Exhibit 4.6
THIS WARRANT AND THE SHARES OF COMMON STOCK WHICH MAY BE PURCHASED UPON 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_____________
MEDIA METRIX, INC.
WARRANT TO PURCHASE ______ SHARES OF COMMON STOCK
THIS CERTIFIES THAT, for value received, _____________________ or its permitted
successors or assigns (the "Holder") is entitled to subscribe for and purchase
___________________ (_____) shares (as adjusted pursuant to Section 3 hereof) of
the fully paid and nonassessable Common Stock (the "Shares"), of Media Metrix,
Inc., a Delaware corporation (the "Company"), at the price (the "Exercise
Price") of _______ ($____) per share (as adjusted pursuant to Section 3 hereof).
This Warrant is issued pursuant to a Note and Warrant Purchase Agreement of even
date herewith (as amended and in effect from time to time, the "Purchase
Agreement") by and among the Company, the Holder and certain other lenders named
in Exhibit A thereto, and is subject thereto. The Holder is entitled to the
rights and subject to the obligations contained in the Purchase Agreement." All
capitalized terms used herein without definition shall have the respective
meanings given to them in the Purchase Agreement.
1. Method of Exercise, Payment.
(a) Cash Exercise. Subject to the provisions of Section 10 hereof,
the purchase rights represented by this Warrant may be exercised by the Holder,
in whole or in part, at any time or from time to time, by the surrender of this
Warrant (with the notice of exercise form attached hereto as Exhibit D-1 duly
executed) at the principal office of the Company, and by the payment to the
Company, by certified, cashier's or other check acceptable to the Company, of an
amount equal to the aggregate Exercise Price of the shares being purchased.
(b) Net Issue Exercise.
(i) In lieu of exercising this Warrant, the Holder may elect
to receive shares equal to the value of this Warrant (or the portion thereof
being canceled) by surrender of this Warrant at the principal office of the
Company together with notice of such election, in which event
the Company shall issue to the Holder a number of shares of the Company's Common
Stock computed using the following formula:
X = (Y (A-B))/A
Where X = the number of shares of Common Stock to be issued to the Holder.
Y = the number of shares of Common Stock purchasable under this Warrant.
A = the Fair Market Value of one share of the Company's Common Stock.
B = the Exercise Price (as adjusted to the date of such calculation).
(c) Fair Market Value. For purposes of this Section 1, the Fair
Market Value of the Company's Common Stock shall mean: (i) The average of the
closing bid and ask prices of the Company's Common Stock quoted in the
Over-the-Counter Market Summary or the closing price quoted on any exchange on
which the Common Stock is listed, whichever is applicable, as published in The
Wall Street Journal for the ten trading days prior to the date of determination
of fair market value; or (ii) If the Company's Common Stock is not traded
over-the-counter or on an exchange, Fair Market Value of the Common Stock per
share shall be determined in good faith by the Board of Directors of the
Company.
(d) Stock Certificates. In the event of any exercise of the rights
represented by this Warrant, certificates for the shares of Common Stock so
purchased shall be delivered to the Holder within a reasonable time and, unless
this Warrant has been fully exercised or has expired, a new Warrant representing
the shares with respect to which this Warrant shall not have been exercised
shall also be issued to the Holder within such time.
2. Representations of the Company.
(a) Stock Fully Paid; Reservation of Shares. All of the Shares
issuable upon the exercise of the rights represented by this Warrant will, upon
issuance and receipt of the Exercise Price therefor, be fully paid and
nonassessable, and free from all 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 shall at all times have authorized and
reserved for issuance sufficient shares of its Common Stock to provide for the
exercise of the rights represented by this Warrant.
(b) Corporate Action. The Company represents that all corporate
actions on the part of the Company, its officers, directors and shareholders
necessary for the sale and issuance of the Shares pursuant hereto and the
performance of the Company's obligations hereunder were taken prior to and are
effective as of the effective date of this Warrant.
