tendered Shares promptly after termination or
withdrawal of the Offer), pay for, and may delay the acceptance for payment of
or, subject to the restriction referred to above, the payment for, any tendered
Shares, and may amend the Offer consistent with the terms of the Agreement or
terminate the Offer and not accept for payment any tendered Shares, if
(i) there shall not have been validly tendered and not withdrawn prior
to the expiration of the Offer such number of Shares which would constitute at
least a majority of the Shares outstanding on a fully diluted basis on the date
of purchase ("on a fully-diluted basis" meaning the number of Shares
outstanding, together with the Shares which the Company may be required to issue
pursuant to warrants, options or obligations outstanding at that date under
employee stock or similar benefit plans or otherwise whether or not vested or
then exercisable) (the "Minimum Condition"),
(ii) any applicable waiting period under the HSR Act shall not have
expired or been terminated,
(iii) there shall not have been delivered to the Company and IMS Health
Incorporated ("IMS") an opinion of counsel to the Company to the effect that the
transactions contemplated by this Agreement will not result in (A) the June 30,
1998 spin-off of IMS (the "Spinoff") failing to qualify under Section 355(a) of
the Internal Revenue Code (the "Code") or (B) the shares of common stock of IMS
failing to qualify as qualified property for purposes of Section 355(c)(2) of
the Code by reason of Section 355(e) of the Code; provided, however, that this
condition (iii) shall not be deemed satisfied if (1) prior to the expiration of
the Offer, either (x) there shall have been issued, in proposed form or
otherwise, legislation, Treasury regulations or any other published
pronouncement with an effective date that would apply to the consummation of the
Offer and which would apply to the Spinoff as a result of the transactions
contemplated by the Agreement or (y)
A-1
<PAGE>
there shall not have been executed by appropriate officers of Parent and the
Company and Robert Weissman, Chairman of IMS, representation letters addressed
to counsel to Parent and the Company and dated immediately prior to the
expiration of the Offer, in form and substance not materially different from the
form of representation letters agreed upon by Parent and the Company on or prior
to the date of the Agreement, and (2) not withstanding that counsel to the
Company has delivered (or is prepared to deliver) an opinion to the effect
contemplated by the foregoing clauses (A) and (B), counsel to Parent advises
Parent and the Company in writing (which includes the specific reasons therefor)
that, based solely on any material change (proposed or otherwise) in
legislation, regulations or published pronouncement (if clause (x) is
applicable) and/or any material change in the executed representation letters
dated immediately prior to the expiration of the Offer from the form of
representation letters agreed upon by Parent and the Company on or prior to the
date of the Agreement (if clause (y) is applicable), such counsel would be
unable to render an opinion (after consultation with VNU and its other tax
advisors), which is in all material respects the same as the opinion of counsel
to the Company contemplated by the foregoing clauses (A) and (B).
(iv) None of the following conditions shall have been satisfied: (A)
VNU shall have received the unconditional positive advice of the Central Works'
Council of VNU (the "Works' Council") regarding the bank facility to be entered
into by VNU in connection with the financing of the Offer (the "Facility") and
the issuance of the guarantee of VNU related thereto (the "Facility Guarantee")
(any such unconditional positive advice referred to herein as "Positive
Advice"); or (B) VNU shall have received conditional positive advice of the
Works' Council with respect to the Financing and the Financing Guarantee and the
fulfillment of the conditions specified therein would not result in material
detriment to VNU and its Subsidiaries, or result in material restrictions on the
business activities thereof (any such conditional positive advice referred to
herein as "Acceptable Conditional Advice"); or (C) VNU shall have received
advice from the Works' Council that is not Positive Advice or Acceptable
Conditional Advice regarding the Facility to be entered into and the Facility
Guarantee to be issued and either (i) 35 days shall have elapsed from the date
that VNU has received written advice from the Works' Council that is not
Positive Advice or Acceptable Conditional Advice, provided that the Works'
Council shall not have commenced any appeal or other legal proceeding in respect
of the Facility or the Facility Guarantee or (ii) the Works' Council shall have
notified VNU in writing or publicly announced that it will disclaim its right to
appeal or take any other legal action in connection with the Facility to be
entered into or the Facility Guarantee to be issued.
