THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUED UPON ITS
EXERCISE ARE SUBJECT TO THE RESTRICTIONS ON
TRANSFER SET FORTH IN SECTION 4 OF THIS WARRANT
Warrant No. ________ Number of Shares: _________
(subject to adjustment)
Date of Issuance: __________
Media Metrix, Inc.
Common Stock Purchase Warrant
(Void after_______)
Media Metrix, Inc., a Delaware corporation (the "Company"), for value
received, hereby certifies that __________________________, or its
registered assigns (the "Registered Holder"), is entitled, subject to the terms
set forth below, to purchase from the Company, at any time or from time to time
on or after the date of issuance and on or before October 14, 1999 at not later
than 5:00 p.m. (New York City time), ______ shares of Common Stock, $.01 par
value per share, of the Company, at a purchase price of $_____ per share. The
shares purchasable upon exercise of this Warrant, and the purchase price per
share, each as adjusted from time to time pursuant to the provisions of this
Warrant, are hereinafter referred to as the "Warrant Shares" and the "Purchase
Price," respectively.
1. Exercise.
(a) This Warrant may be exercised by the Registered Holder, in whole
or in part, by surrendering this Warrant, with the purchase form appended hereto
as Exhibit I duly executed by such Registered Holder or by such Registered
Holder's duly authorized attorney, at the principal office of the Company, or at
such other office or agency as the Company may designate, accompanied by payment
in full, in lawful money of the United States, of the Purchase Price payable in
respect of the number of Warrant Shares purchased upon such exercise.
(b) The Registered Holder may, at its option, elect to pay some of
the Purchase Price payable upon an exercise of this Warrant by cancelling a
portion of this Warrant exercisable for such number of Warrant Shares as is
determined by dividing (i) the total Purchase Price payable in respect of the
number of Warrant Shares being purchased upon such exercise by (ii) the excess
of the Fair Market Value per share of Common Stock as of the effective date of
exercise, as determined pursuant to subsection 1(c) below (the "Exercise Date")
over the Purchase Price per share. If the Registered Holder wishes to exercise
this Warrant pursuant to this method of payment with respect to the maximum
number of Warrant Shares purchasable pursuant to this method, then the number of
Warrant Shares so purchasable shall be equal to the total number of Warrant
Shares, minus the product obtained by multiplying (x) the total number of
Warrant Shares by (y) a fraction, the
numerator of which shall be the Purchase Price per share and the denominator of
which shall be the Fair Market Value per share of Common Stock as of the
Exercise Date. The Fair Market Value per share of Common Stock shall be
determined as follows:
(i) If the Common Stock is listed on a national securities
exchange, or the NASDAQ system as of the Exercise Date, the Fair Market Value
per share of Common Stock shall be deemed to be the last reported sale price per
share of Common Stock thereon on the Exercise Date; or, if no such price is
reported on such date, such price on the next preceding business day (provided
that if no such price is reported on the next preceding business day, the Fair
Market Value per share of Common Stock shall be determined pursuant to clause
(ii)).
(ii) If the Common Stock is not listed on a national
securities exchange, or the NASDAQ system as of the Exercise Date, the Fair
Market Value per share of Common Stock shall be deemed to be the amount most
recently determined by the Board of Directors to represent the fair market value
per share of the Common Stock (including without limitation a determination for
purposes of granting Common Stock options or issuing Common Stock under an
employee benefit plan of the Company); and, upon request of the Registered
Holder, the Board of Directors (or a representative thereof) shall promptly
notify the Registered Holder of the Fair Market Value per share of Common Stock.
Notwithstanding the foregoing, if the Board of Directors has not made such a
determination within the three-month period prior to the Exercise Date, then (A)
the Fair Market Value per share of Common Stock shall be the amount next
determined by the Board of Directors to represent the fair market value per
share of the Common Stock (including without limitation a determination for
purposes of granting Common Stock options or issuing Common Stock under an
employee benefit plan of the Company), (B) the Board of Directors shall make
such a determination within 15 days of a request by the Registered Holder that
it do so, and (C) the exercise of this Warrant pursuant to this subsection 1(b)
shall be delayed until such determination is made.
(c) Each exercise of this Warrant shall be deemed to have been
effected immediately prior to the close of business on the day on which this
Warrant shall have been surrendered to the Company as provided in subsection
1(a) above. At such time, the person or persons in whose name or names any
certificates for Warrant Shares shall be issuable upon such exercise as provided
in subsection 1(d) below shall be deemed to have become the holder or holders of
record of the Warrant Shares represented by such certificates.
