Contract
Exhibit 4.9
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED OR ANY STATE
SECURITIES LAWS. NO SALE OR DISPOSITION MAY BE EFFECTED WITHOUT (i) EFFECTIVE REGISTRATION
STATEMENTS RELATED THERETO, (ii) AN OPINION OF COUNSEL OR OTHER EVIDENCE, REASONABLY SATISFACTORY
TO THE COMPANY, THAT SUCH REGISTRATIONS ARE NOT REQUIRED, (iii) RECEIPT OF NO-ACTION LETTERS FROM
THE APPROPRIATE GOVERNMENTAL AUTHORITIES, OR (iv) OTHERWISE COMPLYING WITH THE PROVISIONS OF
SECTION 7 OF THIS WARRANT.
COMSCORE NETWORKS, INC.
WARRANT TO PURCHASE 36,127 SHARES
OF SERIES D PREFERRED STOCK
OF SERIES D PREFERRED STOCK
THIS CERTIFIES THAT, for value received, SILICON VALLEY BANK and its assignees are entitled to
subscribe for and purchase 36,127 shares of the fully paid and nonassessable Series D Preferred
Stock (as adjusted pursuant to Section 4 hereof, the “Shares”) of COMSCORE NETWORKS, INC., a
Delaware corporation (the “Company”), at the price $0.8996 per share (such price and such other
price as shall result, from time to time, from the adjustments specified in Section 4 hereof is
herein referred to as the “Warrant Price”), subject to the provisions and upon the terms and
conditions hereinafter set forth. As used herein, (a) the term “Series Preferred” shall mean the
Company’s presently authorized Series D Preferred Stock, and any stock into or for which such
Series D Preferred Stock may hereafter be converted or exchanged, and after the automatic
conversion of the Series D Preferred Stock to Common Stock shall mean the Company’s Common Stock,
(b) the term “Date of Grant” shall mean July 31, 2002, and (c) the term “Other Warrants” shall mean
any other warrants issued by the Company in connection with the transaction with respect to which
this Warrant was issued, and any warrant issued upon transfer or partial exercise of or in lieu of
this Warrant. The term “Warrant” as used herein shall be deemed to include Other Warrants unless
the context clearly requires otherwise.
1. Term. The purchase right represented by this Warrant is exercisable, in whole or
in part, at any time and from time to time from the Date of Grant through the later of (i) ten (10)
years after the Date of Grant or (ii) five (5) years after the closing of the Company’s Initial
public offering of its Common Stock (“IPO”) effected pursuant to a Registration Statement on Form
S-l (or its successor) filed under the Securities Act of 1933, as amended (the “Act”).
2. Method of Exercise: Payment: Issuance of New Warrant. Subject to Section 1 hereof,
the purchase right represented by this Warrant may be exercised by the holder hereof, in whole or
in part and from time to time, at the election of the holder hereof, by (a) the surrender of this
Warrant (with the notice of exercise substantially in the form attached hereto as Exhibit A-l duly
completed and executed) at the principal office of the Company and by the payment to the Company,
by certified or bank check, or by wire transfer to an account designated by the Company (a ''Wire
Transfer”) of an amount equal to the then applicable Warrant Price multiplied by the number of
Shares then being purchased; or (b) exercise of the “net issuance” right provided for in Section
10.2
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hereof. The person or persons in whose name(s) any certificate(s) representing shares of Series
Preferred shall be issuable upon exercise of this Warrant shall be deemed to have become the
holder(s) of record of, and shall be treated for all purposes as the record holder(s) of, the
shares represented thereby (and such shares shall be deemed to have been issued) immediately prior
to the close of business on the date or dates upon which this Warrant is exercised. In the event
of any exercise of the rights represented by this Warrant, certificates for the shares of stock so
purchased shall be delivered to the holder hereof as soon as possible and in any event within
thirty (30) days after such exercise and, unless this Warrant has been fully exercised or expired,
a new Warrant representing the portion of the Shares, if any with respect to which this Warrant
shall not have been exercised shall also be issued to the holder hereof as soon as possible and in
any event within such thirty-day period; provided, however, at such time as the Company is subject
to the reporting requirements of the Securities Exchange Act of 1934, as amended, if requested by
the holder of this Warrant, the Company shall use its best efforts to cause its transfer agent to
deliver the certificate representing Shares issued upon exercise of this Warrant to a broker or
other person (as directed by the holder exercising this Warrant) within the time period required to
settle any trade made by the holder after exercise of this Warrant.
