EXHIBIT 4.4
THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED OR
OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT
OR PURSUANT TO RULE 144 OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
CORPORATION AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
WARRANT TO PURCHASE STOCK
Corporation: WEBSIDESTORY, INC., a Delaware Corporation
Number of Shares: 231,840
Class of Stock: Common
Initial Exercise Price: $0.647 per share
Issue Date: February 2 2001
Expiration Date: February 2, 2006 (Subject to Article 4.1)
THIS WARRANT CERTIFIES THAT, in consideration of the payment of $1.00 and
for other good and valuable consideration, IMPERIAL CREDITCORP or its assignee
("Holder") is entitled to purchase the number of fully paid and nonassessable
shares of the class of securities (the "Shares") of the corporation (the
"Company") at the initial exercise price per Share (the "Warrant Price") all as
set forth above and as adjusted pursuant to Article 2 of this warrant, subject
to the provisions and upon the terms and conditions set forth in this warrant.
ARTICLE 1
EXERCISE
1.1 METHOD OF EXERCISE. Holder may exercise this warrant by delivering
this warrant and a duly executed Notice of Exercise in substantially the form
attached as Appendix 1 to the principal office of the Company. Unless Holder is
exercising the conversion right set forth in Section 1.2, Holder shall also
deliver to the Company a check for the aggregate Warrant Price for the Shares
being purchased.
1.2 CONVERSION RIGHT. In lieu of exercising this warrant as specified in
Section 1.1, Holder may from time to time convert this warrant, in whole or in
part, into a number of Shares determined by dividing (a) the aggregate fair
market value of the Shares or other securities otherwise issuable upon exercise
of this warrant minus the aggregate Warrant Price of such Shares by (b) the fair
market value of one Share. The fair market value of the Shares shall be
determined pursuant to Section 1.4.
1.3 [Intentionally Omitted.]
1.4 FAIR MARKET VALUE. If the Shares are traded regularly in a public
market, the fair market value of the Shares shall be the closing price of the
Shares (or the closing price of the Company's stock into which the Shares are
convertible) reported for the business day immediately before Holder delivers
its Notice of Exercise to the Company. If the Shares are not regularly traded in
a public market, the Board of Directors of the Company shall determine fair
market value in its reasonable good faith judgment. The foregoing
notwithstanding, if Holder
1
advises the Board of Directors in writing that Holder disagrees with such
determination, then the Company and Holder shall promptly agree upon a reputable
investment banking firm to undertake such valuation. If the valuation of such
investment banking firm is greater than that determined by the Board of
Directors, then all fees and expenses of such investment banking firm shall be
paid by the Company. In all other circumstances, such fees and expenses shall be
paid by Holder.
1.5 DELIVERY OF CERTIFICATE AND NEW WARRANT. Promptly after Holder
exercises or converts this warrant, the Company shall deliver to Holder
certificates for the Shares acquired and, if this warrant has not been fully
exercised or converted and has not expired, a new warrant representing the
Shares not so acquired.
1.6 REPLACEMENT OF WARRANTS. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this warrant and, in the case of loss, theft or destruction, on delivery of an
indemnity agreement reasonably satisfactory in form and amount to the Company
or, in the case of mutilation, on surrender and cancellation of this warrant,
the Company at its expense shall execute and deliver, in lieu of this warrant, a
new warrant of like tenor.
1.7 REPURCHASE ON SALE, MERGER, OR CONSOLIDATION OF THE COMPANY.
1.7.1 "ACQUISITION." For the purpose of this warrant, "Acquisition"
means any sale, license, or other disposition of all or substantially all of the
assets (including intellectual property) of the Company, or any reorganization,
consolidation, or merger of the Company where the holders of the Company's
securities before the transaction beneficially own less than 50% of the
outstanding voting securities of the surviving entity after the transaction.
1.7.2 MANDATORY ASSUMPTION OF WARRANT. Upon the closing of any
Acquisition the successor entity shall assume the obligations of this warrant,
and this warrant shall be exercisable for the same securities, cash, and
property as would be payable for the Shares issuable upon exercise of the
unexercised portion of this warrant as if such Shares were outstanding on the
record date for the Acquisition and subsequent closing. The warrant Price shall
be adjusted accordingly.
