Exhibit
10.20
AMENDMENT, WAIVER AND TERMINATION AGREEMENT
This Amendment, Waiver and Termination Agreement (this “Agreement”) is made and entered into
as of this 8th day of June, 2007 by and among comScore, Inc., a Delaware corporation (the
“Company”) and the holders of Preferred Stock (as defined below) whose names appear on the
signature pages to this Agreement (each a “Holder” and together the “Holders”).
RECITALS
WHEREAS,
the Company is proposing to sell and issue shares of its common stock, par value
$0.001 per share (the “
Common Stock”), in an underwritten initial public offering pursuant to an
effective registration statement under the Securities Act of 1933, as amended (the “
IPO”);
WHEREAS, pursuant to that certain Series A Preferred Stock Purchase Agreement, dated as of
September 27, 1999 (the “
Series A Purchase Agreement”), by and among
the Company and the Purchasers
(as defined therein),
the Company issued and sold to the Purchasers shares of its Series A
Preferred Stock (the “
Series A Preferred”);
WHEREAS, pursuant to that certain Series B Preferred Stock Purchase Agreement, dated as of
July 5, 2000 (the “
Series B Purchase Agreement”), by and among
the Company and the Purchasers (as
defined therein),
the Company issued and sold to the Purchasers shares of its Series B Preferred
Stock (the “
Series B Preferred”);
WHEREAS, pursuant to that certain Series C Preferred Stock Purchase Agreement, dated as of
August 8, 2001 (the “
Series C Purchase Agreement”), by and among
the Company and the Purchasers (as
defined therein),
the Company issued and sold to the Purchasers shares of its Series C Preferred
Stock (the “
Series C Preferred”);
WHEREAS, pursuant to that certain Series C-1 Preferred Stock Purchase Agreement, dated as of
June 6, 2002 (the “
Series C-1 Purchase Agreement”), by and among
the Company and the Purchasers (as
defined therein),
the Company issued and sold to the Purchasers shares of its Series C-1 Preferred
Stock (the “
Series C-1 Preferred”);
WHEREAS, pursuant to that certain Series D Preferred Stock Purchase Agreement, dated as of
June 6, 2002 (the “
Series D Purchase Agreement”), by and among
the Company and the Purchasers (as
defined therein),
the Company issued and sold to the Purchasers shares of its Series D Preferred
Stock (the “
Series D Preferred”);
WHEREAS, pursuant to that certain Series E Preferred Stock Purchase Agreement, dated as of
August 1, 2003 (the
“Series E Purchase Agreement,” and together with the Series A Purchase
Agreement, Series B Purchase Agreement, Series C Purchase Agreement, Series C-1 Purchase Agreement
and Series D Purchase Agreement, the “
Preferred Stock Purchase Agreements”), by and among the
Company and the Purchasers (as defined therein),
the Company issued and sold to the Purchasers
shares of its Series E Preferred Stock (the
“Series E Preferred,” and together with
the Series A Preferred, Series B Preferred, Series C Preferred, Series C-1 Preferred and
Series D Preferred, the “Preferred Stock”);
WHEREAS, Section 6 of each of the Preferred Stock Purchase Agreements contains ongoing
covenants that govern the conduct of
the Company (the “
Purchase Agreement Covenants”);
WHEREAS,
the Company and the Holders, constituting the holders of a sufficient number of
shares of Preferred Stock to effect an amendment or waiver to each Preferred Stock Purchase
Agreement, desire that the Purchase Agreement Covenants terminate immediately prior to the closing
of the IPO;
WHEREAS, pursuant to Section 1(c) of that certain Fourth Amended and Restated Investor Rights
Agreement, dated as of
August 1, 2003 (the “
Investor Rights Agreement”), by and among
the Company,
the Purchasers and the Founders (as such terms are defined therein),
the Company is required to
provide prompt written notice to each Holder of Registrable Securities (as such terms are defined
in the Investor
Rights Agreement) of its intention to effect an IPO (the “
Notice Rights”);
WHEREAS, pursuant to Section 6 of the Investor
Rights Agreement, Lehman Brothers Venture
Partners L.P. and vSpring SBIC, L.P. have the right to designate one individual as an observer at
all meetings of
the Company’s Board of Directors (and any committees thereof) and to receive any
materials distributed to the members of
the Company’s Board of Directors (and any committees
thereof) (the “
Board Observer Rights”);
WHEREAS,
the Company and the Holders constituting the holders of a sufficient number of shares
of Preferred Stock to effect an amendment or waiver to the applicable provisions of the Investor
Rights Agreement desire that, in connection with the IPO, the Notice Rights be waived and the
Regulatory Side Letter Covenants and the Board Observer Rights be terminated
WHEREAS, pursuant to Section 1(c) of the Investor
Rights Agreement, (i) the underwriters of
the IPO may determine in their sole discretion to exclude all of the Registrable Securities (as
defined in the Investor