3. Stock Fully Paid; Reservation of Shares. All Shares that may be issued upon the
exercise of the rights represented by this Warrant will, upon issuance pursuant to the terms and
conditions herein, be fully paid and nonassessable, and free from all preemptive rights and taxes,
liens and charges with respect to the issue thereof. During the period within which the rights
represented by this Warrant may be exercised, the Company will at all times have authorized, and
reserved for the purpose of the issue upon exercise of the purchase rights evidenced by this
Warrant, a sufficient number of shares of its Series Preferred to provide for the exercise of the
rights represented by this Warrant and a sufficient number of shares of its Common Stock to provide
for the conversion of the Series Preferred into Common Stock.
4. Adjustment of Warrant Price and Number of Shares. The number and kind of
securities purchasable upon the exercise of this Warrant and the Warrant Price shall be subject to
adjustment from time to time upon the occurrence of certain events, as follows:
(a) Reclassification or Merger. In case of any reclassification or change of
securities of the class issuable upon exercise of this Warrant (other than a change in par value,
or from par value to no par value, or from no par value to par value, or as a result of a
subdivision or combination), or in case of any merger of the Company with or into another
corporation (other than a merger with another corporation in which the Company is the acquiring and
the surviving corporation and which does not result in any reclassification or change of
outstanding securities issuable upon exercise of this Warrant), or in case of any sale of all or
substantially all of the assets of the Company, the Company, or such successor or purchasing
corporation, as the case may be, shall duly execute and deliver to the holder of this Warrant a new
Warrant (in form and substance satisfactory to the holder of this Warrant), or the Company shall
make appropriate provision without the issuance of a new Warrant, so that the holder of this
Warrant shall have the right to receive upon exercise of this Warrant, at a total purchase price
not to exceed that payable upon the exercise of the unexercised portion of this Warrant, and in
lieu of the shares of Series Preferred theretofore issuable upon exercise of this Warrant, the kind
and amount of shares of stock, other securities, money and
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property receivable upon such classification, change, merger or sale by a holder of the number of
shares of Series Preferred then purchasable under this Warrant. Any new Warrant shall provide for
adjustments that shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Section 4. The provisions of this Section 4(a) shall similarly apply to successive
reclassifications, changes, mergers and sales.
(b) Subdivision or Combination of Shares. If the Company at any time while this
Warrant remains outstanding and unexpired shall subdivide or combine its outstanding shares of
Series Preferred, the Warrant Price shall be proportionately decreased and the number of Shares
issuable hereunder shall be proportionately increased in the case of a subdivision and the Warrant
Price shall be proportionately increased and the number of Shares issuable hereunder shall be
proportionately decreased in the case of a combination.
(c) Stock Dividends and Other Distributions. If the Company at any time while this
Warrant is outstanding and unexpired shall (i) pay a dividend with respect to Series Preferred
payable in Series Preferred, then the Warrant Price shall be adjusted, from and after the date of
determination of shareholders entitled to receive such dividend or distribution, to that price
determined by multiplying the Warrant Price in effect immediately prior to such date of
determination by a fraction (A) the numerator of which shall be the total number of shares of
Series Preferred outstanding immediately prior to such dividend or distribution, and (B) the
denominator of which shall be the total number of shares of Series Preferred outstanding
immediately after such dividend or distribution; or (ii) make any other distribution with respect
to Series Preferred (except any distribution specifically provided for in Sections 4(a) and 4(b)),
then, in each such case, provision shall be made by the Company such that the holder of this
Warrant shall receive upon exercise of this Warrant a proportionate share of any such dividend or
distribution as though it were the holder of the Series Preferred (or Common Stock issuable upon
conversion thereof) as of the record date fixed for the determination of the shareholders of the
Company entitled to receive such dividend or distribution.