ARTICLE 2
ADJUSTMENTS TO THE SHARES
2.1 STOCK DIVIDENDS, SPLITS, ETC. If the Company declares or pays
a dividend on its common stock payable in common stock, or other securities,
subdivides the outstanding common stock into a greater or lesser amount, as
applicable, of common stock, then upon exercise of this warrant, for each Share
acquired, Holder shall receive, without cost to Holder, the total number and
kind of securities to which Holder would have been entitled had Holder owned the
Shares of record as of the date the dividend or subdivision occurred.
2
2.2 RECLASSIFICATION, EXCHANGE OR SUBSTITUTION. Upon any
reclassification, exchange, substitution, or other event that results in a
change of the number and/or class of the securities issuable upon exercise or
conversion of this warrant. Holder shall be entitled to receive, upon exercise
or conversion of this warrant, the number and kind of securities and property
that Holder would have received for the Shares if this warrant had been
exercised immediately before such reclassification, exchange, substitution, or
other event. Such an event shall include any automatic conversion of the
outstanding or issuable securities of the Company of the same class or series as
the Shares to common stock pursuant to the terms of the Company's Articles of
Incorporation upon the closing of a registered public offering of the Company's
common stock. The Company or its successor shall promptly issue to Holder a new
warrant for such new securities or other property. The new warrant shall provide
for adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided For in this Article 2 including, without limitation,
adjustments to the Warrant Price and to the number of securities or property
issuable upon exercise of the new warrant. The provisions of this Section 2.2
shall similarly apply to successive reclassifications, exchanges, substitutions,
or other events.
2.3 ADJUSTMENTS FOR COMBINATIONS, ETC. If the outstanding Shares
are combined or consolidated, by reclassification or otherwise, into a lesser
number of shares, the Warrant Price shall be proportionately increased.
2.4 ADJUSTMENTS FOR DILUTING ISSUANCES. The Warrant Price and the
number of Shares issuable upon exercise of this warrant shall be subject to
adjustment, from time to time, in the manner set forth on EXHIBIT A, if
attached, in the event of Diluting Issuances (as defined on EXHIBIT A).
2.5 NO IMPAIRMENT. The Company shall not, by amendment of its
Articles of Incorporation or through a reorganization, transfer of assets,
consolidation, merger, dissolution, issue, or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed under this warrant by the Company, but
shall at all times in good faith assist in carrying out all the provisions of
this Article 2 and in taking all such action as may be necessary or appropriate
to protect Holder's rights under this Article against impairment. If the Company
takes any action affecting the Shares or its common stock other than as
described above that adversely affects Holder's rights under this warrant, the
Warrant Price shall be adjusted downward and the number of Shares issuable upon
exercise of this warrant shall be adjusted upward in such a manner that the
aggregate Warrant Price of this warrant is unchanged.
2.6 CERTIFICATE AS TO ADJUSTMENTS. Upon each adjustment of the
Warrant Price, the Company at its expense shall promptly compute such
adjustment, and furnish Holder with a certificate of its Chief Financial Officer
setting forth such adjustment and the facts upon which such adjustment is based.
The Company shall, upon written request, furnish Holder a certificate setting
forth the Warrant Price in effect upon the date thereof and the series of
adjustments leading to such Warrant Price.
3
ARTICLE 3
REPRESENTATIONS AND COVENANTS OF THE COMPANY
3.1 REPRESENTATIONS AND WARRANTIES. The Company hereby represents and
warrants to the Holder as follows:
(a) All Shares which may be issued upon the exercise of the purchase
right represented by this warrant, and all securities, if any, issuable upon
conversion of the Shares, shall, upon issuance, be duly authorized, validly
issued, fully paid and nonassessable, and free of liens and encumbrances except
for restrictions on transfer provided for herein or under applicable federal
and state securities laws.
(b) The Company's capitalization table, dated January 30, 2001, and
attached hereto as Schedule 1 is true and complete as of the Issue Date.