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3. Adjustment of Exercise Price and Number of Shares. 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:
(a) 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
consolidation or merger of the Company with or into another corporation (other
than a merger with another corporation in which the Company is a continuing
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 execute a
new Warrant, providing that 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,
consolidation, sale of all or substantially all of the Company's assets or
merger 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. If such
successor or purchasing corporation does not assume the obligations of this
Warrant and Holder has not otherwise exercised this Warrant in full, then the
unexercised portion of this Warrant shall be deemed to have been automatically
converted pursuant to Section 1, and thereafter Holder shall participate in the
acquisition on the same terms as other holders of the same class of securities
of the Company.
(b) 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, 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, effective
at the close of business on the date of such subdivision, stock dividend or
combination, as the case may be.
(c) Dilutive Issuance Adjustment. In the event of a Dilutive
Issuance, as defined in the Purchase Agreement, the number of shares issuable
upon exercise of this Warrant shall be increased by multiplying the number of
shares issuable upon exercise of this Warrant immediately prior to the closing
of the Dilutive Issuance by a number equal to $1.75 (subject to appropriate
adjustment for subdivisions, combinations, reclassifications, recapitalizations
and like events) divided by the price per share of Common Stock applicable to
the Dilutive Issuance. For example, if this Warrant were exercisable for 100,000
shares and the shares issued in the Dilutive Issuance were issued at a price per
share of $1.25, this Warrant would thereafter be exercisable for: 100,000 x
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1.75/1.25 = 140,000 shares of Common Stock. The Exercise Price shall not be
adjusted in the event of a Dilutive Issuance.
4. Notice of Adjustments. Whenever the number of Shares purchasable
hereunder or the Exercise Price thereof shall be adjusted pursuant to Section 3
hereof, the Company shall provide notice by first class mail to the holder of
this Warrant 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 number of Shares which may be purchased and the Exercise
Price therefor after giving effect to such adjustment.
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. Investment Representations. In connection with the purchase of the
Shares, Holder represents to the Company the following:
(a) Holder is aware of the Company's business affairs and financial
condition and has acquired sufficient information about the Company to reach an
informed and knowledgeable decision to acquire the Shares. Holder is purchasing
the Shares for investment for Holder's own account only and not with a view to,
or for resale in connection with, any "distribution" thereof within the meaning
of the Securities Act of 1933, as amended (the "Securities Act").
(b) Holder understands that the Shares have not been registered
under the Securities Act by reason of a specific exemption therefrom, which
exemption depends upon, among other things, the bonafide nature of Holder's
investment intent as expressed herein. In this connection, Holder understands
that, in view of the Securities and Exchange Commission ("Commission"), the
statutory basis for such exemption may not be present if Holder's present
intention is to hold the Shares for a minimum capital gains period under
applicable tax statutes, for a deferred sale, for a market rise, for a sale if
the market does not rise, or for a year or any other fixed period in the future.
(c) Holder further acknowledges and understands that the Shares must
be held indefinitely unless they are subsequently registered under the
Securities Act or an exemption from such registration is available. Holder
further acknowledges and understands that the Company is under no obligation to
register the Shares. Holder understands that the certificate evidencing the
Shares will be imprinted with a legend which prohibits the transfer of the
Shares unless they are registered or such registration is not required in the
opinion of counsel satisfactory to the Company.
7. Stock Certificate Legends. The share certificate evidencing the Shares
issued hereunder shall be endorsed with the following legends:
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(a) THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION MAY BE EFFECTED WITHOUT
AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED
UNDER THE SECURITIES ACT OF 1933.
(b) THE SHARES REPRESENTED BY THIS CERTIFICATE MAY BE TRANSFERRED
ONLY IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT BETWEEN THE COMPANY AND
THE SHAREHOLDER, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE
COMPANY.
(c) Any legend required by any applicable state securities laws.
8. Restrictions Upon Transfer.
(a) So long as the Note issued to the Investor pursuant to the
Purchase Agreement is outstanding, this Warrant may not be transferred unless
such transfer is made together with a permitted transfer of such Note pursuant
to the Purchase Agreement.
(b) The Company need not register a transfer of Shares bearing the
restrictive legend set forth in Section 7 hereof, unless the conditions
specified in such legend are satisfied. The Company may also instruct its
transfer agent not to register the transfer of the Shares, unless one of the
conditions specified in the legend referred to in Section 7 hereof is satisfied.