(d) Adjustment of Number of Shares. Upon each adjustment in the Warrant Price, the
number of Shares of Series Preferred purchasable hereunder shall be adjusted, to the nearest whole
share, to the product obtained by multiplying the number of Shares purchasable immediately prior to
such adjustment in the Warrant Price by a fraction, the numerator of which shall be the Warrant
Price immediately prior to such adjustment and the denominator of which shall be the Warrant Price
immediately thereafter.
(e)
Antidilution Rights. The other antidulation rights applicable to the Shares of
Series Preferred purchasable hereunder are set forth in the Company’s Certificate of Incorporation,
as amended through the Date of Grant, a true and complete copy of which is attached hereto as
Exhibit B (the “Charter”). Such antidilution rights shall not be restated, amended, modified or
waived in any manner that is adverse to the holder hereof without such holder’s prior written
consent, unless such amendment, modification or waiver affects such holder in the same manner as it
affects other holders of only the Series Preferred. The Company shall promptly provide the holder
hereof with any restatement, amendment, modification or waiver of the Charter promptly after the
same has been made.
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5. Notice of Adjustments. Whenever the Warrant Price or the number of Shares
purchasable hereunder shall be adjusted pursuant to Section 4 hereof, the Company shall make a
certificate signed by its chief financial officer setting forth, in reasonable detail, the event
requiring the adjustment, the amount of the adjustment, the method by which such adjustment was
calculated, and the Warrant Price and the number of Shares purchasable hereunder after giving
effect to such adjustment, and shall cause copies of such certificate to be mailed (without regard
to Section 13 hereof, by first class mail, postage prepaid) to this holder of this Warrant. In
addition, whenever the conversion price or conversion ratio of “the Series Preferred shall be
adjusted, the Company shall make a certificate signed by its chief financial officer setting forth,
in reasonable detail, the event requiring the adjustment, the amount of the adjustment, the method
by which such adjustment was calculated, and the conversion price or ratio of the Series Preferred
after giving effect to such adjustment, and shall cause copies of such certificate to be mailed
(without regard to Section 13 hereof, by first class mail, postage prepaid) to the holder of this
Warrant.
6. Fractional Shares. No fractional shares of Series Preferred will be issued in
connection, with any exercise hereunder, but in lieu of such fractional shares the Company shall
make a cash payment therefor based on the fair market value of the Series Preferred on the date of
exercise as reasonably determined in good faith by the Company’s Board of Directors.
7. Compliance with Act; Disposition of Warrant or Shares of Series Preferred.
(a) Compliance with Act. The holder of this Warrant by acceptance hereof, agrees that
this Warrant, and the shares of Series Preferred to be issued upon exercise hereof and any Common
Stock issued upon conversion thereof are being acquired for investment and that such holder will
not offer, sell or otherwise dispose of this Warrant, or any shares of Series Preferred to be
issued upon exercise hereof or any Common Stock issued upon conversion thereof except under
circumstances which will not result in a violation of the Act or any applicable state securities
laws. Upon exercise of this Warrant, unless the Shares being acquired are registered under the Act
and any applicable stats securities laws or an exemption from such registration is available, the
holder hereof shall confirm in writing that the shares of Series Preferred so purchased (and any
shares of Common Stock issued upon conversion thereof) are being acquired for investment and not
with a view toward distribution or resale in violation of the Act and shall confirm such other
matters related thereto as may be reasonably requested by the Company. This Warrant and all shares
of Series Preferred issued upon exercise of this Warrant and all shares of Common Stock issued upon
conversion thereof (unless registered under the Act and any applicable state securities laws) shall
be stamped or imprinted with a legend in substantially the following form:
“THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS. NO SALE OR DISPOSITION MAY BE EFFECTED WITHOUT (i)
EFFECTIVE REGISTRATION STATEMENTS RELATED THERETO, (ii) AN OPINION OF COUNSEL OR OTHER EVIDENCE
REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATIONS ARE NOT REQUIRED, (iii) RECEIPT OF
NO-ACTION LETTERS FROM THE APPROPRIATE GOVERNMENTAL AUTHORITIES, OR (iv) OTHERWISE COMPLYING
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WITH THE PROVISIONS OF SECTION 7 OF THE WARRANT UNDER WHICH THESE SECURITIES WERE ISSUED, DIRECTLY
OR INDIRECTLY.”
