COMDISCO LETTERHEAD]
Exhibit 4.3
[COMDISCO LETTERHEAD]
FEDERAL EXPRESS
August 16, 2000
Re: Preferred Stock Warrant Agreement Dated June 9, 2000 to the Master Lease Agreement Dated June
9, 2000, Equipment Schedule Nos. VL-1 and VL-2 Dated as of June 9, 2000 by and between Comdisco,
Inc. (“Warrantholder”) and ComScore, Inc. (“Company”)
Dear Xxxxx,
Pursuant to the closing of your Series B Preferred financing on July 5, 2000, this letter is to
confirm that Comdisco, Inc., as Warrantholder, hereby agrees that the price per share shall be
equal to $2.90/sh providing the right to purchase 46,551 shares for an aggregate price of
$134,997.90 pursuant to the above referenced warrant.
Except as specifically set forth above, all other terms and conditions of the Warrant shall remain
in full force and effect including any adjustments under Section 8.
Please indicate your acceptance by signing in the space provided below and returning to the
undersigned and I will have it countersigned and will forward a copy to you to attach to your copy
of the warrant. If you have any questions, please do not hesitate to call me at (000) 000-0000.
| Sincerely, | ComScore, Inc. | |||||
/s/ Vika Tonga
|
By: | /s/Xxxxx X. Xxxxx | ||||
Vika Tonga
|
Title: | Controller | ||||
Information/Document Specialist |
||||||
| Comdisco, Inc. | ||||||
| By: | /s/Xxxx X. Xxxxxx | |||||
| Title: | /s/SVP | |||||
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AS AMENDED, OR ANY
STATE SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, OR HYPOTHECATED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL (WHICH MAY
BE COMPANY COUNSEL) REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS.
WARRANT AGREEMENT
To Purchase Shares of the Series B Preferred Stock, or Upon Certain Terms, the Series A Preferred Stock of
Dated as of June 9, 2000 (the “Effective Date”)
WHEREAS, ComScore, Inc., a Delaware corporation (the “Company”) has entered into a Master
Lease Agreement dated as of June 9, 2000, Equipment Schedule No. VL-1 and VL-2 dated as of June 9,
2000, and related Summary Equipment Schedules (collectively, the “Leases”) with Comdisco, Inc., a
Delaware corporation (the “Warrantholder”); and
WHEREAS, the Company desires to grant to Warrantholder, in consideration for such Leases, the
right to purchase shares of its Series B Preferred Stock if the Next Round, as defined below, is a
private equity financing, or if the Next Round is a Merger Event, as defined below, or an Initial
Public Offering, as defined below, then shares of its Series A Preferred Stock;
NOW, THEREFORE, in consideration of the Warrantholder executing and delivering such Leases and
in consideration of mutual covenants and agreements contained herein, the Company and Warrantholder
agree as follows:
1. GRANT OF THE RIGHT TO PURCHASE PREFERRED STOCK.
For Value received, the Company hereby grants to the Warrantholder, and the Warrantholder is
entitled, upon the terms and subject to the conditions hereinafter set forth, to subscribe for and
purchase from the Company that number of fully paid and non-assessable shares of the Company’s
Preferred Stock (“Preferred Stock”) equal to One Hundred Thirty-five Thousand Dollars ($135,000.00)
(“Aggregate Purchase Price”), divided by the Exercise Price (“Exercise Price”). .In the event the
Next Round is a financing as defined in (i) below and successfully completed on or before August
31, 2000, Warrantholder shall have the right to purchase from the Company its Series B Preferred
Stock, and the Exercise Price shall be defined as the sum of $1.00 per share (the “Last Round
Price”) plus the product of (a) the difference between the price per share of the next round of
equity financing (the “Next Round”) and the Last Round, multiplied by (b) the fraction resulting
from dividing (x) the number of days from the date of closing of the Last Round to the date of the
Lease proposal (April 12, 2000), by (y) the number of days from the date of the closing of the Last
Round to the date of closing of the Next Round. Notwithstanding the foregoing, the price per share
of the Next Round shall be capped at a Ninety-five Million Dollar Pre-money Valuation. “Nine-five
Million Dollar Pre-Money Valuation” shall be calculated by dividing Nine-five Million Dollars
($95,000,000.00) by the number of fully diluted shares of the Company’s authorized Common Stock,
Preferred Stock, warrants and options, as converted to Common Stock outstanding immediately prior
to the closing of the Next Round. In the event the Next Round is an event as described in (ii) or
(iii) below or the Next Round is not successfully completed by August 31, 2000, then Warrantholder
shall have the right to purchase 135,000 shares of Series A Preferred Stock from the Company at an
Exercise Price of $1.00 per share. The number and purchase price of such shares are subject to
adjustment as provided in Section 8 hereof.
