COMSCORE, INC. Item 1.01 Entry into a Material Definitive Agreement.
Stockholders Agreement
On the Closing Date, the Company and the Purchasers entered into a Stockholders Agreement (the "SHA"), pursuant to which, among other things, immediately following the consummation of the Transactions, the Company is obligated to take all necessary action to ensure that the Company's Board of Directors (the "Board") consists of 10 total directors (two designees of each Purchaser, the chief executive officer of the Company and three individuals who were directors of the Company prior to the closing of the Transactions (the "Closing")). See Item 5.02 of this Current Report on Form 8-K for disclosure regarding director appointments.
Under the SHA, the Company is obligated to take all necessary action (to the
extent not prohibited by law) to cause the Board to nominate for election that
number of individuals designated by a Purchaser that, if elected, would result
in two designees of such Purchaser serving on the Board until the earlier of
such time as such Purchaser (a) beneficially owns a number of shares of Series B
Preferred Stock representing less than 50% of the number of shares of Series B
Preferred Stock held by such Purchaser as of the Closing Date after giving
effect to the Transactions ("Initial Preferred Stock Ownership") as a result of
such Purchaser's Transfer (as defined in the SHA) of such shares to any of the
other Purchasers or (b) beneficially owns Voting Stock (as defined in the SHA)
representing less than 10% of the outstanding shares of common stock, par value
Pursuant to the SHA, if one of the Purchasers (the "Buying Stockholder") acquires from one of the other Purchasers (the "Selling Stockholder") a number of shares of Series B Preferred Stock equal to (a) at least 50% (but less than 100%) or (b) 100% of the Selling Stockholder's Initial Preferred Stock Ownership in accordance with the terms of the SHA, the Selling Stockholder will be obligated to cause one (in the case of clause (a)) or two (in the case of clause (b)) of its designated directors to resign, and the Company will be obligated to take all necessary action (to the extent not prohibited by applicable law) to cause the Board to appoint one or two, respectively, additional person(s) designated by the Buying Stockholder to fill such vacancy or vacancies, as applicable. If a Buying Stockholder acquires a number of shares of Common Stock . . .
Item 1.02. Termination of a Material Definitive Agreement.
On the Closing Date, the Company repaid in full the then-outstanding senior
secured convertible notes due
Item 3.02. Unregistered Sales of
The disclosure set forth above in the "Introductory Note" and below in Item 5.03 of this Current Report on Form 8-K related to the Certificate of Designations is incorporated into this Item 3.02 by reference.
Effective immediately prior to the Closing, the holders of the Company Notes
exercised their conversion rights under the Company Notes to convert a portion
of the then-outstanding and unpaid Conversion Amount (as defined in the Company
Notes) into an aggregate of 3,150,000 shares of Common Stock (the "Conversion
Shares"), which were issued by the Company on the Closing Date. In addition, on
the Closing Date, in connection with the repayment of the Company Notes
described in Item 1.02 of this Current Report on Form 8-K, the Company issued to
the holders of the Company Notes an aggregate of 1,363,327 shares of Common
Stock (the "Interest Shares") in lieu of cash payment of
The (i)
Item 3.03. Material Modification to Rights of Security Holders.
The disclosure set forth above in Item 1.01 of this Current Report on Form 8-K related to the SHA and RRA and below in Item 5.03 of this Current Report on Form 8-K related to the Certificate of Designations is incorporated by reference herein.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers.
The disclosure set forth above in Item 1.01 of this Current Report on Form 8-K related to the SHA is incorporated by reference herein.
On
Effective as of the Closing Date, pursuant to the terms of the SHA and as
approved by the Board,
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Audit Committee Compensation Committee Finance and Acquisitions Committee
Nana Banerjee, Chair Kathleen Love, Chair Charles Fisher, Chair
Kathleen Love Nana Banerjee Itzhak Fisher
Marty Patterson David Kline Marty Patterson
Brian Wendling Brent Rosenthal
Growth Committee Nominating and Governance Committee
Nana Banerjee Itzhak Fisher, Chair
Irwin Gotlieb Charles Fisher
David Kline Marty Patterson
Brent Rosenthal
Each new director will earn cash retainers for Board service and service on
certain of the Board committees in accordance with the Company's standard
director compensation program, as described in the Company's definitive proxy
statement for its 2020 annual meeting of stockholders, filed with the
In connection with their appointments, each of the new directors will enter into the Company's standard indemnification agreement for directors and executive officers. The indemnification agreement generally requires the Company to indemnify directors to the fullest extent permitted by law.
Item 5.03. Amendment to Articles of Incorporation or Bylaws, Change in Fiscal
Year.
Certificate of Amendment
On
The foregoing summary of the Certificate of Amendment does not purport to be complete and is subject to, and is qualified in its entirety by, the full text of the Certificate of Amendment, which is filed as Exhibit 3.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Certificate of Designations Designating the Series B Preferred Stock
On
The Series B Preferred Stock ranks senior to the Common Stock with respect to dividend rights and rights on the distribution of assets on any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company and ranks junior to all secured and unsecured indebtedness. The Series B Preferred Stock has a liquidation preference equal to the higher of (i) the initial purchase price, increased by accrued dividends per share, and (ii) the amount per share of Series B Preferred Stock that a holder would have received if such holder, immediately prior to such voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company, converted such share into Common Stock. The holders of Series B Preferred Stock are entitled to participate in all dividends declared on the Common Stock on an as-converted basis and are also entitled to a cumulative dividend at the rate of 7.5% per
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annum, payable annually in arrears and subject to increase under certain specified circumstances ("Annual Dividends"), in each case, on the terms and subject to the conditions set forth in the Certificate of Designations. In addition, such holders are entitled to Special Dividends, on the terms and subject to the conditions more particularly set forth in the SHA.