3.2 NOTICE OF CERTAIN EVENTS. If the Company proposes at any time (a) to
declare any dividend or distribution upon its common stock, whether in cash,
property, stock, or other securities and whether or not a regular cash
dividend; (b) to offer for subscription pro rata to the holders of any class or
series of its stock any additional shares of stock of any class or series or
other rights; (c) to effect any reclassification or recapitalization of common
stock; or (d) to merge or consolidate with or into any other corporation, or
sell, lease, license, or convey all or substantially all of its assets, or to
liquidate, dissolve or wind up, then, in connection with each such event, the
Company shall give Holder (1) at least 20 days prior written notice of the date
on which a record will be taken for such dividend, distribution, or
subscription rights (and specifying the date on which the holders of common
stock will be entitled thereto) or for determining rights to vote, if any, in
respect of the matters referred to in (c) and (d) above; and (2) in the case of
the matters referred to in (c) and (d) above at least 20 days prior written
notice of the date when the same will take place (and specifying the date on
which the holder of common stock will be entitled to exchange their common
stock for securities or other property deliverable upon the occurrence of such
event).
3.3 INFORMATION RIGHTS. So long as the Holder holds this warrant and/or
any of the Shares, the Company shall deliver to the Holder (a) promptly after
mailing, copies of all communiques to the shareholders of the Company, (b)
within ninety (90) days after the end of each fiscal year of the Company, the
annual audited financial statements of the Company certified by independent
public accountants of recognized standing and (c) within forty-five (45) days
after the end of each of the first three quarters of each fiscal year, the
Company's quarterly, unaudited financial statements.
ARTICLE 4
MISCELLANEOUS
4.1 TERM: NOTICE OF EXPIRATION. This warrant is exercisable in whole or
in part, at any time and from time to time on or before the Expiration Date set
forth above; provided, however, that if the Company completes its initial
public offering within the three-year period
4
immediately prior to the Expiration Date, the Expiration Date shall
automatically be extended until the second anniversary of the effective date of
the Company's initial public offering. If this warrant has not been exercised
prior to the Expiration Xxxx, this warrant shall be deemed to have been
automatically exercised on the Expiration Date by "cashless" conversion pursuant
to Section 1.2.
4.2 LEGENDS. This warrant and the Shares (and the securities
issuable, directly or indirectly, upon conversion of the Shares, if any) shall
be imprinted with a legend in substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN
EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR PURSUANT TO RULE 144 OR AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE CORPORATION AND ITS COUNSEL
THAT SUCH REGISTRATION IS NOT REQUIRED.
4.3 COMPLIANCE WITH SECURITIES LAWS ON TRANSFER. This warrant and
the Shares issuable upon exercise of this warrant (and the securities issuable,
directly or indirectly, upon conversion of the Shares, if any) may not be
transferred or assigned in whole or in part without compliance with applicable
federal and state securities laws by the transferor and the transferee
(including, without limitation, the delivery of investment representation
letters and legal opinions reasonably satisfactory to the Company). The Company
shall not require Holder to provide an opinion of counsel if the transfer is to
an affiliate of Holder or if there is no material question as to the
availability of current information as referenced in Rule 144(c), Holder
represents that it has complied with Rule 144(d) and (e) in reasonable detail,
the selling broker represents that it has complied with Rule 144(f), and the
Company is provided with a copy of Holder's notice of proposed sale.
4.4 TRANSFER PROCEDURE. Subject to the provisions of Section 4.3,
Holder may transfer all or part of this warrant or the Shares issuable upon
exercise of this warrant (or the securities issuable, directly or indirectly,
upon conversion of the Shares, if any) by giving the Company notice of the
portion of the warrant being transferred setting forth the name(s), address(es)
and taxpayer identification number(s) of the transferee(s) and surrendering this
warrant to the Company for reissuance of new warrants to (a) the transferee(s),
in such denomination as shall be requested by Holder, and (b) Holder, covering
the number of shares in respect of which the warrant shall not have been
transferred (if applicable); provided, however, that Holder may transfer all or
part of this warrant to its affiliates, including, without limitation, Imperial
Bancorp, at any time without notice to the Company, and such affiliate shall
then be entitled to all the rights of Holder under this warrant and any related
agreements, and the Company shall cooperate fully in ensuring that any stock
issued upon exercise of this warrant is issued in the name of the affiliate that
exercises the warrant. The terms and conditions of this warrant shall inure to
the benefit of, and be binding upon, the Company and the holders hereof and
their respective permitted successors and assigns. Unless the Company is filing
financial information with the SEC pursuant to the Securities Exchange Act of
1934, the Company shall have the right to refuse to transfer any portion of this
warrant to any person who directly competes with the Company.