“Next Round” shall be defined as the earlier to occur of (i) preferred stock financing of at
least $2,000,000.00, (ii) the sale, conveyance disposal, or encumbrance of all or substantially all
of the Company’s property or business or Company’s merger into or consolidation with any other
corporation (other than a wholly-owned subsidiary corporation) or any other transaction or series
of related transactions in which more than fifty percent (50%) of the voting power of Company is
disposed of (“Merger Event”), provided that a Merger Event shall not apply to a merger effected
exclusively for the purpose of changing the domicile of the company, or (iii) an initial public
offering of the Company’s Common Stock which such public offering has been declared effective by
the SEC.
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2. TERM OF THE WARRANT AGREEMENT.
Except as otherwise provided for herein, the term of this Warrant Agreement and the right to
purchase Preferred Stock as granted herein shall commence on the Effective Date and shall be
exercisable for a period of (i) ten (10) years or (ii) five (5) years from the effective date of
the Company’s initial public offering, whichever is earlier.
3. EXERCISE OF THE PURCHASE RIGHTS.
(a) Exercise. The purchase rights set forth in this Warrant Agreement are exercisable
by the Warrantholder, in whole or in part, at any time, or from time to time, prior to the
expiration of the term set forth in Section 2 above, by tendering to the Company at its principal
office a notice of exercise in the form attached hereto as Exhibit I (the “Notice of Exercise”),
duly completed and executed. Promptly upon receipt of the Notice of Exercise and the payment of
the purchase price in accordance with the terms set forth below, and in no event later than
twenty-one (21) days thereafter, the Company shall issue to the Warrantholder a certificate for the
number of shares of Preferred Stock purchased and shall execute the acknowledgment of exercise in
the form attached hereto as Exhibit II (the “Acknowledgment of Exercise”) indicating the number of
shares which remain subject to future purchases, if any.
The Exercise Price may be paid at the Warrantholder’s election either (i) by cash or check, or
(ii) by surrender of Warrants (“Net Issuance”) as determined below. If the Warrantholder elects
the Net Issuance method, the Company will issue Preferred Stock in accordance with the following
formula:
X = Y(A-B)
A
A
Where:
|
X = | the number of shares of Preferred Stock to be issued to the Warrantholder, | ||
| Y = | the number of shares of Preferred Stock requested to be exercised under this Warrant Agreement. | |||
| A = | the fair market value of one (1) share of Preferred Stock. | |||
| B = | the Exercise Price. |
For purposes of the above calculation, current fair market value of Preferred Stock shall mean
with respect to each share of Preferred Stock:
(i) if the exercise is in connection with an initial public offering of the Company’s
Common Stock, and if the Company’s Registration Statement relating to such public offering
has been declared effective by the SEC, then the fair market value per share shall be the
product of (x) the initial “Price to Public” specified in the final prospectus with respect
to the offering and (y) the number of shares of Common Stock into which each share of
Preferred Stock is convertible at the time of such exercise;
(ii) if this Warrant is exercised after, and not in connection with the Company’s
initial public offering, and:
(a) if traded on a securities exchange, the fair market value shall be deemed to
be the product of (x) the average of the closing prices over a five (5) day period
ending three days before the day the current fair market value of the securities is
being determined and (y) the number of shares of Common Stock into which each share
of Preferred Stock is convertible at the time of such exercise; or
(b) if actively traded over-the-counter, the fair market value shall be deemed
to be the product of (x) the average of the closing bid and asked prices quoted on
the NASDAQ system (or similar system) over the five (5) day period ending three days
before the day the current fair market value of the securities is being determined
and (y) the number of shares of Common Stock into which each share of Preferred Stock
is convertible at the time of such exercise;
(iii) if at any time the Common Stock is not listed on any securities exchange or