Rights Agreement) held by the Holders from participating in the IPO, (ii)
the allocation of any Registrable Securities included in the IPO shall be made on a pro-rata basis
(the “
Selling Stockholder Pro Rata Allocation Right”) and (iii) the number of shares of Registrable
Securities to be included in the IPO shall not be reduced unless all other securities (other than
the shares to be issued by
the Company) are first entirely excluded from the IPO (the “
Selling
Stockholder Exclusion Right”);
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WHEREAS,
the Company and the Holders constituting the holders of a sufficient number of shares
of Preferred Stock to effect an amendment or waiver to the applicable provisions of the Investor
Rights Agreement desire that, in connection with the IPO, the Selling Stockholder Pro Rata
Allocation Right and the Selling Stockholder Exclusion Right be waived;
WHEREAS,
the Company and J.P. Morgan Partners (BHCA), L.P. are parties to that certain
Regulatory Side Letter Agreement, dated as of
August 1, 2003 (the “
J.P. Morgan Regulatory Side
Letter Agreement”) and desire that the J.P. Morgan Regulatory Side Letter Agreement be terminated
in connection with the IPO; and
WHEREAS, the Investor
Rights Agreement contemplates
the Company’s entering into a regulatory
side letter agreement with vSpring SBIC, L.P. (the “
vSpring Regulatory Side Letter Agreement”) and,
if such letter agreement is or has been entered into prior to the closing of the IPO,
the Company
and vSpring SBIC, L.P. desire that the vSpring Regulatory Side Letter Agreement be terminated in
connection with the IPO.
NOW, THEREFORE, BE IT RESOLVED, that in consideration of the foregoing premises and of the
mutual covenants and agreements herein contained, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Holders and
the Company agree as
follows:
1.
Termination of Purchase Agreement Covenants. The Holders and
the Company hereby
agree that each Preferred Stock Purchase Agreement shall be amended such that the Purchase
Agreement Covenants shall terminate and be of no further force or effect immediately prior to the
closing of the IPO.
2. Waiver of Notice Rights. The Holders hereby waive the Notice Rights in connection
with the IPO.
3.
Termination of Regulatory Side Letter Covenants and the Board Observer Rights.
The Holders and
the Company hereby agree that the Investor
Rights Agreement shall be amended such
that the Regulatory Side Letter Covenants and the Board Observer Rights shall terminate and be of
no further force or effect immediately prior to the closing of the IPO.
4.
Waiver of Selling Stockholder Pro Rata Allocation Right and Selling Stockholder
Exclusion Right. The Holders and
the Company hereby waive the Selling Stockholder Pro Rata
Allocation Right and the Selling Stockholder Exclusion Right in connection with the IPO.
5.
Termination of Regulatory Side Letter Agreements.
The Company and J.P. Morgan
Partners (BHCA), L.P. hereby agree that the J.P. Morgan Regulatory Side Letter Agreement shall
terminate and be of no further force or effect immediately prior to the closing of the IPO. The
Company and vSpring SBIC, L.P. hereby agree that the vSpring Regulatory Side Letter Agreement shall
terminate and be of no further force or effect immediately prior to the closing of the IPO.
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6. Additional Provisions.
(a) Governing Law. This Agreement shall be governed by the laws of the State of
Delaware, without regard to conflict of laws provisions.
(b) Severability. In the event that any provision hereof becomes or is declared by a
court of competent jurisdiction to be illegal, unenforceable or void, this Agreement shall
continue in full force and effect as if such provision had never been contained herein.
(c) Integration. This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof and supersedes all prior agreements, written or oral.
(d) Amendment and Waiver. No term of this Agreement may be amended nor the
observance of any term of this Agreement be waived except in a writing signed by
the Company and
the Holders constituting a majority of the capital stock of
the Company (on an as-converted basis)
held by such Holders.
(e) Successors and Assigns. The provisions hereof shall inure to the benefit of, and
be binding upon, the successors, assigns, heirs, executors, and administrators of the parties
hereto.
(f) Headings. Headings are used in this Agreement for reference only and shall not
be considered when interpreting this Agreement.
(g) Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall have the same force and effect as an original and shall constitute an effective,
binding agreement on the part of each of the undersigned.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment, Waiver and Termination
Agreement as of the date first set forth above.
[Signature Page to Amendment, Waiver and Termination Agreement]