5
4.5 NOTICES. All notices and other communications from the Company
to the Holder, or vice versa, shall be deemed delivered and effective when given
personally or mailed by first-class registered or certified mail, postage
prepaid, at such address as may have been furnished to the Company or the
Holder, as the case may be, in writing by the Company or such Holder from time
to time, All notices to the Holder shall be addressed as follows:
Imperial Creditcorp
Attn: Controllers Department
X.X. Xxx 00000
Xxx Xxxxxxx, XX 00000-0000
with a copy to:
Imperial Creditcorp
Attn: Warrant Administrator
Special Markets Division
X.X. Xxx 0000
Xxx Xxxxxxxxx, XX 00000-0000
4.6 WAIVER. This warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought.
4.7 ATTORNEYS' FEES. In the event of any dispute between the
parties concerning the terms and provisions of this warrant, the party
prevailing in such dispute shall be entitled to collect from the other party all
costs incurred in such dispute, including reasonable attorneys' fees.
4.8 GOVERNING LAW. This warrant shall be governed by and construed
in accordance with the laws of the State of Delaware, without giving effect to
its principles regarding conflicts of law.
WEBSIDESTORY, INC.
By:/s/ Xxxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: CFO, SRVP
Authorized signatories under Corporate Resolutions to Borrow or an authorized
signer(s) under a resolution covering warrants must sign the warrant.
6
APPENDIX 1
NOTICE OF EXERCISE
1. The undersigned hereby elects to purchase ___________________
shares of the _____________stock of WEBSIDESTORY, INC., pursuant to the terms of
the attached warrant, and tenders herewith payment of the purchase price of such
shares in full.
1. The undersigned hereby elects to convert the attached warrant
into shares in the manner specified in the warrant. This conversion is exercised
with respect to _______ of the shares covered by the warrant.
[STRIKE PARAGRAPH THAT DOES NOT APPLY.]
2. Please issue a certificate or certificates representing said
shares in the name of the undersigned or in such other name as is specified
below:
Imperial Creditcorp
Attn: Controllers Department
X.X. Xxx 00000
Xxx Xxxxxxx, XX 00000
Or Registered Assignee
3. The undersigned represents it is acquiring the shares solely
for its own account and not as a nominee for any other party and not with a view
toward the resale or distribution thereof except in compliance with applicable
securities laws.
IMPERIAL CREDITCORP OR REGISTERED ASSIGNEE
__________________________________
(Signature)
__________________________________
(Date)
EXHIBIT A
IMPERIAL CREDITCORP
ANTI-DILUTION AGREEMENT
THIS ANTI-DILUTION AGREEMENT is entered into as of February 2, 2001 by and
between IMPERIAL CREDITCORP ("Purchaser") and WEBSIDESTORY, INC. (the
"Company").
RECITALS
A. Concurrently with the execution of this Anti-dilution Agreement, the
Purchaser is purchasing from the Company a Warrant to Purchase Stock (the
"Warrant") pursuant to which Purchaser has the right to acquire from the Company
the Shares (as defined in the Warrant).
B. By this Anti-dilution Agreement, the Purchaser and the Company
desire to set forth the adjustment in the number of Shares issuable upon
exercise of the Warrant as a result of a Diluting Issuance (as defined below).
C. Capitalized terms used herein shall have the same meaning as set
forth in the Warrant.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions hereinafter set forth, the parties hereto mutually agree as follows:
SECTION 1. DEFINITIONS. AS USED IN THIS ANTI-DILUTION AGREEMENT, THE
FOLLOWING TERMS HAVE THE FOLLOWING RESPECTIVE MEANINGS:
(a) "Option" means any right, option or warrant to
subscribe for, purchase or otherwise acquire common stock or
Convertible Securities.
(b) "Convertible Securities" means any evidences of
indebtedness, shares of stock or other securities directly or
indirectly convertible into or exchangeable for common stock.
(c) "Issue" means to grant, issue, sell, assume or fix
a record date for determining persons entitled to receive any
security (including Options), whichever of the foregoing is the
first to occur.
(d) "Additional Common Shares" means all common stock
(including reissued shares) Issued (or deemed to be issued pursuant
to Section 2) after the date of the Warrant. Additional Common
Shares does not include, however, any common stock Issued in a
transaction described in Sections 2.1 and 2.2 of the Warrant; any
common stock Issued upon conversion of preferred stock outstanding
on the date of the Warrant; the Shares; or common stock Issued as
incentive or in a
EXHIBIT A
nonfinancing transaction to employees, officers, directors or
consultants to the Company.