quoted in the NASDAQ System or the over-the-counter market, the current fair market value of
Preferred Stock shall be the product of (x) the highest price per share which the Company
could obtain from a willing buyer (not a current employee or director) for shares of Common
Stock sold by the Company, from authorized but unissued shares, as determined in good faith
by its Board of Directors and (y) the number of shares of
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Common Stock into which each share of Preferred Stock is convertible at the time of such exercise,
unless the Company shall become subject to a merger, acquisition or other consolidation pursuant to
which the Company is not the surviving party, in which case the fair market value of Preferred
Stock shall be deemed to be the value received by the holders of the Company’s Preferred Stock on a
common equivalent basis pursuant to such merger or acquisition.
Upon partial exercise by either cash or Net Issuance, the Company shall promptly issue an
amended Warrant Agreement representing the remaining number of shares purchasable hereunder. All
other terms and conditions of such amended Warrant Agreement shall be identical to those contained
herein, including, but not limited to the Effective Date hereof.
(b) Exercise Prior to Expiration. To the extent this Warrant is not previously
exercised as to all Preferred Stock subject hereto, and if the fair market value of one share of
the Preferred is greater than the Exercise Price then in effect, this Warrant shall be deemed
automatically exercised pursuant to Section 3(a) above (even if not surrendered) immediately before
its expiration. For purposes of such automatic exercise, the fair market value of one share of the
Preferred Stock upon such expiration shall be determined pursuant to Section 3(a) above. To the
extent this Warrant or any portion thereof is deemed automatically exercised pursuant to this
Section 3(b), the Company agrees to promptly notify the Warrantholder of the number of Preferred
Stock, if any, the Warrantholder is to receive by reason of such automatic exercise.
4. RESERVATION Of SHARES.
During the term of this Warrant Agreement, the Company will at all times have authorized and
reserved a sufficient number of shares of its Preferred Stock to provide for the exercise of the
rights to purchase Preferred Stock as provided for herein.
5. NO FRACTIONAL SHARES OR SCRIP.
No fractional shares or scrip representing fractional shares shall be issued upon the exercise
of the Warrant, but in lieu of such fractional shares the Company shall make a cash payment
therefor upon the basis of the Exercise Price then in effect.
6. NO RIGHTS AS SHAREHOLDER.
This Warrant Agreement does not entitle the Warrantholder to any voting rights or other rights
as a shareholder of the Company prior to the exercise of the Warrant.
7. WARRANTHOLDER REGISTRY.
The Company shall maintain a registry showing the name and address of the registered holder of
this Warrant Agreement.
8. ADJUSTMENT RIGHTS.
The purchase price per share and the number of shares of Preferred Stock purchasable hereunder
are subject to adjustment, as follows:
(a) Merger and Sale of Assets. If at any time there shall be a capital reorganization
of the shares of the Company’s stock (other than a combination, reclassification, exchange or
subdivision of shares otherwise provided for herein), or a merger or consolidation of the Company
with or into another corporation whether or not the Company is the surviving corporation, or the
sale of all or substantially all of the Company’s properties and assets to any other person
(hereinafter referred to as a “Merger Event”), then, as a part of such Merger Event, lawful
provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon
exercise of the Warrant, the number of shares of preferred stock or other securities of the
successor corporation resulting from such Merger Event, equivalent in value to that which would
have been issuable if Warrantholder had exercised this Warrant immediately prior to the Merger
Event. In any such case, appropriate adjustment (as determined in good faith by the Company’s
Board of Directors) shall be made in the application of the provisions of this Warrant Agreement
with respect to the rights and interest of the Warrantholder after the Merger Event to the end that
the provisions of this Warrant Agreement (including adjustments of the Exercise Price and number of
shares of Preferred Stock purchasable) shall be applicable to the greatest extent possible.