(c) Notwithstanding the provisions of paragraph (a) above, no
opinion of counsel or "no-action" letter shall be necessary for a transfer
without consideration by any holder (i) to an affiliate of the holder, (ii) if
such holder is a partnership, to a partner or retired partner of such
partnership who retires after the date hereof or to the estate of any such
partner or retired partner, (iii) if such holder is a corporation, to a
shareholder of such corporation, or to any other corporation under common
control, direct or indirect, with such holder, or (iv) by gift, will or
intestate succession of any individual holder to his spouse or siblings, or to
the lineal descendants or ancestors of such holder or his spouse, if the
transferee agrees in writing to be subject to the terms hereof to the same
extent as if such transferee were the original holder hereunder.
9. Rights of Shareholders. 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 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 give or withhold consent to any corporate action (whether upon any
recapitalization, issuance of stock, reclassification of
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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.
10. Term of Warrant.
(a) This Warrant may not be exercised, in whole or in part, until
the earlier of: (i) January 1, 1999, (ii) the consummation of the Next
Financing, or (iii) the occurrence of a Liquidity Event. For purposes hereof,
the term "Liquidity Event" shall mean (a) a consolidation or merger of the
Company resulting in the holders of the issued and outstanding voting securities
of the Company immediately prior to such transaction owning or controlling less
than a majority of the voting securities of the continuing or surviving entity
immediately following such transaction, (b) a sale, lease, exchange, transfer or
other disposition of all or substantially all of the Company's assets to a
person or group of persons, or (c) an initial public offering of the Common
Stock of the Company. Upon the consummation by the Company of an initial public
offering of the Common Stock of the Company pursuant to a registration statement
filed with the Securities and Exchange Commission (other than a Form S-8 or Form
S-4) this warrant shall be canceled to the extent not exercised. The Company
shall provide the Holder with at least ten days' prior written notice of the
consummation of a Liquidity Event.
(b) This Warrant may not be exercised, in whole or in part, at any
time after ___________.
11. Notices. All notices and other communications from the Company to the
Holder shall be mailed by overnight courier or by first-class, registered or
certified mail, postage prepaid, to the address furnished to the Company in
writing by the last Holder who has furnished an address to the Company in
writing, with a copy to Holder's counsel if requested by Holder and such
counsel's address is provided to Company in writing. Notice shall be deemed
given one (1) day after deposit with an overnight courier service, three (3)
days after deposit in the mails as aforesaid or upon delivery if personally
delivered.
12. Change; Waiver. Neither this Warrant nor any term hereof may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought.
13. Governing Law. This Warrant is being delivered in the State of
Delaware, without regard to conflicts of law.
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Issued this ____ day of _____ 199_.
MEDIA METRIX, INC.
By:
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Exhibit D-1
NOTICE OF EXERCISE
TO: Media Metrix, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
1. The undersigned hereby elects to purchase shares of Common Stock of
Media Metrix, Inc. pursuant to the terms of the attached Warrant.
2. Method of Exercise (Please initial the applicable blank):
___ The undersigned elects to exercise the attached Warrant by
means of a cash payment, and tenders herewith payment in full
for the purchase price of the shares being purchased, together
with all applicable transfer taxes, if any.
___ The undersigned elects to exercise the attached Warrant by
means of the net exercise provisions of Section 1(b) of the
Warrant.
3. Please issue a certificate or certificates representing said shares of
Common Stock in the name of the undersigned or in such other name as is
specified below:
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(Name)
---------------------------------
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(Address)
4. The undersigned hereby represents and warrants that the aforesaid
shares of Common Stock 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 and all representations and warranties of
the undersigned set forth in Section 6 of the attached Warrant are true and
correct as of the date hereof. In support thereof, the undersigned hereby
delivers an Investment Representation Statement in a form substantially similar
to the form attached to the Warrant as Exhibit D-2.
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(Signature)
Title:
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Date:
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Exhibit D-2
INVESTMENT REPRESENTATION STATEMENT
PURCHASER: __________________
COMPANY: MEDIA METRIX, INC.
SECURITY: COMMON STOCK ISSUED UPON EXERCISE OF THE STOCK
PURCHASE WARRANT ISSUED ON __________, ▇▇▇▇
▇▇▇▇▇▇: ___________ SHARES
DATE: ___________
In connection with the purchase of the above-listed Securities, the Purchaser
represents to the Company the following:
(a) Purchaser is aware of the Company's business affairs and
financial condition, and has acquired sufficient information about the Company
to reach an informed and knowledgeable decision to acquire the Securities.