(e) The shares of common stock ultimately Issuable
upon exercise of an Option (including the shares of common stock
ultimately Issuable upon conversion or exercise of a Convertible
Security Issuable pursuant to an Option) are deemed to be Issued
when the Option is Issued. The shares of common stock ultimately
Issuable upon conversion or exercise of a Convertible Security
(other than a Convertible Security Issued pursuant to an Option)
shall be deemed Issued upon Issuance of the Convertible Security.
SECTION 2. DEEMED ISSUANCE OF ADDITIONAL COMMON SHARES.
The shares of common stock ultimately Issuable upon exercise of an
Option (including the shares of common stock ultimately Issuable upon conversion
or exercise of a Convertible Security Issuable pursuant to an Option) are deemed
to be Issued when the Option is Issued. The shares of common stock ultimately
Issuable upon conversion or exercise of a Convertible Security (other than a
Convertible Security Issued pursuant to an Option) shall be deemed Issued upon
issuance of the Convertible Security. The maximum number of shares of common
stock Issuable is determined without regard to any future adjustments permitted
under the instrument creating the Options or Convertible Securities.
SECTION 3. ADJUSTMENT OF WARRANT PRICE FOR DILUTING ISSUANCES.
3.1 Weighted Average Adjustment. If the Company issues Additional Common
Shares after the date of the Warrant and the consideration per Additional Common
Share (determined pursuant to Section 9) is less than the Warrant Price in
effect immediately before such Issue (a "Diluting Issuance"), other than with
respect to shares issued to (a) the Company's employees, officer or directors in
connection with their employment or retention of services not to exceed the
number of Shares reserved in the Company's existing equity financing plans, or
(b) customers or vendors in connection with bona fide business transactions, the
Warrant Price in effect immediately before such Issue shall be reduced,
concurrently with such Issue, to a price (calculated to the nearest hundredth of
a cent) determined by multiplying the Warrant Price by a fraction;
(a) the numerator of which is the number of shares of common stock
outstanding immediately before such Issue plus the number of
shares of common stock that the aggregate consideration
received by Company for the Additional Common Shares would
purchase at the Warrant Price in effect immediately before
such Issue, and
(b) the denominator of which is the number of shares of common
stock outstanding immediately before such Issue plus the
number of such Additional Shares.
EXHIBIT A
(3.2) Adjustment of Number of Shares. Upon each adjustment of the Warrant
Price, the number of Shares Issuable upon exercise of the Warrant shall be
increased to equal the quotient obtained by dividing (a) the product resulting
from multiplying (i) the number of Shares Issuable upon exercise of the Warrant
and (ii) the Warrant Price, in each case as in effect immediately before such
adjustment, by (b) the adjusted Warrant Price.
3.3 Securities Deemed Outstanding. For the purpose of this Section 3,
all securities Issuable upon exercise of any outstanding Convertible Securities
or Options, Warrants, or other rights to acquire securities of the Company shall
be deemed to be outstanding.
SECTION 4. NO ADJUSTMENT FOR ISSUANCES FOLLOWING DEEMED ISSUANCES.
No adjustment to the Warrant Price shall be made upon the exercise
of Options or conversion of Convertible Securities.
SECTION 5. ADJUSTMENT FOLLOWING CHANGES IN TERMS OF OPTIONS OR CONVERTIBLE
SECURITIES.
If the consideration payable to, or the number of shares of common
stock Issuable by, the Company increases or decreases, respectively, pursuant to
the terms of any outstanding Options or Convertible Securities, the Warrant
Price shall be recomputed to reflect such increase or decrease. The
recomputation shall be made as of the time of the Issuance of the Options or
Convertible Securities. Any changes in the Warrant Price that occurred after
such Issuance because other Additional Common Shares were Issued or deemed
Issued shall also be recomputed.
SECTION 6. RECOMPUTATION UPON EXPIRATION OR OPTIONS OR CONVERTIBLE
SECURITIES.
