COMMON STOCK PURCHASE WARRANT
Exhibit 4.6
THIS WARRANT AND THE SHARES OF COMMON STOCK WHICH MAY BE PURCHASED PURSUANT TO THE EXERCISE OF THIS
WARRANT HAVE BEEN ACQUIRED SOLELY FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE
SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION
OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH SALE, OFFER, PLEDGE OR
HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE ACT AND
OF ANY APPLICABLE STATE SECURITIES LAWS UNLESS SOLD PURSUANT TO RULE 144 OF THE ACT.
Void After June 26, 2011
COMSCORE NETWORKS, INC.
WARRANT TO PURCHASE SHARES OF COMMON STOCK
For value received, Xxxxxxx Xxxxxxxxx (the “Holder”) is entitled to subscribe for and purchase
up to 100,000 shares (as adjusted pursuant to Section 3 hereof) of the Common Stock (the “Common
Stock”), $0.001 par value (the “Shares”), of comScore Networks, Inc., a Delaware corporation (the
"Company”), at the price of $1.00 per share (the “Exercise Price”) (as adjusted pursuant to Section
3 hereof), subject to the provisions and upon the terms and conditions hereinafter set forth.
1. Exercise and Payment.
1.1 Vesting. This warrant shall be exercisable, in whole or in part, according to the
following vesting schedule: l/24th of the total number of shares subject to this warrant shall
become exercisable on the last day of each calendar month beginning on June 26, 2001, until all
such shares are exercisable, subject to the Holder continuing to be a member of the Board of
Directors of the Company on such dates.
1.2 Exercise. The purchase rights represented by this Warrant may be exercised by the
Holder, in whole or in part, by the surrender of a duly executed exercise notice in the form
attached hereto as Exhibit A at the principal office of the Company, and by the payment to the
Company, by check or wire transfer, of an amount equal to the aggregate Exercise Price of the
shares being purchased.
1.3 Stock Certificate. In the event of the exercise of this Warrant, a certificate
for the shares of Common Stock so purchased shall be delivered to the Holder within a reasonable
time, which shall in no event be later than thirty (30) days thereafter.
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2. Stock Fully Paid; Reservation of Shares. All of the Shares issuable upon the
exercise of this Warrant will, upon issuance and receipt of the Exercise Price therefor, be fully
paid and nonassessable. During the period within which this Warrant may be exercised, the Company
shall at all times have authorized and reserved for issuance sufficient shares of its Common Stock
to provide for the exercise of this Warrant.
3. Adjustment of Exercise Price and Number of Shares. Subject to Section 10 hereof,
the number and kind of securities purchasable upon the exercise of this Warrant and the Exercise
Price therefor shall be subject to adjustment from time to time upon the occurrence of certain
events, as follows:
3.1 Reclassification, Consolidation or Merger. In case of any reclassification or
change of the Common Stock (other than a change in par value, or as a result of a subdivision or
combination), or in case of any Merger Event (as defined herein), the Company or the successor
corporation, as the case may be, shall execute a new warrant, providing that the Holder shall have
the right to exercise such new warrant, and procure upon such exercise and payment of the same
aggregate Exercise Price, in lieu of the shares of Common Stock theretofore issuable upon exercise
of this Warrant, the kind and amount of shares of stock, other securities, money and property
receivable upon such reclassification, change, or Merger Event by a holder of an equivalent number
of shares of Common Stock. Such new warrant shall provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Section 3.
3.2 Stock Splits, Dividends and Combinations. In the event that the Company shall at
any time subdivide the outstanding shares of Common Stock, or shall issue a stock dividend on its
outstanding shares of Common Stock, the number of Shares issuable upon exercise of this Warrant
immediately prior to such subdivision or to the issuance of such stock dividend shall be
proportionately increased and the Exercise Price shall be proportionately decreased so that the
Holder of the Warrant after such time shall be entitled to receive the number of shares of Common
Stock which such Holder would have owned or been entitled to receive had such Warrant been
exercised immediately prior to such event, and in the event that the Company shall at any time
combine the outstanding shares of Common Stock, the number of Shares issuable upon exercise of this
Warrant immediately prior to such combination shall be proportionately decreased, and the Exercise
Price shall be proportionately increased so that the Holder of the Warrant after such time shall be
entitled to receive the number of shares of Common Stock which such Holder would have owned or been
entitled to receive had such Warrant been exercised prior to such event, in either case effective
at the close of business on the date of such subdivision, stock dividend or combination, as the
case may be.