Purchaser is purchasing these Securities for its own account for investment
purposes only and not with a view to, or for the resale in connection with, any
"distribution" thereof for purposes of the Securities Act of 1933, as amended
(the "Securities Act").
(b) Purchaser understands that the Securities have not been
registered under the Securities Act in reliance upon a specific exemption
therefrom, which exemption depends upon, among other things, the bona fide
nature of its investment intent as expressed herein. In this connection,
Purchaser understands that, in the view of the Securities and Exchange
Commission (the "SEC"), the statutory basis for such exemption may be
unavailable if its representation was predicated solely upon a present intention
to hold these Securities for the minimum capital gains period specified under
tax statutes, for a deferred sale, for or until an increase or decrease in the
market price of the Securities, or for a period of one year or any other fixed
period in the future.
(c) Purchaser further understands that the Securities must be held
indefinitely unless subsequently registered under the Securities Act or unless
an exemption from registration is otherwise available. Moreover, Purchaser
understands that the Company is under no obligation to register the Securities.
In addition, Purchaser understands that the certificate evidencing the
Securities will be imprinted with a legend which prohibits the transfer of the
Securities unless they are registered or such registration is not required in
the opinion of counsel for the Company.
(d) Purchaser is familiar with the provisions of Rule 144,
promulgated under the Securities Act, which, in substance, permits limited
public resale of "restricted securities" acquired, directly or indirectly, from
the issuer thereof, in a non-public offering subject to the satisfaction of
certain conditions.
The Securities may be resold in certain limited circumstances subject to
the provisions of Rule 144, which requires among other things: (1) the
availability of certain public information about the Company, (2) the resale
occurring not less than one year after the party has purchased, and made full
payment for, within the meaning of Rule 144, the securities to be sold; and, in
the case of an affiliate, or of a non-affiliate who has held the securities less
than two years, (3) the sale being made through a broker in an unsolicited
"broker's transaction" or in transactions directly with a market maker (as said
term is defined under the Securities Exchange Act of 1934) and the amount of
securities being sold during any three month period not exceeding the specified
limitations stated therein, if applicable.
(e) Purchaser agrees, in connection with the Company's initial
underwritten public offering of the Company's securities, (1) not to sell, make
short sale of, loan, grant any options for the purchase of, or otherwise dispose
of any shares of Common Stock of the Company held by me (other than those shares
included in the registration) without the prior written consent of the Company
or the underwriters managing such initial underwritten public offering of the
Company's securities for one hundred eighty (180) days from the effective date
of such registration, and (2) Purchaser further agrees to execute any Agreement
reflecting (1) above as may be requested by the underwriters at the time of the
public offering; provided however that the officers and directors of the Company
who own the stock of the Company also agree to such restrictions.
(f) Purchaser further understands that in the event all of the
applicable requirements of Rule 144 are not satisfied, registration under the
Securities Act, compliance with Regulation A, or some other registration
exemption will be required; and that, notwithstanding the fact that Rule 144 are
not exclusive, the Staff of the SEC has expressed its opinion that persons
proposing to sell private placement securities other than in a registered
offering and otherwise than pursuant to Rule 144 will have a substantial burden
of proof in establishing that an exemption from registration is available for
such offers or sales, and that such persons and their respective brokers who
participate in such transactions do so at their own risk.
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Date:
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Exhibit D-3
FORM OF TRANSFER
(To be signed only upon transfer of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _______________________________________________the right represented by the
attached Warrant to purchase _____________* shares of Common Stock of Media
Metrix, Inc., to which the attached Warrant relates, and appoints
__________________Attorney to transfer such right on the books of Media Metrix,
Inc., with full power of substitution in the premises.
Dated: _____________
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(Signature must conform in all
respects to name of Holder as
specified on the face of the Warrant)
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(Address)
Signed in the presence of:
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* Insert here the number of shares without making any adjustment for additional
shares of Common Stock or any other stock or other securities or property or
cash which, pursuant to the adjustment provisions of the Warrant, may be
deliverable upon exercise.