Said legend shall be removed by the Company, upon the request of a holder, at such time as the
restrictions on the transfer of the applicable security shall have terminated. In addition, in
connection with this issuance of this Warrant, the holder specifically represents to the Company by
acceptance of this Warrant as follows:
(1) The holder is aware of this Company’s business affairs and financial condition, and has
acquired information about the Company sufficient to reach an informed and knowledgeable decision
to acquire this Warrant. The holder is acquiring this Warrant for its own account for investment
purposes only and not with a view to, or for the resale in connection with, any “distribution”
thereof in violation of the Act.
(2) The holder understands that this Warrant has not been registered under the Act in reliance
upon a specific exemption therefrom, which exemption depends upon, among other things, the bona
fide nature of the holder’s investment intent as expressed herein.
(3) The holder further understands that this Warrant must be held indefinitely unless
subsequently registered under the Act and qualified under any applicable state securities laws, or
unless exemptions from registration and qualification are otherwise available. The holder is aware
of the provisions of Rule 144 promulgated under the Act.
(4) The holder is an “accredited investor” as such term is defined in Rule 501 of Regulation D
promulgated under the Act.
(b) Disposition of Warrant or Shares. With respect to any offer, sale or other
disposition of this Warrant or any shares of Series Preferred acquired pursuant to the exercise of
this Warrant prior to registration of such Warrant or shares, the holder hereof agrees to give
written notice to the Company prior thereto, describing briefly the manner thereof, together with a
written opinion of such holder’s counsel, or other evidence, if reasonably satisfactory to the
Company, to the effect that such offer, sale or other disposition may be effected without
registration or qualification (under the Act as then in effect or any federal or state securities
law then in effect) of this Warrant or such shares of Series Preferred or Common Stock and
indicating whether or not under the Act certificates for this Warrant or such shares of Series
Preferred to be sold or otherwise disposed of require any restrictive legend as to applicable
restrictions on transferability in order to ensure compliance with such law. Upon receiving such
written notice and reasonably satisfactory opinion or other evidence, the Company, as promptly as
practicable but no later than fifteen (15) days after receipt of the written notice, shall notify
such holder that such holder may sell or otherwise dispose of this Warrant or such shares of Series
Preferred or Common Stock, all in accordance with the terms of the notice delivered to the Company.
If a determination has been made pursuant to this Section 7(b) that the opinion of counsel for the
holder or other evidence is not reasonably satisfactory to the Company, the Company shall so notify
the holder promptly with details thereof after such determination has been made. Notwithstanding
the foregoing, this Warrant or such shares of Series Preferred or Common Stock may, as to such
federal laws, be offered, sold or otherwise disposed of
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in accordance with Rule 144 or 144A under the Act, provided that the Company shall have been
furnished with such information as the Company may reasonably request to provide a reasonable
assurance that the provisions of Rule 144 or 144A have been satisfied. Each certificate
representing this Warrant or the shares of Series Preferred thus transferred (except a transfer
pursuant to Rule 144 or 144A) shall bear a legend as to the applicable restrictions on
transferability in order to ensure compliance with such laws, unless in the aforesaid opinion of
counsel for the holder, such legend is not required in order to ensure compliance with such laws.
The Company may issue stop transfer instructions to its transfer agent in connection with such
restrictions.
(c) Applicability of Restrictions. Neither any restrictions of any legend described
in this Warrant nor the requirements of Section 7(b) above shall apply to any transfer of, or grant
of a security interest in, this Warrant (or the Series Preferred or Common Stock obtainable upon
exercise thereof) or any part hereof (i) to a partner of the holder if the holder is a partnership
or to a member of the holder if the holder is a limited liability company, or (ii) to Silicon
Valley Bancshares (holder’s parent company) or any affiliate of the holder if the holder is a
corporation or a bank; provided, however, in any such transfer, (x) the transferee
shall on the Company’s request agree in writing to be bound by the terms of this Warrant as if an
original holder hereof, and (z) other than the transfer to Silicon Valley Bancshares the transferor
shall give the Company prior written notice thereof in reasonable detail, including the name of the
transferee and the extent of the rights and/or number of shares to be transferred. Subject to the
provisions of this Section 7(c), upon receipt by holder of the executed Warrant, holder will
transfer all or part of this Warrant or the Shares issuable upon exercise of this Warrant (or the
securities issuable, directly or indirectly, upon conversion of the Shares, if any) to Silicon
Valley Bancshares, holder’s parent company. Subject to the provisions of this Section 7(c) and
upon providing Company with written notice, holder or Silicon Valley Bancshares may transfer all or
part of this Warrant or the Shares issuable upon exercise of this Warrant (or the securities
issuable, directly or indirectly, upon conversion of the Shares, if any) to The Silicon Valley Bank
Foundation.