A-2
<PAGE>
(v) the Agreement shall have been terminated in accordance with its
terms, or
(vi) at any time on or after the date of the Agreement and prior to the
Expiration Date, any of the following events shall occur and be continuing and
shall not have resulted from the breach by Parent or Purchaser of any of their
obligations under the Agreement:
(a) there shall be any statute, rule, regulation, judgment,
order or injunction enacted, entered, enforced, promulgated or deemed applicable
to the Offer or the Merger, other than the application to the Offer or the
Merger of applicable waiting periods under the HSR Act, that shall (i) prohibit
or impose any material limitations on Parent's or Purchaser's ownership or
operation (or that of any of their respective Subsidiaries or affiliates) of all
or a material portion of their or the Company's businesses or assets, (ii)
challenge the acquisition by Parent or Purchaser of any Shares pursuant to the
Offer, (iii) prohibit the making or consummation of the Offer or the Merger or
the performance of any of the transactions contemplated by the Agreement, or
(iv) impose material limitations on the ability of Purchaser, or render
Purchaser unable, to accept for payment, pay for or purchase some or all of the
Shares pursuant to the Offer and the Merger, or effectively to exercise full
rights of ownership of the Shares, including, without limitation, the right to
vote the Shares purchased by Purchaser or Parent on all matters properly
presented to the Company's stockholders; or
(b) (i) any representation or warranty of the Company
contained in the Agreement that is qualified as to Material Adverse Effect shall
not be true and correct; or (ii) any representation or warranty of the Company
in the Agreement that is not so qualified shall not be true and correct in all
material respects, in each case as of the date of consummation of the Offer as
though made on or as of such date (other than representations and warranties
that by their terms address matters only as of another specified date, which
shall be true and correct only as of such other specified date), except where
(x) the failure of such representations and warranties (other than those
relating to the number of shares and/or options, warrants or other rights to
acquire capital stock set forth in Section 4.1(d) thereof) referred to in clause
(ii) to be so true and correct, in the aggregate, have not had and would not
reasonably be expected to have a Material Adverse Effect on the Company or (y)
where the failure of such representations and warranties relating to the number
of shares and/or options, warrants or other rights to acquire capital stock set
forth in Section 4.1(d) of the Agreement to be so true and correct would not, in
the aggregate, relate to an inaccuracy in excess of 150,000 shares and/or
options, warrants or other rights to acquire capital stock; or
A-3
<PAGE>
(c) the Company shall have breached or failed in any material
respect to perform any material obligation or to comply with any material
agreement or covenant of the Company to be performed by or complied with by it
under the Agreement; or
(d) there shall have occurred (i) any general suspension of
trading in, or limitation on prices for, securities on the New York Stock
Exchange or in the Nasdaq National Market System, for a period in excess of
three hours (excluding suspensions or limitations resulting solely from physical
damage or interference with such exchanges not related to market conditions),
(ii) a declaration of a banking moratorium or any suspension of payments in
respect of banks in the United States or outside the United States (whether or
not mandatory), (iii) any limitation (whether or not mandatory) by any United
States or foreign governmental authority on the extension of credit by banks or
other financial institutions or (iv) in the case of any of the foregoing
existing at the time of the commencement of the Offer, a material acceleration
or worsening thereof; or
(e) except as disclosed in the Filed SEC Documents or in
Section 4.1(f) of the Disclosure Letter, there shall have occurred an event,
change, occurrence, or development of a state of facts or circumstances having,
or which would reasonably be expected to have, a Material Adverse Effect on the
Company;
which in the reasonable judgment of Parent or Purchaser, in any such case, and
regardless of the circumstances (including any action or inaction by Parent or
Purchaser) giving rise to such condition makes it inadvisable to proceed with
the Offer and/or with such acceptance for payment of, or payment for, Shares.
Subject to the terms of the Agreement, the foregoing
conditions are for the sole benefit of Parent and Purchaser and may be waived by
Parent or Purchaser, in whole or in part, at any time and from time to time, in
the sole discretion of Parent or Purchaser. The failure by Parent or Purchaser
at any time to exercise any of the foregoing rights shall not be deemed a waiver
of any right and each such right shall be deemed an ongoing right which may be
asserted at any time and from time to time.