Subject to certain anti-dilution adjustments and customary provisions related to partial dividend periods, the Series B Preferred Stock is convertible at the option of the holders at any time into a number of shares of Common Stock equal to the Conversion Rate (as defined in the Certificate of Designations), which will initially be 1:1; provided that each holder will receive cash in lieu of fractional shares (if any). At any time after the fifth anniversary of the Closing, the Company may elect to convert all of the outstanding shares of Series B Preferred Stock into shares of Common Stock if (a) the closing sale price of the Common Stock was greater than 140% of the conversion price as of such time, as may be adjusted pursuant to the Certificate of Designations, (i) for at least 20 trading days in any period of 30 consecutive trading days immediately prior to the date of notice of mandatory conversion and (ii) on the . . .
Item 5.07. Submission of Matters to a Vote of Security Holders.
The Company held a special meeting of stockholders (the "Special Meeting") on
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Proposal No. 1: The approval, in accordance with Nasdaq Listing Rules 5635(b) and 5635(d), of the issuance of the Series B Preferred Stock to each of the Purchasers, in accordance with the terms of the Purchase Agreements (the "Share Issuance").
For Against Abstain Broker Non-Votes 46,285,028 9,007,291 7,494 0
Proposal No. 2: The adoption of an amendment to the Company's Amended and
Restated Certificate of Incorporation to permit the creation of the Series B
Preferred Stock and other preferred stock and, in order to permit the Share
Issuance, authorize a sufficient number of shares of preferred stock, par value
For Against Abstain Broker Non-Votes 46,949,231 8,331,377 19,205 0
The Company did not present Proposal No. 3 (the approval of an adjournment of the Special Meeting, if necessary, to solicit additional proxies if there were not sufficient votes in favor of the Share Issuance and/or the Charter Amendment) at the Special Meeting.
Item 7.01. Regulation FD Disclosure.
On
On
The information in this Item 7.01, including Exhibit 99.1 and Exhibit 99.2, is being furnished and shall not be deemed "filed" for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Securities Act or the Exchange Act, regardless of any general incorporation language in such filing.
Item 8.01. Other Events.
On the Closing Date, the Company repaid in full the then-outstanding secured
promissory note due
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
Exhibit
No. Description
3.1 Certificate of Amendment to Amended and Restated Certificate of
Incorporation of comScore , Inc., dated March 10, 2021
3.2 Certificate of Designations of Series B Convertible Preferred
Stock, par value $0.001 , of comScore , Inc., dated March 10, 2021
10.1 Series B Convertible Preferred Stock Purchase Agreement, dated as
of January 7, 2021 , by and between comScore , Inc. and Charter
Communications Holding Company, LLC (incorporated by reference to
Exhibit 10.1 to the Registrant's Current Report on Form 8-K, filed on
January 8, 2021 ) (File No. 001-33520)
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Exhibit
No. Description
10.2 Series B Convertible Preferred Stock Purchase Agreement, dated as of
January 7, 2021 , by and between comScore , Inc. and Qurate Retail, Inc.
(incorporated by reference to Exhibit 10.2 to the Registrant's Current
Report on Form 8-K, filed on January 8, 2021 ) (File No. 001-33520)
10.3 Series B Convertible Preferred Stock Purchase Agreement, dated as of
January 7, 2021 , by and between comScore , Inc. and Pine Investor, LLC
(incorporated by reference to Exhibit 10.3 to the Registrant's Current
Report on Form 8-K, filed on January 8, 2021 ) (File No. 001-33520)
10.4 Stockholders Agreement, dated as of March 10, 2021 , by and among
comScore , Inc., Charter Communications Holding Company, LLC , Qurate
Retail, Inc. and Pine Investor, LLC
10.5 Registration Rights Agreement, dated as of March 10, 2021 , by and
among comScore , Inc., Charter Communications Holding Company, LLC ,
Qurate Retail, Inc. and Pine Investor, LLC
10.6* Data License Agreement, dated as of March 10, 2021 , by and between
comScore , Inc. and Charter Communications Operating, LLC
99.1 Press Release, dated March 9, 2021
99.2 Press Release, dated March 10, 2021
101.INS XBRL Instance Document - the instance document does not appear in the
Interactive Data File because its XBRL tags are embedded within the
Inline XBRL document.
101.SCH Inline XBRL Taxonomy Extension Schema Document.
101.CAL Inline XBRL Taxonomy Extension Calculation Linkbase Document.
101.DEF Inline XBRL Taxonomy Extension Definition Linkbase Document.
101.LAB Inline XBRL Taxonomy Extension Label Linkbase Document.
101.PRE Inline XBRL Taxonomy Extension Presentation Linkbase Document.
104 Cover Page Interactive Data File - the cover page iXBRL tags are
embedded within the Inline XBRL document.
* Specific terms in this exhibit (indicated therein by asterisks) have been
omitted because such terms are both not material and would likely cause
competitive harm to the Company if publicly disclosed.
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