(d) As soon as practicable after the exercise of this Warrant in
full or in part, and in any event within 10 days thereafter, the Company, at its
expense, will cause to be issued in the name of, and delivered to, the
Registered Holder, or as such Holder (upon payment by such Holder of any
applicable transfer taxes) may direct:
(i) a certificate or certificates for the number of full
Warrant Shares to which such Registered Holder shall be entitled upon such
exercise plus, in lieu of any fractional share to which such Registered Holder
would otherwise be entitled, cash in an amount determined pursuant to Section 3
hereof; and
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(ii) in case such exercise is in part only, a new warrant or
warrants (dated the date hereof) of like tenor, calling in the aggregate on the
face or faces thereof for the number of Warrant Shares equal (without giving
effect to any adjustment therein) to the number of such shares called for on the
face of this Warrant minus the sum of (a) the number of such shares purchased by
the Registered Holder upon such exercise plus (b) the number of Warrant Shares
(if any) covered by the portion of this Warrant cancelled in payment of the
Purchase Price payable upon such exercise pursuant to subsection 1(b) above.
2. Adjustments.
(a) Recapitalizations. If outstanding shares of the Company's Common
Stock shall be subdivided into a greater number of shares or a dividend in
Common Stock shall be paid in respect of Common Stock, the Purchase Price in
effect immediately prior to such subdivision or at the record date of such
dividend shall simultaneously with the effectiveness of such subdivision or
immediately after the record date of such dividend be proportionately reduced.
If outstanding shares of Common Stock shall be combined into a smaller number of
shares, the Purchase Price in effect immediately prior to such combination
shall, simultaneously with the effectiveness of such combination, be
proportionately increased.
(b) Mergers, etc. If there shall occur any capital reorganization or
reclassification of the Company's Common Stock (other than a change in par value
or a subdivision or combination as provided for in subsection 2(a) above), or
any consolidation or merger of the Company with or into another corporation, or
a transfer of all or substantially all of the assets of the Company, then, as
part of any such reorganization, reclassification, consolidation, merger or
sale, as the case may be, lawful provision shall be made so that the Registered
Holder of this Warrant shall have the right thereafter to receive upon the
exercise hereof the kind and amount of shares of stock or other securities or
property which such Registered Holder would have been entitled to receive if,
immediately prior to any such reorganization, reclassification, consolidation,
merger or sale, as the case may be, such Registered Holder had held the number
of shares of Common Stock which were then purchasable upon the exercise of this
Warrant. In any such case, appropriate adjustment (as reasonably determined in
good faith by the Board of Directors of the Company) shall be made in the
application of the provisions set forth herein with respect to the rights and
interests thereafter of the Registered Holder of this Warrant, such that the
provisions set forth in this Section 2 (including provisions with respect to
adjustment of the Purchase Price) shall thereafter be applicable, as nearly as
is reasonably practicable, in relation to any shares of stock or other
securities or property thereafter deliverable upon the exercise of this Warrant.
(c) Adjustment in Number of Warrant Shares. When any adjustment is
required to be made in the Purchase Price, the number of Warrant Shares
purchasable upon the exercise of this Warrant shall be changed to the number
determined by dividing (i) an amount equal to the number of shares issuable upon
the exercise of this Warrant immediately prior to such adjustment, multiplied by
the Purchase Price in effect immediately prior to such adjustment, by (ii) the
Purchase Price in effect immediately after such adjustment.
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(d) Certificate of Adjustment. When any adjustment is required to be
made in the Purchase Price pursuant to this Section 2, the Company shall
promptly mail to the Registered Holder a certificate setting forth the Purchase
Price after such adjustment and setting forth a brief statement of the facts
requiring such adjustment. Such certificate shall also set forth the kind and
amount of stock or other securities or property into which this Warrant shall be
exercisable following such adjustment.
3. Fractional Shares. The Company shall not be required upon the exercise
of this Warrant to issue any fractional shares, but shall make an adjustment
therefor in cash on the basis of the Fair Market Value per share of Common
Stock, as determined pursuant to subsection 1(b) above.