4. Notice of Adjustments. In the event that: (i) the Company shall declare any
dividend or distribution upon its Common Stock, whether in cash, property, stock or other
securities; (ii) the Company shall offer for subscription pro rata to the holders of its Common
Stock any additional shares of stock of any class or other rights; (iii) there shall be any merger
or consolidation of the Company with or into a third party pursuant to which the Company’s
stockholders prior to the transaction own less than fifty percent (50%) of the surviving entity or
the sale of all or substantially all of the assets of the Company (a “Merger Event”); or (iv) there
shall be any voluntary or involuntary dissolution, liquidation or winding up of the Company; then,
in connection with each such event, the Company shall send to the Holder:
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(a) At least ten (10) days prior written notice of the date on which the books of the Company
shall close or a record shall be taken for such dividend, distribution, subscription rights
(specifying the date on which the holders of Common Stock shall be entitled thereto) or for
determining rights to vote in respect of such Merger Event, dissolution, liquidation or winding up;
and
(b) In the case of any such Merger Event, dissolution, liquidation or winding up, at least ten
(10) days prior written notice of the date when the same shall take place (and specifying the date
on which the holders of Common Stock shall be entitled to exchange their Common Stock for
securities or other property deliverable upon such Merger Event, dissolution, liquidation or
winding up).
Each such written notice shall set forth, in reasonable detail, (i) the event requiring the
adjustment, (ii) the amount of the adjustment, (iii) the method by which such adjustment was
calculated, (iv) the Exercise Price, and (v) the number of shares subject to purchase hereunder
after giving effect to such adjustment, and shall be given by first class mail, postage prepaid,
addressed to the Holder, at the address as shown on the books of the Company.
5. Fractional Shares. No fractional shares of Common Stock will be issued in
connection with any exercise hereunder. In lieu of such fractional shares the Company shall make a
cash payment therefor based upon the Exercise Price then in effect.
6. Representations and Warranties of the Holder. The Holder hereby represents and
warrants to the Company, with respect to its acquisition of the Warrant, as follows:
6.1 Experience. The Holder has sufficient knowledge and experience in financial and
business matters so that he is capable of evaluating the merits and risks of his investment in the
Company and has the capacity to protect his own interests.
6.2 Investment. The Holder is acquiring the Warrant and the Shares for investment for
its own account, not as a nominee or agent, and not with the view to, or for resale in connection
with, any distribution thereof. The Holder understands that the Warrant and the Shares have not
been, and will not be, registered under the Act by reason of a specific exemption from the
registration provisions of the Act, the availability of which depends upon, among other things, the
bona fide nature of the investment intent and the accuracy of such Xxxxxx’s representations as
expressed herein.
6.3 Rule 144. The Holder acknowledges that the Warrant and the Shares must be held
indefinitely unless subsequently registered under the Act or unless an exemption from such
registration is available. The Holder is aware of the provisions of Rule 144 promulgated under the
Act which permit limited resale of shares purchased in a private placement subject to the
satisfaction of certain conditions, including, among other things, the existence of a public market
for the shares, the availability of certain current public information about the Company, the
resale occurring not less than one (1) year after a party has purchased and paid for the security
to be sold, the sale being effected through a “broker’s transaction” or in transactions directly
with a “market maker” and the number of shares being sold during any three-month period not
exceeding specified limitations.
6.4 No Public Market. The Holder understands that no public market now exists for any
of the securities issued by the Company and that the Company has made no assurances that a public
market will ever exist for the Company’s securities.
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6.5 No Solicitation. The Holder knows of no public solicitation or advertisement of
an offer in connection with the proposed issuance and sale of the Warrant or the Shares.
6.6 Residence. The residence of the Holder for securities law purposes is set forth
herein on page 6.
7. Restrictions on Transfer.
7.1 Restrictive Legend. Each certificate representing (i) the Shares and (ii) any
other securities issued in respect of the Shares upon any stock split, stock dividend,
recapitalization, merger, consolidation or similar event, (collectively, the “Restricted
Securities”) shall (unless otherwise permitted by the provisions of Section 7.2 below) be stamped
or otherwise imprinted with a legend in substantially the following form (in addition to any legend
required under applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933. THESE SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT.