8. Rights as Shareholders; Information. No holder of this Warrant, as such, shall be
entitled to vote or receive dividends or be deemed the holder of Series Preferred or any other
securities of the Company which may at any time be issuable upon the exercise hereof for any
purpose, nor shall anything contained herein be construed to confer upon the holder of this
Warrant, as such, any of the rights of a shareholder of the Company or any right to vote for the
election of directors or upon any matter submitted to shareholders at any meeting thereof, or to
receive notice of meetings, or to receive dividends or subscription rights or otherwise until this
Warrant shall have been exercised and the Shares purchasable upon the exercise hereof shall have
become deliverable, as provided herein. Notwithstanding the foregoing, the Company will transmit
to the holder of this Warrant such information, documents and reports as are generally distributed
to the holders of any class or series of the securities of the Company concurrently with the
distribution to the shareholders.
9. Registration Rights. The Company grants registration rights to the holder of this
Warrant for any Common Stock of the Company obtained upon conversion of the Series Preferred,
comparable to the registration rights granted to the investors in that certain Second Amended and
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Restated Investor Rights Agreement dated as of August 8, 2001, (the “Registration Rights
Agreement”), with the following exceptions and clarifications:
(1) The holder will have not have the right to demand registration, but can otherwise
participate in any registration demanded by others other holders of at least a majority of the
Registrable Securities (as defined in the Rights Agreement).
(2) The holder will be subject to the same provisions regarding indemnification as contained
in the Registration Rights Agreement.
(3) The registration rights are freely assignable by the holder offers Warrant in connection
with a permitted transfer of this Warrant or the Shares.
10. Additional Rights.
10.1 Acquisition Transactions. The Company shall provide the holder of this Warrant
with at least twenty (20) days’ written notice prior to closing thereof of the terms and conditions
of any of the following transactions (to the extent the Company has notice thereof): (i) the sale,
lease, exchange, conveyance or other disposition of all or substantially all of the Company’s
property or business, or (ii) its merger into or consolidation with any other corporation (other
than a wholly-owned subsidiary of the Company), or any transaction (including a merger or other
reorganization) or series of related transactions, in which more than 50% of the voting power of
the Company is disposed of.
10.2 Right to Convert Warrant into Stock: Net Issuance.
(a) Right to Convert. In addition to and without limiting the rights of the holder
under the terms of this Warrant, the holder shall have the right to convert this Warrant or any
portion thereof (the “Conversion Right”) into shares of Series Preferred as provided in this
Section 10.2 at any time or from time to time during the term of this Warrant. Upon exercise of
the Conversion Right with respect to a particular number of shares subject to this Warrant (the
“Convened Warrant Shares"'), the Company shall deliver to the holder (without payment by the holder
of any exercise price or any cash or other consideration) that number of shares of fully paid and
nonassessable Series Preferred as is determined according to the following formula:
X
|
= | B — A
|
Where:
|
X | = | the number of shares of Series Preferred that shall be issued to holder | |||||
| Y | = | the fair market value of one share of Series Preferred | ||||||
| A | = | the aggregate Warrant Price of the specified number of Converted Warrant Shares immediately prior to the exercise of the Conversion Right (i.e., the number of Converted Warrant Shares multiplied by the Warrant Price) |
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| B | = | the aggregate fair market value of the specified number of Converted Warrant Shares (i.e., the number of Converted Warrant Shares multiplied by the fair market value of one Convened Warrant Share) |
No fractional shares shall be issuable upon exercise of the Conversion Right, and, if the
number of shares to be issued determined in accordance with the foregoing formula is other than a
whole number, the Company shall pay to the holder an amount in cash equal to the fair market value
of the resulting fractional share on the Conversion Date (as hereinafter defined). For purposes of
Section 10 of this Warrant, shares issued pursuant to the Conversion Right shall be treated as if
they were issued upon the exercise of this Warrant.