A-4
<PAGE>
Exhibit 99(c)(2)
NIELSEN MEDIA RESEARCH, INC.
299 Park Avenue
New York, New York 10171
July 28, 1999
VNU nv
Ceylonpoort 5-25
NL-2037 AA Haarlem
Netherlands
Dear Sirs:
You have expressed an interest in a possible negotiated transaction
involving Nielsen Media Research, Inc. (the "Company"). In connection with your
analysis of a possible negotiated transaction with the Company (a
"Transaction"), you have requested certain oral and written information
concerning the Company from directors, officers, employees, representatives
(including, without limitation, financial advisors, attorneys and accountants)
and/or agents of the Company (the "Company's Representatives"). All such
information furnished to you or your Representatives (as defined below) by or on
behalf of the Company (irrespective of the form of communication and whether
such information is so furnished before, on or after the date hereof), and all
analyses, compilations, data, studies, notes, interpretations, memoranda or
other documents prepared by you or your Representatives containing or based in
whole or in part on any such furnished information are collectively referred to
herein as the "Information." In consideration of the Company furnishing you with
the Information, you agree to the following:
1. The Information will be used solely for the purpose of evaluating a
Transaction and will not be used in any way, directly or indirectly, that is
detrimental to the Company or its subsidiaries or affiliates, and the
Information will be kept strictly confidential and will not be disclosed by you
or your Representatives, except (a) as required in the opinion of your outside
counsel by applicable law, regulation, stock exchange rule or legal process, and
only after compliance with Section 3 below, and (b) that you may disclose the
Information or portions thereof to those of your directors, officers and
employees and representatives of your legal, accounting and financial advisors
and of your prospective financing sources Merrill Lynch & Co. and ABN Amro and
their respective affiliates (the persons to whom such disclosure is permissible
being collectively referred to herein as "your Representatives")
<PAGE>
2
who need to know such information for the purpose of evaluating such
Transaction; PROVIDED, that your Representatives are informed of the
confidential and proprietary nature of the Information; and PROVIDED, FURTHER,
that, unless the Company shall have previously consented thereto in writing, any
other prospective financing sources shall not be considered "your
Representatives" to whom Information may be disclosed in accordance with this
paragraph. Each party agrees to be responsible for any breach of this agreement
by its Representatives (it being understood that such responsibility shall be in
addition to and not by way of limitation of any right or remedy the other party
may have against such Representatives with respect to any such breach).
2. Without the prior written consent of the Company, neither you nor
your Representatives will disclose to any person (except to the extent otherwise
required in the opinion of your outside counsel by applicable law, regulation,
stock exchange rule or legal process, and only after compliance with Section 3
below), either the fact that any investigations, discussions or negotiations are
taking place concerning a possible Transaction between the Company and (or
involving) you, or that you have received Information from the Company or
Information has been made available by the Company, or any of the terms,
conditions or other facts with respect to any such possible Transaction,
including, without limitation, the status thereof. Without your prior written
consent, neither the Company nor the Company Representatives will disclose to
any person (except to the extent otherwise required in the opinion of the
Company's outside counsel by applicable law, regulation, stock exchange rule or
legal process, and only after compliance with Section 3 below) either the fact
that any investigations, discussions or negotiations are taking place concerning
a possible Transaction between the Company and (or involving) you, or that you
have received Information from the Company, or any of the terms, conditions or
other facts with respect to any such possible Transaction or involvement with
you, including, without limitation, the status thereof. The term "person" as
used in this agreement will be interpreted broadly to include the media and any
corporation, company, group, partnership or other entity or individual.
3. If you or any of your Representatives become legally compelled
(including by deposition, interrogatory, request for documents, subpoena, civil
investigative demand or similar process) to disclose any of the Information or
either party or any of its Representatives become legally compelled to disclose
any of the information referred to in Section 2 above, such party shall provide
the other party with prompt written notice of such requirement so that the other
party may seek a protective order or other appropriate remedy. If such
protective order or other remedy is not obtained, the party so compelled and its
Representatives agree to disclose only that portion of the Information which it
is advised by opinion of outside counsel is legally required to be disclosed and
to take all reasonable steps to preserve the confidentiality of the Information
and the information referred to in Section 2 above. In addition, the party
compelled to make such disclosure and its Representatives will not oppose any
action (and will, if and to the extent requested by the other party, cooperate
with, assist and join with the other party, at the other party's expense, in any
reasonable action) by the other party to obtain an
<PAGE>
3
appropriate protective order or other reliable assurance that confidential
treatment will be accorded the Information and the information referred to in
Section 2 above.