7.2 Notice of Proposed Transfers. The holder of each certificate representing
Restricted Securities by acceptance thereof agrees to comply in all respects with the provisions of
this Section 7. Prior to any proposed transfer of any Restricted Securities, unless there is in
effect a registration statement under the Act covering the proposed transfer, the holder thereof
shall give written notice to the Company of such Xxxxxx’s intention to effect such transfer. Each
such notice shall describe the manner and circumstances of the proposed transfer in sufficient
detail, and shall, if the Company so requests, be accompanied by either (i) an unqualified written
opinion of legal counsel who shall be reasonably satisfactory to the Company, addressed to the
Company and reasonably satisfactory in form and substance to the Company’s counsel, to the effect
that the proposed transfer of the Restricted Securities may be effected without registration under
the Act, or (ii) a “No Action” letter from the Securities and Exchange Commission (the
“Commission”) to the effect that the transfer of such securities without registration will not
result in a recommendation by the staff of the Commission that action be taken with respect
thereto, whereupon the holder of such Restricted Securities shall be entitled to transfer such
Restricted Securities in accordance with the terms of the notice delivered by the holder to the
Company; provided, however, that no opinion or No Action letter need be obtained with respect to a
transfer to (A) the immediate family of Holder upon the Holder’s death, by will or intestacy, or to
a trust for the benefit of the Holder’s immediate family, (B) a partner, active or retired, of a
holder of Restricted Securities, (C) the estate of any such partner, or (D) an “affiliate” of a
holder of Restricted Securities as that term is defined in Rule 405 promulgated by the Commission
under the Act, provided that in such cases the transferee agrees in writing to be subject to the
terms hereof. Each certificate evidencing the Restricted Securities transferred as above provided
shall bear the appropriate restrictive legend set forth in Section 7.1 above, except that such
certificate shall not bear such restrictive legend if in the opinion of counsel for the Company
such legend is not required in order to establish compliance with any provisions of the Act.
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8. Rights of Stockholders. No holder of this Warrant shall be entitled, as a Warrant
holder, to vote or receive dividends or be deemed the holder of Common Stock or any other
securities of the Company which may at any time be issuable on the exercise hereof for any purpose,
nor shall anything contained herein be construed to confer upon the Holder, as such, any of the
rights of a stockholder of the Company or any right to vote for the election of directors or upon
any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any
corporate action (whether upon any recapitalization, issuance of stock, reclassification of stock,
change of par value, consolidation, merger, conveyance, or otherwise) or to receive notice of
meetings, or to receive dividends or subscription rights or otherwise until the Warrant shall have
been exercised and the Shares purchasable upon the exercise hereof shall have become deliverable,
as provided herein.
9. Market Stand-Off Provision. The holder of this Warrant agrees to be bound by the
“Market Stand-Off” provision in section 1(l) of that certain Xxxxxxx and Restated Investor Rights
Agreement dated as of July 5, 2000 (the “Rights Agreement”) between the Company and certain
Investors.
10. Expiration of Warrant. Notwithstanding any other provision of this “Warrant, this
Warrant shall expire and shall no longer be exercisable upon the earlier to occur of:
| (a) | 5:00 p.m., California time, on June 26, 2011; | ||
| (b) | immediately prior to the initial underwritten public offering of the Company’s Common Stock; or | ||
| (c) | immediately upon the closing of a sale, conveyance, disposal or encumbrance of all or substantially all of the Company’s property or business or the Company’s merger into or consolidation with any other corporation or any other transaction or series of related transactions in which more than fifty percent (50%) of the voting power of the Company is disposed (a “Change of Control”); provided, however, that a Change of Control shall not include any sale of stock directly by the Company to professional venture capital investors in connection with a transaction the primary purpose of which is to raise financing for the Company. |
11. Miscellaneous.
11.1 Governing Law. This Agreement shall be governed in all respects by the laws of
the State of Delaware.
11.2 Successors and Assigns. Except as otherwise provided herein, the provisions
hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs,
executors, and administrators of the Company and the Holder.
11.3 Entire Agreement; Amendment. This Warrant constitutes the full and entire
understanding and agreement between the parties with regard to the subjects hereof. Neither this
Warrant nor any term hereof may be amended, waived, discharged, or terminated other than by a
written
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instrument signed by the parry against whom enforcement of any such amendment, waiver, discharge or
termination is sought.
11.4 Notices, etc.. All notices and other communications required or permitted
hereunder shall be in writing and shall be deemed effectively given upon delivery to the party to
be notified in person or by courier service or by registered or certified mail, postage prepaid,
addressed (a) to the Holder, at the address set forth on the last page of this Warrant or at such
other address as such Holder shall have furnished the Company in writing, or (b) if to the Company,
at the address set forth on the last page of this Warrant and addressed to the attention of the
Chief Executive Officer, or at such other address as the Company shall have furnished to the
Holder.
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Issued this 26th day of June, 2001
| COMSCORE NETWORKS, INC. |
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| By: | /s/ Xxxxx X. Xxxxxx | |||
| Xxxxx X. Xxxxxx, Corporate Secretary | ||||