(b) Method of Exercise. The Conversion Right may be exercised by the holder by the
surrender of this Warrant at the principal office of the Company together with a written statement
(which may be in the form of Exhibit A-l or Exhibit A-2 hereto) specifying that the holder thereby
intends to exercise the Conversion Right and indicating the number of shares subject to this
Warrant which are being surrendered (referred to in Section 10.2(a) hereof as the Converted Warrant
Shares) in exercise of the Conversion Right. Such conversion shall be effective upon receipt by
the Company of this Warrant together with the aforesaid written statement, or on such later date as
is specified therein (the “Conversion Date”), and, at the election of the holder hereof, may be
made contingent upon the closing of the sale of the Company’s Common Stock to the public in a
public offering pursuant to a Registration Statement under the Act (a “Public Offering”).
Certificates for the shares issuable upon exercise of the Conversion Right and, if applicable, a
new warrant evidencing the balance of the shares remaining subject to this Warrant, shall be issued
as of the Conversion Date and shall be delivered to the holder within thirty (30) days following
the Conversion Date.
(c) Determination of Fair Market Value. For purposes of this Section 10.2, “fair
market value” of a share of Series Preferred (or Common Stock if the Series Preferred has been
automatically converted into Common Stock) as of a particular date (the “Determination Date”) shall
mean:
(i) If the Conversion Right is exercised in connection with and contingent upon a Public
Offering, and if the Company’s Registration Statement relating to such Public Offering
(“Registration Statement”) has been declared effective by the Securities and Exchange Commission,
then the initial “Price to Public” specified in the final prospectus with respect to such offering.
(ii) If the Conversion Right is not exercised in connection with and contingent upon a Public
Offering, then as follows:
(A) If traded on securities exchange, the fair market value of the Common Stock shall be
deemed to be the average of the closing prices of the Common Stock on such exchange over the five
trading days immediately prior to the Determination Date, and the fair market value of the Series
Preferred shall be deemed to be such fair market value of the Common Stock multiplied by the number
of shares of Common Stock into which each share of Series Preferred is then convertible;
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(B) If traded on the Nasdaq Stock Market or other over-the-counter system, the fair market
value of the Common Stock shall be deemed to be the average of the closing bid prices
of the Common Stock over the five trading days immediately prior to the Determination Date,
and the fair market value of the Series Preferred shall be deemed to be such fair market value of
the Common Stock multiplied by the number of shares of Common Stock into which each share of Series
Preferred is then convertible; and
(C) If there is no public market for the Common Stock, then fair marker value shall be
determined in good faith by the board of directors of the Company.
In making a determination under clauses (A) or (B) above, if on the Determination Date, five
trading days had not passed since the IPO, then the fair market value of the Common Stock shall be
the average closing prices or closing bid prices, as applicable, for the shorter period beginning
on and including the date of the IPO and ending on the trading day prior to the Determination Date
(or if such period includes only one trading day the closing price or closing bid price, as
applicable, for such trading day). If closing prices or closing bid prices are no longer reported
by a securities exchange or other trading system, the closing price or closing bid price shall be
that which is reported by such securities exchange or other trading system at 4:00 p.m. New York
City time on the applicable trading day.
10.3 Exercise Prior to Expiration. To the extent this Warrant is not previously
exercised as to all of the Shares subject hereto, and if the fair market value of one share of the
Series Preferred is greater than the Warrant Price then in effect, this Warrant shall be deemed
automatically exercised pursuant to Section 10.2 above (even if not surrendered) immediately before
its expiration. For purposes of such automatic exercise, the fair market value of one share of the
Series Preferred upon such expiration shall be determined pursuant to Section 10.2(c). To the
extent this Warrant or any portion thereof is deemed automatically exercised pursuant to this
Section 10.3, the Company agrees to promptly notify the holder hereof of the number of Shares, if
any, the holder hereof is to receive by reason of such automatic exercise.