4. The term "Information" does not include any information which (i) at
the time of disclosure is generally available to the public (other than as a
result of a disclosure directly or indirectly by you or your Representatives in
violation hereof), (ii) is or becomes available to you on a nonconfidential
basis from a source other than the Company or the Company's Representatives
provided that , to your knowledge after inquiry, such source was not prohibited
from disclosing such information to you by a legal, contractual or fiduciary
obligation owed to the Company or (iii) you can establish is already in your
possession (other than information furnished by or on behalf of the Company).
5. You will keep a record of the Information furnished to you and of
the location of any Information. If you determine not to pursue a Transaction,
you will promptly notify the Company of your determination. At the time of such
notice, or if, at any earlier time, the Company so directs (whether or not you
determine to pursue a Transaction), you and your Representatives will, at your
expense, promptly return to the Company or, at the Company's sole option,
destroy, all Information and all copies, extracts or other reproductions in
whole or in part thereof, provided, however, that you may choose to destroy all
copies of any analyses, compilations, studies or other documents prepared by you
or for your use containing or reflecting Information. During the term of this
Agreement, the Company agrees to keep in its possession copies of all such
returned Information. Compliance by you and your Representatives with any
direction of the Company or election by you to destroy Information pursuant to
this Section 5 shall be certified in writing to the Company by your authorized
officer supervising such destruction. Notwithstanding the return or destruction
of the Information, you and your Representatives will continue to be bound by
your confidentiality and other obligations hereunder.
6. You agree that, for a period of two years from the date of this
letter agreement, neither you nor any of your affiliates will, unless invited
(on an unsolicited basis) by the Board of Directors of the Company in writing:
(i) acquire, offer or propose to acquire, or agree or seek to acquire, directly
or indirectly, by purchase or otherwise, any securities or direct or indirect
rights or options to acquire any securities of the Company or any subsidiary
thereof, or of any successor to or person in control of the Company, or any
material portion of the assets of the Company or any subsidiary or division
thereof or of any such successor or controlling person; (ii) enter into or
agree, offer, propose or seek to enter into, or otherwise be involved in or part
of, directly or indirectly, any acquisition transaction or other business
combination relating to all or any material part of the Company or its
subsidiaries or any acquisition transaction for all or any material part of the
assets of the Company or any subsidiary of the Company or any of their
respective businesses; (iii) make, or in any way participate in, directly or
indirectly, any "solicitation" of "proxies" (as such terms are used in the rules
of the Securities and Exchange Commission) to vote, or seek to advise or
influence any person or entity with respect to the voting of, any voting
securities of the Company; (iv) form, join or in any way participate in a
"group" (within the meaning of Section 13(d)(3) of the Securities Exchange
Act of 1934) with respect to any voting
<PAGE>
4
securities of the Company or any of its subsidiaries; (v) make any public
announcement with respect to, or submit a proposal for, or offer of (with or
without conditions) any extraordinary transaction involving the Company or
its securities or any material portion of its assets; (vi) seek or propose,
alone or in concert with others, to influence or control the Company's
management or policies; (vii) directly or indirectly enter into any
discussions, negotiations, arrangements or understandings with any other
person with respect to any of the foregoing activities or propose any of such
activities to any other person; (viii) advise, assist, encourage, act as a
financing source for or otherwise invest in any other person in connection
any of the foregoing activities; or (ix) disclose any intention, plan or
arrangement inconsistent with any of the foregoing; provided, however, that
each of the restrictions set forth in clauses (i) -- (ix) above (or the
restrictions set forth in the next two sentences of this paragraph) shall
terminate in the event that a third party publicly commences a tender offer
or exchange offer, or otherwise proposes a merger, business combination,
recapitalization or similar transaction in respect of the Company or the
purchase of all or substantially all of the assets of the Company and the
Company has (a) exempted such transaction for purposes of Section 203 of the
Delaware General Corporation Law, (b) amended its rights plan or redeemed its
outstanding rights thereunder for the purpose of exempting such transaction
from such rights plan and rights, or (c) publicly announced or publicly
confirmed that it is engaged in negotiations in connection with such proposed
transaction (excluding, for the avoidance of doubt, discussions designed to
determine the adequacy, fairness, superiority or conditionality of such
proposal); provided, further, any such termination shall neither relieve you
nor your affiliates of any obligations hereunder with respect to Information.