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(b) Reclassification of Shares. If the Company at any time shall, by combination,
reclassification, exchange or subdivision of securities or otherwise, change any of the securities
as to which purchase rights under this Warrant Agreement exist into the same or a different number
of securities of any other class or classes, this Warrant Agreement shall thereafter represent the
right to acquire such number and kind of securities as would have been issuable as the result of
such change with respect to the securities which were subject to the purchase rights under this
Warrant Agreement immediately prior to such combination, reclassification, exchange, subdivision or
other change.
(c) Subdivision or Combination of Shares. If the Company at any time shall combine or
subdivide its Preferred Stock, the Exercise Price shall be proportionately decreased in the case of
a subdivision, or proportionately increased in the case of a combination.
(d) Stock Dividends. If the Company at any time shall pay a dividend payable in, or
make any other distribution (except any distribution specifically provided for in the foregoing
subsections (a) or (b)) of the Company’s stock, then the Exercise Price shall be adjusted, from and
after the record date of such dividend or distribution, to that price determined by multiplying the
Exercise Price in effect immediately prior to such record date by a fraction (i) the numerator of
which shall be the total number of all shares of the Company’s stock outstanding immediately prior
to such dividend or distribution, and (ii) the denominator of which shall be the total number of
all shares of the Company’s stock outstanding immediately after such dividend or distribution. The
Warrantholder shall thereafter be entitled to purchase, at the Exercise Price resulting from such
adjustment, the number of shares of Preferred Stock (calculated to the nearest whole share)
obtained by multiplying the Exercise Price in effect immediately prior to such adjustment by the
number of shares of Preferred Stock issuable upon the exercise hereof immediately prior to such
adjustment and dividing the product thereof by the Exercise Price resulting from such adjustment.
(e) Right to Purchase Additional Stock. If, the Warrantholder’s total cost of
equipment leased pursuant to the Leases exceeds $3,000,000, Warrantholder shall have the right to
purchase from the Company, at the Exercise Price (adjusted as set forth herein), an additional
number of shares, which number shall be determined by (i) multiplying the amount by which the
Warrantholder’s total equipment cost exceeds $3,000,000 by 4.5%, and (ii) dividing the product
thereof by the Exercise Price per share referenced above.
(f) Antidilution Rights. Additional antidilution rights applicable to the Preferred
Stock purchasable hereunder are as set forth in the Company’s Certificate of Incorporation, as
amended through the Effective Date, a true and complete copy of which is attached hereto as Exhibit
IV (the “Charter”). The Company shall promptly provide the Warrantholder with any restatement,
amendment, modification or waiver of the Charter. The Company shall provide Warrantholder with
prior written notice of any issuance of its stock or other equity security to occur after the
Effective Date of this Warrant, which notice shall include (a) the price at which such stock or
security is to be sold, (b) the number of shares to be issued, and (c) such other information as
necessary for Warrantholder to determine if a dilutive event has occurred.
(g) Notice of Adjustments. If: (i) the Company shall declare any dividend or
distribution upon its stock, whether in cash, property, stock or other securities; (ii) the Company
shall offer for subscription prorata to the holders of any class of its Preferred or other
convertible stock any additional shares of stock of any class or other rights; (iii) there shall be
any Merger Event; (iv) there shall be an initial public offering; or (v) there shall be any
voluntary dissolution, liquidation or winding up of the Company; then, in connection with each such
event, the Company shall send to the Warrantholder: (A) at least twenty (20) 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
Preferred Stock shall be entitled thereto) or for determining rights to vote in respect of such
Merger Event, dissolution, liquidation or winding up; (B) in the case of any such Merger Event,
dissolution, liquidation or winding up, at least twenty (20) days’ prior written notice of the date
when the same shall take place (and specifying the date on which the holders of Preferred Stock
shall be entitled to exchange their Preferred Stock for securities or other property deliverable
upon such Merger Event, dissolution, liquidation or winding up); and (C) in the case of a public
offering, the Company shall give the Warrantholder at least twenty (20) days written notice prior
to the effective date thereof.