The Warrant Price computed upon the original Issue of any Options or
Convertible Securities, and any subsequent adjustments based thereon, shall be
recomputed when any Options or rights of conversion under Convertible Securities
expire without having been exercised. In the case of Convertible Securities or
Options for common stock, the Warrant Price shall be recomputed as if the only
Additional Common Shares Issued were the shares of common stock actually Issued
upon the exercise of such securities, if any, and as if the only consideration
received therefor was the consideration actually received upon the Issue,
exercise or conversion of the Options or Convertible Securities. In the case of
Options for Convertible Securities, the Warrant Price shall be recomputed as if
the only Convertible Securities Issued were the Convertible Securities actually
Issued upon the exercise thereof, if any, and as if the only consideration
received therefor was the consideration actually received by the Company
(determined pursuant to Section 9), if any, upon the Issue of the Options for
the Convertible Securities.
SECTION 7. LIMIT ON READJUSTMENTS.
No readjustment of the Warrant Price pursuant to Sections 5 or 6
shall increase the Warrant Price more than the amount of any decrease made in
respect of the Issue of any Options or Convertible Securities.
EXHIBIT A
SECTION 8. 30 DAY OPTIONS.
In the case of any Options that expire by their terms not more than
30 days after the date of Issue thereof, no adjustment of the Warrant Price
shall be made until the expiration or exercise of all such Options.
SECTION 9. COMPUTATION OF CONSIDERATION.
The consideration received by the Company for the Issue of any
Additional Common Shares shall be computed as follows;
(a) Cash shall be valued at the amount of cash
received by the Corporation, excluding amounts paid or payable
for accrued interest or accrued dividends.
(b) Property. Property, other than cash, shall
be computed at the fair market value thereof at the time of
the Issue as determined in good faith by the Board of
Directors of the Company.
(c) Mixed Consideration. The consideration for
Additional Common Shares Issued together with other property
of the Company for consideration that covers both shall be
determined in good faith by the Board of Directors.
(d) Options and Convertible Securities. The
consideration per Additional Common Share for Options and
Convertible Securities shall be determined by dividing:
(i) the total amount, if any, received or
receivable by the Company for the Issue of the Options
or Convertible Securities, plus the minimum amount of
additional consideration (as set forth in the
instruments relating thereto, without regard to any
provision contained therein for a subsequent adjustment
of such consideration) payable to the Company upon
exercise of the Options or conversion of the Convertible
Securities, by
(ii) the maximum number of shares of common
stock (as set forth in the instruments relating thereto,
without regard to any provision contained therein for a
subsequent adjustment of such number) ultimately
Issuable upon the exercise of such Options or the
conversion of such Convertible Securities.
EXHIBIT A
SECTION 10. GENERAL.
10.1 Governing Law. This Anti-dilution Agreement shall be governed in all
respects by the laws of the State of Delaware as such laws are applied to
agreements between Delaware residents entered into and to be performed entirely
within Delaware.
10.2 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
10.3 Entire Agreement. Except as set forth below, this Anti-dilution
Agreement and the other documents delivered pursuant hereto constitute the full
and entire understanding and agreement between the parties with regard to the
subjects hereof and thereof. This Warrant replaces and cancels that certain
Warrant issued by the Company to Holder and dated August 11, 2000.
10.4 Notices, etc. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by first class mail,
postage prepaid, certified or registered mail, return receipt requested,
addressed (a) if to Purchaser at Purchaser's address as set forth below, or at
such other address as Purchaser shall have furnished to the Company in writing,
or (b) if to the Company, at the Company's Address set forth below, or at such
other address as the Company shall have furnished to the Purchaser in writing.
10.5 Severability. In case any provision of this Anti-dilution Agreement
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions of this Anti-dilution Agreement shall
not in any way be affected or impaired thereby.
10.6 Titles and Subtitles. The titles of the sections and subsections of
this Agreement are for convenience of reference only and are not to be
considered in construing this Anti-dilution Agreement.
10.7 Counterparts. This Anti-dilution Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
PURCHASER: ISSUER:
IMPERIAL CREDITCORP WEBSIDESTORY, INC.
By: /s/ XXX XXXXXXX By: /s/ Xxxxxxx X. Xxxxxxx
------------------------- -------------------------
Name: XXX XXXXXXX Name: Xxxxxxx X. Xxxxxxx
Title: SVP/ICC Title: CFO, SRVP
EXHIBIT A