So long as discussions between you and the Company concerning a Transaction
have not been terminated, you will promptly advise the Company of any inquiry
or proposal made to you with respect to any of the foregoing. You also agree
that, during the period referred to in the second preceding sentence, neither
you nor any of your affiliates will: (i) request the Company or its advisors,
directly or indirectly, to (1) amend or waive any provision of this paragraph
(including this sentence) or (2) otherwise consent to any action inconsistent
with any provision of this paragraph (including this sentence); or (ii) take
any initiative with respect to the Company or any of its subsidiaries which
could require the Company to make a public announcement regarding (1) such
initiative, (2) any of the activities referred to in the second preceding
sentence, (3) the possibility of a Transaction or any similar transaction or
(4) the possibility of you or any other person acquiring control of the
Company, whether by means of a business combination or otherwise.
Notwithstanding the foregoing, Jerry Hobbs or his successor may, during the
period referred to in the third preceding sentence, inquire of the chief
executive officer of the Company as to whether there would be interest in
exploring a merger or other form of business combination transaction;
provided that, you reasonably believe that, based upon the advice of outside
counsel, public disclosure of such inquiry by the Company would not be
required by applicable law or stock exchange rules.
7. You agree that, for a period of two years from the date of this
letter agreement, without the prior written consent of the Company, you will
not, directly or indirectly, solicit to hire or hire (or cause or seek to cause
to leave the employ of the Company): (i) any executive employed by the Company;
or (ii) any other employee of the Company or any subsidiary of the Company with
whom you have had
<PAGE>
5
contact or who (or whose performance) became known to you in connection with the
process contemplated by this agreement ; provided, however, that the foregoing
provision will not prevent you from hiring any such person who (A) contacts you
on his or her own initiative without any direct or indirect solicitation by or
encouragement from you, (B) responds to any general advertisement placed by you,
(C) was terminated by the Company without any encouragement or solicitation by
you or (D) was not employed by the Company during the past three months.
8. You understand and acknowledge that neither the Company nor any of
its Representatives is making any representation or warranty, express or
implied, as to the accuracy or completeness of the Information, and neither the
Company nor any of its Representatives will have any liability to you or any
other person resulting from your use of the Information. Only those
representations or warranties that are made to you in a definitive agreement
regarding a Transaction duly approved by the Company's board of directors (a
"Definitive Agreement") when, as, and if it is executed, and subject to such
limitations and restrictions as may be specified in such Definitive Agreement,
will have any legal effect. The term "Definitive Agreement" does not include an
executed letter of intent or any other preliminary written agreement, nor does
it include any written or oral acceptance of any offer or bid on your part.
9. Each party understands and agrees that no contract or agreement
providing for a Transaction shall be deemed to exist unless and until a
Definitive Agreement has been executed and delivered, and each party hereby
waives, in advance, any claims (including breach of contract) in connection with
a Transaction unless and until such party or its affiliates shall have entered
into a Definitive Agreement. Each party also agrees that unless and until a
Definitive Agreement between the Company and you or one or more of your
affiliates with respect to a Transaction has been executed and delivered,
neither the Company nor any of its stockholders, affiliates or Representatives
has any legal obligation of any kind whatsoever with respect to such Transaction
by virtue of this agreement or any other written or oral expression with respect
to such Transaction except, in the case of this agreement, for the matters
specifically agreed to herein. You hereby confirm that you are not acting as a
broker for or representative of any person and are considering the Transaction
only for your or your affiliates' own account. Neither this paragraph nor any
other provision in this agreement can be waived, amended or assigned except by
written consent of each of the parties, which consent shall specifically refer
to this paragraph (or such other provision) and explicitly make such waiver or
amendment.