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 Warrantholder, at the address as shown on the books of the Company.
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(h) Timely Notice. Failure to timely provide such notice required by subsection (g)
above shall entitle Warrantholder to retain the benefit of the applicable notice period
notwithstanding anything to the contrary contained in any insufficient notice received by
Warrantholder. The notice period shall begin on the date Warrantholder actually receives a written
notice containing all the information specified above.
9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.
(a) Reservation of Preferred Stock. The Preferred Stock issuable upon exercise of the
Warrantholder’s rights has been duly and validly reserved and, when issued in accordance with the
provisions of this Warrant Agreement, will be validly issued, fully paid and non-assessable, and
will be free of any taxes, liens, charges or encumbrances of any nature whatsoever: provided,
however, that the Preferred Stock issuable pursuant to this Warrant Agreement may be subject to
restrictions or transfer under state and/or Federal securities laws. The Company has made
available to the Warrantholder true, correct and complete copies of its Charter and Bylaws, as
amended. The issuance of certificates for shares of Preferred Stock upon exercise of the Warrant
Agreement shall be made without charge to the Warrantholder for any issuance tax in respect
thereof, or other cost incurred by the Company in connection with such exercise and the related
issuance of shares of Preferred Stock. The Company shall not be required to pay any tax which may
be payable in respect of any transfer involved and the issuance and delivery of any certificate in
a name other than that of the Warrantholder.
(b) Due Authority. The execution and delivery by the Company of this Warrant
Agreement and the performance of all obligations of the Company hereunder, including the issuance
to Warrantholder of the right to acquire the shares of Preferred Stock, have been duly authorized
by all necessary corporate action on the part of the Company, and the Leases and this Warrant
Agreement are not inconsistent with the Company’s Charter or Bylaws, do not contravene any law or
governmental rule, regulation or order applicable to it, do not and will not contravene any
provision of, or constitute a default under, any indenture, mortgage, contract or other instrument
to which it is a party or by which it is bound, and the Leases and this Warrant Agreement
constitute legal, valid and binding agreements of the Company, enforceable in accordance with their
respective terms.
(c) Consents and Approvals. No consent or approval of, giving of notice to,
registration with, or taking of any other action in respect of any state, Federal or other
governmental authority or agency is required with respect to the execution, delivery and
performance by the Company of its obligations under this Warrant Agreement, except for the filing
of notices pursuant to Regulation D under the 1933 Act and any filing required by applicable state
securities law, which filings will be effective by the time required thereby.
(d) Issued Securities. All issued and outstanding shares of Common Stock, Preferred
Stock or any other securities of the Company have been duly authorized and validly issued and are
fully paid and nonassessable. All outstanding shares of Common Stock, Preferred Stock and any
other securities were issued in full compliance with all Federal and state securities laws. In
addition, as of the date hereof:
(i) The authorized capital of the Company consists of (A) 50,000,000 shares of Common
Stock, of which 12,122,396 shares are issued and outstanding, and (B) 9,187,500 shares of
Series A Preferred Stock, of which 9,187,500 shares are issued and outstanding and are
convertible into 9,187,500 shares of Common Stock at $1.00 per share.
(ii) The Company has reserved 4,210,937 shares of Common Stock for issuance under its
1999 Stock Plan, under which 3,411,200 options are outstanding at an average price of $0.10
per share. There are no other options, warrants, conversion privileges or other rights
presently outstanding to purchase or otherwise acquire any authorized but unissued shares of
the Company’s capital stock or other securities of the Company.
(iii) In accordance with the Company’s Certificate of Incorporation, no shareholder of
the Company has preemptive rights to purchase new issuances of the Company’s capital stock.