11. Representations and Warranties. The Company represents and warrants to the holder
of this Warrant as follows:
(a) This Warrant has been duly authorized and executed by the Company and is a valid and
binding obligation of the Company enforceable in accordance with its terms, subject to laws of
general application relating to bankruptcy, insolvency and the relief of debtors and the rules of
law or principles at equity governing specific performance, injunctive relief and other equitable
remedies.
(b) The Shares have been duly authorized and reserved for issuance by the Company and, when
issued in accordance with the terms hereof, will be validly issued, fully paid and nonassessable
and free from preemptive rights.
(c) The rights, preferences, privileges and restrictions granted to or imposed upon the Series
Preferred and the holders thereof are as set forth in the Charter, and on the Date of Grant,
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each share of the Series Preferred represented by this Warrant is convertible into one share of
Common Stock.
(d) The shares of Common Stock issuable upon conversion of the Shares have been duly
authorized and reserved for issuance by the Company and, when issued in accordance with the terms
of the Charter will be validly issued, fully paid and nonassessable.
(e) The execution and delivery of this Warrant are not, and the issuance of the Shares upon
exercise of this Warrant in accordance with the terms hereof will not be inconsistent with the
Company’s Charter or by-laws, do not and will not contravene any law, governmental rule or
regulation, judgment or order applicable to the Company, and do not and will not conflict with or
contravene any provision of, or constitute a default under, any indenture, mortgage, contact or
other instrument of which the Company is a party or by which it is bound or require the consent or
approval of, the giving of notice to, the registration or filing with or the taking of any action
in respect of or by, any Federal, state or local government authority or agency or other person,
except for the filing of notices pursuant to federal and state securities laws, which filings will
be effected by the time required thereby.
(f) There are no actions, suits, audits, investigations or proceedings pending or, to the
knowledge of the Company, threatened against the Company in any court or before any governmental
commission, board or authority which, if adversely determined, could have a material adverse effect
on the ability of the Company to perform its obligations under this Warrant.
(g) The number of shares of Common Stock of the Company outstanding on the date hereof, on a
fully dilated basis (assuming the conversion of all outstanding convertible securities and the
exercise of all outstanding options and warrants), does not exceed 48,000,000 shares.
12. Modification and Waiver. This Warrant and any provision hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the party against which
enforcement of the same is sought.
13. Market Stand-off. The holder of this Warrant agrees to be bound by the “Market
Stand-Off provision in Section 1(l) of the Rights Agreement.
14. Notices. Any notice, request, communication or other document required or
permitted to be given or delivered to the holder hereof or the Company shall be delivered, or shall
be sent by certified or registered mail, postage prepaid, to each such holder at its address as
shown on the books of the Company or to the Company at the address indicated therefor on the
signature page of this Warrant.
15. Binding Effect on Successors. This Warrant shall be binding upon any corporation
succeeding the Company by merger, consolidation or acquisition of all or substantially all of the
Company’s assets, and all of the obligations of the Company relating to the Series Preferred
issuable upon the exercise or conversion of this Warrant shall survive the exercise, conversion and
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termination of this Warrant and all of the covenants and agreements of the Company shall inure to
the benefit of the successors and assigns of the holder hereof.
16. Lost Warrants or Stock Certificates. The Company covenants to the holder hereof
that, upon receipt of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant or any stock certificate and, in the case of any such
loss, theft or destruction, upon receipt of an indemnity reasonably satisfactory to the Company, or
in the case of any such mutilation upon surrender and cancellation of such Warrant or stock
certificate, the Company will make and deliver a new Warrant or stock certificate, of like tenor,
in lieu of the lost, stolen, destroyed or mutilated Warrant or stock certificate.
17. Descriptive Headings. The descriptive headings of the various Sections of this
Warrant are inserted for convenience only and do not constitute a part of this Warrant. The
language in this Warrant shall be construed as to its fair meaning without regard to which party
drafted this Warrant.
18. Governing Law. This Warrant shall be construed and enforced in accordance with,
and the rights of the parties shall be governed by, the laws of the State of California.