10. Each party hereby acknowledges that it is aware, and that it will
advise its Representatives, that the United States and European securities laws
prohibit any person who has material, non-public information concerning the
matters which are the subject of this agreement from purchasing or selling
securities of a company which may be a party to a transaction of the type
contemplated by this agreement or from communicating such information to any
other person under circumstances in which it is reasonably foreseeable that such
person is likely to purchase or sell such securities.
<PAGE>
6
11. Each party agrees that money damages would not be a sufficient
remedy for any breach of this agreement by such party and that the other party
shall be entitled to equitable relief, including injunction and specific
performance, in the event of any such breach, in addition to all other remedies
available to the other party at law or in equity. Each party further agrees to
waive, and to use its reasonable efforts to cause its Representatives to waive,
any requirement for the securing or posting of any bond in connection with such
remedy. Each party agrees to indemnify the other party for, and to hold the
other party harmless against, any and all liabilities, costs, expenses, losses,
damages and claims (collectively, "Costs") arising out of the indemnifying
party's or any of its Representatives' breach of this agreement, as such Costs
are incurred.
12. The parties hereby irrevocably and unconditionally consent to
submit to the exclusive jurisdiction of the courts of the State of New York and
of the United States of America located in the Southern District of New York for
any actions, suits or proceedings arising out of or relating to this agreement
(and the parties agree not to commence any action, suit or proceeding relating
thereto except in such courts), and further agree that service of any process,
summons, notice or document by U.S. registered mail to the respective addresses
set forth above shall be effective service of process for any such action, suit
or proceeding brought against the parties in any such court. The parties hereby
irrevocably and unconditionally waive any objection to the laying of venue of
any action, suit or proceeding arising out of this agreement, in the courts of
the State of New York or the United States of America located in the Southern
District of New York, and hereby further irrevocably and unconditionally waive
and agree not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient forum.
13. Each party agrees that no failure or delay by the other party in
exercising any right, power or privilege hereunder will operate as a waiver
thereof, nor will any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any right, power or privilege
hereunder.
14. If any provision of this agreement is found to violate any statute,
regulation, rule, order or decree of any governmental authority, court, agency
or exchange, such invalidity shall not be deemed to affect any other provision
hereof or the validity of the remainder of this agreement, and such invalid
provision shall be deemed deleted herefrom to the minimum extent necessary to
cure such violation.
15. You agree that all (a) contacts by you or your Representatives with
the Company regarding the Information or the Transaction, (b) requests for
additional Information, (c) requests for facility tours or management meetings
and (d) discussions or questions regarding procedures shall be made through
Morgan Stanley & Co., Incorporated or such individuals as Morgan Stanley & Co.,
Incorporated may otherwise direct; PROVIDED, however, that your executive
officers and the executive officers of your subsidiary VNU USA, Inc.may conduct
discussions with the chairman, the chief executive officer, the chief financial
officer and the general counsel of the Company concerning the Transaction.
<PAGE>
7
16. This agreement is for the benefit of each party and its
Representatives and their respective successors and assigns and will be governed
by and construed in accordance with the laws of the State of New York. This
agreement shall terminate on the third anniversary of the date hereof.
If you agree with the foregoing, please sign and return a copy of this
letter, which will constitute our agreement with respect to the subject matter
of this letter.
Very truly yours,
NIELSEN MEDIA RESEARCH, INC.
By:
--------------------------------------
Name:
Title:
CONFIRMED AND AGREED
as of the date first above
written:
VNU nv
By:
--------------------------------------
Name:
Title:
<PAGE>
Exhibit 99(c)(3)
GUARANTEE
As an inducement to Nielsen 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.
<PAGE>
(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
2
<PAGE>
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 1209 Orange Street, Wilmington, Delaware 19801, 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 Nielsen's
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.
3
<PAGE>
IN WITNESS WHEREOF, VNU has executed and delivered this
Guarantee as of the ____ day of August, 1999.
VNU NV
By:
---------------------------------
Name:
Title:
In the presence of:
By:
---------------------------------
Name:
Title:
4