4. Requirements for Transfer.
(a) This Warrant and the Warrant Shares shall not be sold or
transferred unless either (i) they first shall have been registered under the
Securities Act of 1933, as amended (the "Act"), and registered or qualified
under applicable state securities laws or (ii) the Company first shall have been
furnished with an opinion of legal counsel, reasonably satisfactory to the
Company, to the effect that such sale or transfer is exempt from the
registration requirements of the Act and applicable state securities laws.
(b) Notwithstanding the foregoing, no registration or opinion of
counsel shall be required for (i) a transfer by a Registered Holder which is a
partnership to a partner of such partnership or a retired partner of such
partnership who retires after the date hereof, or to the estate of any such
partner or retired partner, if the transferee agrees in writing to be subject to
the terms of this Section 4, or (ii) a transfer made in accordance with Rule 144
under the Act.
(c) (i) If a Registered Holder desires to transfer this Warrant or
any Warrant Shares other than pursuant to subsection 4(b) above, such Registered
Holder (the "Selling Holder") shall first deliver written notice of its desire
to do so (the "Notice") to the Company and The NPD Group, Inc., a New York
corporation ("NPD"), in the manner prescribed in Section 12 of this Warrant. The
Notice must specify: (i) the name and address of the party to which the Selling
Holder proposes to transfer this Warrant or any Warrant Shares (the "Offeror"),
(ii) the number of Warrants or Warrant Shares the Selling Holder proposes to
transfer (the "Offered Securities"), (iii) the consideration per share to be
delivered to the Selling Holder for the proposed transfer and (iv) all other
material terms and conditions of the proposed transaction.
(ii) The Company shall have the first option to purchase all
or any part of the Offered Securities for the consideration and on the terms and
conditions specified in the Notice. The Company must exercise such option, no
later than 15 days after such Notice is deemed under Section 12 hereof to have
been delivered to it, by written notice to the Selling Holder.
(iii) In the event the Company does not exercise its option
within such 15-day period with respect to all of the Offered Securities, the
Secretary of the Company shall, by
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the last day of such period, give written notice of that fact to NPD (the "NPD
Notice"). The NPD Notice shall specify the number of Offered Securities not
purchased by the Company (the "Remaining Securities").
(iv) In the event the Company duly exercises its option to
purchase all or part of the Offered Securities, the closing of such purchase
shall take place at the offices of the Company on the later of (A) the date five
days after the expiration of such 15-day period or (B) the date that NPD
consummates its purchase of Offered Securities under subsection (vii) below.
(v) To the extent that the consideration proposed to be paid
by the Offeror for the Offered Securities consists of property other than cash
or a promissory note, the consideration required to be paid by the Company
and/or NPD may consist of cash or property equal to the value of such property,
as determined in good faith by agreement of the Selling Holder and the Company
and/or NPD.
(vi) Notwithstanding anything to the contrary herein, neither
the Company nor NPD shall have any right to purchase any of the Offered
Securities hereunder unless the Company and/or NPD exercise their option or
options to purchase all of the Offered Securities.
(vii) NPD shall have an option, exercisable for a period of 15
days from the date of delivery of the NPD Notice, to agree to purchase the
Remaining Securities for the consideration per share and on the terms and
conditions set forth in the Notice. Such option shall be exercised by delivery
of written notice to the Secretary of the Company. The closing of the purchase
of the Remaining Securities shall take place at the offices of the Company no
later than five days after the expiration of such 15-day period.
(viii) If the Company and/or NPD do not exercise their options
to purchase all of the Offered Securities within the periods described above
(the "Option Period"), then all options of the Company and NPD to purchase the
Offered Securities whether exercised or not, shall terminate, and the Selling
Holder shall be entitled to transfer the Offered Securities to the Offeror for
the consideration and on the terms and conditions set forth in the Notice. The
transaction contemplated by the Notice shall be consummated not later than 60
days after the expiration of the Option Period. If the Selling Holder wishes to
sell, transfer or otherwise dispose of any of the Offered Securities at a price
which differs from that set forth in the Notice or the NPD Notice, upon terms
different from those previously offered to the Company and NPD, or more than 60
days after the expiration of the Option Period, as a condition precedent to such
transaction, such Offered Securities must first be offered to the Company and
NPD on the same terms and conditions as given the Offeror, and in accordance
with the procedures and time periods set forth above.
(d) The Registered Holder shall not transfer this Warrant or any
Warrant Shares to any direct competitor of the Company listed on Exhibit II
attached hereto. The Exhibit may be amended from time to time by the Board, a
copy of any amendment of which shall be promptly provided to the Registered
Holder by the Company.
