EXHIBIT 4.9
WEBSIDESTORY, INC.
AMENDMENT NO. 2 TO REGISTRATION RIGHTS AGREEMENT
This Amendment No. 2 to the Registration Rights Agreement (the
"AMENDMENT") dated as of September 16, 2004 is entered into by and between
WebSideStory, Inc., a Delaware corporation (the "COMPANY"), and certain
investors as listed on Schedule A attached hereto (the "INVESTORS").
RECITALS
WHEREAS, the Company and the Investors entered into that certain
Registration Rights Agreement dated June 18, 1999, as amended on June 30, 2000,
December 12, 2000, March 2, 2001 and July 21, 2004 (collectively, the "ORIGINAL
AGREEMENT"), under which the Company granted certain registration rights to the
Investors;
WHEREAS, the Company has filed a Registration Statement on Form S-1 for
its initial public offering (the "REGISTRATION STATEMENT") in which the Company
intends to sell shares of its common stock (the "COMMON STOCK");
WHEREAS, pursuant to the Original Agreement, the Investors' right to sell
shares of Common Stock pursuant to the Registration Statement may be limited by
the Company;
WHEREAS, the Original Agreement provides that an amendment of the Original
Agreement may be effected by the written consent of the Company and a Majority
Interest (as such term is defined in the Original Agreement) of the Investors;
and
WHEREAS, the undersigned Investors constitute holders of not less than a
Majority Interest of the Investors and, therefore, are entitled to bind all
other holders of Registrable Securities (as such term is defined in the Original
Agreement) who are parties to the Original Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereby agree as follows:
1. Piggyback Registration. Section 4 is hereby amended in its entirety to read
as follows:
"4. Piggyback Registration.
(a) If the Company at any time proposes to register any of its
Common Stock under the Securities Act for sale to the public
(including pursuant to a demand under Section 2 hereof as provided
therein and except with respect to registration statements on Forms
X-0, X-0 or another form not available for registering the
Registrable Securities for sale to the public), each such time it
will give written notice at the applicable address of record to each
holder of Registrable Securities of its intention to do so. Upon the
written request of any of such holders of the Registrable
Securities, given within thirty (30) days after receipt by such
Person of such notice, the Company will, subject to the limits
contained in this Section 4, use its reasonable best efforts to
cause all such Registrable Securities of said requesting holders to
be registered under the Securities Act and qualified for sale under
any state blue sky law, all to the extent required to permit such
sale or other disposition of said Registrable Securities; provided,
however, that if the Company is advised in writing in good faith by
any managing underwriter of the Company's securities being offered
in a public offering pursuant to such registration statement that
the amount to be sold by persons other than the Company
(collectively, "Selling Stockholders") is greater than the amount
which can be offered without adversely affecting the offering, the
Company may reduce the amount offered for the accounts of Selling
Stockholders (including such holders of shares of Registrable
Securities) to a number deemed satisfactory by such managing
underwriter; and provided further, that the shares to be excluded
shall be determined in the following sequence (except with respect
to a demand under Section 2 hereof): (i) first, securities held by
any Persons not having any such contractual, incidental registration
rights; (ii) second, securities held by any Persons having
contractual, incidental registration rights pursuant to an agreement
which is not this Agreement; (iii) third, securities held by the
Founders (as defined in the Purchase Agreement); and (iv) fourth,
all Registrable Securities in each case as determined on a pro rata
basis in accordance with their holdings. Notwithstanding the
foregoing, except with respect to the Company's first registration
of Common Stock pursuant to the Securities Act, in no event shall
the number of Registrable Securities included in a registration
pursuant to this section be reduced to less than twenty percent
(20%) of all shares to be registered.
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(b) Notwithstanding Section 4(a), with respect to the Registration
Statement previously filed in connection with the Company's initial
public offering (and only with respect to such Registration
Statement), this Section 4(b) shall govern. The Investors shall not
have any right to sell securities pursuant to the Registration
Statement or in connection with the Company's initial public
offering except that the Investors shall be entitled to sell shares
of Registrable Securities, on a pro rata basis, pursuant to the
over-allotment option set forth in the Registration Statement, only
to the extent such option is exercised.
2. Effectiveness of Amendment. In accordance with Section 9 of the
Original Agreement, this Amendment will not be effective unless and until
the Company and a Majority in Interest of the Investors consent in writing
to this Amendment.
3. Termination. This Amendment supersedes in its entirety and terminates
that certain Amendment to Registration Rights Agreement dated July 21, 2004
entered into by and among the Company, Xxxxxx X. Xxxxxxxx and certain of the
Investors (the "JULY AMENDMENT"). This Amendment shall terminate and be of no
further force and effect in the event the Registration Statement is not
effective on or before December 31, 2004.
4. No other waivers; modifications. Except as otherwise expressly provided
in this Amendment, no other portion, section or provision of the Original
Agreement is waived or amended and the Original Agreement shall continue in full
force and effect, in accordance with its terms.