(e) Insurance. The Company has in full force and effect insurance policies, with
extended coverage, insuring the Company and its property and business against such losses and
risks, and in such amounts, as are customary for corporations engaged in a similar business and
similarly situated and as otherwise may be required pursuant to the terms of any other contract or
agreement.
(f) Other Commitments to Register Securities. Except as set forth in this Warrant
Agreement, the Company is not, pursuant to the terms of any other agreement currently in existence,
under any obligation to register under the 1933 Act any of its presently outstanding securities or
any of its securities which may hereafter be issued.
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(g) Exempt Transaction. Subject to the accuracy of the Warrantholder’s
representations in Section 10 hereof, the issuance of the Preferred Stock upon exercise of this
Warrant will constitute a transaction exempt from (i) the registration requirements of Section 5 of
the 1933 Act, in reliance upon Section 4(2) thereof, and (ii) the qualification requirements of the
applicable state securities laws.
(h) Compliance with Rule 144. At the written request of the Warrantholder, who
proposes to sell Preferred Stock issuable upon the exercise of the Warrant in compliance with Rule
144 promulgated by the Securities and Exchange Commission, the Company shall furnish to the
Warrantholder, within ten days after receipt of such request, a written statement confirming the
Company’s compliance with the filing requirements of the Securities and Exchange Commission as set
forth in such Rule, as such Rule may be amended from time to time.
10. REPRESENTATIONS AND COVENANTS OF THE WABRANTHOLDER.
This Warrant Agreement has been entered into by the Company in reliance upon the following
representations and covenants of the Warrantholder:
(a) Investment Purpose. The right to acquire Preferred Stock or the Preferred Stock
issuable upon exercise of the Warrantholder’s rights contained herein will be acquired for
investment and not with a view to the sale or distribution of any part thereof, and the
Warrantholder has no present intention of selling or engaging in any public distribution of the
same except pursuant to a registration or exemption.
(b) Private Issue. The Warrantholder understands (i) that the Preferred Stock
issuable upon exercise of this Warrant is not registered under the 1933 Act or qualified under
applicable state securities laws on the ground that the issuance contemplated by this Warrant
Agreement will be exempt from the registration and qualifications requirements thereof, and (ii)
that the Company’s reliance on such exemption is predicated on the representations set forth in
this Section 10.
(c) Disposition of Warrantholder’s Rights. In no event will the Warrantholder make a
disposition of any of its rights to acquire Preferred Stock or Preferred Stock issuable upon
exercise of such rights unless and until (i) it shall have notified the Company of the proposed
disposition, and (ii) if requested by the Company, it shall have furnished the Company with an
opinion of counsel (which counsel may either be inside or outside counsel to the Warrantholder)
satisfactory to the Company and its counsel to the effect that (A) appropriate action necessary for
compliance with the 1933 Act has been taken, or (B) an exemption from the registration requirements
of the 1933 Act is available. Notwithstanding the foregoing, the restrictions imposed upon the
transferability of any of its rights to acquire Preferred Stock or Preferred Stock issuable on the
exercise of such rights do not apply to transfers from the beneficial owner of any of the
aforementioned securities to its nominee or from such nominee to its beneficial owner, and shall
terminate as to any particular share of Preferred Stock when (1) such security shall have been
effectively registered under the 1933 Act and sold by the holder thereof in accordance with such
registration or (2) such security shall have been sold without registration in compliance with Rule
144 under the 1933 Act, or (3) a letter shall have been issued to the Warrantholder at its request
by the staff of the Securities and Exchange Commission or a ruling shall have been issued to the
Warrantholder at its request by such Commission stating that no action shall be recommended by such
staff or taken by such Commission, as the case may be, if such security is transferred without
registration under the 1933 Act in accordance with the conditions set forth in such letter or
ruling and such letter or ruling specifies that no subsequent restrictions on transfer are
required. Whenever the restrictions imposed hereunder shall terminate, as hereinabove provided,
the Warrantholder or holder of a share of Preferred Stock then outstanding as to which such
restrictions have terminated shall be entitled to receive from the Company, without expense to such
holder, one or more new certificates for the Warrant or for such shares of Preferred Stock not
bearing any restrictive legend.