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(e) Each certificate representing Warrant Shares shall bear legends
substantially in the following form:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and may not
be offered, sold or otherwise transferred, pledged or hypothecated
unless and until such securities are registered under such Act or an
opinion of counsel satisfactory to the Company is obtained to the
effect that such registration is not required."
"The sale, transfer or other disposition of any of the shares
represented by this certificate is subject to the right of first
refusal of this Corporation and certain shareholders of this
Corporation as set forth in the Common Stock Purchase Warrant issued
by the Corporation to the holder hereof on November 5,1998. A copy
of the Common Stock Purchase Warrant is available for inspection
during normal business hours at the principal executive office of
this Corporation."
5. No Impairment. The Company will not, by amendment of its charter or
through reorganization, consolidation, merger, dissolution, sale of assets or
any other voluntary action, avoid or seek to avoid the observance or performance
of any of the terms of this Warrant, but will at all times in good faith assist
in the carrying out of all such terms and in the taking of all such action as
may be necessary or appropriate in order to protect the rights of the holder of
this Warrant against impairment.
6. Liquidating Dividends. If the Company pays a dividend or makes a
distribution on the Common Stock payable otherwise than in cash out of earnings
or earned surplus (determined in accordance with generally accepted accounting
principles) except for a stock dividend payable in shares of Common Stock (a
"Liquidating Dividend"), then the Company will pay or distribute to the
Registered Holder of this Warrant, upon the exercise hereof, in addition to the
Warrant Shares purchased upon such exercise, the Liquidating Dividend which
would have been paid to such Registered Holder if he had been the owner of
record of such Warrant Shares immediately prior to the date on which a record is
taken for such Liquidating Dividend or, if no record is taken, the date as of
which the record holders of Common Stock entitled to such dividends or
distribution are to be determined.
7. Notices of Record Date, etc. In case:
(a) the Company shall take a record of the holders of its Common
Stock (or other stock or securities at the time deliverable upon the exercise of
this Warrant) for the purpose of entitling or enabling them to receive any
dividend or other distribution, or to receive any right to
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subscribe for or purchase any shares of stock of any class or any other
securities, or to receive any other right; or
(b) of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any consolidation or
merger of the Company with or into another corporation (other than a
consolidation or merger in which the Company is the surviving entity), or any
transfer of all or substantially all of the assets of the Company; or
(c) of the voluntary or involuntary dissolution, liquidation or
winding-up of the Company,
then, and in each such case, the Company will mail or cause to be mailed to the
Registered Holder of this Warrant a notice specifying, as the case may be, (i)
the date on which a record is to be taken for the purpose of such dividend,
distribution or right, and stating the amount and character of such dividend,
distribution or right, or (ii) the effective date on which such reorganization,
reclassification, consolidation, merger, transfer, dissolution, liquidation or
winding-up is to take place, and the time, if any is to be fixed, as of which
the holders of record of Common Stock (or such other stock or securities at the
time deliverable upon the exercise of this Warrant) shall be entitled to
exchange their shares of Common Stock (or such other stock or securities) for
securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, transfer, dissolution, liquidation or
winding-up. Such notice shall be mailed at least twenty (20) days prior to the
record date or effective date for the event specified in such notice.
8. Reservation of Stock. The Company will at all times reserve and keep
available, solely for issuance and delivery upon the exercise of this Warrant,
such number of Warrant Shares and other stock, securities and property, as from
time to time shall be issuable upon the exercise of this Warrant.
9. Exchange of Warrants. Upon the surrender by the Registered Holder of
any Warrant or Warrants, properly endorsed, to the Company at the principal
office of the Company, the Company will, subject to the provisions of Section 4
hereof, issue and deliver to or upon the order of such Holder, at the Company's
expense, a new Warrant or Warrants of like tenor, in the name of such Registered
Holder or as such Registered Holder (upon payment by such Registered Holder of
any applicable transfer taxes) may direct, calling in the aggregate on the face
or faces thereof for the number of shares of Common Stock called for on the face
or faces of the Warrant or Warrants so surrendered.
10. Replacement of Warrants. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and (in the case of loss, theft or destruction) upon delivery of an
indemnity agreement (with surety if reasonably required) in an amount reasonably
satisfactory to the Company, or (in the case of mutilation) upon surrender and
cancellation of this Warrant, the Company will issue, in lieu thereof, a new
Warrant of like tenor.