19. Survival of Representations, Warranties and Agreements. All representations and
warranties of the Company and the holder hereof contained herein shall survive the Date of Grant,
the exercise or conversion of this Warrant (or any part hereof) or the termination or expiration of
rights hereunder. All agreements of the Company and the holder hereof contained herein shall
survive indefinitely until, by their respective terms, they are no longer operative.
20. Remedies. In case any one or more of the covenants and agreements contained in
this Warrant shall have been breached, the holders hereof (in the case of a breach by the Company),
or the Company (in the case of a breach by a holder), may proceed to protect and enforce their or
its rights either by suit in equity and/or by action at law, including, but not limited to, an
action for damages as a result of any such breach and/or an action for specific performance of any
such covenant or agreement contained in this Warrant.
21. No Impairment of Rights. The Company will not, by amendment of its Charter or
through any other means, 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
22. Severability. The invalidity or unenforceability of any provision, of this
Warrant in any jurisdiction shall not affect the validity or enforceability of such provision in
any other jurisdiction, or affect any other provision of this Warrant, which shall remain in full
force and effect.
23. Recovery of Litigation Costs. If any legal action or other proceeding is brought
for the enforcement of this Warrant, or because of an alleged dispute, breach, default, or
misrepresentation in connection with any of the provisions of this Warrant, the successful or
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prevailing party or parties shall be entitled to recover reasonable attorneys’ fees and other costs
incurred in that action or proceeding, in addition to any other relief to which it or they may be
entitled.
24. Entire Agreement: Modification. This Warrant constitutes the entire agreement
between the parries pertaining to the subject matter contained in it and supersedes all prior and
contemporaneous agreements, representations, and undertakings of the parties, whether oral or
written, with respect to such subject matter.
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The Company has caused this Warrant to be duly executed and delivered as of the Date of Grant
specified above.
| COMSCORE NETWORKS, INC. | ||||||
| By: | /s/ Xxxxx X. Xxxxxx | |||||
| Title: | General Counsel & Corporate Secretary | |||||
| Address: | ||||||
| 00000 Xxxxxx Xxxxx Xxxx | ||||||
| Xxxxx 000 | ||||||
| Xxxxxx, XX 00000 | ||||||
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EXHIBIT A-1
NOTICE OF EXERCISE
To: COMSCORE NETWORKS, INC. (the “Company”)
| 1. | The undersigned hereby: |
o
|
elects to purchase shares of [Series Preferred Stock] [Common Stock] of the Company pursuant to the terms of the attached Warrant, and tenders herewith payment of the purchase price of such shares in full, or | |
o
|
elects to exercise its net issuance rights pursuant to Section 10.2 of the attached Warrant with respect to Shares of [Series Preferred Stock] [Common Stock]. |
2. Please
issue a certificate or certificates representing
shares in the name of the
undersigned or in such other name or names as are specified below:
(Name)
(Address)
3. The undersigned represents that the aforesaid shares are being acquired for the account of
the undersigned for investment and not with a view to, or for resale in connection with, the
distribution thereof and that the undersigned has no present intention of distributing or reselling
such shares, all except as in compliance with applicable securities laws.
| (Signature) |
EXHIBIT A-2
NOTICE OF EXERCISE
To: COMSCORE NETWORKS, INC. (the “Company”)
1. Contingent upon and effective immediately prior to the closing (the “Closing”) of the
Company’s public offering contemplated by the Registration
Statement on
Form S ,
filed , 200 , the undersigned hereby:
o elects
to purchase shares of [Series Preferred Stock] [Common Stock] of the Company
(or such lesser number of shares as may be sold on behalf of the undersigned at the Closing)
pursuant to the terms of the attached Warrant, or
o elects to exercise its net issuance rights pursuant to Section 10.2 of the attached Warrant
with respect to
Shares of [Series Preferred Stock] [Common Stock].
2. Please deliver to the custodian for the selling shareholders a stock certificate
representing
such shares.
3. The undersigned has instructed the custodian for the selling shareholders to deliver to the
Company $ or, if less, the net proceeds due the undersigned from the sale of shares in
the aforesaid public offering. If such net proceeds are less than the purchase price for such
shares, the undersigned agrees to deliver the difference to the Company prior to the Closing.
| (Signature) |
EXHIBIT B
CHARTER