(d) Financial Risk. The Warrantholder has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of its investment, and has
the ability to bear the economic risks of its investment.
(e) Risk of No Registration. The Warrantholder understands that if the Company does
not register with the Securities and Exchange Commission pursuant to Section 12 of the 1934 Act
(the “1934 Act”), or file reports pursuant to Section 15(d), of the 1934 Act, or if a registration
statement covering the securities under the 1933 Act is not in effect when it desires to sell (i)
the rights to purchase Preferred Stock pursuant to this Warrant Agreement, or (ii) the Preferred
Stock issuable upon exercise of the right to purchase, it may be required to hold such securities
for an indefinite period. The Warrantholder also understands that any sale of its rights of the
Warrantholder to purchase Preferred Stock or Preferred Stock which might be made by it in reliance
upon Rule 144 under the 1933 Act may be made only in accordance with the terms and conditions of
that Rule.
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(f) Accredited Investor. Warrantholder is an “accredited investor” within the meaning
of the Securities and Exchange Rule 501 of Regulation D, as presently in effect.
11. TRANSFERS.
Subject to the terms and conditions contained in Section 10 hereof, this Warrant Agreement and
all rights hereunder are transferable in whole or in part by the Warrantholder and any successor
transferee, provided, however, in no event shall the number of transfers of the rights and
interests in all of the Warrants exceed three (3) transfers. The transfer shall be recorded on the
books of the Company upon receipt by the Company of a notice of transfer in the form attached
hereto as Exhibit III (the “Transfer Notice”), at its principal offices and the payment to the
Company of all transfer taxes and other governmental charges imposed on such transfer,
12. MISCELLANEOUS.
(a) Effective Date. The provisions of this Warrant Agreement shall be construed and
shall be given effect in all respects as if it had been executed and delivered by the Company on
the date hereof. This Warrant Agreement shall be binding upon any successors or assigns of the
Company.
(b) Attorney’s Fees. In any litigation, arbitration or court proceeding between the
Company and the Warrantholder relating hereto, the prevailing party shall be entitled to attorneys’
fees and expenses and all costs of proceedings incurred in enforcing this Warrant Agreement.
(c) Governing Law. This Warrant Agreement shall be governed by and construed for all
purposes under and in accordance with the laws of the State of Illinois.
(d) Counterparts. This Warrant Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the
same instrument.
(e) Notices. Any notice required or permitted hereunder shall be given in writing and
shall be deemed effectively given upon personal delivery, facsimile transmission (provided that the
original is sent by personal delivery or mail as hereinafter set forth) or seven (7) days after
deposit in the United States mail, by registered or certified mail, addressed (i) to the
Warrantholder at 0000 Xxxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Venture Lease
Administration, cc: Legal Department, Attention: General Counsel, (and/or, if by Facsimile, (000)
000-0000 and (000)000-0000) and (ii) to the Company at 0000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxx 000,
Xxxxxx, XX 00000, Attention: Xxxxx Xxxxx (and/or if by Facsimile, (000) 000-0000) or at
such other address as any such party may subsequently designate by written notice to the other
party.
(f) Remedies. In the event of any default hereunder, the non-defaulting party may
proceed to protect and enforce 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 default, and/or an
action for specific performance for any default where Warrantholder will not have an adequate
remedy at law and where damages will not be readily ascertainable. The Company expressly agrees
that it shall not oppose an application by the Warrantholder or any other person entitled to the
benefit of this Agreement requiring specific performance of any or all provisions hereof or
enjoining the Company from continuing to commit any such breach of this Agreement.
(g) 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 actions as may be necessary or appropriate in order to protect the
rights of the Warrantholder against impairment.
(h) Survival. The representations, warranties, covenants and conditions of the
respective parties contained herein or made pursuant to this Warrant Agreement shall survive the
execution and delivery of this Warrant Agreement.