-7-
11. Transfers, etc.
(a) The Company will maintain a register containing the names and
addresses of the Registered Holders of this Warrant. Any Registered Holder may
change its or his address as shown on the warrant register by written notice to
the Company requesting such change.
(b) Subject to the provisions of Section 4 hereof, this Warrant and
all rights hereunder are transferable, in whole or in part, upon surrender of
this Warrant with a properly executed assignment (in the form of Exhibit III
hereto) at the principal office of the Company.
(c) Until any transfer of this Warrant is made in the warrant
register, the Company may treat the Registered Holder of this Warrant as the
absolute owner hereof for all purposes; provided, however, that if and when this
Warrant is properly assigned in blank, the Company may (but shall not be
obligated to) treat the bearer hereof as the absolute owner hereof for all
purposes, notwithstanding any notice to the contrary.
12. Registration Rights. The shares of Common Stock issuable upon exercise
of the Warrants shall have the registration rights set forth in the Registration
Rights Agreement dated November 5, 1998 among the Company and certain
stockholders of the Company listed on the signature pages thereto.
13. Mailing of Notices, etc. All notices and other communications from the
Company to the Registered Holder of this Warrant shall be mailed by first-class
certified or registered mail, postage prepaid, to the address furnished to the
Company in writing by the last Registered Holder of this Warrant who shall have
furnished an address to the Company in writing. All notices and other
communications from the Registered Holder of this Warrant or in connection
herewith to the Company shall be mailed by first-class certified or registered
mail, postage prepaid, to the Company at its principal office at 000 Xxxx Xxxxx
Xxxx, Xxxx Xxxxxxxxxx, Xxx Xxxx 00000. If the Company should at any time change
the location of its principal office to a place other than as set forth in the
immediately preceding sentence, it shall give prompt written notice to the
Registered Holder of this Warrant and thereafter all references in this Warrant
to the location of its principal office at the particular time shall be as so
specified in such notice.
14. No Rights as Stockholder. Until the exercise of this Warrant, the
Registered Holder of this Warrant shall not have or exercise any rights by
virtue hereof as a stockholder of the Company.
15. Change or Waiver. Any term of this Warrant may be changed or waived
only by an instrument in writing signed by the party against which enforcement
of the change or waiver is sought.
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16. Headings. The headings in this Warrant are for purposes of reference
only and shall not limit or otherwise affect the meaning of any provision of
this Warrant.
17. Governing Law. This Warrant will be governed by and construed in
accordance with the laws of the State of Delaware.
MEDIA METRIX, INC.
By:
-------------------------------
Name: Xxx Xxxxxxx
Title: Chief Executive Officer
[Corporate Seal]
ATTEST:
---------------------------
EXHIBIT I
PURCHASE FORM
To: Media Metrix, Inc. Dated: ____________________
The undersigned, pursuant to the provisions set forth in the attached
Warrant (No. _____), hereby irrevocably elects to purchase _____ shares of the
Common Stock covered by such Warrant. The undersigned herewith makes payment of
$_______________, representing the full purchase price for such shares at the
price per share provided for in such Warrant. Such payment takes the form of
(check applicable box or boxes):
|_| $__________ in lawful money of the United States, and/or
|_| the cancellation of such portion of the attached Warrant as is
exercisable for a total of ________ Warrant Shares (using a
Fair Market Value of $________ per share for purposes of this
calculation).
Signature:
------------------------------------
Address:
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EXHIBIT II
LIST OF COMPETITORS
XX Xxxxxxx
Ceridian
Xxxxxxx Media Research, Inc.
Xxxxxxxxx Research
IntelliQuest
Odessey
Reuters
Site-Centric measurement systems-
(e.g. Internet Profiles Corporation)
Consumer-Centric measurement systems
(e.g. Net Ratings and PC Data)
International Data Corporation
Gartner Group
@Plan
United News
Media
VNU
WPP
EXHIBIT III
ASSIGNMENT FORM
FOR VALUE RECEIVED, ________________________________ hereby sells, assigns
and transfers all of the rights of the undersigned under the attached Warrant
(No. ____) with respect to the number of shares of Common Stock covered thereby
set forth below, unto:
Name of Assignee Address No. of Shares
---------------- ------- -------------
Dated: Signature:
--------------------- ----------------------------------------
Dated: Witness:
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