5. Miscellaneous. This Amendment will be governed in all respects by the
laws of the State of California. This Amendment and the Original Agreement
constitute the full and entire understanding and agreement among the parties
with regard to the subjects hereof and supersede all prior written and oral
agreements, representations and commitments, if any, among the parties with
respect to such subjects. This Amendment may be executed in any number of
counterparts, each of which will be an original, but all of which together will
constitute one instrument. Any provision of this Amendment may be waived or
amended only in accordance with the provisions set forth in the Original
Agreement.
[The remainder of this page intentionally left blank.]
3
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the
date first set forth above.
"COMPANY"
WEBSIDESTORY, INC.
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Xxxxxxx X. Xxxxxxxx
President and Chief Executive Officer
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO
REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the
date first set forth above.
"INVESTORS"
TA/ADVENT VIII L.P.
By: TA Associates VIII LLC, its General Partner
By: TA Associates, Inc., its Manager
By: *
------------------------
ADVENT ATLANTIC AND PACIFIC III L.P.
By: TA Associates AAP III Partners,
its General Partner
By: TA Associates, Inc., its General Partner
By: *
------------------------
TA INVESTORS LLC
By: TA Associates, Inc., its Manager
*By: /s/ Xxxx X. Xxxxxxx By: *
--------------------- ------------------------
Xxxx X. Xxxxxxx
Managing Director
TA EXECUTIVES FUND LLC
By: TA Associates, Inc., its Manager
By: *
------------------------
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO
REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the
date first set forth above.
"INVESTORS"
SUMMIT INVESTORS III, L.P.
By: *
------------------------
General Partner
SUMMIT V ADVISORS FUND (QP), L.P.
By: Summit Partners V, L.P., its General Partner
By: Summit Partners, LLC, its General Partner
By: *
------------------------
SUMMIT V ADVISORS FUND, L.P.
By: Summit Partners V, L.P., its General Partner
By: Summit Partners, LLC, its General Partner
*By: /s/ Xxxxxx X. Xxxxxxxxx By: *
------------------------ ------------------------
Xxxxxx X. Xxxxxxxxx
Managing Partner
SUMMIT V COMPANION FUND, L.P.
By: Summit Partners V, L.P., its General Partner
By: Summit Partners, LLC, its General Partner
By: *
------------------------
SUMMIT VENTURES V, L.P.
By: Summit Partners V, L.P., its General Partner
By: Summit Partners, LLC, its General Partner
By: *
------------------------
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO
REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the
date first set forth above.
"INVESTORS"
WESTCLIFF PARTNERS, LP.
By: Westcliff Capital Management, LLC,
its General Partner
By: *
------------------------
WESTCLIFF AGGRESSIVE GROWTH, LP.
By: Westcliff Capital Management, LLC,
its General Partner
By: *
------------------------
WESTCLIFF LONG/SHORT, LP.
By: Westcliff Capital Management, LLC,
its General Partner
*By: By: *
--------------------- ------------------------
Xxxxxxx Xxxxxxx
General Partner WESTCLIFF MASTER FUND, LP.
By: Westcliff Capital Management, LLC,
its General Partner
By: *
------------------------
PALM TRUST
By: Westcliff Capital Management, LLC,
its Investment Advisor
By: *
------------------------
WESTCLIFF PROFIT SHARING PLAN
By: Westcliff Capital Management, LLC,
its General Partner
By: *
------------------------
WESTCLIFF SMALL CAP FUND, LP.
By: Westcliff Capital Management, LLC,
its General Partner
By: *
------------------------
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO
REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the
date first set forth above.
"INVESTORS"
PENINSULA FUND L.P.
By:
------------------------
Xxxxx Xxxxxxx
President
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO
REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the
date first set forth above.
"INVESTORS"
---------------------------
Xxxx Xxxxxxxx
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO
REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the
date first set forth above.
"INVESTORS"
---------------------------
Xxxxx Xxxxxx
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO
REGISTRATION RIGHTS AGREEMENT]
SCHEDULE A
INVESTORS
XXXX XXXXXXXX
XXXXX XXXXXX
TA/ADVENT VIII L.P.
ADVENT ATLANTIC AND PACIFIC III L.P.
TA INVESTORS LLC
TA EXECUTIVES FUND LLC
SUMMIT INVESTORS III, L.P.
SUMMIT V ADVISORS FUND (QP), L.P.
SUMMIT V ADVISORS FUND, L.P.
SUMMIT V COMPANION FUND, L.P.
SUMMIT VENTURES V, L.P.
WESTCLIFF PARTNERS, LP.
WESTCLIFF AGGRESSIVE GROWTH, LP.
WESTCLIFF LONG/SHORT, LP.
WESTCLIFF MASTER FUND, LP.
PALM TRUST
WESTCLIFF PROFIT SHARING PLAN
WESTCLIFF SMALL CAP FUND, LP.
PENINSULA FUND L.P.