(i) Severability. In the event any one or more of the provisions of this Warrant
Agreement shall for any reason be held invalid, illegal or unenforceable, the remaining provisions
of this Warrant Agreement shall be unimpaired, and the invalid, illegal or unenforceable provision
shall be replaced by a mutually acceptable valid, legal and enforceable provision, which comes
closest to the intention of the parties underlying the invalid illegal or unenforceable provision.
(j) Amendments. Any provision of this Warrant Agreement may be amended by a written
instrument signed by the Company and by the Warrantholder.
- 7 -
(k) Additional Documents. The Company, upon execution of this Warrant Agreement,
shall provide the Warrantholder with certified resolutions with respect to the representations,
warranties and covenants set forth in subparagraphs (a) through (d), (f) and (g) of Section 9
above. If the purchase price for the Leases referenced in the preamble of this Warrant Agreement
exceeds $1,000,000, the Company will also provide Warrantholder with an opinion from the Company’s
counsel with respect to those same representations, warranties and covenants. The Company shall
also supply such other documents as the Warrantholder may from time to time reasonably request.
IN WITNESS WHEREOF, the parties hereto have caused this Warrant Agreement to be executed by
its officers thereunto duty authorized as of the Effective Date.
| COMPANY: | COMSCORE, INC. | |||||
| By: | /s/Xxxxx Xxxxxxx | |||||
| Title: | CEO | |||||
| WARRANTHOLDER: | COMDISCO | |||||
| By: | /s/Xxxx X. Xxxxxx | |||||
| Title: | SVP | |||||
- 8 -
EXHIBIT I
NOTICE
OF EXERCISE
To: COMSCORE, INC.
| (1) | The undersigned Warrantholder hereby elects to purchase _______ shares of the Series _______ Preferred Stock of ComScore, Inc., pursuant to the terms of the Warrant Agreement dated the 9th day of June, 2000 (the “Warrant Agreement”) between ComScore, Inc. and the Warrantholder, and tenders herewith payment of the purchase price for such shares in full, together with all applicable transfer taxes, if any. | |
| (2) | In exercising its rights to purchase the Series _______ Preferred Stock of ComScore, Inc., the undersigned hereby confirms and acknowledges the investment representations and warranties made in Section 10 of the Warrant Agreement. | |
| (3) | Please issue a certificate or certificates representing said shares of Series Preferred Stock in the name of the undersigned or in such other name as is specified below. |
| (Name) | ||||
| (Address) | ||||
| WARRANTHOLDER: | COMDISCO, INC. | |||
| By: | ||||
| Title: | ||||
| Date: | ||||
-9-
EXHIBIT II
ACKNOWLEDGMENT OF EXERCISE
The undersigned ComScore, Inc., hereby acknowledge receipt of the “Notice of Exercise” from
Comdisco, Inc., to purchase
_______ shares of the Series
_______ Preferred Stock of ComScore, Inc., pursuant to the terms of the
Warrant Agreement, and further acknowledges that
_______ shares remain subject to purchase under the terms of the
Warrant Agreement.
| COMPANY: | COMSCORE, INC. | |||
| By: | ||||
| Title: | ||||
| Date: | ||||
-10-
EXHIBIT
III
TRANSFER
NOTICE
(To transfer or assign the foregoing Warrant Agreement execute this form and supply required
information. Do not use this form to purchase shares.)
FOR
VALUE RECEIVED, the foregoing Warrant Agreement and all rights evidenced thereby are hereby
transferred and assigned to
| (Please Print) |
||||||
| whose address is | ||||||
| Dated: | ||||||||
| Holder’s Signature: | ||||||||
| Holder’s Address: | ||||||||
Signature Guaranteed: |
||||||||
NOTE:
The signature to this Transfer Notice must correspond with the name as it appears on the
face of the Warrant Agreement, without alteration or enlargement or any change whatever.
Officers of corporations and those acting in a fiduciary or other representative capacity
should file evidence of authority to assign the foregoing Warrant Agreement.
-11-
EXHIBIT
IV
(INSERT
CHARTER)
-12-
